Insurer irrelevant testing denied by court.

On December 16, 2016, a judge of the Ontario Superior Court of Justice dismissed an application by an insurance company for an order compelling a disabled worker to undergo neuropsychological testing. The judge in Woolsey v. Industrial Alliance Insurance and Financial Services Inc., [2016] O.J. No. 6497, 2016 ONSC 7617, found that neuropsychological or cognitive function had not been put at issue and no treatment providers or experts had recommended it.

The claimant was a disabled employee who alleged that he was unable to work as an engineering analyst due to neuropathic chest pain which interfered with his ability to focus and concentrate at work. The claimant received short term and long term benefits that were later terminated. After a lengthy appeal process, the claimant sued for reinstatement of his benefits, pleading that he was unable to work due to his pain condition and that the denial had caused him stress which contributed to the severity and duration of his physical, cognitive and emotional illness. The insurer brought the application following the claimant’s examination for discovery.

In support of its application, the insurer relied on the affidavit of one of its technical advisors. The affidavit appended portions of the claimant’s examination for discovery transcript where he had explained that while he could concentrate on video games for up to nine hours a day, his work required a different kind of concentration that was intolerable with his injuries. The affidavit also appended portions of a medical journal that commented on the value of neuropsychological testing whenever there was a doubt about a patient’s cognitive functioning or competency. In response, the claimant noted that he had not sought neuropsychological testing and that no treatment providers or experts had recommended it.

The court dismissed the application for the following reasons: the claimant had not put his neuropsychological or cognitive function at issue (the fact that he had plead stress was insufficient and the reference to a cognitive illness was likely boiler plate); the claimant had not sought neuropsychological testing and none had been recommended, including by the defence experts; and no treatment provider had expressed doubt about the claimant’s cognitive function or capacity.