Two recent decisions from FSCO have found that an Insurer’s request for a neuropsychological assessment is reasonably necessary and fair. The factors to consider in making this determination include:
The timing of the insurer’s request;
Whether the insurer reasonably requires the examination in order to assess the validity of a claim for ongoing benefits, rather than for purposes of trial brinkmanship or an attempt to bolster its position;
Whether any new issues are being raised in the applicant’s claim that require evaluation;
The nature and number of previous examinations and the nature of the proposed examination;
Whether there is a reasonable nexus between the examination requested and the applicant’s injuries; and
The possible prejudice to the parties.
The onus remains on the Insurer to show that the requested examination is reasonable.
In Bast and Unifund, (FSCO A10-003893, March 7, 2013), one of the issues in the Arbitration was catastrophic impairment. Unifund argued that it had been unable to determine whether Ms. Bast was catastrophically impaired because Ms. Bast only attended two of the three in-person examinations that Unifund set up pursuant to section 44 of the Schedule. Ms. Bast refused to attend the neuropsychological assessment on the basis that it was never alleged that she suffered a head injury or cognitive problems arising from anything other than psychiatric issues. As a result, Unifund brought a motion at FSCO.
The Arbitrator found that each of the legal principles noted above favoured Unifund and that Unifund had discharged its onus of establishing that the neuropsychological assessment was reasonably necessary and fair. Overall, the Arbitrator found that Unifund was not trying to bolster its case for the Arbitration hearing, but legitimately attempting to assess Ms. Bast in relation to her new claim that she was catastrophically impaired. The Arbitration proceeding was therefore stayed until Ms. Bast attended the assessment.
In Tailleur and Royal & SunAlliance, (FSCO A11-003314, June 27, 2013), one of the issues in dispute in the Arbitration was Mr. Tailleur’s entitlement to ongoing attendant care benefits. Royal argued that it could not complete its Assessment of Attendant Care Needs without considering Mr. Tailleur’s current psychological difficulties, as they had an impact on his attendant care needs.
As a result, Royal set up a neuropsychological examination pursuant to section 44 of the Schedule; however, Mr. Tailleur refused to attend the neuropsychological assessment. Royal thereafter brought a motion to determine whether or not it was reasonably necessary for Mr. Tailleur to attend a neuropsychological assessment.
In finding that it was reasonably necessary for Mr. Tailleur to attend a neuropsychological assessment, Arbitrator Pressman noted that an important consideration in deciding the reasonableness of the proposed assessment is “the nexus between the examination requested and the insured’s injuries.” In that case, Arbitrator Pressman found that Royal had provided direct medical evidence that a neuropsychological assessment was required to assess Mr. Tailleur’s current attendant care needs. Overall, it was noted that Royal’s right to examine Mr. Tailleur was required to ensure a fair hearing. The Arbitration proceeding was stayed until Mr. Tailleur attended the assessment.
In the Tailleur decision, Arbitrator Pressman noted that Mr. Tailleur’s submissions did not address “the kinds of considerations an Arbitrator takes into account in determining this type of motion.” Therefore, it is prudent to address all of the factors enumerated above.
Overall, the recent case law indicates that while the onus remains on the Insurer, the important consideration of fairness remains at the forefront of the analysis. Fairness is fundamental to any administrative process and an additional assessment may be required for a fair hearing.