Tribunal File Number: 18-011314/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.
Betweem:
J.E.
Applicant
and
Intact Insurance Company
Respondent
DECISION
PANEL:
Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant:
Mitchell Barber, Counsel
Carlos Ortiz, Counsel
For the Respondent:
Leanne Zawadzki
HEARD:
In Writing on: September 18, 2019
OVERVIEW
1The applicant, J.E., was injured in an automobile accident on November 23, 2016, suffering injuries to his back, neck, arms and head as well as psychological impairments. J.E. sought various benefits from the respondent, Intact Insurance, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2J.E. submitted treatment plans that were denied by Intact on the basis that the examinations were not reasonable and necessary. J.E. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. A case conference was held but the parties were unable to settle the issues and dispute and, thus, proceed to this written hearing.
ISSUES
3The issues in dispute, as outlined in the Case Conference Order dated May 3, 2019, are as follows:
i. Is the applicant entitled to a cost of examination in the amount of $2,881.50 for psychological assessment recommended by Meditec Independent Medical Exam in a treatment and assessment plan (OCF-18) submitted on September 14, 2018, and denied on September 28, 2018?
ii. Is the applicant entitled to a cost of examination in the amount of $2,550.00 for physiatry assessment recommended by Meditec Independent Medical Exam in a treatment and assessment plan (OCF-18) submitted on September 14, 2018, and denied on September 24, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent entitled to costs under Rule 19.1 of the Common Rules of Practice and Procedure?
RESULT
4I find J.E. is not entitled to the costs of examination of either treatment plan, as they are duplicative and not reasonable and necessary. No interest is payable, and I decline to award costs.
ANALYSIS
Are the treatment plans in dispute reasonable and necessary?
5Section 14 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary. I find that neither cost of examination is payable, as they are duplicative and J.E. has already received approval for a slate of nine catastrophic impairment examinations. Therefore, the examinations are not reasonable and necessary.
6To begin, I agree with Intact that this is not a case in which an insurer is obtaining various assessments and preventing an applicant from obtaining their own assessments with their own assessors, as J.E. alleges. In this case, the uncontroverted evidence is that Intact has approved J.E.’s request for a multitude of assessments pursuant to an OCF-18 submitted on November 13, 2018. Indeed, I find Intact has approved J.E. for nine assessments, totalling $18,699.25, all related to his claim for a catastrophic determination. These assessments include: a General Practitioner Assessment for $2000.00, a CAT Executive Summary for $2000.00, a Medical File Review for CAT Assessment for $2000.00, a Psychiatrist Evaluation for $2000.00, a two-part Neuropsychological Assessment totalling $4000.00, an Occupational Therapy In-Home CAT Assessment for $2000.00, an Occupational Therapy Situational CAT Assessment for $2000.00, a Neurological CAT Assessment for $2000.00 and $699.20 for completing documents and travel time.
7J.E. argues he should be able to use his own assessors when obtaining CAT assessments as that would result in a more robust assessment of causation. I agree. However, in response, Intact submits that it has already approved the various assessments with J.E.’s own assessors, to assess catastrophic impairment. J.E. does not dispute this. Accordingly, I agree with Intact that there is no issue over J.E. getting to use his own assessors. The issue is simply whether the psychological and physiatry assessments he seeks are duplicative and, therefore, not reasonable and necessary. Intact submits that they are not. Again, I agree with Intact.
8I find there is no rational basis or support for J.E.’s desire to obtain additional assessments in psychology and physiatry. I agree with Intact that adding two more assessments to the already-approved slate of nine (when it is unclear if any of the nine have occurred) would be redundant, unreasonable and unnecessary.
9I find there is no need for an additional physiatry assessment and it is not reasonable and necessary because J.E. has been approved for a General Practitioner assessment, two Neuropsychological assessments, a Neurological assessment and two Occupational Therapy assessments. I find it clear that this approved combination of assessments, along with the Psychiatry assessment, will be more than sufficient to identify J.E.’s capacity and limitations. I find J.E. has not provided compelling evidence to demonstrate why this particular physiatry assessment is required when he already has approval for several, more comprehensive options.
10With regards to the psychological assessment, I find it is not reasonable and necessary. First, the goal of the assessment in the OCF-18—his chiropractor indicates the impairments are not minor and an update on his condition is required—is moot because Intact removed J.E. from the Minor Injury Guideline. Second, the s. 44 assessment conducted by Intact did not find any basis for a psychological assessment and no objective psychometric evidence to substantiate J.E.’s self-reported psychological impairments related to the accident. Finally, and again, Intact approved numerous assessments with assessors of J.E.’s choice, at his request, including psychiatric and neuropsychological assessments. In my view, J.E. has failed to provide compelling evidence why this particular psychological assessment is reasonable and necessary in the face of what has already been approved.
11For these reasons, I find J.E. is not entitled to the costs of examination for the psychological or physiatry assessments, as they are not reasonable and necessary.
Costs
12Intact seeks its costs in this written hearing, pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. Rule 19 states costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Here, Intact argues four grounds for a costs award.
13First, Intact submits there was significant delay at the case conference when J.E.’s counsel failed to participate in a timely fashion. Second, it alleges J.E.’s counsel of record failed to participate at all due to an alleged scheduling conflict, despite the fact that he signed the sheet agreeing to the specific case conference date. Third, J.E. did not participate in the case conference at all, which hindered the possibility of resolving the matter and having fulsome settlement discussions. Fourth, when J.E.’s other counsel did participate in the case conference, he refused to acknowledge reasonable solutions to resolve the dispute in the most fair and efficient manner. Intact further argues that J.E.’s refusal to withdraw his claims when not facing a limitation period and in the face of the nine approvals resulted in Intact having to incur additional and unnecessary costs proceeding to a written hearing on this matter, for what amounts to a frivolous claim.
14While I am alive to Intact’s submissions and appreciate what may have been a frustrating proceeding, I do not find that J.E.’s conduct or the conduct of his counsel amount to behaviour that is unreasonable, frivolous, vexatious or indication of bad faith. As an insured, J.E. was entitled to dispute the denial of a benefit he believed he needed, just as Intact was entitled to defend its reasons for denying same. Further, as I was not privy to the without-prejudice discussions between the parties during the case conference, I find it would be improper to award costs on that basis. Accordingly, I decline to order costs.
CONCLUSION
15I find J.E. is not entitled to the costs of the examinations for psychological and physiatry assessments as they are duplicative and therefore not reasonable and necessary. As no benefits are owing, no interest is payable. Intact is not entitled to its costs of this proceeding.
Released: September 23, 2019
Jesse A. Boyce
Adjudicator