March 01, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Pamila Ahlfeld
Date of Decision: January 3, 2014
Is it reasonable and necessary for Mr. H. to attend an occupational therapy examination and neuropsychological examination pursuant to the Schedule?
If the examination is deemed to be reasonable, is Personal Insurance Company entitled to a stay of the arbitration proceedings until such time that Mr. H. attends these examinations?
Is Personal barred from obtaining the above mentioned examinations because it did not comply with the Schedule?
It is reasonably necessary for Mr. H. to attend an occupational therapy examination and neuropsychological examination.
The arbitration proceeding is stayed pending Mr. H.’s attendance at the occupational therapy and neuropsychological examinations.
Personal is not barred from obtaining new assessments based on noncompliance of the Schedule.
When he was six years old Mr. H. was injured in a car accident on August 6, 2004. It is undisputed that he sustained an injury primarily to the frontal lobe of his brain. He applied for and received statutory accident benefits from Personal Insurance payable under the Schedule. He has also been receiving attendant car benefits since the accident. He has been followed by a rehabilitation team since the accident.
In April 2010, Mr. H. submitted a new Form 1 and occupational therapy assessment claiming an increase of attendant care benefits in the amount of $3,099.70 from April 27, 2010 ongoing. Personal was also sent a letter dated April 14, 2010 from Dr. JV providing a psychological update regarding Mr. H.’s attendant care needs.
Personal prepared an OT assessment conducted by RFS which set the amount of benefit at a lower $1,637.40 per month. A rebuttal report was then submitted July 28, 2010 by Mr. H’s OT.
In September 2011 Mr. H. attended an insurer’s examination conducted by a psychologist and an occupational therapist. Their reports were generated in January 2012 each indicating an even lower amount required for Mr. H.’s attendant needs at $556.85 per month. Mr. H.’s attendant care benefits were reduced as a consequence of the reports. A further rebuttal report was submitted to the Personal on May 8, 2012 by Mr. H.’s occupational therapist. The parties were unable to resolve their dispute regarding the quantum of this benefit through mediation, and Mr. H. applied for arbitration at the FSCO.
After the prehearing conference in February 2013, Personal requested that Mr. H. attend two further insurer examinations by a neuropsychologist and occupational therapist. It is these two examinations that Mr. H. is refusing to attend and as such, this preliminary issue has been brought forward.
Personal’s position is that given the variation in medical assessments it is in the interest of fairness to allow them to examine Mr. H again in order to respond to his demand for increased attendant care benefits, and to adjust the file accurately. At the time of the hearing the most recent assessment was already more than a year old. Personal argues that Mr. H. is an adolescent who is now performing well in school and that Mr. H.’s development is evolving as he reaches adulthood. Assessments are required to update the situation regarding Mr. H.’s needs.
Mr. H’s ARGUMENT
Mr. H. has provided Personal with “voluminous medical and rehabilitation information” in order that it may assess the validity of claims made for attendant care benefits including eight formal assessments dealing specifically with this benefit and the insurer’s own seven reports on the subject over the last 9 years. The request for further examinations came three years after the attendant care benefits were claimed, disputed and mediation/arbitration proceedings commenced. Moreover, there have been three insurer examinations since Mr. H.’s claim for attendant care came into dispute and it is Mr. Ben’s position that Mr. H.’s attendant care claim has not changed. Mr. H’s OT raised concerns that the repeated examinations were placing extreme stress on Mr. H. and his parents which is detrimental to Mr. H.’s well-being. In addition it was submitted that the insurer’s request for further and duplicative examinations are for the purposes of bolstering the insurer’s case in anticipation of the upcoming hearing. Mr. H also argued that Personal failed to provide a formal notice and request for a new assessment and is therefore not entitled to compel Mr. H to comply.
The Arbitrator reviewed the law in this case, and paid particular attention to section 42(7). Personal does not dispute the fact that the attendant care examinations were not requested exactly pursuant to section 42(7) of the Schedule but notwithstanding argues that fairness in the proceedings outweighs the non-compliance issue. The Arbitrator found that given the circumstances the non-compliance issue has no impact on this decision.
The Arbitrator turned next to the IE requests by Personal for OT and neuropsychological assessment, and whether they were reasonable. The Arbitrator was of the opinion that given the established frequency of assessments of Mr. H (every year to year and a half) it is not unreasonable for Personal to request new examinations. The insurer has an ongoing obligation to provide the services required by Mr. H. as they relate to the motor vehicle accident.
The Arbitrator found that the requests were made in a timely fashion and noted that Mr. H. has not had an insurer examination relating to attendant care benefits for over two years and it will be three years by the time the arbitration is heard. The Arbitrator also found that given the amount of information in the file and the variety of opinions therein contained it is reasonable to get a fresh opinion. Personal has continued to pay benefits throughout this period. The Arbitrator therefore found it would be unfair to proceed to an arbitration until such time that Personal has had the opportunity to assess Mr. H.’s attendant care needs.