FSCO sets ground rules for “private” meetings with DAC assessors prior to DAC hearing testimony

A Designated Assessment Centre (DAC) assessor may meet privately with counsel for either a claimant or an insurer prior to testifying at a hearing, and that meeting will not necessarily affect the neutrality of the DAC assessor’s evidence presented at the hearing, an Ontario arbitrator has ruled.
In Miller and Optimum, Financial Services Commission of Ontario (FSCO) arbitrator David Leitch identifies ground rules for a situation in which counsel for either party meets “privately” with a DAC assessor prior to the assessor testifying at a statutory accident benefits hearing.
If either party obtains previously undisclosed information from meeting privately with a DAC assessor and planned to raise it at the arbitration hearing, the party must file a document disclosing the information and the facts the DAC will present as a result.
If either party provides new or additional information of any kind to a DAC assessor, including information assumed in a hypothetical question, the parties must disclose the same information to the other party in a dispute as well to the arbitrator.
Under Ontario’s Statutory Accident Benefits Schedule (SABS), DACs have a dual purpose.
DAC assessors help to determine a party’s entitlement to benefits, either permanently or on an interim basis. They also give expert evidence in the event that someone disputes a claim entitlement.
James Miller was injured in a motor vehicle accident in January 1999. An Attendant Care DAC assessor determined that Miller was entitled to benefits at the recommended rate; a Catastrophic Impairment DAC assessor concluded Miller had sustained a catastrophic impairment.
Optimum Insurance Company disputed Miller’s claim and both DAC assessors were called in to testify.
Miller’s counsel approached the DAC assessors prior to the hearing.
“However the parties may view the matter, I would not agree that an arbitrator should make assumptions of findings about the neutrality of a DAC assessor merely because he/she met privately with counsel for one or both parties prior to the hearing,” Leitch concluded, rejecting Optimum’s arguments that such a meeting should have been resisted by the DACs.