July 22, 2013

Accident Benefits Update – Submit or Accept Defeat

ACCIDENT BENEFIT UPDATE

For the week of July 22 to July 26, 2013

Andrew Tailleur and Royal & SunAlliance Insurance Company of Canada, FSCO A11-003314

Andrew Tailleur, the insured, was injured in a motor vehicle accident on May 11, 2003, when he was 18 years of age. As a result of his GCS he was deemed catastrophically impaired. Andrew received a number of statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule(Ontario Regulation 403/96, as amended).

An issue arose with regards to the insured’s entitlement to ongoing attendant care benefits. Seven years after the injury, Royal took the view that the insured was independent in self care and only required limited assistance with financial affairs and exercise. An OT retained by Royal  to complete a Form 1 Assessment of Attendant Care was able to conduct an in-home physical assessment but opined that she needed an up to date neuropsychological assessment to complete the Form 1 fully. Royal set up a neuropsychology independent examination (IE), which the insured subsequently refused to attend.

At the outset of the Arbitration, Royal brought a motion seeking determination of the following two issues:

1. Is attendance at a neuropsychological IE reasonable and necessary, and

2. If the IE is determined to be reasonable, is Royal entitled to a stay the Arbitration proceedings until the insured has attended?

Arbitrator Pressman decided that it was reasonable for the insured to attend the neuropsychology IE and arbitration would be stayed until the IE was completed. Because the insured attended the in home OT assessment and the IE flowed from that, Royal was found not to be merely bolstering its case by requesting this IE.

The decision was  a useful opportunity to reiterate the important principles set out in Al-Shimasawi and Wawanesa Mutual Insurance Company (FSCO A05-002737, May 11, 2007)  when determining whether an IE is reasonable and necessary. Theses principles include the timing of the request, whether there are new issues that require evaluation, the number and nature of previous insurer’s examinations and the nature of the proposed examination, whether there is a reasonable nexus between the examination requested and the injuries, and possible prejudice to the parties.

 

IMPLICATIONS

There are two important messages   that come out from  this decision. The first is that whilst an arbitrator has no authority to compel an insured person to submit to an insurer’s examination which has been reasonably requested, an arbitrator may stay the hearing of a denial until the insured person attends such an examination.

The second implication is that in deciding on the insured’s entitlement to attendant care benefit, the insured should be made aware that their psychological and neuropsychological status may be an important component in maintaining access to attendant care benefit. The insurer can compel the insured to under go an IE under s.44 of the schedule. The IE is not limited by s.42(4) of the schedule to a Form 1 IE. As this case demonstrates, a neuropsychological IE can also be requested where there has been a lengthy period of time (6 years in this case) since the last assessment and other medical evaluators agree on its importance to determine the issues raised in the Form 1 Assessment of Attendant Care Needs.

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