Insured required to attend insurer neuropsychological assessment
November 09, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Deborah Pressman
Date of Decision: June 27, 2013
Andrew Tailleur was injured in a single car accident on May 11, 2003 at the age of 18. As a result of the accident he was deemed catastrophically impaired due to his GCS score. Since his accident Mr. Tailleur completed college programs and a work placement, lived on his own as well as with his fiancée. Seven years after the accident in 2010, Royal determined Mr. Tailleur was independent in his self-care, requiring assistance only for exercise and in his financial affairs.
Royal has questioned Mr. Tailleur’s entitlement to ongoing attendant care benefits. Royal could not complete an Assessment of Attendant Care Needs Form without consideration for Mr. Tailleur’s psychological difficulties. Mr. Tailleur has refused to attend a neuropsychological examination requested by Royal.
The question before the Arbitrator was whether it was reasonably necessary for Mr. Tailleur to attend a neuropsychological exam, and whether Royal was entitled to a stay in proceedings until such an exam was completed.
The Schedule provides that, as often as is reasonably necessary, an insurer may require an insured person to be examined by one or more regulated health professionals to assist the insurer to determine if the insured person is or continues to be entitled to a benefit. More recently, judges and arbitrators have defined an insurer’s right to examinations in the context of fairness, on the basis that fairness is fundamental to any administrative process and that an assessment may be required for a fair hearing.
The Arbitrator noted that Royal had requested an updated attendant Care Needs Assessment in June 2012. Mr. Tailleur attended an in-home OT assessment which could not be completed due to his current psychological injuries. She did note, however, that he did not require help with self-care.
Mr. Tailleur has not undergone a neuropsychological assessment in over seven years, and the Arbitrator found it reasonable for Royal have an updated one particularly as Mr. Tailleur’s cognitive injuries must be considered in an Attendant Care Needs Assessment. Mr. Tailleur’s position was that an OT is not qualified to recommend a neuropsychological assessment and that a new one would likely reveal similar results as the one done in 2006. It was also his position that his own treating psychologist is the most appropriate assessor to conduct the neuropsychological exam. The Arbitrator disagreed as it is clear in the Schedule and in case law that the insurer is entitled to choose its evaluating medical specialist.
On this basis the Arbitrator concluded that it was fair and reasonable to require Mr. Tailleur attend the neuropsychological exam. Case law also supports Royal’s request to have arbitration stayed until the exam is completed.
|Posted under Accident Benefit News, Car Accidents, Catastrophic Injury, Chronic Pain, Pain and Suffering
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.