Canada: The Agony Of "De Feet"

Last Updated: March 31 2017
Article by Helen D.K. Friedman

( Franic-Temple v. State Farm Mutual Automobile Insurance Company, FSCO A15-006435, March 15, 2017.)

When a taxicab ran over Ms. Franic-Temple's feet and ankles, it was undisputed the medical imaging disclosed no fractures were sustained. Notwithstanding this, three years later, an occupational therapist submitted an OCF-18 to State Farm requesting an in-home assessment to determine Ms. Franic-Temple's need for attendant care, occupational therapy and assistive devices. This OCF-18 listed as injury sequelae, in Part 6, "fracture of foot, except ankle". The OCF-18 contained further comments which reported Ms. Franic-Temple "fractured the top of her left foot and experienced severe ligament and tissue damage in her right foot". Medical documentation previously submitted to the insurer, including a Disability Certificate from her treating orthopaedic surgeon and two MRIs described a "crush injury" to both feet but no fractures.

In light of the injury descriptors on the OCF-18, State Farm advised Ms. Franic-Temple that it required a section 44 assessment by an orthopaedic surgeon. In the OCF-9, the adjuster noted:

"Based on review of your medical file, the diagnosis reported in this OCF-18 was reported to be a fracture of foot, except ankle. However, the documentation provided to our office which includes but [is] not limited to an MRI completed on September 3, 2013 and August 28, 2013 had reported there was no fracture or dislocation".

The OCF-9 also made passing reference to "gaps in seeking treatment and rehabilitation without documented clinical explanation". The OCF-9 then referenced "[d]ue to the gaps in treatments and rehabilitation as well as inconsistency of the diagnosis of your medical status, we do not believe the OCF-18 is reasonable and necessary".

In an effort to stamp out State Farm's request, Ms. Franic-Temple's counsel wrote to State Farm and advised Ms. Franic-Temple would not attend any IEs. The letter challenged the comment with respect to alleged gaps in treatment as not being a "medical reason" but did not address the fracture diagnoses. A request for examination was then sent by State Farm to Ms. Franic-Temple reiterating the reasons set out in the OCF-9, specifically, the inconsistency in the fracture diagnoses and the gaps in treatment.

Not wishing to be stepped all over, Ms. Franic-Temple did not attend the section 44 orthopaedic examination and argued State Farm's notice did not contain "medical or any other reasons" as required by section 44(5)(a) of the Schedule and the decision in Augustin and Unifund Assurance1. Augustin found non-compliant notice would not bar an insured person from proceeding to mediation under section 55(2) if they fail to attend a section 44 assessment.

Arbitrator Kowalski applied a common sense approached to the dispute. She found that the OCF-9 contained a detailed description of the reasons which gave rise to the concern about the fracture diagnosis and compared the diagnosis to past medical records and examinations which found no fracture. In responding to an OCF-18 based on a different and new diagnosis from prior medical records, State Farm provided sufficient "medical reasons" to justify an orthopaedic assessment. Arbitrator Kowalski confirmed there was no definition of the term "medical reasons" in the Schedule. She found investigation of a condition, i.e. a diagnosis, is a "medical reason" and the OCF-9 described in detail why a new diagnosis was a concern. Accordingly, State Farm acted appropriately in requesting an assessment by an orthopaedic surgeon and the notice was compliant.

Having failed to attend a section 44 assessment pursuant to a valid notice, Ms. Franic-Temple was precluded from proceeding to mediation and therefore, Arbitrator Kowalski kicked out her arbitration, without prejudice to Ms. Franic-Temple's right to submit a fresh or amended OCF-18.

Insurers should take comfort from this common sense approach to "medical reasons". Surely a divergent diagnosis, unsupported by previous medical evidence submitted three years after the fact, would be sufficient to allow an insurer to request an assessment with the appropriate expert to address the diagnosis. It is not uncommon to see impairment/injury descriptors evolve over time. Insurers should not be discouraged from taking all reasonable steps to investigate newly-described or shifting impairments so that they may better understand the treatment and services reasonably required. Insurers should also be mindful the term "medical reasons" is not defined in the Schedule and is not a term of art. In other words, the insurer is entitled to determine whether the shoe fits before they wear it.


1 Augustin and Unifund Assurance, FSCO A12-000452, November 13, 2013.

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Helen D.K. Friedman
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