July 15, 2013

Accident Benefits Update: CAT out of the bag?

ACCIDENT BENEFITS UPDATE

For the week of July 15 to July 19, 2013

CAT out of the bag? Arbitrator orders additional assessments for the determination of catastrophic impairment

Jodoin v. Gore Mutual Insurance Company, FSCO A11-002456- Motion before Arbitrator Sone, heard April 4 and 11, 2013

Lucille Jodoin was injured in a collision on May 22, 2000.  She was ten years old at the time. As a result of the collision she suffered complete loss of vision in her right eye, facial fractures, a brain injury and musculoskeletal injuries.  In 2009, she submitted an application to determine if she had sustained a catastrophic impairment under the SABS. Based on her physical impairments and overall “moderate” psychological impairment,  Ms. Jodoin’s combined Whole Person Impairment (“WPI”) rating was 57.5%, which met the 55% threshold for catastrophic impairment under the SABS.

Gore Mutual, Ms. Jodoin’s accident benefits insurer, required her to attend examinations with an ophthalmologist, neurologist, orthopedic surgeon, psychologist and occupational therapist.  These examiners found a WPI rating of 32% for physical impairments with, at most, a mild psychological and behavioural impairment.  They found that she did not meet the criteria for catastrophic impairment.

The parties failed to resolve the matter at mediation, and Ms. Jodoin filed for arbitration.  The arbitration date was set for April 15, 2013.  On January 15, 2013, Ms. Jodoin served additional reports including a psychiatric assessment.  These reports presented a WPI rating of between 73% and 76%.  The psychiatrist assessed an overall “marked” psychological and behavioural impairment instead of “moderate”, and an additional 13% was assigned for physical impairment.  In response, Gore Mutual wrote on February 25, 2013 enclosing six notices of examination, including the five areas of expertise noted above and a psychiatric assessment. Ms. Jodoin refused to attend on advice from her lawyer.

On this motion, Gore Mutual argued that the assessments were reasonable and necessary, and requested an adjournment of the impending arbitration hearing in order to conduct them.  It submitted that the new assessments suggested a marked deterioration in Ms. Jodoin’s condition and that it was required to investigate.

Ms. Jodoin argued that the arbitrator had no jurisdiction to order her to attend more examinations and that she would suffer prejudice if the adjournment was granted.  She claimed that the higher WPI resulted from taking account of impairments to neck and back that should have been addressed earlier and that the higher psychological WPI reflected a different approach rather than deterioration.

Arbitrator Sone granted the adjournment and found that psychiatric and orthopedic examinations were reasonable and necessary.

While there is no specific authority to order a claimant to attend examinations, arbitrators are granted broad discretion to control their process in the interests of a fair hearing. In this case, Arbitrator Sone rejected Ms Jodoin’s arguments that she would suffer prejudice by an adjournment, because she had not reached the limit of non-catastrophic entitlement to medical and rehabilitation or housekeeping benefits.  The arbitrator found that Ms. Jodoin had delayed in informing Gore Mutual of her intention to seek further assessments, and that this would have the effect of trial by ambush if the adjournment was not granted.  In the arbitrator’s opinion, the additional assessments represented new evidence; Gore Mutual had a right and obligation to respond to that evidence.  However, Arbitrator Sone held that requiring Ms. Jodoin to attend at six examinations was excessive. As her recent assessments addressed specifically psychiatric and orthopedic impairments, only examinations in those areas were reasonable and necessary.

IMPLICATIONS

While this motion deals specifically with an applicant allegedly attempting to “ambush” an insurer with reports, it stands for the principle that neither side will be allowed to gain an unfair advantage in arbitration by delaying service of new reports, as arbitrators will rely upon the duty of procedural fairness to justify the exercise of discretion to order responding assessments. It provides a useful roadmap of the factors to be considered when deciding on the timing of service.  The arbitrator showed appropriate concern for Ms. Jodoin’s right to privacy by limiting her exposure to two additional assessments directly related to the new evidence.

If you have questions or comments about this post, contact info@md-lawyers.ca