Our first case this month deals with the interpretation of “essential” medical services and the proper threshold to be met under Section B of the New Brunswick Standard Automobile Policy.
Our second case this month is a decision of the New Brunswick Court of Queen’s Bench allowing an IME doctor to record his interview with the Plaintiff for use in preparing his report.
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Webb v. Aviva Insurance Company, 2011 NBQB 98
The Plaintiff was involved in two motor vehicles accidents, one in December 2006 and a second in August 2008. While both accidents contributed to her neck, shoulder and back injuries, there was no history of headaches until after the second accident. The Plaintiff attended physiotherapy and massage therapy until January 2009 at which time Dr. Forgeron recommended the Plaintiff start a regular exercise regime with a personal trainer. Although this treatment provided relief for her soft tissue injuries, it did not decrease her headache symptoms. In February 2010, the Plaintiff was referred to Dr. MacLean who prescribed “physiotherapy, acupuncture, etc.” for treatment of the Plaintiff’s headaches. The Court inferred that the “etc.” written on the prescription note meant massage therapy.
In April 2010, the Plaintiff underwent an IME with Dr. Koshi at the request of Aviva. Dr. Koshi’s conclusion was that further massage therapy and physiotherapy were not recommended. Based on this finding, Aviva refused to pay the cost of further massage therapy treatments. Despite Aviva’s decision, the Plaintiff’s family physician continued to write prescriptions for massage therapy and the Plaintiff continued to attend. She then commenced this action against Aviva to recover the costs of massage therapy treatments after April 2010.
The primary question before the Court was whether the massage therapy received after April 2010 was “essential” for treatment of the Plaintiff’s injuries. In reviewing the policy wording contained in Section B of the New Brunswick Standard Automobile Policy, the Court held that massage therapy would fall under subparagraph (a), however, an analysis of the language in both subparagraphs (a) and (c) was required to determine the appropriate threshold to be applied.
Under subsection (c) the policy provided that the services set out therein are essential if that is the conclusion of both the insured’s attending physician and the insurer’s medical advisor. Subsection (a), however, does not set out such a test for determining whether medical services are necessary. Therefore, the Court held that a lower threshold existed for services covered under this subparagraph. As the more stringent threshold outlined in subsection (c) required the agreement of two doctors, the Court held that a lower threshold would require the opinion of only one doctor.
As the Plaintiff’s family physician was of the opinion that the massage therapy was necessary for the Plaintiff’s treatment, the lower threshold was met and Aviva was ordered to reimburse the Plaintiff for the cost of the massage therapy treatments she received since April 2010.
Blair v. Hare, 20011 NBQB 140
The Plaintiff was involved in a motor vehicle accident on November 10, 2007. After the action was commenced and discovery had occurred, the Defendant retained Dr. Rosenberg to perform an IME of the Plaintiff. After reviewing the available documentation, which included chart notes and discovery evidence, Dr. Rosenberg requested that his examination be recorded by a court stenographer so that the transcript could be used to assist him in preparing his report. His reasoning for wanting the examination recorded was that the documentation provided illustrated that the Plaintiff had speech difficulties, gave lengthy answers at discovery and had prior conflicts with the opinions of his doctors. The Plaintiff consented to the IME, but would not consent to the examination being recorded. The Defendant then brought this Motion.
As there are no provisions in the New Brunswick Rules of Court regarding the recording of an IME interview, the Court was forced to consider whether this was an appropriate case for exercising its discretion. After reviewing case law from the Ontario Court of Appeal, which outlined a number of factors to consider in such motions, the Court held that the advantages of having the transcript would be beneficial to all parties; it would create an independent objective record of what transpired, allow the defendant to know the case they must meet and increase the chances of pre-trial settlement. Further, the Court was not convinced that there would be any negative impact to the Plaintiff’s health in granting the Order. As such, the Order was granted to allow Dr. Rosenberg to examine the Plaintiff in the presence of a court stenographer who would transcribe the interview and a copy of the transcript would then be provided to the Plaintiff free of charge.