Jessica L. J. Rogers

The insurer requested a reconsideration of a decision awarding the insured funding for catastrophic impairment assessments.

The insurer argued the adjudicator erred in law by finding the assessments were not true rebuttal reports and were prepared for the purpose of a catastrophic application under s. 45 of the Schedule.

The adjudicator dismissed the reconsideration request, finding no errors of law that would materially affect the outcome.

The adjudicator maintained that the insured's right to be assessed for catastrophic impairment was not exhausted and that the timing of the application did not invalidate the funding request.

The insured's request for costs was also denied.

The applicant was injured in a 2005 motor vehicle accident and sought a catastrophic impairment determination in 2015.

The insurer denied the designation based on its own assessments.

The applicant sought funding for his own catastrophic assessments, which the insurer denied on the basis that the 2010 amendments to the Schedule eliminated funding for rebuttal reports.

The Tribunal held that while the 2010 amendments apply prospectively and eliminated rebuttal report funding, the applicant's requested assessments were actually his first assessments, not true rebuttals.

Denying funding would rob the applicant of his substantive right to be assessed.

The Tribunal found the assessments partially reasonable and necessary, awarding $10,500.00.