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Insurer unable to demonstrate need for further occupational therapy assessment

March 30, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before:  Adjudicator John Wilson

Date of Decision: February 10, 2014

 

Issues:

 

Jean Hamilton was injured in a car accident on June 12, 2009. She applied for statutory accident benefits from Aviva Canada Inc. payable under the Schedule on the basis that she is catastrophically impaired with category G (marked psychological) impairment. The parties were unable to resolve their disputes through mediation, and Mrs. Hamilton applied for arbitration at the Financial Services Commission of Ontario.

 

Aviva declined to make a determination on catastrophic impairment until a further occupational therapy “in-home” assessment took place. This assessment would support of an assessment by its designated neuropsychologist. Mrs. Hamilton declined to undergo a further occupational therapy in-home assessment since the Insurer already conducted an occupational assessment which in combination with clinical records of the treating occupational therapists should have provided adequate information for the Insurer’s expert to formulate his opinion as to catastrophic impairment.

 

The issue in this motion is:

 

  1. Should this arbitration be stayed by reason of Mrs. Hamilton’s failure to make herself reasonably available for a further in-home occupational therapy assessment?

 

Result:

 

  1. Aviva has not demonstrated that Mrs. Hamilton should attend a further in-home occupational therapy assessment at this time. Consequently, the arbitration is not stayed.

 

EVIDENCE AND ANALYSIS:

 

The Arbitrator noted un-contradicted references in the Applicant’s material to her psychological fragility, which would enter into any consideration of the reasonableness of further assessments.

 

Aviva brought a motion forward because Mrs. Hamilton refused to attend a proposed Occupational Therapy assessment scheduled by Aviva as part of its catastrophic impairment assessment process. The motion is a two part one

  • Is Mrs. Hamilton in breach of the Schedule by not making herself available for assessment?
  • Is a stay of proceedings appropriate because of the non-attendance?

 

Section 44 sets out that the insured should make herself available for examinations “not more often than is reasonable necessary”. Without this, and the related elements of the insurance contract, Aviva would have no right to examine Mrs. Hamilton. The Arbitrator also reviewed section 45 of the Schedule which outlines examination related to catastrophic impairment.

 

There was no issue about the examination by a neuropsychologist, only this further proposed examination which was to be performed by an occupational therapist (OT). Neither Aviva, nor the neuropsychologist were able to provide the rationale for an additional examination. OT exams can form a valuable part of any catastrophic impairment, but the burden of demonstrating a further in-home examination was reasonable was placed on Aviva. Mrs. Hamilton indicated there was already significant OT information collected leading up to the latest request.

 

In this case, it is the obligation of the neuropsychologist assessing catastrophic impairment to consult, collate and incorporate that situational information before reaching a definite conclusion as to impairment. The report which was issued by the neuropsychologist was internally inconsistent with the need for any further assessments, nor did his review of the many OT reports include an existing in home review by an OT in 2009.  He also claimed that no further “clinical information or diagnostic testing is required in order to confirm my diagnosis.”

 

The Arbitrator therefore found that Aviva did not meet the evidentiary burden of proving that Mrs. Hamilton was required to attend the further occupational therapy examinations proposed by Aviva. He also found that a stay of the arbitration at this juncture was not an appropriate remedy.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Fractures, Pain and Suffering, Treatment

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About Deutschmann Law

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.

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