FSCO arbitrator decides neuropsychological assessment is one assessment not two

January 11, 2017

Nicole Breadner v. Co-operators General Insurance Company, A15-005120

In a January 11, 2017 decision, Arbitrator Colleen King of the Financial Services Commission of Ontario (FSCO) found that a neuropsychological assessment is one assessment, not two; therefore capping the amount payable in relation to the OCF-18 at $2,000 plus applicable taxes and form completion costs in accordance with section 25(5)(a) of the Statutory Accident Benefits Schedule – Effective September 1, 2010.

The arbitration was heard on February 16, 2016 and is the first to render a decision on this very common issue plaguing insurance adjusters and accident benefit claimants since the amendments to the Schedule became effective.

Co-operators paid the Applicant for the cost of one assessment/examination in the amount of $2,000 plus $200 for the form completion fee and related taxes. The issue in front of Arbitrator King was whether or not the work done constituted one assessment as argued by Co-operators or two assessments as submitted by the Applicant.

Arbitrator King found that on the specific facts of the case, the assessment work done was properly considered to be one assessment. This was despite the fact that the assessment facility submitted two reports in relation to the OCF-18. She found that the OCF-18 identifies a neuropsychological assessment, both reports identified the same purpose (to complete a neuropsychological assessment), had the same author, relied on the same tests, had the same dates of examination and the second report incorporated the results and information from the first report. Overall, the evidence showed that that work done constituted one assessment, not two.

This decision is extremely relevant to insurers and to claimants, especially in the new age of capped costs for assessments (whether conducted at the instance of the insured or insurer). There are numerous assessments which appear to be multidisciplinary in nature such as neurocognitive examinations and psychovocational examinations just to name a few. Insurers should be very diligent in examining the costs breakdown on the OCF-18s submitted to determine, as in this case, whether the work to be done constitutes one or more assessments regardless of the number of reports the assessor(s) intends to complete.

Helen Friedman of Miller Thomson advised Co-operators in this arbitration.

See our MT Insurance Law Blog for further details on this decision.

See also Greg Meckbach’s article in the February 2, 2017 online edition of Canadian Underwriter.