Assessments ruled not reasonable nor necessary for hearing to proceed on CAT determination - G.P. v Cumis 16-003144/AABS

May 26, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

G.P. v Cumis       16-003144/AABS              2017 CanLII 22315 (ON LAT)

CAT Designation: Were assessments reasonable and necessary? Which assessor can assign WPI ratings? Overlapping assessments not necessary; no prejudice to insurer; assessments are meant to help adjust a case, not bolster the case

Date of Decision: April 3, 2017
Heard Before: Adjudicator Cynthia Pay

G.P., a 72-year-old Polish woman, was in a car accident on November 9, 2013 and sought benefits pursuant to the SABs.  She applied for several automobile accident benefits which were denied by Cumis.  As a result, she filed an Application with the LAT to dispute these of benefits.  G.P. also claimed that she had been catastrophically impaired as a result of the accident.  She submitted two assessments in support of this claim, one by a general practitioner, Dr. ZM, and one by a psychiatrist, Dr. M.

Cumis requested that she attend five in-person insurer’s examinations to assess her claim of catastrophic impairment.  G.P. objected to the type and number of examinations requested and only agreed to participate in three of the five assessments:  two in-person assessments by an occupational therapist, and an in-person psychiatric assessment.  She objected to the in-person examinations by a physiatrist and a cardiologist. Her objections were on the basis that she is elderly and in a vulnerable and fragile state, and that the number of assessments requested were excessive and unreasonable.

Cumis maintained their position that these assessments were reasonable and necessary, and because G.P. refused to attend the physiatrist assessment, Cumis took the position that G.P.’s injuries remained non-catastrophic pending her participation in the assessment. G.P. then filed a second application to the Tribunal (Tribunal file number 16-003144/AABS) with respect to her claim of catastrophic impairment.

At the case conference convened by the Tribunal to discuss both related files, Cumis raised a preliminary issue, claiming that G.P. is precluded from adjudicating the issue of catastrophic impairment because she had not attended all of the requested insurer’s examinations. The Tribunal scheduled this preliminary issue hearing to determine the issue of whether G.P. is precluded from making an application for catastrophic impairment.

The Tribunal also scheduled an in-person hearing to determine entitlement to the benefits claimed in the first application (Tribunal file number 16-000723/AABS).  This in-person hearing will also be used to determine whether G.P. sustained a catastrophic impairment in the accident if the Tribunal finds G.P. is not precluded from proceeding with this application (Tribunal file number 16-003144/AABS).

For the reasons set out below, the Arbitrator ruled that the in-person physiatry examination is not reasonably necessary, and that G.P. can proceed to a hearing.

Issue:

1. Is G.P. prevented from adjudicating her catastrophic impairment claim under s.55(1)2. of the Schedule because she did not attend all of the scheduled section 44 insurers’ examinations?

Result:

1. G.P. is not precluded from adjudicating her catastrophic impairment claim.

The Arbitrator reviewed the law and noted that Section 44(1) of the Schedule provides that for the purposes of assisting an insurer to determine if an insured person is entitled to a benefit, an insurer may require an insurer’s examination “by one or more persons chosen by the insurer” but not more often than is “reasonably necessary”. Section 55(1)2. of the Schedule states that an insured person shall not apply to the Licence Appeal Tribunal if the insurer has provided notice of an insurer’s examination under s.44, but the insured person has not complied with the request for an examination.

The sole issue in dispute in this preliminary issue hearing is whether the in-person physiatry examination requested by Cumis is reasonably necessary. I find that it is not reasonably necessary.

The Arbitrator reviewed that facts and noted that Cumis stated that they did not accept that her injuries met the catastrophic definition, and requested that she attend five in-person insurer’s examinations. In addition, an integrated impairment rating by another physiatrist would take place, but the attendance of G.P. was not required for this assessment.

G.P. raised a concern about the number and type of assessments requested.  She stated that five in-person insurer’s examinations were excessive and unreasonable, given that she only used two assessors.  G.P. submitted that granting Cumis five reports in opposition to her two reports would deny procedural fairness, and increase the power imbalance between her and the insurance company.  Further, her counsel argued that she should not be subjected to an excessive number of insurer’s examinations because she had sustained serious injuries from the accident, was elderly and was in a fragile state.  She agreed to attend the two occupational therapist assessments and the psychiatric assessment, but objected to the physiatry assessment and the cardiology assessment.

At the hearing the parties confirmed that they had agreed that the cardiology assessment could take place via a paper review, so attendance at the physiatry assessment was the only examination that continued to be in dispute.

Cumis maintained that the physiatry assessment was reasonable and necessary in order for them to make a determination of G.P.’s entitlement to catastrophic benefits.  They noted that chronic pain and physical impairments formed part of the basis of G.P.’s catastrophic impairment claim, and argued that the neither the occupational therapist or psychiatrist agreed to by G.P. had the capacity to assign a WPI rating to these conditions, as required in determining catastrophic impairment. 

G.P.’s CAT assessment, completed by Dr. ZM, found that G.P. was catastrophically impaired as a result of the accident on the basis of his own clinical notes and records, a physical examination, numerous other clinical notes and records of other doctors and specialists, and the results of tests such as MRIs, bone scans, ultrasounds, echocardiograms and x-rays.

Dr. ZM’s assessment was conducted in conjunction with a CAT (catastrophic) Assessment of Mental and Cognitive Functioning by Dr. M, psychiatrist.  He found that G.P. meets the test for catastrophically impaired under Criteria 7 of the AMA Guides as she suffers from an impairment that results in 55 percent or more impairment of the whole person (“WPI”). 

Despite G.P.’s refusal to attend some of the requested examinations, Cumis carried out its catastrophic impairment which found that G.P. is rated at 11- 14% WPI with respect to her psychiatric impairments, but was unable to determine the applicable physical impairment rating because she declined to attend the physiatry and cardiology assessments.

The “reasonably necessary” test

In balancing G.P.’s rights the Arbitrator considered what a reasonable nexus is between the type of examination requested and the claimed impairments.  The purpose and timing of the request should be considered, and the insurer’s examinations should be for the purpose of adjusting the claim, not solely to bolster a case for litigation. Other factors to consider include the number and nature of previous and requested examinations, whether there are new conditions that need to be evaluated, and whether either side will be prejudiced by the examination or non-compliance with a request for an examination. If there are numerous examinations, the insurer should proceed cautiously, as all of the assessments may not be necessary.  There must also be an acceptable reason for non-compliance with requests for insurer’s examination requests, such as a medical reason for non-attendance.

After considering all the factors, the Arbitrator determined that the in-person physiatry examination was not reasonably necessary, and that denying Cumis an in-person physiatry examination does not prejudice Cumis.

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