Insurers must move quickly to get second opinion when surveillance video contradicts opinion of retained health professional: arbitrator

An Ontario arbitrator has ordered a $6,000 special award against an insurer because the insurer relied too heavily on surveillance video in support of its monthly attendant care payments of more than $2,000, instead of relying on the advice of a health care professional it had retained.
The claimant, named in the arbitration decision as ‘Mr. S.,’ was 51 years old when he was knocked down by a car while crossing a busy road in May 2006. An arbitrator at the Financial Services Commission of Ontario (FSCO) found the man had suffered a catastrophic impairment.
The Economical Mutual Insurance Company retained Phillip Wendt, whose September 2009 occupational therapy report recommending $6,682.91 for attendant care. Wendt treated Mr. S. bi-weekly for one half to a full hour per day from November 2009 to July 2010.
Citing Wendt’s assessment. Mr. S says he requires 24-hour supervisory care and is therefore entitled to receive the full $6,000 maximum cap for attendant care benefits.
The Economical, however, paid Mr. S. $2,106.76 per month ($2,054.30 short months) from September 2009. (Mr. S. did not claim benefits prior to September 2009.)
The arbitrator found the company relied on video surveillance in determining this payment. The company contends the video shows “Mr. S. can safely and independently walk, transfer from sitting or lying down to upright or standing, be left alone, and handle some of his personal dressing and hygiene.”
The Economical retained a second expert in 2008-09 to determine catastrophic impairment, Sherry Taillefer. She issued a report to The Economical in January 2011, in which she stated she thought $1,991.54 would be a more appropriate monthly rate. Her opinion was based on personal visits in 2008 and 2009, and also on what she had seen in the video surveillance.
The arbitrator ruled Mr. S was entitled to receive a monthly attendant care benefit of $2,987.47, an increase of $850 per month from what he had been receiving from the company since 2009.
However, despite the fact that the company had been making payments to Mr. S., the arbitrator nevertheless held that the insurer had unreasonably withheld the difference from the claimant on the basis of its video surveillance. Basically, the arbitrator said the company should have acted more quickly to gather a second opinion in light of the video surveillance.
Until Taillefer’s January 2011 report, the sole occupational therapy assessment had been Wendt’s 2009 report, the arbitrator noted.
“I am of the view that Economical’s failure to abide by [Wendt’s] recommendation or ask for professional review during the 15 months between October 2009 and January 2011 must bear consequence,” FSCO arbitrator Fred Sampliner wrote. “Otherwise, insurers could simply ignore or discount their health care professionals’ opinions without deterrent.”