Volume. 3 Issue. 35 – October 2, 2019
Are IE’s assessors required to produce their CNR’s? The Tribunal addressed this in two separate Case Conference Reports along with requests for reserves and policy manuals. All summarized in this edition of the LAT inFORMER. In two other matters, the Tribunal dealt with s.44 non-compliance and the principle of res judicata.
CNRs of IE Assessors Ordered to Be Produced
In the Case Conference Report of 17-004945 v Aviva, the Tribunal addressed the rationale for ordering production of the clinical notes and records (CNRs) from the IE assessors whose opinion would be relied upon during the hearing. The Tribunal noted that the CNRs will disclose “whether or not the IE assessors’ reports have been changed by the assessment company.”
The Applicant’s request for production of reserve information was however not ordered. The Tribunal followed the reasoning in Osborne v. Non-Marine Underwriters, Lloyd’s of London, where it was found that “an insurer’s internal estimation of its monetary exposure regarding the risk is not pertinent to the insurer’s conduct in assessing and responding to the claim of an insured.” The Court also held that “a plaintiff would have an unfair advantage in knowing how much an insurer estimates a claim is worth and might have a feeling of entitlement to a settlement in that amount, especially since the reserve is nothing more than an intelligent estimate of the risk as a whole.”
In addition, a request for copies of any policy manual in the possession of the Respondent with respect to the adjustment of catastrophic impairment claims was likewise not ordered. The Tribunal held that in considering a claim for an award, the “determination of an unreasonable withholding or delay will be made based on the timelines and tests set out in the Schedule and not on whether the respondent complied or did not comply with some manual that may or may not exist.” Of note, we were advised that this case has been settled.
We were also provided with a similarly interesting Case Conference Report courtesy of Shirline Apiou at Dutton Brock for 18-004783 v Coseco, As in the matter above, the CNRs from the IE assessors were ordered, as they would “indicate what questions the assessors were asked, whether there were any changes made to the assessor’s reports and what communications the applicant and the respondent had with the assessors and/or [the IE provider].” A request for reserve information was again not ordered, as the Tribunal was “not persuaded by the applicant that reserves have any relevance to the issues in dispute.” Further, policy manuals were not ordered to be produced, accepting the Respondent’s evidence that none such exist.
The report and records of an OT who saw the Applicant as part of a multi-disciplinary assessment (with non-attendance at the neuropsychological portion subject of a preliminary hearing) were not however ordered until such time as the Applicant attends the final assessment, or in the alternative the preliminary hearing finds attendance not required. The Tribunal noted, “A multidisciplinary IE report is not finalized until all of the assessors have reviewed each others’ reports.”
Contracts between the IE provider, involved practitioners and the Respondent were not ordered, despite the Applicant suggesting an inability to determine the role and function of the IE provider in the IEs. It was confirmed that the reconsideration decision of 18-006654 v RSA was “very clear that the relationship of companies similar to [the IE Provider] to insurers such as the respondent is an agency relationship.” The Applicant also sought invoices paid to IE assessors, as “if the respondent paid more than the limit of $2,000 per assessment, it may show that the IE assessors are biased.” The Tribunal however did “not find that if an IE assessor was paid more or less than the maximum limit of $2,000 that the assessor would be influenced to change his or her opinion.”
Degrees of LATitude
Scandalous Innuendo – In 18-004783 v Coseco, the Respondent sought an Order that the Applicant was to refrain from communicating with the IE assessors or the IE facility. It was suggested that the Applicant was “undermining the IE’s with demands for information and explanations that amount to ‘cross-examination’ outside the proceeding.” The Tribunal however was “unable to find any authority on my part to restrain or restrict [the Applicant] or his counsel from contacting anyone”.
Nonetheless, given multiple instances of s.44 non-compliance, the Applicant was found statute-barred from proceeding. The Applicant’s submissions regarding non-attendance were found variably as “bewildering”, “unsupportable”, and “devoid of merit”, with the affidavit “(lacking) credibility and in my opinion its allegations amount to nothing more than scandalous innuendo on the affiant’s part…[the Applicant] states plenty of ‘beliefs’ with a paucity of proof.”
Been There, Done That – In 18-006048 v Aviva, the Respondent requested that the Applicant be barred by the doctrine of res judicata because the issue of causation, specifically whether the Applicant’s TMJ symptoms were caused by the subject accident, had already been decided by the Tribunal. Therefore, “the doctrine of res judicata applies to this LAT application because [the Applicant]’s claim for a TMJ and mouth assessment has been previously adjudicated on the merits and the previous decision of the Adjudicator was clear on the issue of whether the TMJ impairment was caused by the accident, finding that it was not.”