Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2016 ONFSCDRS 257
FSCO A15-007624
BETWEEN:
DONNA ANGER
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Arbitrator Marshall Schnapp
Heard: By written submissions received June 28, 2016 and by telephone conference call on July 12, 2016
Appearances: Mr. Steven Bezaire participated for Mrs. Donna Anger Mr. Nicholaus de Koning participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mrs. Donna Anger, was injured in a motor vehicle accident on December 4, 2009 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mrs. Anger applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
A Pre-Hearing took place before Arbitrator Smith on January 6, 2016. At that time the parties agreed to deal with this matter by way of a Preliminary Issue Hearing.
The issue in this Preliminary Issue Hearing, as noted in Arbitrator Smith’s Pre-Hearing letter, dated January 13, 2016, is:
- Is Mrs. Anger is entitled to payments for the cost of examinations, the details of which are noted as Issues 1 and 2 in the Report of Mediator, dated August 10, 2015?
Result:
- Mrs. Anger is not entitled to payments for the cost of examinations, the details of which are noted as Issues 1 and 2 in the Report of Mediator, dated August 10, 2015.
EVIDENCE AND ANALYSIS:
Background
The following facts were contained in the Agreed Statement of Facts provided by the parties. Mrs. Anger was involved in a motor vehicle accident on December 4, 2009, when she attempted to proceed through an intersection on a green light and an oncoming vehicle ran a red light and hit her vehicle.
Mrs. Anger has been under, or was under the care of Dr. Plotnick, Psychologist, since the summer of 2014. Dr. Plotnick submitted OCF-18s, dated July 10, 2014 and September 4, 2014. As well, Dr. Plotnick provided a nineteen page psychological report, dated October 9, 2014, which gave a diagnosis of a Neurocognitive Disorder due to a traumatic brain injury.
An OCF-18, dated February 20, 2015, was submitted by Dr. Amena Syed, Psychologist, proposing a neuropsychological assessment on March 3, 2015 in the amount of $2,486.00. State Farm approved this proposed assessment in the amount of $2,260.00, which did not cover the proposed $200.00 pre-screening assessment.
Dr. Syed submitted two other OCF-18s, dated February 20, 2015, which were for "neuropsychometric testing" and "mental health assessment". The total proposed amount for these two additional OCF-18s was $4,972.00 ($2,486.00 each). State Farm denied entitlement to these two OCF-18s on the basis that they were duplicative of the first OCF-18.
Dr. Syed provided a twenty-nine page report, dated December 14, 2015, entitled, “Independent Neuropsychological Evaluation”. The underlying assessment activity took place September 14, 2015.
The preliminary issue in this Arbitration is whether Mrs. Anger is entitled to these two OCF-18s noted above.
Mrs. Anger’s Position
According to Mrs. Anger, the two treatment and assessment plans recommending neuropsychometric testing and a psychological assessment are not a duplication of services and each of these assessments should be afforded its own assessment limit. The goal of the assessments was to identify all areas of cognitive deficits that Mrs. Anger had been experiencing since the accident and to then make appropriate treatment recommendations.
In order for Dr. Syed to provide a diagnosis, she required the neuropsychometric testing of Salman Ibrahim for identification of the areas of deficit. Thus it is Mrs. Anger’s position that these are two separate and distinct assessments completed by two assessors and authorization should be given to a $2,000.00 assessment limit for each. State Farm’s refusal to fund more than the $2,000.00 for only the neuropsychological assessment hinders Dr. Syed’s ability to appropriately identify the cognitive deficits and treatment required.
Mrs. Anger also submits that the requested funding for a psychological assessment was to determine if there is an overlay or confounding issues with her current cognitive functioning and to determine whether she is suffering from psychological conditions that may impact on the results of cognitive testing. It is also noted that the appropriate treatment recommendations cannot be made without identifying the underlying cause of her symptoms.
Mrs. Anger also takes the position that if the psychological assessment had been submitted by a separate psychologist and not Dr. Syed, State Farm would have funded the assessment.
State Farm advised Mrs. Anger’s representatives that they can obtain a complete neuropsychological assessment and neuropsychometric testing within the $2,000.00 limit under the Schedule. Mrs. Anger finds the above proposition questionable and also believes if State Farm is able to have these assessments completed for under the $2,000.00 limit, it is due to the sheer volume of Insurer Examination requests sent to the assessment centre by State Farm. Counsel for Mrs. Anger also notes that in their experience, Neuropsychologists and Neuropsychometrists will not agree to conduct their assessments under a combined limit of $2,000.00.
Mrs. Anger believes that the Insurer should not receive an advantage under the Schedule due to its ability to obtain a volume discount for assessments. As well, Mrs. Anger submits that since the implementation of the $2000.00 cap, the insurance industry as a whole, including State Farm, has always accepted that a neuropsychological assessment and neuropsychometric testing cannot be completed within the $2,000.00 cap and submission of multiple treatment plans was encouraged and accepted.
With respect to why only one report was generated by Dr. Syed, Mrs. Anger only authorized the neuropsychological assessment and psychometric assessment to be completed. She did not authorize the psychological assessment.
Mrs. Anger submits that in the normal course, a catastrophic assessment is comprised of several different assessments, all conducted for the same purpose but each assessment is allotted its own $2,000.00 limit and this should be the case in this situation.
State Farm’s Position
In its submissions, State Farm notes that Mrs. Anger went on to develop some psychological adjustment difficulties after the motor vehicle accident and was treated by Dr. Plotnick, a licensed Psychologist. Dr. Plotnick submitted an OCF-18, dated July 4, 2014, for a psychology assessment at a cost of $1,979.36. He completed a report, dated October 9, 2014, and made a diagnosis of a neurocognitive disorder due to a traumatic brain injury.
The Applicant was also being treated by the Chronic Pain Management Unit at Hamilton Health Sciences. They provided a report, dated September 4, 2014, based on a multidisciplinary assessment, which included an assessment from Dr. Hapidou, Psychologist.
With respect to the costs of examinations in dispute, State Farm notes that Mrs. Anger submitted three different OCF-18s at or around February 20, 2015 by Dr. Syed. The first OCF-18 proposed a “neuropsychological assessment” which was approved. The other two OCF-18s submitted by Dr. Syed were for “neuropsychometric testing” and for a “mental health assessment.” The proposed amount for each of them was $2,486.00. State Farm denied entitlement to the two OCF-18s on the basis that they were both a duplicate of the first proposed and mostly approved assessment by Dr. Syed.
Despite the three OCF-18s proposing three different and unique assessment activities, one single report was submitted by Dr. Syed on December 14, 2015, on the letterhead of the Centre for Neuro Diagnostic Services.
State Farm relies on the Schedule and specifically subsection 25(5) which states, “Despite any other provision of this Regulation, an insurer shall not pay, (a) more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it…”.
State Farm submits that the three OCF-18s collectively contemplate one assessment process, although inclusive of separate “interview” and “testing” components. Section 25(5) contemplates that more than one report may be prepared in connection with one assessment. State Farm notes that in this case all three assessments only resulted in one report. The three OCF-18s clearly propose a neuropsychological assessment, and although there may be different components to the assessment, the OCF-18s confirm that a neuropsychological assessment is required to provide treatment recommendations. Thus describing the three OCF-18s as contemplating three separate assessments is an attempt to circumvent the $2,000.00 statutory cap per each assessment.
State Farm also submits that if the neuropsychological assessment contemplated by three different assessments plans is each subject to a separate maximum of $2,000.00, then the funds available for an insured person’s medical treatment will be substantially reduced as assessment costs are deducted from medical limits.
State Farm notes that the Supreme Court of Canada in Smith v. Co-operators found consumer protection is one of the main objectives of automobile insurance.2 State Farm submits that properly characterizing Mrs. Anger’s assessment activity as one assessment subject to the $2,000.00 limit is more in line with consumer protection as it will provide the consumer with more treatment funding available, and lessen the amount payable for assessment fees.
State Farm also notes the findings of stakeholders who provided input, and highlights one of the findings in FSCO’s report on the Five Year Review of Automobile Insurance, March 31, 2009,3 which recognizes assessments and examinations are of concern in that the report found “one area where stakeholders appear to be in agreement is the over-utilization of assessments in the auto insurance system…”.
According to State Farm, if it were to be determined that the interviewing and testing were separate evaluations by separate assessors, the OCF-18s submitted are lacking in any reasonable level of detail so as to assess the reasonableness of the costs. State Farm relies on Superintendent’s Guideline No 03/14 – Professional Services Guideline, which establishes the maximum hourly fees for both Psychologists and Psychometrists.
State Farm submits that the two OCF-18s submitted are lacking the particulars of the amount of time required for the assessors to complete their assessments. Rather for both assessments, the maximum amount available is being requested, and when the $2,000.00 is divided by a Psychometrist’s maximum hourly rate available, that results in a claim for approximately 34 hours of time. As well, State Farm notes that the actual report of Dr. Syed, dated December 14, 2015, notes that the actual assessment activity all took place on one day from 9:00 am to 4:30 pm on September 14, 2015. This should have included all of the time required by both the Psychologist and Psychometrist. Therefore State Farm concludes that the amounts being claimed by Mrs. Anger for each of the assessments not approved are not supported by the actual assessment time that took place.
In the alternative, State Farm submits that part of the assessment activity proposed by Dr. Syed is duplicative of the psychological treatment Mrs. Anger has received from Drs. Plotnick and Hapidou. Specifically, State Farm submits that the regular psychological assessment being sought was not necessary as she already had two regular psychological assessments in 2014.
With respect to Mrs. Anger’s submission that the three assessments in her case are no different than various assessments being conducted for a catastrophic assessment, State Farm disagrees with the analogy as in this case all the assessments are being carried out by either a Psychologist or Psychometrist to produce a psychological diagnosis.
Findings
The submissions from Mrs. Anger submitted the following: 1) State Farm advised Mrs. Anger’s representatives that they can obtain a complete neuropsychological assessment and neuropsychometric testing within the $2,000.00 limit under the Schedule; and 2) since the implementation of the $2,000.00 cap, the insurance industry as a whole, including State Farm, has always accepted that a neuropsychological assessment and neuropsychometric testing cannot be completed within the $2,000.00 cap and submission of multiple treatment plans was encouraged and accepted. However, there was no evidence presented before me to support either of the above submissions. Mrs. Anger provides no support, legal argument or precedent for these assertions.
Both counsel also advised me that no decisions have been made on the issue before me.
I note that Mrs. Anger takes the position that the two OCF-18s in dispute are not a duplication of services and that each of these assessments should be afforded its own assessment limit. The goal of the assessments was to identify all areas of cognitive deficits that Mrs. Anger had been experiencing since the accident and to then make appropriate treatment recommendations. State Farm takes the position that the three OCF-18s collectively contemplate one assessment process, although inclusive of separate “interview” and “testing” components.
On the facts before me, I find it challenging to determine definitively whether or not the two assessments in dispute are separate assessments or all part of one assessment which was approved by State Farm.
However, taking into consideration the submissions by counsel, documentation, and a detailed review of the two OCF-18s in dispute, I find that Mrs. Anger has not proven on a balance of probabilities that the two OCF-18s in dispute are reasonable and necessary.
- OCF-18 for neuropsychometric assessment
The proposed assessment does not indicate how many hours of testing will be required to complete the assessment. I note from State Farm’s submissions that when the $2,000.00 being requested for this assessment is divided by a Psychometrist’s maximum hourly rate available, it results in a claim for approximately 34 hours of time. I also note from reviewing Dr. Syed’s report, dated December 14, 2015, it appears Mrs. Anger’s assessment, including both her neuropsychological assessment and her neuropsychometric testing, took place over one day. I note State Farm’s submissions indicated that all assessment activity all took place on one day from 9:00 am to 4:30 pm on September 14, 2015. Mrs. Anger did not challenge these findings in her reply submissions. Based on the above, I do not find it reasonable for State Farm to approve an OCF-18 for over $2,000.00 for neuropsychometric testing.
- OCF-18 for mental health assessment
There are two reasons I find that this assessment was also not reasonable and necessary. The first reason is that it appears Mrs. Anger already underwent two similar assessments in 2014. The first was a psychological assessment completed by Dr. Hapidou as part of an Interdisciplinary Initial Assessment Report, dated August 7, 2014. The second was Dr. Plotnick’s psychological assessment, dated October 9, 2014. It appears that both of these assessments were reviewed and taken into account by Dr. Syed when he prepared his report, dated December 14, 2015.
I also note Dr. Syed’s report, dated December 14, 2015, that he was able to provide a neuropsychological assessment without another mental health assessment being completed. It appears the two similar assessments completed in 2014 sufficed.
Based on the above, Mrs. Anger is not entitled to payments for the cost of examinations, the details of which are noted as Issues 1 and 2 in the Report of Mediator, dated August 10, 2015.
EXPENSES:
The parties are encouraged to resolve this issue together. If they are unable to do so, they may schedule an expense hearing in writing before me according to the provisions of Rules 75-79 of the Dispute Resolution Practice Code.
September 26, 2016
Marshall Schnapp Arbitrator
Date
Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2016 ONFSCDRS 257
FSCO A15-007624
BETWEEN:
DONNA ANGER
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
- Mrs. Anger is not entitled to payments for the cost of examinations, the details of which are noted as Issues 1 and 2 in the Report of Mediator, dated August 10, 2015.
September 26, 2016
Marshall Schnapp Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Smith v. Co-operators General Insurance Co., [2002] 2 S.C.R. 129, 2002 SCC 30.
- Respondent’s Brief of Authorities, Tab 10 - FSCO’s Report on the Five Year Review of Automobile Insurance, March 31, 2009, at p. 30.