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Medical exams to determine catastrophic injuries are not “a mere repeat” of previous exams for IRBs: Ontario arbitrator


April 20, 2011   by Canadian Underwriter


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In-person medical examinations to determine catastrophic impairment are not the same as in-person medical assessments to determine entitlements to income replacement benefits (IRBs), an Ontario arbitrator has found.
The Financial Services Commission of Ontario (FSCO) made the ruling in Meghan Innes and Intact Insurance Company. Innes was injured in an auto accident on Jan. 26, 2008.
“Although similar benefits may be claimed before and after a catastrophic determination (as suggested by Ms. Innes), an applicant would undergo a different assessment in a catastrophic determination than she would in an assessment for entitlement to post 104-week IRBs,” FSCO arbitrator Edward Lee ruled. “The catastrophic assessments would not be a mere repeat of the previous assessments for post 104-week disability.”
Innes brought a motion for an order declaring that Intact’s request for her to attend an in-person medical examination should be denied because the examination was “not reasonably necessary” to determine if she was catastrophically impaired.
Specifically, she noted she had already, at the request of Intact, attended three insurer’s medical examinations on Dec. 16, 2009, Mar. 18, 2010 and Mar. 30, 2010. She saw a neurologist, an orthopedic surgeon and a psychologist, respectively. The purpose of these examinations was to determine whether Innes was entitled to IRBs post 104-weeks.
After these examinations, on May 3, 2010, Innes filed an application to determine if she had a catastrophic impairment.
Within the 30-day deadline, Intact said it was unable to determine if she had a catastrophic impairment. The insurer requested she attend four more in-person medical examinations before a neurologist, a physiatrist, an occupational therapist and an orthopedic surgeon to determine if she had been catastrophically impaired.
Innes brought her motion before FSCO, saying these tests were not reasonably necessary because she had already had assessments done for the IRB determination.
“I am not convinced that the information currently available from the section 42 examinations in regard to post 104-week IRBs would be sufficient to assess a claim for catastrophic impairment,” Lee ruled.