{"id":146,"date":"2006-03-24T12:53:21","date_gmt":"2006-03-24T17:53:21","guid":{"rendered":"http:\/\/www.cavanaghwilliams.com\/blawg\/?p=146"},"modified":"2006-03-24T12:53:21","modified_gmt":"2006-03-24T17:53:21","slug":"dac-assessment-does-not-preclude-insurers-ime-in-sabs-lawsuit","status":"publish","type":"post","link":"https:\/\/www.cavanagh.ca\/blog\/?p=146","title":{"rendered":"DAC Assessment Does Not Preclude Insurer&#8217;s IME in SABS Lawsuit"},"content":{"rendered":"<p>In <em><strong><a href=\"http:\/\/www.canlii.org\/on\/cas\/onsc\/2006\/2006onsc10613.html\">Baron v. Kingsway General Insurance Company<\/a><\/strong><\/em>, 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.<\/p>\n<p><!--more--><\/p>\n<p>The insured had brought this action, seeking income replacement, med-rehab, attendant care and housekeeping\u00a0benefits. Kingsway had terminated income benefits at the 104-week mark, when another DAC assessment had concluded that the insured (the plaintiff) &#8220;did not suffer from \u201ca complete inability for performing any occupation for which he is suited for by education, training or experience.\u201d\u00a0<\/p>\n<p>In the litigation, the insurer sought examinations by a psychologist and\u00a0an orthopaedic surgeon. It also wanted to schedule vocational\u00a0and functional capacity assessments. The insured refused to attend\u00a0and argued that the insurer was bound by the findings at the CAT-DAC.<\/p>\n<p>In finding for Kingsway, Justice Pardu distringuished other cases, such as <em><strong><a href=\"http:\/\/www.canlii.org\/on\/cas\/onsc\/2005\/2005onsc14641.html\">Liberty Mutual Insurance Co. v. Fernandes<\/a><\/strong><\/em>, where Justice Geoffrey Morawetz had held that &#8220;Simply put, the CAT DAC finding is binding on the insurer.\u201d Justice Pardu commented on this dictum, saying: &#8220;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.&#8221;<\/p>\n<p>She also reviewed the language of the SABS and held that &#8220;<span style=\"font: 7pt 'Times New Roman'\">\u00a0<\/span>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 \u201cuntil otherwise ordered by a court, by an arbitrator under this [<em>Insurance<\/em>] <em>Act<\/em> or the <em>Arbitrations Act, 1991<\/em> or by the Director\u201d or s. 268(8) requiring the insurer to pay the benefit until the dispute is resolved, where required by the SABS.&#8221;<\/p>\n<p>\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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 &hellip; <a href=\"https:\/\/www.cavanagh.ca\/blog\/?p=146\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[29,12],"tags":[],"class_list":["post-146","post","type-post","status-publish","format-standard","hentry","category-collateral-benefits","category-insurance-news"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts\/146","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=146"}],"version-history":[{"count":0,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts\/146\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=146"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=146"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=146"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}