Insurer entitled to examination to respond to new developments prior to arbitration.
June 28, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Stuart Mutch
Date of Decision: May 6, 2014
REASONS FOR DECISION
Bronwen Navage was injured in car accidents that took place on February 8, 1994 and February 17, 1996. Disputes arose between Ms. Navage and Aviva concerning her entitlement to accident benefits and Ms. Navage applied for arbitration at the Financial Services Commission of Ontario. The arbitration is set for June 23-26, 2014.
In addition to an Order abridging the time for the filing reports, Aviva filed a motion requesting an Order staying the arbitration proceedings pending Ms. Navage’s participation in an insurer’s examination with an occupational therapist as they claim they would be highly prejudiced in the forthcoming arbitration hearing without its own assessment of Ms. Navage’s attendant care needs.
Aviva’s request is in response to an addendum report dated September 17, 2012 by occupational therapist NR indicating that the cost of Ms. Navage’s monthly attendant care needs is $5,733.49, a substantial increase from her August 2012 estimate of $924.04 per month. The reason for the increase is that Ms. Navage began to experience “black outs”, a “high risk for falls” and “very disturbed sleep patterns” which would require a significantly increased level of personal supervision.
Ms. Navage’s counsel opposes this request on several grounds. One is that Ms. Navage was assessed, at the request of Aviva, by an occupational therapist AV, in September 2011. Her report concluded Ms. Navage is “substantially disabled from the management of both, the parameters of self-care as well as her Preaccident [sic] homemaking responsibilities”. No Form 1 was provided by AV as required by the Schedule, and despite numerous requests a Form 1was not provided until 2013. The Form 1 indicates that the cost of Ms. Navage’s attendant care needs is nil. Aviva says that this contradicts AV’s September 2011 report and that the Form 1 is flawed because it contains the wrong date of accident.
Ms. Navage argues there is no need for a further assessment, it is simply a matter of producing a new Form 1 that properly reflects the conclusion reached in AV’s 2011 report. Aviva argues that AV’s report is tainted in that she stepped outside her area of expertise by commenting on the cause of Ms. Navage’s disability.
One of the tenets of procedural fairness is that parties have an opportunity to make full answer to the position of the other party. In these circumstances, Ms. Navage has obtained a report that paints a dramatically different picture of her attendant care needs. Aviva’s report by AV however, was prepared before NR’s addendum in 2012, and does not address the new issues of black outs. The Arbitrator ruled that it would be unfair to proceed to arbitration without giving Aviva an opportunity to re-assess Ms. Navage in light of the new developments in her condition. It is also possible that a further assessment may have the effect of settling the issue and obviating the need to arbitrate it.
|Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Spinal Cord Injury, Treatment
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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.