DAC Assessment Does Not Preclude Insurer’s IME in SABS Lawsuit

In Baron v. Kingsway General Insurance Company, Superior Court Justice Gladys Pardu rejected the argument of a statutory accident benefits claimant, that the insurer was not entitled to its own medical assessment because a CAT-DAC assessment had already found him to be catastrophically injured.

The insured had brought this action, seeking income replacement, med-rehab, attendant care and housekeeping benefits. Kingsway had terminated income benefits at the 104-week mark, when another DAC assessment had concluded that the insured (the plaintiff) “did not suffer from “a complete inability for performing any occupation for which he is suited for by education, training or experience.” 

In the litigation, the insurer sought examinations by a psychologist and an orthopaedic surgeon. It also wanted to schedule vocational and functional capacity assessments. The insured refused to attend and argued that the insurer was bound by the findings at the CAT-DAC.

In finding for Kingsway, Justice Pardu distringuished other cases, such as Liberty Mutual Insurance Co. v. Fernandes, where Justice Geoffrey Morawetz had held that “Simply put, the CAT DAC finding is binding on the insurer.” Justice Pardu commented on this dictum, saying: “I do not interpret this as a conclusion that an insurer can never contest the conclusions expressed in a DAC assessment, however it must do so in the forum selected by the insured and generally is required to continue payments until the issue is finally resolved.”

She also reviewed the language of the SABS and held that “ If DAC assessments were finally conclusive of the issues between the parties, there would be no need for any other dispute resolution regime, and no need for s. 281(4) requiring an insurer to maintain the status quo “until otherwise ordered by a court, by an arbitrator under this [Insurance] Act or the Arbitrations Act, 1991 or by the Director” or s. 268(8) requiring the insurer to pay the benefit until the dispute is resolved, where required by the SABS.”


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