November 12, 2012

Accident Benefits Update – Application for Determination of Catastrophic Impairment will entitle insurer to s. 44 insurer examination

ACCIDENT BENEFITS UPDATE

For the week of November 12 to 17, 2012 

Application for Determination of Catastrophic Impairment will entitle insurer to s. 44 insurer examinations

Rebecca Hardy v. Echelon General Insurance CompanyFSCO A11-003701, October 3, 2012, Arbitrator Killoran

MVC Date: May 3, 2009. Hearing to determine if Echelon’s request that Hardy attend s. 44 neuropsychiatric and occupational therapy assessments was reasonable and necessary.

Hardy applied for and received income replacement benefits and attendant care benefits pending Echelon’s determination of whether she sustained a catastrophic impairment. Echelon requested a neuropsychiatric exam and OT exam to determine the catastrophic application. An occupational therapy assessment had recently been completed to assess a recent form 1 in the amount of over $6000.00 per month. Hardy claimed that the OT insurer medical exam was, or ought to have been the catastrophic insurer examination.

Echelon’s preliminary catastrophic assessment was conducted by Dr. Seiden (MD) who noted that a psychiatric assessment and at-home OT assessment would be required to determine Hardy’s level of impairment. Hardy application was based on two reports supporting catastrophic impairment; the first authored by a physiatrist and psychologist concluding that she had a combined physical and mental impairment WPI of over 55%, and the second by a psychiatrist and an OT, finding that her mental condition had deteriorated, and on that basis alone suffered a 55% WPI. Echelon argued that the second report constituted new information, which suggested a change in her condition.

Echelon relied on Ouellette v. Intact Insurance Co. to support its submission that it is entitled to have Hardy attend as many insurer examinations as she had for her own assessment.

Arbitrator Killoran found that an application for catastrophic impairment represents a change in circumstances at least as significant as that of the 104-week mark. As the Insurer’s has a prima facie right to post-104 insurer examinations, so too should the Insurer in response to an application for determination of catastrophic impairment. She held that Echelon was entitled to require Hardy to attend the examinations to allow the Insurer to be in a position to respond to the application for catastrophic determination. In this case Hardy had never submitted to an insurer neuropsychiatric examination.

Implications

After an application for catastrophic impairment has been submitted, an Insurer has a prima facie right to have the Insured assessed by the same number of assessors with the same specialties as those who supported the Insured’s application.

Accessing This Decision

If you would like to read the adjudicator’s decision for yourself, it can be found at www.fsco.gov.on.ca

If you have questions or comments about this edition of the newsletter, contact Stephanie Ouellette at Legate & Associates:

souellette@legate.ca