July 13, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Suesan Alves
Decision date: June 17, 2008
Ms. Rushlow sustained injuries, including a brain injury in a motor vehicle accident on April 14, 1996. Ms. Rushlow was a seven year old pedestrian who was attending Grade 2 at the time of the accident. She applied for arbitration at the Financial Services Commission of Ontario in relation to her claims for entitlement to loss of earning capacity benefits.
Following the pre-hearing, counsel for ING arranged a neuropsychological assessment of Ms. Rushlow with Dr. Robyn Stephens, a psychologist, to determine whether she was entitled to education disability benefits. Counsel for Ms. Rushlow disputed the assessment was reasonable, and declined to have Ms. Rushlow assessed.
Section 65 of the Schedule permits an insurer to arrange insurer examinations for the purposes of determining entitlement to education benefits and loss of earning capacity benefits "as often as reasonably necessary."
In the case of Vidinopulos and Liberty Mutual Insurance Company of Canada it was found that the arbitrator´s focus should be on information available to the insurer at the time the request was made. The arbitrator´s role is to weigh all the circumstances to determine whether an insurer´s examination is reasonably necessary for the insurer to effectively assess entitlement. An insurer´s request must be determined in light of the nature of the applicant´s injuries, the history of any treatment or assessments and the relevance of the proposed examination to the issues in dispute in the arbitration.
Following the accident, Ms. Rushlow had a Glasgow Coma Scale reading of 8/15. A CT-Scan taken following the accident showed evidence of small mid-brain pinpoint hemorrhages. An MRI about a year later, in 1997, showed evidence of diffuse axonal injury, as well as evidence of earlier hemorrhaging in her anterior corpus callosum. The corpus callosum is a thick band of fibres which connects the left and right hemispheres of the brain. The MRI also showed asymmetry in her occipital lobe.
Neuropsychological assessments examine brain-behaviour relationships, provide information as to the location and severity of a brain injury, and identify which cognitive abilities are impaired or remain intact. ING submitted that they had yet to arrange that type of assessment for Ms. Rushlow. The arbitrator rejected this submission. She found that ING had conducted several neuropsychological insurer examinations of Ms. Rushlow.
Dr. Aurelie K. Collings, a neuropsychologist, performed Ms. Rushlow´s initial neuropsychological examination in April 1997. This was based on a referral from Halifax Insurance Company, now ING. Dr. Collings recommended that Ms. Rushlow undergo a further neuropsychological assessment the following year. That assessment in April 1998 and the subsequent ones performed by Dr. Collings in December 1999, November 30, 2001, January 2002 and 2003 were all arranged by the case manager, and paid for by ING. The arbitrator found that in arranging those examinations the case manager acted as ING´s agent. She also found that all of the assessments which Dr. Collings performed were insurer examinations under section 65 of the Schedule.
In 2003, Dr. Collings found that after nearly eight years post-injury, Ms. Rushlow had essentially reached a plateau in terms of her intellectual or neurocognitive functions. Ms. Rushlow´s work experiences had been minimal and of limited success. The typical pattern was for Ms. Rushlow to work well for approximately an hour before she would begin to complain about being tired. Her attention would begin to wander and she would sometimes act inappropriately such as lying across the worktable or taking a nap. Dr. Collings attributed this behaviour to Ms. Rushlow´s fatigue levels and lack of social judgment, both of which stemmed from the accident. Dr. Collings found that it was unlikely that Ms. Rushlow was competitively employable on a full-time basis, but thought that she might be able to manage part-time vocational work.
In September 2005, counsel for Ms. Rushlow arranged for Dr. Joanna Hamilton, a psychologist, to conduct a neuropsychological and vocational assessment. Dr. Hamilton has authored three reports in relation to Ms. Rushlow. Dr. Hamilton concurred with Dr. Collings´ opinion that Ms. Rushlow´s cognitive functioning had plateaued.
Given that the experts on both sides agreed that Ms. Rushlow´s cognitive function had plateaued, the arbitrator found that further neuropsychological testing of Ms. Rushlow to be unnecessary and therefore not reasonable. No useful purpose was served by requiring Ms. Rushlow to submit to yet another neuropsychological assessment.
The limited area of dispute between these experts in neuropsychology was whether Ms. Rushlow was able to do part-time work, or only be able to do volunteer work, which would have provided her with some sense of satisfaction.
The arbitrator was not persuaded by the submission that ING should have a further assessment simply because Ms. Rushlow was an adult at the time of the hearing. The arbitrator found that Ms. Rushlow had been the subject of numerous assessments and reports between the ages of seven and nineteen. In this case, the facts and history had been well established and documented. There was a wealth of documentation referred to in the neuropsychological assessments. The documents included occupational therapy assessments and progress reports; speech language pathology progress reports, augmentative communication services computer consultation report; speech language and a cognitive communication assessment report, rehabilitation reports, school report cards, case conference minutes and follow-up reports from the Child Development Centre, which provided much of Ms. Rushlow´s rehabilitation.
Therefore, the overall wealth of previous assessments provided enough evidence. ING´s request for another assessment did not meet Section 65 of the Schedule´s stipulation for being "reasonably necessary."