Can an insurer deny all Section B benefits if an insured agrees to attend an independent medical examination on conditions that conflict with the examining medical practitioner's protocol? The Alberta Court of Queen's Bench had occasion to consider this in Greenidge v Allstate Insurance Company (2018 ABQB 266) and answered this question in the affirmative. More recently, the Court of Appeal in Greenidge v Allstate Insurance Company (2019 ABCA 52) heard the appeal of that issue and also answered the issue in the affirmative. In short, an insured who conditions their compliance with a Section B policy on conditions that do not accord with an election made by the insurer can disentitle that insured from further benefits.
Ms Greenidge (the insured) suffered soft tissue, whiplash and temporomandibular joint (TMJ) injuries from a motor vehicle accident. Allstate Insurance Company began to make payments to the insured, pursuant to Section B of the insured's SPF 1 policy (the policy), for her whiplash and TMJ injuries. Allstate arranged an independent medical examination for her injuries unrelated to the TMJ injury. The insured refused to attend the independent medical examination unless it was video recorded, which conflicted with the examining medical practitioner's protocol; as a result, Allstate discontinued all benefits.
The parties proceeded with a trial of two issues:
- Did Allstate breach the terms of the policy when it discontinued coverage for further benefits under the policy after:
- Greenidge declined to attend the medical examination under the policy unless it was video recorded; and
- Allstate declined to accommodate Greenidge's request?
- If Allstate did not breach the policy, was Allstate entitled under the policy to deny Greenidge further coverage for TMJ treatment?
The insured took the position that by denying a video recorded medical examination which would have promoted a fair and transparent process, Allstate had breached its duty of utmost good faith. Further, as the medical examination did not relate to the TMJ injuries, Allstate had no right to deny coverage for the TMJ injuries.
After reviewing the duty of utmost good faith, principles concerning the interpretation of insurance policies and the language of Section B, the trial judge concluded that the insurer had not been in breach of the policy by refusing to accommodate the video recording.
The trial judge recognised that Special Provision 4 of Section B is unambiguous. In light of the insurer's right to name the medical practitioner who will conduct a medical exam, there had been nothing unfair about selecting a medical practitioner whose protocol did not permit video recordings. Section B did not restrict the medical practitioner in the manner of conducting their examination.
Further, given that the medical examination was sought in the context of a Section B claim and not through Rule 5.42(1)(b) of the Rules of Court – which allows medical examinations to be video recorded – it had no application to the insured's circumstance.
The court also found that Special Provision 6(b) of Section B forms the basis for disentitling the insured from any Section B benefits:
No person shall bring an action to recover the amount of a claim under this section unless the requirements of provisions (3) and (4) are complied with, nor until the amount of the loss has been ascertained as provided in this section.
The court found accordingly that:
[43] [The insured] has in effect brought an action to recover 'the amount of a claim'. Such claim is in relation to both the Whiplash injuries and the TMJ injuries… she does so having not complied with Special Provision 4.
The absence of any reference to subclaims or separate claims in Special Provision 6(b) meant that the insured "was no longer entitled to commence an action against Allstate to recover an amount in relation to any injuries which she alleged she suffered as a result of the motor accident".
The insured appealed only the first issue to the Alberta Court of Appeal, arguing that the trial judge had erred for several reasons:
- by not giving effect to the ordinary meaning of the provisions (ie, to "afford to a duly qualified medical practitioner named by the Insurer an opportunity"), which the insured argued she had satisfied in providing "a set of circumstances" that made it possible for the examination to occur;
- because the provision as to medical reports is silent as to the manner of the exam, the trial judge erred in reading in a requirement that the insured attend the examination on the terms dictated by the practitioner; and
- by interpreting the provision in a manner that had been unfair to the insured and failing to find that the respondent had breached its duty of utmost good faith for insisting that the practitioner's terms be met.
The court dismissed the appeal and found that Special Provision 4, which is clear and unambiguous, describes the insurer's right to select a practitioner; these rights cannot be declined or modified. The insurer's selected practitioner must be permitted to conduct the examination according to their protocol; otherwise, the right to select may be nullified. Neither fairness, nor the duty of utmost good faith, are engaged when an insurer relies on compliance with a term of the policy.
Greenidge subsumes, within the terms of Special Provision 4 and the insurer's right of election, the protocol of a practitioner selected to prepare a medical report. In conjunction with Special Provision 6(b), a failure to comply with that protocol – or any other terms of the Section B policy – may disentitle a Section B claimant from any further benefits.
While Greenidge is specific to Section B claims, the broader takeaway is equally instructive: relying on the clear terms of a policy does not necessarily impugn the duty of utmost good faith. That duty cannot be relied on to displace or revise the unambiguous terms of a policy.
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