16-004501 v The Sovereign General Insurance Company, 2018 CanLII 13158

Date: 2018-02-05

Tribunal File Number: 16-004501/AABS

Case Name: 16-004501 v The Sovereign General Insurance Company

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

Between:

Applicant

Applicant

and

The Sovereign General Insurance Company

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

For the applicant: Kate Cahill, counsel

For the Respondent: Janet Young, counsel

HEARD: Written Hearing: August 3, 2017

Overview

1The applicant was injured in a motor vehicle accident on December 23, 2012. In preparation for a Catastrophic Impairment Assessment, the applicant sought payment for a number of assessments under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Sovereign General Insurance Company (“Sovereign”) partially approved payment. Sovereign deemed the unapproved portion to not be reasonable and necessary. The applicant appeals for payment of this non-approved portion to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

Issues in Dispute:

2The following issues are in dispute:

1. Is the applicant entitled to receive a partially denied Treatment Plan, dated December 8, 2014, for assessments in preparation for a Catastrophic Impairment Assessment? The Treatment Plan was partially approved for $7232.00 and the outstanding balance in dispute is $7627.50.

2. Is the applicant entitled to interest on overdue payments?

3. Is Sovereign entitled to costs under Rule 19?

Result:

3The applicant is entitled to payment for a physiatry assessment and the completion of an Application for Determination of Catastrophic Impairment (OCF-19). He is also entitled to payment for HST on these expenses. Finally, the applicant is entitled to interest in accordance with s. 51 of the Schedule.

4The applicant is not entitled to payment for a File Review or a Whole Person Impairment Assessment. The expenses are duplicitous. In particular, payment for the File Review is prohibited under s. 25(5) of the Schedule.

5The applicant is not entitled to payment for x-rays because he has not proven that OHIP coverage is not reasonably available for this expense.

6Sovereign is not entitled to costs under Rule 19.1.

Facts:

The Accident

7On December 23, 2012, the applicant was the 18-year old passenger of a vehicle that was cut-off, struck a tree and ended up in a ditch. As a result of the accident, the applicant sustained a closed head injury with a loss of consciousness. He sustained a severe right ankle fracture. His right ankle remains in a position of malunion. The applicant will require an ankle replacement. If the replacement surgery is unsuccessful the applicant is at risk of having a below-knee amputation.

The Disputed Treatment Plan

8On December 8, 2014, Dr. Harold Becker of Omega Medical Associates submitted a $14,859.50 Treatment Plan to Sovereign. The Treatment Plan recommended a Multi-Disciplinary Catastrophic Impairment Assessment in order to make a catastrophic impairment determination. Dr. Becker’s Multi-Disciplinary Catastrophic Impairment Assessment consisted of the following:

• $2000.00 – Orthopaedic Assessment

• $750.00 – X-Rays (lower extremities)

• $2000.00 – Physiatry Assessment

• $2000.00 – Psychology Assessment

• $2000.00 – File Review

• $2000.00 – WPI Analysis

• $2000.00 - Overall Assessment Summary, Case Conferencing, Final Rating

• $200.00 – Treatment Plan (OCF-18) Completion

• $200.00 – Application for Determination of Catastrophic Impairment (OCF-19) Completion

• $1709.50 - HST

9Sovereign agreed to pay for everything (and the associated HST) except:

• $2000.00 – Physiatry Assessment

• $2000.00 – File Review

• $2000.00 – Whole Person Impairment (WPI) Analysis

• $750.00 – X-Rays (lower extremities)

• $200.00 – Application for Determination of Catastrophic Impairment (OCF-19) Completion

The denied expenses above are the issues in dispute at this hearing.

The Applicant is Catastrophically Impaired

10The parties agree that the applicant is catastrophically impaired as a result of the accident. The timeline of this agreement is relevant to the reasonableness of the expenses in dispute.

11The applicant’s counsel funded for the denied portion of the Treatment Plan for the Catastrophic Impairment Assessment. The applicant underwent each of the recommended assessments.

12The applicant submitted an Application for Determination of Catastrophic Impairment (OCF-19) dated February 16, 2015. Sovereign denied that the applicant was catastrophically impaired in a letter dated March 11, 2015.

13Sovereign requested that the applicant undergo assessments by its own medical experts. There were five assessments at a rate of $2,000.00 each plus HST. Notably, Sovereign did not pay for the expenses it considered not reasonable and necessary in the applicant’s Treatment Plan: File Review, WPI Analysis report, and a physiatry assessment. Rather, Sovereign paid for assessments by an orthopaedic surgeon, psychiatrist, neurologist, occupational therapist, and a psychologist, as well as an Executive Summary and report. The total cost paid by Sovereign was $11,300.00.

Discussion:

1. The Physiatry Assessment

14The applicant is entitled to $2,000 for the physiatry assessment’s payment. The physiatry assessment is reasonable and necessary.¹

15Sovereign submits that the physiatry assessment is not reasonable and necessary because the applicant’s injuries are orthopaedic in nature. I agree with Sovereign that the applicant’s predominant injury is orthopaedic in nature. But I disagree with Sovereign that the physiatry assessment is not reasonable and necessary. A Catastrophic Impairment Assessment is a multifaceted inquiry in which the relationship between predominant and less dominant injuries is considered in determining whether an insured person is catastrophically impaired. Although it is obvious that the applicant’s orthopaedic difficulties will adversely affect his life, in determining whether he is catastrophically impaired it is a reasonable and necessary question to ask what other physiological injuries, if any, affect the applicant, and to what extent do these injuries aggravate the applicant’s orthopaedic difficulties. Dr. Becker was in the best position to consider this question. Dr Becker concluded that a physiatry assessment was reasonable and necessary. I arrive at the same conclusion.

16The applicant further submits that “once a person has been accepted as being catastrophically impaired, the insured’s assessment costs must be paid in full where the insurer has relied in whole or in part on the opinions of the insured’s assessors.” I would not go this far. When payment for an assessment is a disputed issue, an insurance company’s use of the assessment to form an opinion can be circumstantial evidence that the assessment is reasonable and necessary. However, it need not be proof and is not conclusive proof that the assessment is reasonable and necessary. In any event, Sovereign submits that it did not rely on the physiatry assessment to conclude that the applicant is catastrophically impaired. I do not rely on the applicant’s catastrophic impairment as proof that the physiatry assessment is reasonable and necessary.

2. File Review

17The applicant is not entitled to payment for a File Review ($2,000) because the expense is not reasonable. Sovereign is not required to pay more than a total of $2,000 for any one assessment, including fees and expenses: see s. 25(5) of the Schedule. Anything beyond $2,000 is an unreasonable expense.

18All parties agree that a file review is a necessary part of an assessment. Because the file review is so necessary, it should be treated as part of the assessment’s expense. It is duplicitous, and therefore unreasonable, to bill for a file review in addition to a $2,000 assessment. The applicant’s assessor, Dr. Becker, should have examined the applicant’s file within the $2,000 payment limit he received for the orthopaedic assessment.

19I am sympathetic to the potential submission that one cannot competently conduct an assessment and file review within the $2,000 limit. To this I have two comments.

20Through the plain words of s. 25(5) the Ontario Legislature demands that medical practitioners conduct an assessment and file review within a $2,000 cap. Section 25(5) specifically states that “an insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment”. Since a file review is a necessary component of an assessment, it is a fee or expense captured within s 25(5)’s $2,000 payment cap.

21Sovereign’s medical practitioners were able to conduct file reviews in their assessments, all of which were within the $2,000 limit. This suggests that file reviews are capable within the $2,000 pay cap on assessments.

3. Whole Person Impairment Analysis

22The applicant is not entitled to payment for the Whole Person Impairment Analysis ($2,000). The expense is duplicitous. As part of the Treatment Plan’s partial approval, Sovereign agreed to pay $2,000 for an Overall Assessment Summary. The applicant has not provided any evidence or submissions on the difference between an Overall Assessment Summary and a Whole Person Impairment Analysis. In the absence of any evidence to the contrary, I find that the Overall Assessment Summary includes the constituent analysis of the Whole Person Impairment analysis. Indeed, Sovereign’s catastrophic impairment assessor was able to include all analysis in one Executive Summary report for $2,000. There is no evidence why Dr. Becker could not do the same.

4. Application for Determination of Catastrophic Impairment (OCF-19)

The applicant is entitled to payment for the completion of the Application for Determination of Catastrophic Impairment (OCF-19). Sovereign denied payment because the application was premature at the time it was submitted. That may have been true; however, at the time of this hearing the application is reasonable and necessary. The applicant has been deemed catastrophically impaired.

5. X-Rays

23The applicant is not entitled to payment for x-rays ($750.00) because he has failed to prove that payment for the x-rays was not reasonably available through the Ontario Health Insurance Plan (OHIP).

24Section 47(2) of the Schedule allows an insurer to deduct payment that is reasonably available under any insurance plan or law.² OHIP is an “insurance plan or law” for the purposes of s. 47(2): see G.T. v. Unifund, infra, at para. 24. In G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ON LAT), the Tribunal’s Executive Chair provided guidance on how OHIP should be treated under s. 47(2). At paragraph 27, the Executive Chair explained that if an insurer advances some evidence or submission that, on balance, shows that part of a benefit is reasonably available from OHIP, the insured must prove that OHIP coverage was not reasonably available. I am mindful that the Executive Chair was not attempting to provide a comprehensive statement of the law. Her analysis is applicable in this case nonetheless. I find it analytically convenient to frame the Executive Chair’s analysis in a two-step test:

1. The insurer must invoke s. 47(2) by advancing some evidence or submission that, on balance, proves that at least part of the disputed benefit is reasonably available from OHIP.

2. The applicant can remove s. 47(2) from consideration by proving that OHIP coverage for the benefit is not reasonably available.

25Looking at the first step, there is a basis that the x-rays are reasonably available from OHIP. Sovereign’s stated from the outset its position that the x-rays are payable under OHIP. In its Explanation of Benefits dated December 19, 2014, Sovereign put the applicant on notice that OHIP coverage is available for the x-rays.

26Looking at the second step, the applicant has not proven that OHIP coverage for the x-rays is not reasonably available. The applicant has provided no evidence or submissions in this regard.

27Since the applicant has not satisfied his onus at the second step of the test, he is not entitled to payment from Sovereign.

6. Interest

28The applicant is entitled to interest on the physiatry assessment and the completion of the Application for Determination of Catastrophic Impairment (OCF-19). Payment must be made in accordance with s. 51 of the Schedule.

29My decision includes a requirement that Sovereign pay for the HST on the two overdue benefits: see Superintendent’s Guideline No. 08/10 at p. 3.

Costs

30Sovereign requests costs under Rule 19 of the LAT Rules. The costs claim is dismissed. There is no evidentiary basis for the claim. Sovereign has not specified what conduct is alleged to be unreasonable, frivolous vexatious, or in bad faith. This is a requirement of Rule. 19.1.

Conclusion:

31The applicant is entitled to payment for a physiatry assessment and the completion of an Application for Determination of Catastrophic Impairment (OCF-19). He is entitled to payment for tax on these expenses and interest in accordance with s. 51 of the Schedule.

32The applicant is not entitled to payment for a File Review, a Whole Person Impairment Assessment, or x-rays.

33Sovereign is not entitled to costs under Rule 19.1.

Footnotes

1. 1The parties’ submissions addressed whether the physiatry assessment is reasonable and necessary. My decision is based on the parties’ framing of the issue. I do not need to decide whether the physiatry assessment should be considered a medical/rehabilitation expense under sections 15 and 16 of the Schedule or a different type of expense under Part IV.
2. 2It is not necessary for me to decide whether the x-rays should be treated as a medical, rehabilitation, or Part IV expense because s. 47(2) applies to all three types of expenses.