The recent FSCO arbitration decision between Luther and Economical Mutual Insurance Company (May 23, 2012) has created quite a stir in that the Mr. Luther was awarded specified accident benefits (IRB’s) despite refusing an insurer’s assessment to determine the need for such benefits. While Mr. Luther attended the assessment, he refused to sign the insurance examiner’s consent on the advice of his lawyer on the grounds that “…in a section 42 examination mandated by the Schedule, written consents were superfluous and not required…”

The arbitrator, Mr. John Wilson, noted that “…Given the common law strictures in the Health Care Consent Act, not to mention the Personal Health Information Protection Act, 2004, it is unrealistic to expect a medical practitioner to conduct an examination, without casting his or her mind to the authority under which it is undertaken and whether specific consent may be necessary for the examination and the provision of its results and observations to a third party…” he continued that “…I accept that it is reasonable for an examiner to ask for a generalized consent before undertaking a section 42 examination and to document that process…”

Mr. Wilson put forward that what was at issue was not a generalized principle about signing consents, but whether Economical had established that Mr. Luther was in breach of his obligation to be assessed under the Schedule. While ultimately assessors were found who would proceed under a modified consent form agreed to by the parties, and benefits subsequently reinstated, a dispute continued over the payment of funds withheld between December 11, 2008 and September 30, 2009, the dates of the stoppage related to the abortive assessment. It was noted that “…Mr. Luther did consent to the examinations, just not in the manner demanded by the assessors…The unfortunate aspect of this was that the process of dealing with assessors and consents took a long time. During that time, Mr. Luther was without benefits, even though the Insurer has acknowledged that, but for the assessment issue, he remained entitled to ongoing payments…”

As this reads, I conclude that the arbitrator, Mr. Wilson, did NOT conclude that verbal consent was sufficient for the purpose of an insurer’s IME. What he did conclude was that “…any written consents requested should be simple, consistent, and in accordance with the purposes of the Schedule…” The consent in question was not. This should be a concern to IME companies who seek a waiver of liability for assessment injury which is not a part of the Schedule.

Effectively, Mr. Luther won access to disputed benefits because he reasonably attended the assessment and the insurer did not provide access to a reasonable written consent form (despite knowing that there would be an issue). As I stated, in the end, Mr. Luther did sign a more agreeable consent.

In support of the need for written consent in the context of an IME, the College of Chiropractors of Ontario (Standard of Practice S-018) states the elements of an IME consent:

  1. fully informed
  2. voluntarily given
  3. related to the patient’s condition or circumstance
  4. not obtained through fraud or misrepresentation
  5. evidenced through written form signed by the patient or otherwise documented in the patient record

These elements are no different from those required for chiropractors to gather consent in their own clinic setting.

In conclusion, chiropractor assessors should continue to gather written consent in the IME setting. However, any patient required alteration of an IME’s consent to assessment should be done prior to the prescribed evaluation such that the examination can be performed in a timely and reasonable manner. It seems reasonable to provide a copy of the “to-be-signed consent” to the patient prior to the assessment so this process can be facilitated.