Dr. R. Hercia

The insurer applied to vary or revoke an arbitration order that granted the insured ongoing income replacement benefits (IRBs).

The insurer argued that the transition from the 'own occupation' test to the stricter 'any occupation' test at the 104-week mark constituted a material change in circumstances under s. 284 of the Insurance Act, and relied on new insurer examinations to argue the insured did not meet the stricter test.

The Director's Delegate held that a change in the legal test alone does not automatically constitute a material change in circumstances where a final order for benefits has been made, noting the protection of benefits under s. 287 of the Insurance Act.

The Delegate found that the insurer's medical assessors failed to document any material change in the insured's condition, as they largely ignored the Arbitrator's previous findings of psychological disability.

The application for variation or revocation was dismissed.