Citation: C.A. vs. Intact Insurance Company 2018 ONLAT 18-000579/AABS

Date: December 24, 2018

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

C.A.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Lawson H. Hennick, Counsel

For the Respondent: Saro Setrakian, Counsel

HEARD IN WRITING ON: August 13, 2018

OVERVIEW

1C. A., the applicant, was injured in a rear-end automobile accident on February 3, 2015 (“the accident”) and sought payment for a multidisciplinary catastrophic impairment assessment pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Intact Insurance Company (“Intact”). Intact denied C.A.’s claim and, as a result, C.A. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) on January 23, 2018.

2The parties were unable to resolve their dispute at a case conference held on May 23, 2018, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

3The following issues are to be decided:¹

1. Is C.A. entitled to payments for the cost of an examination in the amount of $16,272.00 for a multi-disciplinary catastrophic impairment assessment (the “CAT Assessment”), recommended by Omega Medical Associates, as detailed in a treatment plan dated May 19, 2017, and denied by Intact on June 6, 2017?

2. Is C.A. entitled to interest on any overdue payment of benefits?

RESULT

4Based on the evidence before me, I find that:

1. The individual assessments that make up the CAT Assessment are not reasonable and necessary and, therefore, C.A. is not entitled to payment for any portion of the examination; and

2. Since there are no benefits or costs that are overdue, no interest is payable.

PRELIMINARY ISSUES

The Sur-Reply

5Intact submitted a “sur-reply” which was objected to by C.A. After receiving further submissions from Intact and providing C.A. with an opportunity to provide reply submissions, which she did not make, I am allowing the sur-reply to be admitted.

6C.A. objected to my consideration of Intact’s “sur-reply” as it was not provided for in the Case Conference Order dated July 10, 2018. C.A. also argued that the evidentiary record and case law submitted should “speak for itself” and no further submissions ought to be considered.

7Intact argues that the sur-reply, which is a brief submission on a narrow point raised by C.A. in her reply and does not contain any new evidence, is appropriate and must be considered by the Tribunal in circumstances where an argument raised in reply is factually misleading. Intact submits that the Tribunal has the discretion to manage its own procedures and practices, the Tribunal’s Common Rules of Practice & Procedure (“the Rules”) are silent regarding the procedure for written submissions, including reply and sur-replies and, although the Case Conference Order did not provide for a sur-reply in the submission timetable, it also did not preclude a sur-reply.

8Intact also argues that, as a matter of procedural fairness, and to clarify a factually misleading argument made by C.A. in her reply submissions, it should be given the chance to make a full response.

9In making my decision on this preliminary issue, I am guided by Rule 3.1 of the Rules which mandates me to facilitate a fair process, allow effective participation by all parties and to ensure efficient, proportional and timely resolution of the merits of this proceeding.

10As a matter of procedural fairness, and because the sur-reply contains no new evidence, I will consider Intact’s sur-reply in formulating my decision. If Intact wishes to present its position on a “factually misleading argument” made by C.A., fairness dictates that I should be allow it to do so as there is no opportunity for Intact to “object” in a written hearing as there is at an in-person hearing during submissions. I am admitting the sur-reply as, in this case, it is akin to an objection.

Was Intact’s denial for payment for the CAT Assessment improper?

11C.A. argues that Intact’s denial for payment of the CAT Assessment was improper as it was based on s. 38(14)(a) of the Schedule. C.A. argues that this section only applies to claims for medical or rehabilitation benefits and that CAT assessments are not considered "benefits" pursuant to s. 18 of the Schedule. Section 38(14)(a) states:

Within 10 business days after receiving the report, the insurer shall,

(a) provide the insured person with a notice indicating the goods and services described in the treatment and assessment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the medical and any other reasons for the insurer’s decision;

12C.A. also relies upon Henderson v. Wawanesa Mutual Insurance Co.,² where the adjudicator held that CAT assessments are, “not in relation to a ‘benefit’ and that the provisions of s. 18 of the [the Schedule] do not apply.”³

13Intact’s November 2, 2017 denial letter states that the CAT Assessment is, “not reasonable and necessary and as such, as per Section 38(14) (a) of the Statutory Accident Benefits Schedule, we are unable to provide funding.”⁴

14Section 38 of the Schedule sets out the procedures that both insurers and insured persons must follow when a claim is made for medical and rehabilitation benefits or approvals of assessments or examinations. Section 38(1) (b) states:

This section applies to,

(b) all applications for approval of assessments or examinations.

15I find that Intact’s denial for payment for the CAT Assessment was proper.

Section 38(1)(b) clearly states that s. 38 applies to all applications for approval of assessments or examinations. Furthermore, I disagree with C.A.’s position that Intact’s denial was based on s. 38(14) (a) of the Schedule. Section 38(14) (a) speaks to procedure and Intact clearly stated in its November 2, 2017 denial letter that funding for the CAT Assessment was not approved on the basis that it was not reasonable and necessary.

ANALYSIS

i. Cost of Examination dated May 19, 2017 - Multi-disciplinary CAT Assessment

What is the test to determine entitlement to payment for a CAT Assessment?

16For the reasons that follow, I find that the correct test to determine entitlement to payment for a CAT Assessment is that each constituent assessment that makes up the multidisciplinary catastrophic impairment determination assessment must be reasonable and necessary.

17C.A. relies upon s. 45 of the Schedule, which allows an insured person who sustains an impairment as a result of an accident to apply to the insurer for a determination of whether his or her impairment is catastrophic.

18C.A. submits that the payment for a catastrophic impairment determination assessment is a substantive right and relies upon paragraph 5 of s. 25(1) of the Schedule, which she suggests requires Intact to pay for any reasonable fee charged for a catastrophic impairment determination assessment. To support this approach, C.A. relies upon Henderson, where the arbitrator stated, “the statute cannot be any clearer as to its intent and application. There is no room for ambiguity – the insurer shall pay the expenses of a CAT assessment.”⁵ C.A. argues that, so long as the fees are reasonable, Intact should automatically pay for the CAT Assessment.

19In contrast, Intact argues that payment for a CAT Assessment is a qualified right, meaning that the constituent assessments must be both “reasonable and necessary.” In this sense, Intact argues that the analysis is the same as the analysis undertaken for consideration of a medical or rehabilitation benefit in dispute under s. 15 of the Schedule, which governs the payment of benefits for services of a medical nature and requires payment only for “reasonable and necessary expenses.” Intact relies upon 16-002858 v State Farm Insurance Company,⁶ where the adjudicator found that the “reasonable and necessary test” applied to determine entitlement to a CAT Assessment.

20Intact also disagrees with C.A.’s interpretation of Henderson. Intact argues that the core issue of Henderson was whether funding of the catastrophic impairment determination assessment in that case was subject to the

$50,000.00 medical and rehabilitation limit in s. 18 of the Schedule. Intact submits that the arbitrator did not make any findings in relation to catastrophic impairment determination assessments and s. 15 of the Schedule, and also did not find, at a minimum, that CAT assessments did not have to be reasonable. I agree with Intact.

21I do not agree with C.A.’s assertion that s. 45 of the Schedule and Henderson equate to the proposition that, simply because reasonable costs are incurred by an insured for a catastrophic impairment determination assessment, it is payable by an insurer. Acceptance of C.A.’s argument would create significant policy implications as the only threshold test to determine an insured’s entitlement to payment for a catastrophic impairment determination assessment would be that the fees charged were reasonable.

22I agree with the decision in 16-002858, which held that the correct test for entitlement to a catastrophic impairment determination assessment is reasonable and necessary.⁷ Similarly to the situation in 16-002858, C.A. applied for a catastrophic determination assessment comprised of several assessments through one treatment plan. I agree with 16-002858 that each of the modalities is a request for a medical benefit and the test for determining entitlement to a medical benefit is well-established as “reasonable and necessary.”⁸

23I also agree with 16-002858 that s. 25(5) of the Schedule is found in Part 4, entitled, “Payment of Other Expenses,” which addresses parameters for the payment of expenses. Entitlement to those payments is still found in s. 15(1) of the Schedule and, therefore, each assessment making up the catastrophic impairment determination assessment must be reasonable and necessary.

Once each assessment is found to be reasonable and necessary, only then would s. 25 apply to determine if the fees charged for each assessment are reasonable.

The CAT Assessment Treatment Plan

24The treatment plan in dispute for the CAT Assessment was completed by Dr. Harold Becker, a physician with Omega Medical Associates, and dated May 19, 2017 (the “Treatment Plan”).⁹ The Treatment Plan proposed funding for a multidisciplinary CAT assessment of C.A. comprised of:

(1) a Neurological assessment ($2,000.00);

(2) a Physiatry assessment ($2,000.00);

(3) a Psychology assessment ($2,000.00);

(4) an OT Assessment – In-Home($2,000.00);

(5) an OT Assessment – Community ($2,000.00);

(6) a Clinic File Review/Triage Assessment ($2,000.00);

(7) an Overall Assessment Summary, Analysis, Final Rating ($2,000.00);

(8) the completion of an OCF-19 Certificate ($200.00);

(9) the completion of an OCF-18 Form ($200.00); and

(10) HST ($1,872.00).

25The Treatment Plan lists the following injuries and sequelae information: concussion, injury of other muscles and tendons at lower leg level; headache; dizziness and giddiness; disorders of initiating and maintaining sleep (insomnia); tinnitus; anxiety disorder, unspecified. The goals of the Treatment Plan are listed as, “N/A OCF-19 Catastrophic Assessment.” The Treatment Plan had no attachments.

26Despite Intact’s denial for funding, C.A. incurred $16,272.00 when she proceeded with the CAT Assessment, which concluded that she did not sustain a catastrophic impairment.¹⁰ The CAT Assessment reported that C.A.’s physical impairments under criterion 7 were found to represent 25% whole person impairment (WPI)¹¹ and a WPI of 22% represented C.A.’s level of mental and behavioural impairments.¹² When combined, C.A. had 42% WPI which did not meet the CAT threshold under criterion 7, and she did not meet the CAT threshold either under Criterion 8 for mental and behavioural impairments as she did not have at least one Marked (Class 4) Impairment.¹³

27Intact made several submissions about the reasonableness and necessity of the CAT Assessment based on C.A.’s own assessors finding that she was not catastrophically impaired. I agree with C.A. that the results of the CAT Assessment are not a relevant consideration when determining the reasonableness and necessity of the Treatment Plan, as this would go to the probability as opposed to the possibility of C.A. being catastrophically impaired, which has been held to have no place for consideration at this juncture.¹⁴ That is to say, the relevant test asks whether the assessment’s expense was reasonable and necessary, not what the assessment ultimately found.

Are the assessments recommended in the Treatment Plan reasonable and necessary?

28The onus is on C.A. to show, on a balance of probabilities, that she is entitled to a payment for medical benefits under the Schedule. Therefore, C.A. has the onus to show that each assessment recommended in the Treatment Plan is reasonable and necessary and, if so, that the fees charged for same are reasonable.¹⁵

29Dr. Becker provided no attachments and no summary, as there was in 16- 002858, to the Treatment Plan to provide further explanation as why each individual assessment is reasonable and necessary. I agree with Intact that the information on the Treatment plan is extremely minimal. The only goals provided for are “N/A OCF-19 Catastrophic Assessment,” and there are many portions of the Treatment Plan where “unknown” was the response given, which include if C.A. had any prior conditions, concurrent conditions, work impairments or activity impairments in relation to the accident.

(a) Neurological, Physiatry and Psychological assessments

30C.A. has failed to prove on a balance that the neurological, physiatry and psychological assessments are reasonable and necessary and, therefore, she is not entitled to payment for these expenses.

31C.A. had been under the care of the following medical professionals:

(1) Dr. Rose Giammarco, a neurologist;¹⁶

(2) Dr. Julian M. R. Mathoo, a physiatrist;¹⁷ and

(3) Dr. Gouveia, a psychologist.¹⁸

32There is no evidence that any of these persons believed it was reasonably possible that C.A. was catastrophically impaired. It also does not appear that any of these persons were consulted for the purpose of completing the Treatment Plan.

33My reading of the clinical notes and records (CNRs) of these physicians revealed no evidence that C.A. was catastrophically impaired.

34Indeed, although C.A. contends that Dr. Gouveia concluded that she sustained “a serious impairment of several important bodily functions as well as psychological trauma,”¹⁹ I did not observe any such conclusions in Dr.

Gouveia’s CNRs.

35There is also no evidence to support that the neurological, physiatry and psychological assessments are reasonable and necessary in the other documentation that C.A. submitted for the hearing.

36My review of the CNRs of Dr. Hein Vo and Dr. Gillian Raykha,²⁰ C.A.’s treating chiropractors from Collaborative Health Care Clinic provide no evidence that

C.A. was catastrophically impaired. The CNRs indicate a pattern of treatment and are inconsistent with diagnoses of concussion and adjustment disorder, which are also beyond the expertise of chiropractors to make.

37The only Disability Certificate (OCF-3) submitted by C.A. was dated August 10, 2015, and was completed by Dr. Vo. Dr. Vo lists the following in the “Injury and Sequelae Information:” chronic left shoulder rotator cuff sprain, strain/sprain of rib & sternum, tension type headache, low back pain and WAD II. This OCF-3 indicates that the anticipated duration of the disability was “9-12 weeks.” This OCF-3 is of little assistance to C.A. in determining entitlement to any of the assessments as the anticipated duration of disability had lapsed prior to the submission of the Treatment Plan.

38C.A. also submitted the CNRs of her family doctor, Dr. Tak S. Lo, who she did not attend until almost one month post-accident on March 2, 2015. Dr. Lo’s diagnoses of C.A. following the accident include a cervical/lower back strain, chronic neck/back pain, depression and chronic headaches. Dr. Lo prescribed

C.A. chiropractic treatment, physiotherapy and pain medication. There were no further notes of referrals for follow-up post-accident for C.A. in Dr. Lo’s CNRs aside from a neck MRI, which was completed in February 2016 and was normal.²¹

39C.A. also submitted an October 13, 2016 neurological report by Dr. Richard Gladstone.²² Dr. Gladstone concluded that C.A., “has sustained a serious impairment of several important bodily functions as well as psychological trauma.”²³ Dr. Gladstone reported that:

(1) prior to the accident, C.A. had a history of migraines and TMJ but stated, “all of these issues with TMJ, migraine…were resolved prior to the accident;”²⁴

(2) C.A. self-reported that “immediately” she could head a loud ringing sound after the accident;²⁵

(3) C.A. went to a walk-in clinic after the accident where she was told she had a possible concussion;²⁶ and

(4) C.A. reports that she has been seeing Dr. Guaevara, a psychologist.²⁷

40I give very little weight to Dr. Gladstone’s report and his conclusion that C.A. sustained a serious impairment of several important bodily functions as well as psychological trauma because his report contradicts the following evidence:

(1) Dr. Giammarco’s CNRs indicate that on August 6, 2014, C.A. reported that she had “one headache a week” and is prescribed medication to manage her headaches. C.A. also saw Dr. Giammarco on May 23, 2012, March 19, 2012 and August 8, 2011 for headaches indicating that C.A.’s headaches were not resolved prior to the accident;

(2) Dr. Giammarco saw C.A. on February 9, 2015, and there is no mention of the accident at all in this entry. There is also no mention of ringing or any concussion discussions. There is also no mention of ringing in C.A.’s ears in her family doctor’s CNRs on March 2, 2015; and

(3) C.A.’s treating psychologist was Dr. Gouveia, not Dr. Guaevara

41I also give very little weight to Dr. Gladstone’s report because it lacks any discussion and explanation as to how he concludes that C.A. suffered a cerebral concussion and some of the diagnoses that he made, such as anxiety and depression, are outside of his area of expertise. There is also no corroborating evidence submitted by C.A. that she attended a walk-in clinic following the accident where she was allegedly informed that she had a possible concussion as Dr. Gladstone reports. Dr. Gladstone’s report is also completed some seven months before the Treatment Plan is submitted.

42C.A. also submitted that her medication use following the accident supports the reasonableness and necessity of the assessments. I, however, agree with Intact that C.A. was already taking many of these medications prior to accident and many were not related to the accident at all. Furthermore, C.A. failed to make any connection between the use of her medications and the reasonableness of any of the constituent assessments that made up the CAT assessment.

43For all of these reasons, I find that C.A. has failed to prove on a balance of probabilities that the neurological, physiatry and psychological assessments were reasonable and necessary.

(b) OT Assessments – In-Home and Community

44C.A. has also failed to prove on a balance of probabilities that the occupational therapy (OT) assessments are reasonable and necessary and, therefore, she is not entitled to payment for these expenses.

45C.A. has not provided any submissions on the reasonableness or necessity of the two proposed OT assessments. In reviewing the documentation that C.A. has submitted, there is no information provided on her activities of daily living and her social and recreational activities in close proximity to the period in time when the Treatment Plan was submitted.

46For example, C.A.’s family doctor, Dr. Lo, only comments on her poor sleep and missed classes in 2015. Dr. Vo and Dr. Raykah report as early as July 7, 2015 that C.A. had been attending sessions with a personal trainer at a gym which appears to continue at least until November 2016. C.A. reports working to Dr. Vo and Dr. Ryakah in January 2017 and that she was sitting at her computer a lot for her new position, which was causing pain on February 3, 2017. Dr. Vo and Dr. Ryakah also note on March 27, 2017 that C.A. reported putting furniture together the day before.

47Dr. Gladstone’s report also speaks to C.A’s activities of daily living but I give this report little weight for the reasons stated above. Dr. Gouveia notes on September 17, 2016 that C.A. is avoiding social, family and recreational events without any further details. Intact also submitted a Physician Assessment Report dated September 14, 2015, completed by Dr. Michael Alexander Boucher,²⁸ which also speaks to C.A.’s daily activities, but I find that it would not be an accurate depiction of C.A.’s activities of daily living when the Treatment Plan was submitted.

48What is undisputed is that C.A. maintained her independence in self-care following the accident, completed a Master’s degree post-accident (with academic accommodations pre- and post-accident) and has worked full time since late 2016.

49C.A. has failed to submit any evidence to prove that on a balance of probabilities the OT assessments are reasonable and necessary.

(c) Clinic File Review/Triage Assessment

50C.A. is not entitled to payment for clinic file review/triage assessment because this expense is not reasonable.

51As in 16-004501 v The Sovereign General Insurance Company,²⁹ a file review should be completed as part of an assessment. There is no evidence to suggest that, in this case, the file review is not duplicative as it was in 16- 004501. Therefore, I find that it is unreasonable to bill for a file review in addition to any individual assessment.

(d) Overall Assessment Summary, Analysis, Final Rating

52As I have found that none of the constituent assessments that make up the CAT Assessment are reasonable or necessary, the overall assessment summary, analysis and final rating is, therefore, also not reasonable and necessary and C.A. is not entitled to payment for this expense.

(e) Completion of OCF-19 Certificate

53No OCF-19 was completed. As such, C.A. is not entitled to payment for this expense.

(f) Completion of OCF-18

54I find that the completion of the OCF-18 for the CAT Assessment was not reasonable or necessary, as there is no indication on the Treatment Plan as to why CAT Assessment was recommended.

55I also agree with Intact there is no evidence that C.A. had applied for any additional benefits that a catastrophic designation would make accessible to her and, therefore, there was no evidence that she required access to a higher tier of benefits.

56C.A. argued that the CAT Assessment was necessary to rebut the findings of Dr. Mohammed Khaled’s report dated June 13, 2017,³⁰ which was an insurer examination by way of a paper review that was completed in response to the Treatment Plan. Dr. Khaled found that none of the multidisciplinary assessments requested in the Treatment Plan were reasonable or necessary, as there was no evidence in the paper file that C.A. sustained any prolonged or catastrophic impairment as a result of the accident.³¹

57I agree with Intact’s position that the necessity and reasonableness of the Treatment Plan is determined at the time the Treatment plan was submitted, which was prior to the IE completed by Dr. Khaled. Dr. Khaled’s report also did not make any findings on whether or not C.A. was catastrophically impaired.

Therefore, there were no findings of catastrophic impairment for C.A. to rebut.

(g) HST

58As C.A. is not entitlement to payment for any of the constituent assessments, there is no HST owing and payable by Intact.

(h) Interest

59Because I have found that there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

60For the reasons outlined above, I find:

(1) The Treatment Plan for the multidisciplinary CAT Assessment is not reasonable and necessary;

(2) C.A. is not entitled to interest; and

(3) The application is dismissed.

Released: December 24, 2018

Lindsay Lake

Adjudicator

Footnotes

1. 1In her submissions, C.A. originally cited two additional issues for medical benefits but agreed with Intact in her reply submissions that the other two issues were no longer in dispute.
2. 22015 CarswellOnt 11184 (“Henderson”).
3. 3Ibid. at para. 41.
4. 4Correspondence from Intact dated November 2, 2017, Written Submissions of Intact Insurance, tab 8.
5. 5Supra note 2, para. 50.
6. 62017 CanLII 85692 (ON LAT) (“16-002858”). Intact also relied upon previous FSCO decisions of Sangaralingham v. TD Insurance Co, [2016] OFSCD No. 79 at para. 47 and Moser v. Guarantee Co. of North America, [2014] OFSCD No. 270, at paras. 154-158.
7. 7Ibid. at para. 11.
8. 8Ibid.
9. 9OCF-18 completed by Dr. Harold Becker, dated May 19, 2017, Applicant’s Document Brief, tab 16.
10. 10Catastrophic Impairment Evaluation, Applicant’s Document Brief, tab 22.
11. 11Ibid. at page 3.
12. 12Ibid. at page 4.
13. 13Ibid.
14. 14See 17-003496 v TD Insurance, 2018 CanLII 13167 (ONLAT).
15. 15Supra note 6, para. 18.
16. 16CNRs of Dr. Rose Giammarco, Applicant’s Document Brief, tab 23.
17. 17CNRs of Dr. Julian M. R. Mathoo, Applicant’s Document Brief, tab 15.
18. 18CNRs of Dr. Gouveia, Applicant’s Document Brief, tab 20.
19. 19Written Submissions of the Applicant, para. 18.
20. 20CNRs of Collaborative Health Care Clinic (Formerly Mississauga Wellness), Applicant’s Document Brief, tab 10.
21. 21Diagnostic Imaging Department, Rouge Valley Health System, Written Submissions of Intact Insurance, tab 5.
22. 22IME by Dr. Richard M. Gladstone dated October 13, 2016, Applicant’s Document Brief, tab 21.
23. 23Ibid. at page 9.
24. 24Ibid. at page 3.
25. 25Ibid.
26. 26Ibid.
27. 27Ibid. at page 6.
28. 28Physician Assessment Report by Dr. Michael Alexander Boucher, dated September 14, 2015, Written Submissions of Intact Insurance, tab 15.
29. 292018 CanLII 13158 (ON LAT) (“16-004501”).
30. 30Physician Paper Review Report by Dr. Mohamed Khaled, dated June 13, 2017, tab 17, Applicant’s Document Brief.
31. 31Ibid. at page 4