June 05, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Edward Lee
Decision Date: April 14, 2011
The applicant, Meghan Innes, was involved in an automobile accident on January 26, 2008. She had already undergone a post 104-week IRB assessment, and was asked to attend further in person medical examinations to determine whether she had sustained Catastrophic Impairment.
Innes brought a motion for an order to declare that further in-person medical examinations proposed by Intact Insurance Company were not reasonably necessary to determine whether she was catastrophically impaired.
Ms. Innes also sought an order requiring the insurer make its determination on catastrophic impairment by reviewing existing medical records, or by referring the question to its assessors who had recently examined the applicant.
In response, Intact Insurance sought to stay the proceedings until the Ms. Innes had attended medical assessments with qualified assessors to assist Intact Insurance in determining whether Ms. Innes has sustained a catastrophic impairment.
The issue at this hearing was:
1. Were the additional in-person medical examinations proposed by the insurer reasonably necessary to assist the insurer to determine if Ms. Innes was catastrophically impaired?
Ms. Innes was involved in an automobile accident on January 26, 2008. On December 10, 2009 she submitted an Application for Approval of an Assessment or Examination (OCF-22). She attended three insurer’s medical examinations between December 2009 and March 2010 to determine whether she was entitled to income replacement benefits post 104-weeks.
The examiners issued reports in January and April 2010, concluding that Ms. Innes was not entitled to post 104-week benefits.
Ms. Innes filed an Application for a Determination of Catastrophic Impairment (OCF-19) on May 3, 2010.
On May 31, 2010, the Insurer informed Ms. Innes that it could not determine if she had sustained a catastrophic impairment and requested that she attend four more in-person medical examinations before a neurologist, a physiatrist, an occupational therapist and an orthopedic surgeon to determine if she had been catastrophically impaired.
Ms. Innes attended the first of these insurer's medical examinations in July 2010, but subsequently refused to attend the three remaining scheduled catastrophic assessments on the grounds that they were neither reasonable nor necessary.
MS. INNES' ARGUMENT:
Ms. Innes argued that the medical examinations were neither reasonable nor necessary for the following reasons.
First, no new issues were raised in the claim requiring further medical evaluation by the insurer. Although the application for a determination of catastrophic impairment raised the new issue of catastrophic impairment, the impairments upon which such an opinion would be based were not new. The insurer had already conducted numerous in-person assessments of Ms. Innes, including the four most recent, performed between December 2009 and July 2010.
Second, Intact Insurance could have asked Ms. Innes to attend an in-person examination on the catastrophic issue at any time based upon section 42 of the Schedule, so long as the request was reasonable and necessary. Intact Insurance did not have to wait to receive the Application for a Determination of Catastrophic Impairment, because Intact had already received notice of the impending catastrophic claim through the Application for an Approval of an Assessment or Examination (which referred to the applicant's own assessment for the purpose of determining catastrophic injury) filed by Ms. Innes in December 2009. At that time, the section 42 examinations for the post 104-week IRBs had not yet taken place. Intact could have taken steps to have the catastrophic assessments performed simultaneously with the post 104-week IRB assessments.
Third, Intact Insurance failed to consider whether it already had sufficient information to determine whether Ms. Innes was catastrophically impaired before sending Ms. Innes to four further assessments. In the five months preceding the requests for examinations on catastrophic impairment, Intact had received five reports arising from in-person examinations before a neurologist, an orthopedic surgeon, a psychologist, a general practitioner and a physiotherapist, all chosen by Intact.
Ms. Innes argued the proposed examinations to determine catastrophic impairment were redundant. Further, she was given no information why the insurer required an occupational therapist's assessment.
Finally, Ms. Innes argued Intact Insurance did not provide evidence that it had asked any of its recent section 42 assessors to opine on the catastrophic issue, based on the section 42 examinations to determine entitlement to post 104-week IRBs.
The arbitrator then reviewed the relevant provisions of the Schedule :
Determination of Catastrophic Impairment
40(1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
(2) Within 30 days after receiving an application under subsection (1), the insurer shall give the insured person,
(a) a notice stating that the insurer has determined that the impairment is a catastrophic impairment; or
(b) a notice advising the insured person that the insurer requires the insured person to be examined under section 42 to assist the insurer in determining if the impairment is a catastrophic impairment. O. Reg. 546/05, s. 18.
Examination Required by Insurer
42(1) For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this section by one or more persons chosen by the insurer who are members of a health profession or are social workers or who have expertise in vocational rehabilitation.
(2) Subsection (1) does not apply with respect to,
(a) a benefit to which section 37.1 applies, other than an amount claimed for ancillary goods or services referred to in section 37.2; or
(b) a funeral benefit or death benefit.
The arbitrator reviewed the decision of Al-Shimasawi and Wawanesa Mutual Insurance Company (FSCO A05-0202737, at page 8) where the arbitrator provided a long and detailed summary of the most important principles and factors to consider in this type of motion. They can be paraphrased as follows:
1. The onus is on the insurer to establish that the proposed examination is reasonable;
2. The timing of the request;
3. The possible prejudice to both sides;
4. The nature and number of previous examinations and the nature of the examinations being requested;
5. Whether any new issues are being raised;
6. Whether there is a reasonable nexus between the examination requested and the applicant's injuries.
The arbitrator used those factors relevant to this case to determine that, no arbitration hearing date had been set, thus there was no risk of delaying any upcoming arbitration. The insurer’s requests were not likely a matter of “trial brinkmanship”.
He also noted Ms. Innes’ current scheduled examinations related to a determination of catastrophic impairment. The previous and most recent insurer's examinations were assessments to determine entitlement to post 104-week IRBs.
Ms. Innes' application for catastrophic impairment was based on 'whole person impairment'. That examination is conducted as part of a multi-disciplinary assessment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment.
Although similar benefits may be claimed before and after a catastrophic determination (as suggested by Ms. Innes), a different assessment is required for a catastrophic determination than for entitlement to post 104-week IRBs. The catastrophic assessments would not be a mere repeat of the previous assessments for post 104-week disability.
The arbitrator was not convinced the information available to the insurance company from the section 42 examinations would be sufficient to assess a catastrophic impairment claim.
Nor was the arbitrator convinced that Intact Insurance could have proceeded with a catastrophic assessment at any time based on section 42 of the Schedule (as suggested by Ms. Innes), and that having received notice in the form of Ms. Innes' Application for an Approval of an Assessment or Examination (OCF-22) in December 2009, it should have immediately proceeded to combine its catastrophic assessments with its assessments on the post 104-week IRBs issue.
Section 40 of the Schedule deals specifically with catastrophic determination, and that section allows an insurer 30 days after receiving an Application for a Catastrophic Determination to give the insured a notice to attend a section 42 assessment to determine if the person is catastrophically impaired.
The receipt of an OCF-22 only informs the insurer that the applicant intends to undergo her own assessments for catastrophic impairment. It does not notify the insurer that the applicant has been determined to be catastrophically impaired. That determination remains unknown until the insurer receives the applicant's own assessments. An applicant might be determined to be not catastrophically impaired by her own assessors. Therefore, the scheme of the Schedule suggests that an insurer could wait until it received the Application for a Determination of Catastrophic Impairment before trying to send the applicant to insurer's examinations.
In the present case, at the time of the post 104-week IRB assessments, Ms. Innes had not filed her Application for a Determination of Catastrophic Impairment. That application only took place on May 3, 2010. Within 30 days, and as permitted by section 40, the insurer responded and requested that Ms. Innes attend assessments for catastrophic impairment.
Ms. Innes relied heavily on the decision of H.T. and Security National Insurance Co./Monnex Insurance Mgmt. Inc. to argue that Intact Insurance was required to provide evidence as to why in-person examinations were contemplated and whether consideration had been given to the sufficiency of a paper review of existing medical documentation.
The arbitrator determined that the conditions that applied to H.T. and Security National Insurance Co./Monnex Insurance Mgmt. Inc did not exist in Ms. Innes’ case.
The arbitrator in H.T. decided that the proposed catastrophic examinations were neither reasonable nor necessary because (1): there was a risk to the insured of suicide, and (2): the application for catastrophic impairment proceeded the date when the section 42 examination was conducted.
In Ms. Innes’ case there is no evidence that any prejudice might accrue to Ms. Innes were she to attend further examinations. Further, her application for a catastrophic determination had not been filed until after the post 104-week IRB assessments were done. Unlike the H.T. case, it was not possible for the insurer to combine the post 104-week IRB assessments with the catastrophic assessments.
In Ms. Innes’ case the arbitrator found the following:
First, the timing of the Intact Insurance’s request was reasonable.
Second, a new issue, that of catastrophic impairment, was raised. The tests and assessments for catastrophic impairment differ from those appropriate to a post 104-week IRB assessment. The insurer reasonably required this information to assess the claim.
There was a reasonable nexus between the examinations requested and the applicant's injuries.
The prejudice to Intact Insurance of being unable to properly assess Ms. Innes for a catastrophic impairment exceeds the prejudice to Ms. Innes of attending the assessments.
Therefore, the arbitrator found that the requests for in-person examinations with the persons named by Intact Insurance to assess catastrophic impairment were reasonable and necessary.