R. M. v. Unica Insurance Inc., 2018 CanLII 132569

Licence Appeal Tribunal

Date: 2018-12-04

Tribunal File Number: 17-007500/AABS

Case Name: 17-007500 v. Unica Insurance Inc.

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

Between:

R. M.

Applicant

and

Unica Insurance Inc.

Respondent

AMENDED DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Rocco Lofranco, Counsel

For the Respondent:

Angela Comella, Counsel

HEARD in Writing on:

July 16, 2018

OVERVIEW

1While crossing the street on June 14, 2017, the applicant was struck by a car travelling at 80 km/hr. Unconscious and unresponsive, the applicant was transported to a hospital in downtown Toronto. He was later diagnosed with intracranial bleeding, skull fractures, and a traumatic brain injury.

2The applicant did not have access to OHIP at the time of the accident, so his hospital bill now exceeds $300,000.00. To help cover this bill, the applicant applied to the respondent, Unica Insurance Inc., for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”).

3The respondent declined to pay for certain benefits, namely, payments in the amount of $9,718.00 for multi-disciplinary catastrophic determination assessments (the “CAT assessments”). It was the applicant’s hope that this series of assessments would convince the respondent that he had sustained a catastrophic impairment, a designation that entitles insured persons to a funding limit of $1,000,000.00 for medical, rehabilitation and attendant care benefits.

4In a letter dated November 22, 2017, the respondent declined to pay for the CAT assessments, because the hospital bill exceeded the $65,000.00 limit set out in s. 18(3) of the Schedule for medical, rehabilitation and attendant care benefits for those who have not sustained a minor injury or catastrophic impairment. Since the respondent determined that the CAT assessments were captured under the limit set out in s. 18(3), there was nothing left to fund this series of assessments.

5For the reasons to follow, I find that the applicant is entitled to payments in the amount of $7,718.00 for some of the disputed CAT assessments. The applicant is not entitled to an award under Regulation 664.

ISSUES

6The only benefit in dispute is payments in the amount of $9,718.00 for the CAT assessments. This proposed series of assessments includes: a neurophysiatry assessment; an occupational therapy assessment; a clinic file review / triage assessment; and an assessment summary / final rating.

7The applicant is also requesting an award under Regulation 664.

ANALYSIS

8Since the respondent denied the proposed benefit by way of referencing the non-catastrophic treatment limits, I will first have to determine if catastrophic determination assessments are, in fact, included under this funding limit. If not, I will then determine if the applicant is entitled to payments for the CAT assessments.

Parties’ Positions

9The applicant submits that the respondent has ignored case law concerning the characterization of catastrophic determination assessments. Specifically, the applicant relies heavily on the Financial Services Commission of Ontario (“FSCO”) decision in Henderson v. Wawanesa Mutual Insurance Company¹ to support his position.

10In Henderson, the Arbitrator concluded that these assessments are not meant to bestow a specific benefit on an insured person, but rather they open the possibility of receiving additional benefits. Put another way, as opposed to other examinations and assessments that might support an insured person’s request for a specific treatment plan, weekly benefit, etc., these assessments assist the parties in determining whether someone is entitled to a higher funding limit. Further, s. 45 of the Schedule sets up a procedure for determining whether an insured person is catastrophically impaired, and so the Arbitrator reasoned that there must be a means for allowing the parties to make this determination.

11The applicant also points to the language in s. 25(1)5 of the Schedule for further support of his position:

The insurer shall pay the following expenses incurred by or on behalf of an insured person… Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

12According to the applicant, this reference to “any assessment or examination necessary for that purpose” was interpreted by the Tribunal in 17-003496 v. TD Insurance to mean “an assessment that is necessary for a Catastrophic Impairment Assessment.”²

13Finally, the applicant argues that since the Schedule is consumer protection legislation, any ambiguous language should be interpreted in a manner that protects insured persons.

14The respondent disagrees with the applicant’s statutory interpretation, and instead argues that a plain reading of s. 18(5) of the Schedule demonstrates the intention of the Legislature to include catastrophic determination assessments under the financial limits of s. 18(3):

For the purposes of subsections (1) and (3), medical, rehabilitation and, where applicable, attendant care benefits payable in respect of an insured person include all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person under this Regulation, other than,

(a) fees in connection with any examination required by an insurer under section 44; and

(b) expenses in respect of a report referred to in subsection 7 (4).

15That is, while it is not a payment of benefits per se, the respondent submits that a catastrophic designation is “the connection or bridge which allows the Applicant access to additional payments and benefits under the Schedule”. Further, the specific exclusions in s. 18(5) (a) (b) do not name this category of assessments.

16The respondent also takes issue with the applicant’s interpretation of s. 25(1)5, as it reasons that the reference to “any assessment or examination necessary for that purpose” must be read in conjunction with the earlier reference to [emphasis in original]: “Reasonable fees charged for preparing an application”. According to the respondent, the “application” referred to in this section is the OCF-19, i.e., the Application for Determination of Catastrophic Impairment. Therefore, “any assessment or examination necessary for that purpose” must refer to the fee for completing the OCF-19.

17Finally, the respondent submits that the applicant’s reliance on Henderson is unfounded. Beyond the fact that the Tribunal is not bound by decisions from FSCO, the respondent argues that the Arbitrator did not properly consider the statutory language at issue, e.g., the significance of the word “application” in s. 25(1)5. Further, the Arbitrator did not consider the policy ramifications of the decision, namely the need for insurance companies to fund catastrophic determination assessments through the creation of “an extra ‘pocket’ of funding which is not contemplated in the scheme of the [Schedule].”

18Instead, the respondent points to the Tribunal’s decision in 16-002858 v. State Farm Insurance Company³, wherein the Adjudicator referred to catastrophic determination assessments as “medical benefits”. According to the respondent, this “characterization of the assessments as a benefit represents a different approach from FSCO’s treatment of the issue in the Henderson case.”

Catastrophic Determination Assessments and the Financial Limit of s. 18(3)

19After considering the parties’ submissions and the relevant case law, I am satisfied that assessments for the purpose of determining catastrophic impairment should not fall under the financial limit of s. 18(3) in the Schedule.

20First, I accept the Arbitrator’s conclusion in Henderson that a determination of catastrophic impairment does not—in and of itself—constitute entitlement to a benefit. Rather, this determination is a means of opening up the possibility of further benefits, be they medical, attendant care, etc. Or, as the respondent itself noted, this determination is “the connection or bridge which allows… access to additional payments and benefits”.

21Without any actual benefits or payments at issue, I can then find that s. 18(5) does not apply to catastrophic determination assessments. That is, since these assessments are not conducted “in connection with any benefit or payment to or for an insured person”, s. 18(5) does not apply. Without s. 18(5) in play, the financial limit of s. 18(3) is also inapplicable.

22Further, while subsections (a)-(b) may enumerate two exceptions to s. 18(5), the lack of an explicit reference to catastrophic determination assessments does not alter my reasoning. Put simply, if these assessments are not captured under s. 18(5) in the first place, there is no need to then carve out an explicit exception.

23As highlighted by the respondent, I do recognize the use of the term “medical benefits” when referring to these assessments in State Farm. However, beyond the fact that this decision is not binding, the use of the term “medical benefits” does not change my conclusion in the present case. That is, the nature of the catastrophic determination (and its relationship to benefits and payments) is the guiding consideration when determining whether s. 18(3) will apply.

24Put another way, to determine whether the financial limit under s. 18(3) applies, the Tribunal is not concerned with the characterization of the assessments per se, but rather with the purpose for conducting the assessments. Therefore, since these assessments are not directly connected to a benefit or payment, they are not captured under s. 18(5)—and, by extension, the financial limit of s. 18(3).

25Beyond the inapplicability of s. 18(3), I would then add that the reference to “any assessment or examination necessary for that purpose” in s. 25(1)5 can be reasonably interpreted to include catastrophic determination assessments. While the respondent may argue that the provision should be limited to the fee for completing the OCF-19, I do not accept this limited interpretation of s. 25(1)5.

26Rather, when completing an OCF-19, a health practitioner has to determine if, and why, an insured person has been catastrophically impaired. To make this determination, the assistance of “other regulated health professionals” may be necessary, as per s. 45(2)1:

An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.

27Therefore, limiting the language of s. 25(1)5 to only include the fee for completing an OCF-19 is an unreasonable reading of the provision. Rather, it is clear that the Legislature anticipated “[a]n assessment or examination in connection with a determination of catastrophic impairment” will likely require the assistance of “other regulated health professionals”, i.e., assessments and examinations that will assist in the completion of an OCF-19.

28Finally, in regards to the respondent’s concern that this interpretation will create “an extra ‘pocket’ of funding” for catastrophic determination assessments, this public policy consideration is best addressed by the Legislature.

Entitlement to the CAT Assessments

29Since I have found that these assessments do not fall under the financial limit of s. 18(3), I must now determine if the applicant is entitled to payments for the CAT assessments.

30The respondent contends that one of the four proposed parts of the CAT assessments is not reasonable and necessary, i.e., the clinic file review / triage assessment. Specifically, the respondent argues that the applicant has not provided any details about why this part of the proposal is not “a duplication of processes especially considering there is an additional $2,000.00 for an overall assessment and summary.”

31The applicant submits that the respondent cannot challenge the proposed CAT assessments on the basis that they are not reasonable and necessary. Rather, he argues that s. 25 of the Schedule “only contemplates that they can challenge what constitutes a reasonable fee.”

32I accept that not all of the proposed parts of the CAT assessments are reasonable and necessary. That is, while the proposed neurophysiatry assessment; occupational therapy assessment; and assessment summary are all reasonable and necessary, I cannot say the same about the clinic file review / triage assessment.

33The applicant experienced serious injuries as a result of the accident, e.g., a loss of consciousness, intracranial bleeding, etc. It was thus necessary for the applicant to determine whether these accident-related impairments amounted to a catastrophic impairment. Additionally, with the applicant suddenly meeting and then exceeding the non-catastrophic funding limit, it was also necessary for him to explore the possibility of accessing additional resources.

34However, I also agree with the respondent that there is repetition in the requested CAT assessments, namely, the proposed clinic file review / triage assessment. It is commonplace for assessors to review medical records provided to them by an insured person, and I have not been provided with any evidence or submissions to demonstrate why the proposed neurophysiatry and occupational therapy assessments would be any different. Therefore, the applicant has failed to provide me with any evidence that would allow me to find that this file review and triage assessment is not a needless duplication of efforts.

35In regards to the applicant’s argument about the inability to challenge the reasonable and necessary nature of these assessments, I would again highlight the language used in s. 25(1)5: “…including any assessment or examination necessary for that purpose.” That is, this clause asks insurers and adjudicators to determine whether an assessment or examination is “necessary” for the purpose of determining whether an insured person is catastrophically impaired.

36By removing the cost of the proposed “clinic file review / triage assessment”, the applicant is entitled to payments in the amount of $7,718.00.

AWARD UNDER REGULATION 664

37Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of benefits and interest if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments”.

38The applicant argues that, while it “cannot be held to a standard of perfection”, the respondent failed to properly interpret the plain language of the Schedule. This failure, in turn, led to a detrimental delay in receiving medical treatment.

39The respondent contends that it acted reasonably in its denial of the CAT assessments, because the change from FSCO to the Tribunal meant there was an open question “as to whether or not the Henderson case was still good law”. Further, even though the respondent first invited him to submit an OCF-19 in October 2017, the applicant delayed the process by several months.

40This present dispute is not an appropriate case for an award under Regulation 664, because I do not find that the respondent acted unreasonably in its denial of the disputed assessments. Rather, I find that the respondent made a reasonable attempt at interpreting the Schedule, even if its interpretation was not upheld at the Tribunal. As alluded to by the applicant, so long as reasonable efforts are taken in reaching its interpretations of the Schedule, an insurer is allowed to be wrong.

CONCLUSION

41The applicant has demonstrated entitlement to payments in the total amount of $7,718.00 for the neurophysiatry assessment; occupational therapy assessment; and assessment summary. The applicant is not entitled to an award under Regulation 664.

Footnotes

1. 1FSCO A14-001758, April 13, 2015 (“Henderson”).
2. 22018 CanLII 13167 (ON LAT), at para. 19.
3. 32017 CanLII 85692 (ON LAT) (“State Farm”).