[The Applicant] v. Aviva General Insurance, 2018 CanLII 141011

Licence Appeal Tribunal

Tribunal File Number: 17-007215/AABS

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:

[The Applicant]

Applicant

And

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Michelle Arzaga, Counsel

For the Respondent: Cara Boddy, Counsel

Heard by way of Written Hearing: May 28, 2018

OVERVIEW

1The applicant was injured in an automobile accident on August 15, 2015, and sought benefits from the respondent (“Aviva”) pursuant to the Statutory Accident Benefits Schedule – Accidents September 1, 2010 (the “Schedule”).¹

2[The applicant] and Aviva disagreed over the reasonableness or necessity of assessments or examinations related to a determination of catastrophic (“CAT”) impairment and whether the fees charged are reasonable.

3On October 17, 2017, [the applicant] submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”).

4The Tribunal held a case conference on February 12, 2018. The parties did not resolve the issues in dispute and the Tribunal ordered a written hearing scheduled for May 28, 2018. In her submissions dated April 9, 2018, [the applicant] advised that she has agreed to withdraw some of the issues in dispute.²

ISSUE IN DISPUTE

5The remaining issue in dispute is as follows:

(i) Is the applicant entitled to receive the cost of an examination in the amount of $21,513.35 for a multidisciplinary catastrophic assessment recommended by Excel Medical Diagnostics in a treatment plan submitted on July 19, 2017 and denied by the respondent on July 26, 2017?

RESULT

6Based on the totality of the evidence before me,

(ii) I find that [the applicant] is entitled to the cost of assessments for the following, neurological, occupational therapy, psychiatry, orthopaedic, the executive report and interpreter services, as recommended by Excel Medical Diagnostics;

(iii) I find that [the applicant] is not entitled to the costs of the file and medical document review;

(iv) I find that [the applicant] is entitled to any reasonable expenses incurred for authorized transportation; and

(v) I find that [the applicant] is entitled to any applicable interest, as per the Schedule.

DISCUSSION

7This matter involves three sub issues which I need to determine. The first, is whether the cost of catastrophic assessments are encompassed by the $50,000 non-catastrophic limits under section 18(3)(a) of the Schedule. Aviva submits that [the applicant] has not been declared catastrophically impaired, and is therefore subject to the $50,000 limit. It is not disputed by [the applicant] or Aviva, that the non- catastrophic limit has been exhausted.

8The second sub issue is whether the proposed assessments are reasonable and necessary. Aviva’s position is that there is already sufficient medical documentation to determine whether an application for determination of catastrophic impairment (“OCF-19”) is warranted.

9The third sub issue is whether the proposed cost of the treatment plan is excessive and violates section 25(5) of the Schedule. This section states the amount the insurer would have to pay is limited to $2,000 for any one assessment, examination or report.³

CAT Assessments

10Section 18(3) of the Schedule sets a $50K limit on medical and rehabilitation benefits payable to insured persons unless they are catastrophically impaired. The limit includes the costs of medical and rehabilitation assessments.

11Section 25(1)5 of the Schedule requires the insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under s.45, including any assessment or examination necessary for that purpose.

12Section 45 of the Schedule prescribes the process for making an application for determination of CAT impairment, and contemplates medical examinations as part of the application process.

ANALYSIS

Sub-Issue 1: Are the costs of catastrophic assessments encompassed by the $50,000 non-catastrophic medical/rehabilitation limits unless and until, the person is declared catastrophically impaired?

13Aviva submits that section 18(3)(a) of the Schedule determines if the disputed cost of examination expense is subject to the non-catastrophic limits. Section 18 falls under Part 3 of the Schedule which is for ‘Medical, Rehabilitation and Attendant Care Benefits’. If it is determined that section 18(3)(a) applies, Aviva submits that [the applicant] has no available funding to cover the cost of the treatment plan. It is Aviva’s position that if [the applicant] was successful in obtaining a catastrophically impaired determination, then the treatment plan would be reconsidered. For the reasons that follow, I disagree with Aviva’s position.

14Section 18(5) refers to assessments in connection with any benefit or payment to or for an insured person. I find the term “in connection with” to mean that the section only restricts the consumption of medical benefits by non-catastrophically impaired persons, and that this narrow restriction excludes assessments not directly related to a specific benefit or benefits.

15[The applicant] submits that the appropriate legal test is outlined in s. 25(1)(5) of the Schedule. The section 25 test is established in the Machaj case⁴, which distinguishes that a claim for catastrophic determination is not the same as a claim for specified benefits. [The applicant]’s position is that once each assessment is determined to be reasonable and necessary, s. 25 would apply to determine if the fees charged are reasonable. Section 25(1)5 states the amount the respondent would have to pay is limited to $2,000 for any one assessment, examination or report.⁵ [The applicant] has submitted a treatment plan setting out multiple assessments and lists the cost of each assessment at $2,000. I find this to be in line with the requirements under section 25 of the Schedule.

16Section 25(1)5 clearly covers catastrophic impairment assessments. I agree with [the applicant]’s submission regarding the reasoning in Henderson⁶ which also considered the application and scope of section 25 and found that “there is no room for ambiguity – the insurer shall pay the expenses of a CAT assessment”.

17There is no reference or requirement under either section 18 or 25 that connects [the applicant]’s disputed treatment plan to the non-catastrophic limit of $50,000 established by the Schedule for medical benefits. I find that [the applicant] has properly relied on section 25 in arguing that Aviva is required to pay for the cost of the assessments listed in the disputed treatment plan. Further, I find 18(5) only restricts the consumption of medical benefits by non-catastrophically impaired persons, and excludes assessments not directly related to a specific benefit or benefits.

18I find that pursuant to section 25, Aviva shall pay the reasonable fees for assessments in respect of the determination of catastrophic impairment. [The applicant] however must still show that the fees are reasonable.

Sub-Issue 2: Whether the assessments are reasonable and necessary?

19[The applicant] is requesting a fraction of the number of assessments that Aviva has conducted. Those being: neurological, occupational therapy/activities of daily living, psychiatry and orthopaedic assessments. The onus is on [the applicant] to show that the assessments recommended by Dr. Getahun are reasonable and necessary and in accordance with the Schedule.

20Aviva submits there are circumstances where an OCF-19 can be completed without an accompanying assessment. Aviva’s position is that only assessments which are necessary for the purpose of the completion of an OCF-19 should be funded. I note that in the course of adjusting [the applicant]’s file, Aviva conducted a series of assessments⁷ under section 44 of the Schedule to make a determination that the proposed cost of examination expense was not reasonable and necessary. In addition, Aviva relies mainly on the two subsequent reports of Drs. Greg Jaroszynski, Orthopaedic Surgeon and Stephanie Wiesenthal, Psychiatrist.⁸ Aviva submits that both Drs. Jaroszynski and Wiesenthal agree that there is sufficient medical evidence to determine whether an OCF-19 is reasonable. I disagree with Aviva’s position, because unless the catastrophic impairment clearly falls under section 3.1 of the Schedule, further investigation could be required to make a determination and also be found to be reasonable and necessary.

21[The applicant] was diagnosed with a number of accident-related injuries.⁹ [The applicant] submits that there are catastrophic impairments that are less obvious than those under section 3.1. Therefore, these may require multidisciplinary assessments to determine whether the 55% Whole Person Impairment (“WPI”) test or the mental/behavioural impairments in any of the four spheres of functioning meet the catastrophic impairment threshold. I agree.

22The disputed treatment plan is a request for funding for [the applicant] to get her own opinion(s) on similar assessments that were conducted by Aviva. Under Part 9 (Plan Goals, Outcome Evaluation, Methods and Barriers to Recovery) of the treatment plan, the barriers to recovery were listed as, “severity of specific symptoms on initial assessment, initial injury reaction (sleep disturbance, nervousness), initial subjective complaints and concern regarding long-term prognosis, psychological and emotional distress.” Under Part B (Activity Limitations), Dr. Getahun notes that the patient [the applicant] is “unable to resume employment and she is unable to perform many of her activities of daily living due to the injuries sustained in the accident”.

23Under the Schedule, the assessments must be reasonable for the purpose of determining whether an insured person has sustained a catastrophic impairment. I find the goals of Dr. Getahun’s treatment plan to be reasonable. Based on Dr. Getahun’s opinions of [the applicant]’s numerous accident-related injuries, I find that the recommended assessments are reasonable and necessary, in order to adequately address the barriers to recovery listed in the treatment plan. In addition, Aviva freely conducted as many assessments as it deemed reasonable and necessary, the same standard should be applied to [the applicant], as per the intent of the Schedule.

24To establish a balance of fairness for an insured to determine the extent of accident-related injuries, the Schedule allows both an insurer and an insured opportunity to reasonably assess the accident related injuries. The balance cannot be in an insurer’s favour alone, to determine whether an insured meets the catastrophic impairment criterion. Given the extent and nature of the [the applicant]’s impairments in this case, I find her request for the assessments to be reasonable to determine whether or not an application for catastrophic impairment is reasonable.

25There must be an opportunity for an insured to reasonably obtain a medical opinion from the appropriate medical expert(s) of their choosing. In this regard, the Schedule serves as a consumer protection measure to ensure insured persons have fair access in the determination of appropriate treatment for accident-related injuries. Where an insurer is seen to be placing itself in a more advantageous position, a balance must be re-established, in order to maintain the intended consumer protection nature of the Schedule. If not, an insured will always be at a disadvantage, resulting in a lack of consumer trust in a system designed to create a fair accident benefit process. In light of this, the Schedule rightly places the onus on all parties in a proceeding to maintain their duty to act fairly and reasonably.

26Section 25(5) 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 section 25(5)’s $2,000 payment cap.

27For the reasons above, I find that [the applicant]’s request for assessments under section 25 of the Schedule to be reasonable and necessary. [The applicant] is requesting the cost of a neurological, occupational therapy, psychiatry and orthopaedic assessment. In this case, each of [the applicant]’s assessments are within the $2000 cap. As such, Aviva is required to pay for the reasonable fees for the assessments listed in the disputed treatment plan.

Sub-Issue 3: Whether the fees for file and medical document review are reasonable and necessary?

28Since I have found the assessments to be reasonable and necessary, it follows then, that [the applicant] must show she is entitled to a payment for the various fees listed in the disputed treatment plan. [The applicant] is also seeking $2000 for file review and medical document review.

29With respect to the fees for file and medical document review, I am not provided with any evidence or submissions by [the applicant] as to why the additional fees are reasonable and necessary. With the onus on [the applicant] to prove her entitlement to the benefit, I find the onus has not been satisfied, and accordingly, I find [the applicant] is not entitled to the fees for file and medical document review.

30I find that file and medical document review is a necessary part of an assessment, it should be treated as part of the assessment’s expense. I find seeking it as a separate fee to be a duplication, and therefore unreasonable, to bill for file/medical document review in addition to a $2,000 assessment. [The applicant]’s assessors should be able to examine files/medical documents within the $2,000 payment limit established by the Schedule. I was not provided with any evidence as to why this was not the case.

31My plain language reading of section 25(5) reads that the Schedule establishes that medical practitioners conduct an assessment and file review within the $2,000 limit. 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 and inherent component of an assessment, it is a fee or expense captured within the section 25(5) $2,000 payment limits.

32However, I find the fees for travel time/transportation, treatment plan, executive report preparation and an interpreter to be reasonable in accordance with the Schedule and Guideline.¹⁰

CONCLUSION

33By the power vested in me by the Tribunal, I Order the following:

i. [The applicant] is entitled to payment of the $2,000 cost of each of the following; neurological, occupational therapy, psychiatry and orthopaedic assessments;

ii. [The applicant] is entitled to the reasonable cost of authorized transportation/travel time, an interpreter, the cost of the treatment plan and the executive report preparation;

iii. [The applicant] is entitled to interest on any overdue amounts in accordance with the Schedule; and

iv. [The applicant] is not entitled to the cost of file and medical document review.

Released: August 1, 2018

Derek Grant

Adjudicator

Footnotes

1. 1Ontario Regulation 34/10.
2. 2Is the applicant entitled to the payment of an award under section 10 of Reg. 664, R.R.O. 1990, for unreasonably withheld or delayed payments; and Is the applicant entitled to interest on any overdue payment of benefits?
3. 3Section 25(5)(a) of the Schedule.
4. 4Machaj v. RBC General Insurance Company, 2016 ONCA 257
5. 5Section 25 5(a) of the Schedule.
6. 6Henderson v. Wawanesa Mutual Insurance Company, FSCO A-14-001758 p.12
7. 7Insurer's Examination - Cira Medical Services - Dr. P. Marks, Orthopaedic Surgeon May 19, 2016; Addendum - Cira Medical Services - Dr. P. Marks, Orthopaedic Surgeon May 19, 2016; Occupational Therapy In-Home Insurer's Examination - Cira Medical Services - R. Kassam, Occupational Therapist May 19, 2016; Executive Summary - Cira Medical Services - Dr. A. Orner, Physician May 19, 2016; Insurer's Examination - Cira Medical Services - Dr. J. Rusen, Orthopaedic Surgeon Jan 13, 2017; Addendum - Cira Medical Services - Dr. J. Rusen, Orthopaedic Surgeon Jan 13, 2017; Vocational Assessment – Cira Medical Services – R. Billet, Vocational Aug 14, 2017; Transferable Skills Analysis – Cira Medical Services – R. Billet, Vocational Aug 14, 2017; Labour Market Survey – Cira Medical Services – R. Billet, Vocational Aug 14, 2017; Insurer's Examination Psychology – Cira Medical Services – Dr. C. West, Psychologist Aug 14, 2017; Insurer's Examination Orthopaedic Surgery – Cira Medical Services – Dr. B. Taromi, Orthopaedic Surgeon Aug 14, 2017; Insurer's Examination Neurology – Cira Medical Services – Dr. R. Dost, Neurologist Aug 14, 2017; Functional Capacity Evaluation – Cira Medical Services – D. Polygenis, Physiotherapist Aug 14, 2017; Executive Summary – Cira Medical Services – Dr. A. Orner, Physician Aug 14, 2017.
8. 8Dr. Greg Jaroszynski, Orthopaedic Surgeon, paper review report dated August 15, 2017 and Dr. Stephanie Wiesenthal, Psychiatrist, paper review report dated August 15, 2017.
9. 9Accident-related injuries include: i) traumatic brain injury, ii) fracture of the radius, iii) fracture of the forearm, iv) dislocation of the right elbow, v) dislocation of the radial head, vi) spiral fracture of the right ulna, vii) dislocation of the wrist, viii) contusion and haematoma of the right lung, ix) contusion of the right breast, x) dislocation, sprain and strain of joints and ligaments of the knee, xi) lacerations and contusions, xii) cervical disc disorders, xiii) depressive disorder, xiv) post-traumatic stress disorder, xv) neurocognitive disorder, xvi) sleep disorder, and xvii) urinary difficulties.
10. 10Superintendent's Guideline No. 01/15