November 02, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Anne Sone
Date of Decision: June 20, 2013
Lucille Jodoin was injured in a head on motor vehicle accident on May 22, 2000 at the age of 10. She sustained facial fractures, complete loss of vision in one eye, brain injury and musculoskeletal impairments.
The issues before the Arbitrator were whether in light of her claim to accident benefits, the refusal of Ms. Jodoin to attend additional assessments requested by Gore Mutual was reasonable, and whether Gore is entitled to an adjournment of the arbitration hearing in order to allow time for catastrophic assessments.
Ms. Jodoin was assessed by Dr. R, psychologist in early 2008. He concluded that she had accident related depression, anxiety and peer relationship problems. In 2009 she was undergoing treatment for physical impairments to her neck and back, and had range of motion and muscular imbalance problems. In 2009 at the age of 19 she made an application for a determination of catastrophic impairment. Dr. M, physiatrist conducted a paper review which showed her whole person impairment (WPI) at 24% for loss of vision and 10% for cosmetic deformity. Other persistent problems were identified but not rated.
Later in 2009 Dr. R submitted a second report concluding Ms. Jodoin suffers psychological or behavioral impairments in all four spheres of function with mild-moderate impairment in her daily living, and a marked impairment in her social functioning. Using the fourth edition of the AMA guides he concluded she suffers a WPI in the range of 25% to 50%. He concluded the midpoint of 37% of WPI was appropriate. Her combined WPI was 57.5% which exceeds the 55% WPI threshold for catastrophic impairment.
In 2009 in response to Ms. Jodoin’s assessments Gore obtained multi-disciplinary insurer’s examinations. In the summary report signed by all assessors it was concluded that Ms. Jodoin’s WPI for physical impairments totalled 32% and that she had a mild psychological or behavioral impairment. She did not meet the threshold for catastrophic impairment and on this basis denied her claim for CAB.
Ms. Jodoin filed an application for mediation in 2010 challenging Gore Mutual’s denial of her catastrophic impairment. The mediation failed. She then filed an application for arbitration in 2011. The hearing was set for April 2013. In March 2012 Gore received a treatment plan for chiropractic therapy.
In January 2013 she served Gore with further catastrophic assessments. Gore Mutual stated that it was not advised during or after the pre-hearing that Ms. Jodoin was seeking additional catastrophic assessment. The reports were delayed in being served to Gore for a variety of administrative reasons. They revised the WPI to 73-76%. According to Ms. Jodoin the change in WPI was in large part due to a change in methodology of the assessment according to Ms. Jodoin. In February 2013 Gore Mutual wrote Ms. Jodoin enclosing notices of examination for updated catastrophic assessments with a team of professionals. In March 2013 she advised Gore she would not attend.
Gore submits that the changing assessments and scores for Ms. Jodoin’s WPI indicated a significant change in her condition. Gore indicated it has an ongoing obligation to adjust the file and to seek opinions responding to new information provided by Ms. Jodoin. They also indicated that Ms. Jodoin would not be prejudiced by any delay as she had not reached the monetary limits on her medical and rehabilitation benefits and had never applied for housekeeping or attendant care benefits. Gore requested an adjournment in order to conduct a full range of assessments by an occupational therapist, neurologist, ophthalmologist, psychologist, orthopaedic surgeon, and psychiatrist.
Ms. Jodoin argued that Gore received a treatment plan in March of 2012 for chiropractic therapy and had an opportunity to examine her at that time. She also submits that the ratings of her impairments were not new, and that her higher overall WPI was not evidence of marked deterioration. Finally, it is her position that a delay in arbitration means a delay in access to housekeeping and attendant care benefits. She was firm in her position that the Arbitrator had no authority to order a new assessment.
Arbitrator Sone reviewed the law. The Schedule provides that an insurer may require and insured person to be examined as often as is reasonable and necessary to be examined to determine entitlement to a benefit. Arbitrator Sone also indicated that there is no authority for an arbitrator to order an applicant to attend an insurer’s examination but that they do have broad implicit powers to control the process to ensure a fair hearing.
Arbitrator Sone concluded that in terms of fairness as required by natural justice it was appropriate for Gore Mutual to conduct a catastrophic assessment as it had not conducted one in 3.5 years. In addition the fact that Ms. Jodoin’s WPI rating had changed significantly provides new evidence in support of her position. It would be unfair to preclude Gore Mutual from conducting its own examination. The Arbitrator noted that Ms. Jodoin’s delay in submission of her assessments from 2012 to Gore Mutual effectively prevented Gore from obtaining its own catastrophic assessments in time to file the before the start day of the April 2013 hearing. She also indicated that Ms. Jodoin’s submission of a chiropractic treatment plan was not notice of a reassessment on her part.
Arbitrator Sone was not persuaded that Ms. Jodoin would be prejudiced by a delay in the hearing. She did agree that Gore’s position would be prejudiced if they were forced to proceed without a new catastrophic assessment. Arbitrator Sone determined that assessment by the occupational therapist, neurologist, ophthalmologist and psychologist would unreasonably intrude upon Ms. Jodoin’s privacy but the Arbitrator stayed the arbitration until such time as Ms. Jodoin attends the examinations that Gore arranged with an orthopaedic surgeon and psychiatrist.