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Personal Injury

Arbitrator rules against retroactive benefits cuts

Accident benefit insurers may still be responsible for the cost of rebuttal reports in relation to accidents governed by automobile policies predating  Sept. 1, 2010, when legislative amendments removed the payment obligation, Toronto plaintiff’s personal injury lawyer Darcy Merkur writes in Law Times.

“In the recent case of R.J. v. Dominion of Canada General Insurance Co., Financial Services Commission of Ontario arbitrator John Wilson faced a motion for interim income replacement benefits along with a claim for the funding of a rebuttal report in relation to a catastrophic impairment claim,” writes Merkur, partner with Thomson, Rogers.


R.J. had suffered a significant injury on July 23, 2007, the article says, noting in addition to physical injuires, R.J. claimed psychological ones that included addictions to alcohol and OxyContin.


The insurer paid R.J. income replacement for an extended duration but eventually had her assessed for ongoing entitlement, the article says.


R.J. requested a catastrophic impairment designation, so the insurer arranged catastrophic impairment assessments with the same assessors who had looked into the income-replacement issue, writes Merkur, noting the assessors found she was not catastrophically impaired.


“R.J.’s treatment providers took issue with those opinions and conclusions and, as a result, the claimant wanted the company to fund a catastrophic impairment rebuttal report prepared by assessors of her choosing at a total cost of $14,916,” the article says.


Because the request for a rebuttal report dated back to April 19, 2011 — a time well after the Sept. 1, 2010, legislative changes — the arbitrator had to decide whether he could force the insurer to pay for it given the amendments removing insurance companies’ obligation to fund such reports, writes Merkur.


“The arbitrator reviewed the Sept. 1, 2010, amendments and noted they didn’t prohibit rebuttal reports but instead attempted to retroactively remove insurers’ obligation to pay for them,” the article says.


“In the end, the arbitrator concluded that the insurance contract in place at the time of the 2007 accident governed the matter and that the 2010 amendments preventing rebuttals at the insurer’s expense couldn’t apply retroactively in those circumstances.”


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