Neutral Citation: 2004 ONFSCDRS 34

FSCO A03-000733

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ASHLEY DEMARTINI

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

January 22, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Rikin Morzaria for Ms. DeMartini

Talaal Bond for ING Insurance Company of Canada

Issues:

The Applicant, Ashley DeMartini, was injured in a motor vehicle accident on March 16, 2000. She applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. DeMartini applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. DeMartini entitled to payment of $6,366.50 for the cost of a medical report prepared by Dr. Harold Becker on September 19, 2002, pursuant to section 24 of the Schedule?

2. Is Ms. DeMartini entitled to payment of $90.95 for the cost of an Application for Determination of Catastrophic Impairment ("OCF-19/59") completed by Dr. Harold Becker, pursuant to section 24 of the Schedule?

3. Is Ms. DeMartini entitled to payment of $2,600 for the cost of a psycho-vocational assessment prepared by Dr. Neville Doxey on December 26, 2002, pursuant to section 24 of the Schedule?

4. Is either party liable to pay expenses to the other in respect of the arbitration under subsection 282(11) of the Insurance Act ?

5. Is Ms. DeMartini entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Ms. DeMartini is entitled to payment of $6,366.50 for the cost of a medical report prepared by Dr. Harold Becker on September 19, 2002, pursuant to section 24 of the Schedule.

2. Ms. DeMartini is entitled to payment of $90.95 for the cost of an OCF-19/59 completed by Dr. Harold Becker, pursuant to section 24 of the Schedule.

3. Ms. DeMartini is entitled to payment of $2,600 for the cost of a psycho-vocational report prepared by Dr. Neville Doxey on December 26, 2002, pursuant to section 24 of the Schedule.

4. If needed, the issue of expenses may now be spoken to.

5. Ms. DeMartini is entitled to interest on the outstanding amounts, pursuant to subsection 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

On March 16, 2000, Ms. DeMartini was a passenger in a 1997 Cavalier which was travelling on Humber Station Road in Caledon. The driver lost control, the car was airborne, left the road and "corkscrewed in mid air, slamming roof into a tree, passenger side down."² Ms. DeMartini, who was sixteen years old at the time, was trapped for 40 minutes in the car. She was taken by ambulance to Etobicoke General Hospital. Due to the serious nature of her injuries, she was transferred to St. Michael's Hospital for assessment in the Trauma Unit. Ms. DeMartini was transferred to Lyndhurst Rehabilitation Centre for further neuro-rehabilitation on April 3, 2000. She was discharged home on June 9, 2000.

On April 23, 2002, ING sent a letter to Ms. DeMartini enclosing an Application for Determination of Catastrophic Impairment (OCF-19/59).³ ING has submitted that this application was not requested by the Applicant, but was sent to inform her of her right to apply for the catastrophic designation.⁴

On December 16, 2002, Ms. DeMartini submitted to ING a completed OCF-19 and the supporting report of Dr. Harold Becker dated September 19, 2002.⁵ Ms. DeMartini requested payment of Dr. Becker's accounts for both the OCF-19 and for his supporting report.

On January 9, 2003, ING returned both the OCF-19 and Dr. Becker's report to Ms. DeMartini's counsel. ING denied payment of both invoices on the grounds that it did not request the report, the report was not generated from a Designated Assessment Centre ("DAC"), and that Dr. Becker was not the Applicant's treating physician. ING stated that Dr. Becker's report was not necessary nor was it reasonable as required by section 24 of the Schedule.

ING forwarded a blank OCF-19 for completion by Ms. DeMartini's health practitioner and informed Ms. DeMartini's counsel that it was up to the DAC to make the catastrophic determination. ING also stated that it did not understand why the application was being made as Ms. DeMartini ended her treatments in the middle of 2002 and had not submitted any further requests for benefits since that date.⁶

On February 7, 2003, the Applicant's counsel again submitted Dr. Becker's report and the completed OCF-19 along with the invoices requesting payment.⁷ On February 13, 2003, ING again refused payment of the invoices and noted that the OCF-19 was not completed by Ms. DeMartini's health practitioner.⁸

Is Ms. DeMartini entitled to payment for the cost of a medical report prepared by Dr. Harold Becker?

Arbitration decisions suggest that a two-part analysis be applied to determine whether or not the insurer is required to pay for an assessment:

(a) Was it reasonable to conduct the assessment?

(b) Was the cost reasonable?⁹

Was it reasonable to conduct the assessment?

An insured person is entitled to apply to an insurer for a determination of whether an impairment sustained as a result of an accident is catastrophic. The designation of "catastrophic impairment" is important because it entitles an insured person to claim benefits that are not available to non-catastrophically impaired persons. The process is outlined in section 40 of the Schedule:

40. (1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.

(2) The insurer shall, within 30 days after it receives the application,

(a) determine that the impairment is a catastrophic impairment and give the insured person notice of the determination;

(b) determine that the impairment is not a catastrophic impairment and give the insured person notice of the determination, including the reasons for the determination; or

(c) give the insured person notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

(3) If the insured person receives a notice under clause (2)(b) and the insured person disputes the insurer's determination, the insured person my request that he or she be assessed by a designated assessment centre in accordance with section 43.

It is only after an insurer receives a completed OCF-19 from an insured person that the insurer may determine whether the insured person is catastrophically impaired or may give notice to the insured person that the insurer requires the insured person to be assessed at a DAC.

In the relevant portion of the Schedule, subsection 2(1) defines: "health practitioner", in respect of a particular impairment, as a physician. "Catastrophic impairment" is defined in clause 2(1)(a) as paraplegia or quadriplegia. Clause 2(1)(f) defines catastrophic impairment in the following manner:

(f) subject to subsections (2) and (3), any impairment or combination of impairments that, in accordance with the American Medical Association's Guidesto the Evaluation of Permanent Impairment, 4^th Edition, 1993, results in 55 per cent or more impairment of the whole person.

Subsection 2(2) states:

Clauses (f) and (g) of the definition of "catastrophic impairment" in subsection (1) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(a) the insured person's health practitioner states in writing that the insured person's condition has stabilized and it is not likely to improve with treatment; or

(b) three years have elapsed since the accident.

ING submitted that at the time of Dr. Becker's assessment on August 21, 2002, more than two years had passed since the accident. Ms. DeMartini had been collecting benefits until July 2002. Dr. Becker did not treat or examine Ms. DeMartini prior to his assessment examination. No request to ING was made by Ms. DeMartini for this assessment prior to the completion of Dr. Becker's report.

Part 2 of the OCF-19 instructs the health practitioner who is completing the application to "attach a report explaining the impairment and your findings," and to provide in that report, to the extent the health practitioner is able, a per cent impairment of the whole person based on the American Medical Association ( "AMA") Guidelines.

Dr. Harold Becker's diagnosis was:

1. Incomplete quadriplegia resultant from traumatic C6 burst fracture requiring fusion with bone grafting and instrumentation.

2. Closed head injury with presentation compatible with mild acquired brain injury.¹⁰

In his report, Dr. Becker concluded that Ms. DeMartini suffered from quadriplegia/paraplegia and that this represented 75% whole person impairment.

Section 24 of the Schedule states:

24.(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan.

As set out in Aleman and State Farm Mutual Automobile Insurance Company,¹¹ when an assessment account is disputed, the Applicant must prove, on a balance of probabilities, that the assessment meets the applicable criteria set out in the Schedule. Also, as ruled in Tesfai and Allstate Insurance Company of Canada,¹²an insured person must provide evidence of the reasons for obtaining the report.

I agree with ING that an arbitrator must give sufficient consideration as to whether the assessment was reasonable in the circumstances at the time when it was arranged.¹³ According to Tesfai, the key questions which must be considered are: What benefits were at issue at the relevant time? What other relevant information was available at the time? The purpose of the examination may not be found in the report itself.

In Nunes and St. Paul Fire and Marine Insurance Company¹⁴ , the arbitrator ruled that an insured does not have an automatic right to payment for an assessment regardless of injuries. There must be a link between an insured's need for some benefit under the Schedule and the assessment claimed. In M.D. and Halifax Insurance Company¹⁵, the Director's Delegate ruled that section 24 does not give insured persons an unfettered right to obtain medical assessments at the insurer's cost.

Bearing in mind the principles enunciated in the cases relied on by ING, I find that it was reasonable for Dr. Becker to conduct the assessment. Considering the benefits in issue and the other information available at the time, Dr. Becker's report was reasonably obtained for the purpose of the regulation. Ms. DeMartini was sent the OCF-19 and asked to attach a report from her health practitioner.

Dr. Becker was an excellent choice to conduct an assessment, considering his expertise in the field of catastrophic impairment. Dr. Becker was the chair of the working group that established the Catastrophic DAC Guidelines for Ontario. As explained, Part 2 of the Application for Determination of Catastrophic Impairment instructs the health practitioner who is completing the application to "attach a report explaining the impairment and your findings." It was both reasonable and necessary that Dr. Becker complete a report setting out the Applicant's level of impairment.

I agree with the position taken by the Applicant that a completed OCF-19 must include a report from the health practitioner assessing the Applicant 's level of impairment. It is only after the insurer receives a completed OCF-19 that the insurer may determine whether the insured person is catastrophically impaired, or give notice that the insurer requires the insured person to be assessed by a designated assessment centre. Therefore, ING is obligated to pay the reasonable expenses that Ms. DeMartini incurred in obtaining the report.

I do not agree with ING's submissions that Dr. Becker does not meet the definition of "health practitioner" under the Schedule. Dr. Becker is a physician with a particular expertise in the field of catastrophic impairment. The guideline to conducting catastrophic impairment DAC assessments states:

The application for catastrophic impairment determination will state the reasons, according to the treating practitioner completing the application, why his/her patient meets the definition.¹⁶

Granted, the guideline has added the word "treating." It is of no consequence that Dr. Becker was not Ms. DeMartini's family physician. Ms. DeMartini was assessed by Dr. Becker because he had the expertise required. Dr. Becker is a well-known expert in the field of catastrophic impairment assessments. Only a select number of physicians in Ontario are familiar with the AMA Guidelines to the degree necessary to make a determination of catastrophic impairment under the 55 per cent criterion.

Dr. Becker conducted an extensive review of Ms. DeMartini's medical history, performed a clinical examination of Ms. DeMartini and authored a detailed 19 page report. His account for the report, excluding taxes, was $5,950.

Was the cost of Dr. Becker's report reasonable?

ING submitted that although the Ontario Medical Association ("OMA") Schedule of Fees does not state a specific fee per page, it suggests flexible criteria on fees for specific procedures. It also suggested using an hourly rate. Dr. Becker's invoice does not indicate the number of hours he spent working on the report. ING submitted that the appropriate fee is based on a per page fee in the range of $100 to $200 per page, with family physicians at the lower end and specialists at the upper end. As Dr. Becker is a family physician but has had experience in issues of catastrophic impairment determinations, ING has submitted that Dr. Becker's fees should be assessed in the $150 per page range. I disagree.

The OMA Schedule of Fees states that, in calculating fees for uninsured services, the physician should take into consideration some or all of the following factors:

a. Nature and complexity of the matter;

b. Experience and expertise of the physician;

c. Time spent with and/or on behalf of the patient;

d. The cost of materials not included in the fees for insured services.

I do not believe that a fee based on a per page fee is appropriate in these circumstances. Such a calculation neglects to take into consideration the nature and complexity of the matter and the time spent with and/or on behalf of the patient. When assessing a medical report, it is crucial to review it from the perspective of quality not quantity.

I have carefully reviewed Dr. Becker's very comprehensive report. It represents many hours of Dr. Becker's time. Not only did Dr. Becker assess Ms. DeMartini in his office on August 21, 2002, but he also reviewed an extensive body of materials.

Dr. Becker has summarized the police accident report, the ambulance call report, the records from Etobicoke General Hospital, including the nursing triage notes, the attending physician's notes, the records from St. Michael's Hospital, including those from the trauma unit, neurosurgery, general surgery, diagnostic imaging, nursing notes, medical notes and hospital summary. Also, he summarized follow-up records from Dr. William Tucker, neurosurgeon,

Dr. Donna Ouchterlony's reports from the multi-disciplinary head injury clinic at St. Michael's Hospital, neuropsychological assessments by Dr. Paul Wang, psychologist at St. Michael's Hospital and by Dr. Paul Sterling, psychologist at Lyndhurst Centre, an insurer's examination conducted by Dr. Mary Susan Crawford, psychologist, a neuropsychological assessment at 20 months post-accident by Dr. Robert Gates, neuropsychologist, and an insurer's examination with a health impact multi-disciplinary assessment by a neurosurgeon, neurologist, psychiatrist and Functional Abilities Evaluation ("FAE"). As well, there were numerous other reports reviewed from InterAction, Sports Medic Physiotherapy, Marianne Lawton Physiotherapy, Kidspeech and Family Rehabilitation and Opus Rehabilitation Inc. There were also clinical notes and records from Dr. M.J. Smullen, family physician, dated from November 5, 1984 to May 18, 1999.

After a review of all the medical records, Dr. Becker conducted a clinical interview and examination of Ms. DeMartini. He made a diagnosis of "incomplete quadriplegia resultant from traumatic C6 burst fracture requiring fusion with bone grafting and instrumentation and closed head injury with presentation compatible with mild acquired brain injury." Dr. Becker formulated treatment recommendations and offered an analysis of the catastrophic designation with the conclusion that Ms. DeMartini meets the definition of catastrophic impairment under Part I, paragraphs 2(1) (a) and (f) of the Schedule.

In Tsimidis¹⁷, the Director's Delegate suggests that the emphasis in scrutinizing a disputed report should not be on the usefulness of the ultimate opinion but on the process; that is, "the amount of time, care and expertise that went into the conduct of the assessment and the preparation of the report." I find that Dr. Becker's account was reasonable due to a number of factors. The cost of the report prepared by Dr. Becker reflects his expertise, the large number of hours he spent compiling the report and the nature and complexity of the report.

Is Ms. DeMartini entitled to payment of the OCF-19 completed by Dr. Harold Becker?

The OCF-19 contemplates that the health practitioner could see the insured person only once. It requires the practitioner to complete the following statement: "I have seen this person time(s) for the purpose of evaluating impairment." It also requests that the health practitioner "attach a report explaining the impairment and your findings." As the Application indicates that the practitioner who completes the report must also sign the Application, to require a treating physician to complete the application would eliminate the availability of the catastrophic impairment designation for those claiming the 55 per cent criterion. This would defeat the intent of the provision to make available the designation of catastrophic impairment to an insured person who meets the 55 per cent criterion. Consequently, I find that it was appropriate that Dr. Becker completed the OCF-19. Dr. Becker is entitled to payment of his invoice in the amount of $90.95.

Is Ms. DeMartini entitled to payment of Dr. Neville Doxey's psycho-vocational assessment?

On March 31, 2003, the Applicant's counsel forwarded correspondence enclosing a psycho-vocational report authored by Dr. Neville Doxey, together with his invoice of $2,600. On April 3, 2003, ING returned Dr. Doxey's report and invoice. ING claimed the cost of Dr. Doxey's report is not covered under the Schedule. ING came to this conclusion because Dr. Doxey described this examination as designed to "address the implications of the accident, especially with respect to her general employability." ING stated that the Schedule does not cover the cost of medical reports that are obtained in confidence, in anticipation of litigation. Rather, the purpose of the Schedule is to facilitate a person's access to medical examinations or assessments for the purpose of rehabilitation or for adjusting the claim. In addition, ING stated that a section 24 expense has a requirement of reasonableness and the quality and value of the assessment must justify the cost.¹⁸

Paragraph 15(5)(f) of the Schedule indicates that a psycho-vocational report is compensable if it is a reasonable and necessary measure undertaken to facilitate the insured person's reintegration into the labour market. A psycho-vocational report is a reasonable expense where it assists a disabled person in identifying the most suitable career path. I disagree with ING that Dr. Doxey's report was prepared in anticipation of litigation.

Dr. Doxey was retained to complete a psycho-vocational report two and a half years after the accident. Ms. DeMartini was beginning university and needed to know what career paths remained open to her after the accident. Ms. DeMartini was also unsure about what supports she would require, academically and physically, to take her to graduation. Also, at the time the report was requested, there was an issue as to whether Ms. DeMartini had a mild head injury, and if so, how this would affect her, both academically and in her working life. The report was commissioned to ensure Ms. DeMartini could best identify and pursue a suitable career path, thus facilitating her integration into the labour market.

I find that the psycho-vocational report prepared by Dr. Doxey was reasonable and necessary in the circumstances.

Was the cost of Dr. Doxey's report reasonable?

Dr. Doxey prepared a twenty-one page report with the assistance of his associate, Mr. G.L. Mitson. He saw Ms. DeMartini on July 17 and again on December 23, 2002. On July 17, Ms. DeMartini underwent a clinical interview of about two hours in duration. On December 23, over a period of four hours, Ms. DeMartini was administered a battery of psychological tests pertaining to her academic and intellectual abilities, her vocational interests and aptitudes, her psychological functioning, and her pain experience. Dr. Doxey and his associate reviewed the medical reports listed earlier with respect to Dr. Becker's report. As well, they reviewed records from Peel Board of Education/Palgrave Public School, The Humberview School and Robert F. Hall Secondary School.

Dr. Doxey is a qualified psychologist, having obtained his Ph.D. in psychology in 1975 and Professional Certification in Ontario in 1977. He served as a psychologist at a rehabilitation hospital where he was involved in treatment, assessment, research, training and administration. From 1984 to 1988, he served as Chief of Psychological Services with the Ontario Workers' Compensation Board. In addition, since 1977, Dr. Doxey has been in private practice as a consultant. His report details Ms. DeMartini's pre-accident history, her post-accident symptoms, his behavioural observations and Ms. DeMartini's test results. He concludes with a thorough assessment and recommendations for future treatment and assistance.

The fees billed for Dr. Doxey's report are reasonable in the circumstances. The report is helpful in assessing Ms. DeMartini's strengths and deficits, establishing rehabilitation goals and proposing plans and treatment to assist Ms. DeMartini. The amount billed for the report meets the criterion of reasonableness in light of the time, care and expertise required for the assessment and the preparation of the report. Consequently, I find that Ms. DeMartini is entitled to payment of $2,600 for the cost of Dr. Doxey's psycho-vocational report.

EXPENSES:

No submissions were made with respect to expenses. I would encourage the parties to resolve this issue among themselves. If they are unable to do so, they may apply for an expense hearing before me, pursuant to the process outlined in the Dispute Resolution Practice Code.

March 11, 2004

Judith Killoran

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 34

FSCO A03-000733

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ASHLEY DEMARTINI

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. DeMartini is entitled to payment of $6,366.50 for the cost of a medical report prepared by Dr. Harold Becker on September 19, 2002, pursuant to section 24 of the Schedule.

2. Ms. DeMartini is entitled to payment of $90.95 for the cost of an OCF-19/59 completed by Dr. Harold Becker, pursuant to section 24 of the Schedule.

3. Ms. DeMartini is entitled to $2,600 for the cost of a psycho-vocational report prepared by Dr. Neville Doxey on December 26, 2002, pursuant to section 24 of the Schedule.

4. Ms. DeMartini is entitled to interest on the outstanding amounts, pursuant to secton 46(2) of the Schedule.

March 11, 2004

Judith Killoran

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Joint Document Brief, Dr. Becker's Report, Ambulance Call Report, Tab 2, page 2
3. 3Joint Document Brief, Tab 1
4. 4Insurer's Factum, page 2
5. 5Joint Document Brief, Tab 2
6. 6Supra, Note 5, Tab 3
7. 7Supra, Note 5, Tab 4
8. 8Supra, Note 5, Tab 5
9. 9Tsimidis and Liberty Mutual Insurance Company (FSCO P99-000013, August 28, 2000) and Smith and Citadel General Insurance Company (FSCO P01-000034, August 20, 2002) p.3
10. 10Joint Document Brief, Tab 2, page 16
11. 11(FSCO A00-000498, March 6, 2001)
12. 12(FSCO P00-00048, December 21, 2001)
13. 13Salvaggio and Simcoe & Erie General Insurance Company and Wellington Insurance Company (OIC P97-00062, January 21, 1999) and Tsimidis and Liberty Mutual Insurance Company, Aleman supra Note 11
14. 14(FSCO A00-000501, August 15, 2001)
15. 15(FSCO P00-00049, May 16, 2001)
16. 16Part 1.2 Catastrophic Impairment Designated Assessment Centre, Assessment Guidelines, Revised April 2002.
17. 17Supra
18. 18Joint arbitration brief, Tab 7