[L.G.] v. Unifund, 2019 CanLII 101604

Citation: [L.G.] vs. Unifund, 2019 ONLAT 18-008089/AABS

Date: August 14, 2019

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:

[L.G.]

Applicant

and

Unifund

Respondent

DECISION AND ORDER

PANEL:

Marisa Victor, Adjudicator

APPEARANCES:

For the Applicant:

Rachel Levitsky, Counsel

For the Respondent:

Arthur R. Camporese, Counsel

HEARD:

In Writing on: March 25, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, [L.G.], was involved in an automobile accident on April 22, 2016, and sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from her insurer, Unifund, the respondent. The applicant was denied certain benefits by Unifund and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on August 30, 2018.

2On August 2, 2018, the applicant requested that she be found to have sustained a catastrophic impairment (the “main issue”). She also submitted a request for funding for catastrophic impairment (“CAT”) assessments from Unifund in the amount of $15,872.00 (the “preliminary issue”). This hearing deals only with the preliminary issue.

3On August 13, 2018, Unifund denied the request for funding for CAT assessments on the basis that the amount quoted exceeded the applicant’s $50,000 maximum limits available under s. 18 of the Schedule for medical and rehabilitation benefits. At the time of the request, the applicant had used up almost all of the $50,000 she had available to her under the policy of insurance with Unifund.

4This hearing considers the preliminary issue as to whether the applicant is entitled to the denied CAT assessments.

PRELIMINARY ISSUES

5I must determine the following two issues:

i. Is the applicant entitled to the amount of $15,872.00 for catastrophic examinations to be provided by Omega Medial Services, submitted August 2, 2018 and denied by the respondent August 13, 2018?

ii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

RESULT

6CAT assessments do not confer a benefit and therefore their funding does not fall within the s. 18(5) limit of $50,000. The CAT assessments are reasonable and necessary. The applicant is entitled to the CAT assessments.

7No award shall be granted.

ISSUE 1 - IS THE APPLICANT ENTITLED TO THE AMOUNT FOR CATASTROPHIC EXAMINATIONS?

8In order to answer this question, I must first determine if the funding for the CAT assessments fall within the $50,000 funding limit established by s. 18 of the Schedule.

9I must then consider the parties’ submissions on whether the CAT assessments are reasonable and necessary.

Law

10Section 18(5) of the Schedule provides for funding for medical and rehabilitation fees, expenses, assessments, examinations and reports payable in respect of an insured person.

11Section 25(1) of the Schedule says that the insurer shall pay for the reasonable fees charged for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

a) Does the funding for the CAT assessments fall within the $50,000 funding limit?

Applicant’s Submissions

12The applicant relies on several past LAT and FSCO cases that established that CAT assessments do not fall under medical and rehabilitation benefits and therefore their cost does not come from the s. 18 fund maximums. These are:

i. Henderson v. Wawanesa, 2015 FSCO 4567(“Henderson”)

ii. Do v. Guarantee, 2013 FSCO 4054

iii. Cook v. RBC General Insurance Company, 2015 FSCO 4493

iv. Machaj v. RBC General Insurance Company, 2016 ONCA 257 (“Machaj”)

v. Applicant v. TD Insurance, 2018 CanLII 13167 (ON LAT) (“Applicant v. TD”)

vi. N.S. v. Scottish & York, 2018 CanLII 81950 (ON LAT)

vii. R.M. v. Unica Insurance Inc., 2018 CanLII 132569 (ON LAT)(“RM”)

13The applicant argues that the above body of decisions concluded that CAT determinations are not a medical and rehabilitation benefit and as such should not be paid out of that funds available under that category.

14The applicant states that the legislative intent cannot have been for injured people to set aside a significant portion of the money they have for medical and rehabilitation benefits in the unlikely event they require catastrophic assessments. In this particular case, the applicant would have had to save 33% of her medical and rehabilitation benefit maximum in order to pay for the CAT assessments.

Respondent’s Submissions

15The respondent relies on two Tribunal decisions that it says held that the funding of CAT assessments are a request for a medical benefit. Those two cases are:

i. 16-002858 v. State Farm Insurance Co., 2017 CanLII 85692 (ON LAT)(“16-002858”)

ii. 18-000579 v. Intact Insurance Co. (ON LAT) (unreported)

16It argues that since a CAT assessment is classified as a medical benefit, it is therefore subject to the limits under s. 18 of the Schedule.

Analysis

17The cost of CAT assessments do not come under the limits of s. 18 because they are not directly connected to medical benefits. I agree with the cases provided by the applicant that held that CAT assessments are not medical benefits. For example, in the case of RM, the facts are similar to those here. The applicant in that case sought nearly $10,000 for a multi-disciplinary CAT assessment. The insurer declined to pay on the basis that the applicant had already exceeded the $65,000 limit he had for medical, rehabilitation and attendant care benefits. The Tribunal agreed with the decision in Henderson, that the determination of whether an applicant is catastrophically impaired does not constitute a benefit. Since the CAT assessments are not directly connected to a benefit or payment, they are not captured under the language of s. 18(5) of the Schedule and, by extension, the financial limit of s.18(3). Further, s. 25(1)(5) of the Schedule states that the insurer shall pay for reasonable fees charged for preparing an application for a determination of whether an insured person has sustained a catastrophic impairment. This includes any assessment or examination necessary. I find that s. 25 can be reasonably interpreted to include CAT assessments and not just the fee for completing the OCF-19 form.¹

18The two decisions relied on by the respondent are distinguishable from this case. Those two cases considered whether a specific assessment was reasonable and necessary, not how they should be funded. In fact, the decision in 18-000579 v. Intact Insurance Co. specifically states that it is not determining the issue in Henderson which was whether the cap in s. 18 applied to CAT assessments.² The facts of RM, on the other hand, deal directly with the funding of CAT assessments. While this decision is not binding on me, I find it highly persuasive given the similar facts and submissions put forward.

19In addition, in the context of a limitation period argument the Ontario Court of Appeal in Machaj confirmed that “there is a clear distinction to be drawn between the claim for determination of catastrophic status and a claim for the specific benefits to which an injured person is entitled if found to have suffered a catastrophic injury.” Catastrophic impairment status is not itself a benefit. Therefore, the funding for CAT assessments is not a request for a medical benefit.

20Further, it cannot have been the legislative intent to require injured people to ensure they have not spent a significant portion of the money available for rehabilitation and medical benefits in the unlikely event that they require catastrophic assessments later on.

21For all of the above reasons, I find that the funding for CAT assessment does not come under the financial limits established by s. 18.

b) Are the Proposed CAT assessments reasonable and necessary?

Submissions

22The respondent submits that CAT assessments are subject to the reasonable and necessary test.³ Further, the applicant has failed to provide any evidence upon which the Tribunal can find that the proposed assessments are reasonable and necessary.

23Further, the respondent states that an application form for CAT determination has not been submitted. This would provide the respondent with the basis for the CAT claim. Without it, the insurer is unable to determine whether the proposed assessments are reasonable and necessary. The respondent states that applicant has failed to show that there is a reasonable possibility that she is catastrophically impaired.

24The respondent states that the only medical evidence submitted by the applicant is the physiatry assessment completed by Dr. Khumbare on Sept 30, 2018. This report diagnoses soft tissue injuries and muscle strain. It does not provide an opinion as to why the CAT assessments are reasonable and necessary. Nor is it indicative of a catastrophically impaired person. There is no evidence from other medical practitioners: psychologist, OT, or neurologist, to justify the CAT assessments.

25The applicant addressed the issue of whether the CAT assessments are reasonable and necessary in reply. The applicant states that this issue was raised for the first time in the respondent’s submissions. The applicant states that the respondent’s initial denial in the Explanation of Benefits (EOB) states that “some assessments may be reasonable” but then denied the proposed plan on the basis of lack of funding. The respondent did not request additional medical documentation in order to adjust the file.

26The applicant takes that position that the denial does not comply with s. 38(8) of the Schedule in that the respondent failed to give medical reasons as to why the proposed CAT assessments were not reasonable and necessary.

27The applicant then attached numerous medical reports to support her position including a letter from Dr. Becker explaining the treatment plan, a neuropsychology report, a speech-language pathology progress report, a social work report, a psychiatrist report and a report from the treating occupational therapist.

Analysis

28The test I have applied is whether the applicant has shown on a balance of probabilities that it is reasonable and necessary to determine whether the applicant is catastrophically impaired. The threshold is low.

29I find that it is reasonably possible that the applicant is catastrophically impaired. I reach this conclusion on the combined basis of Dr. Becker’s letter, the neuropsychology report of February 7, 2019, Dr. Kumbare’s physiatry report, and her speech-language assessment.

30Dr. Becker’s letter clarifies that the applicant is seeking CAT determination under criterion 7 - whole person impairment of 55% or greater and/or criterion 8 - mental/behavioural impairments.

31The neuropsychologist’s report dated February 7, 2019 described her injuries as chronic, permanent, serious and disabling. The report summarized psychological symptoms including depressive disorder with anxious features,⁴ depressed mood and slowed cognitive processing speed,⁵ He also diagnoses her with a cognitive disorder, pain disorder, adjustment disorder and somatic symptom disorder. He described her as being wholly disabled from a neuropsychological perspective.

32Dr. Kumbare diagnosed a mild traumatic brain injury, chronic pain, post-concussion syndrome, cervical strain, thoracolumbar strain, shoulder strain, bilateral hip strain and bilateral knee strain. He states the applicant has also developed post-concussion syndrome, chronic pain syndrome, post-traumatic headaches, functional limitations, deconditioning and sleep disturbances.

33The applicant has also seen a speech-language pathologist for stuttering, word-finding and memory and executive function problems, among others. The applicant has been unable to return to her pre-accident employment.

34Finally, as of August 2018, the applicant had used nearly all of the $50,000 in medical and rehabilitation benefits available to her.

35Some of the above reports relied on in this hearing were not available to the respondent at the time of its initial denial. Nevertheless, the respondent did not produce any reports to challenge the above medical documentation. Further, in its initial denial, the respondent stated that some of the assessments may be reasonable and necessary, though it did not specify which ones.

36Since I find it possible that the applicant may be catastrophically impaired. It is therefore reasonable to determine whether or not the applicant is catastrophically impaired.

37The proposed treatment plan includes the following modalities:

i. Neuro/TBI assessment

ii. Physiatry assessment

iii. Psychology assessment

iv. OT ADL assessment

v. OT Situational Assessment

vi. Clinical File Review

vii. Clinic Summary / Final Rating

38The applicant suffers from numerous conditions requiring multi-disciplinary CAT assessments. Dr. Becker’s letter explains the need for each assessment. There is medical evidence adduced by the applicant showing that she suffers from an impairment that is addressed by each assessment. Therefore, I find that the proposed CAT assessments are reasonable and necessary. In addition, all assessment costs are in line with the Schedule.

ISSUE 2 - IS THE APPLICANT ENTITLED TO AN AWARD?

39The applicant seeks an award pursuant to the provisions of s. 10 of O. Reg. 664.

40The test for such an award is that the respondent has “unreasonably withheld or delayed payments.”

Applicant’s submissions

41The applicant submits that the respondent has been unreasonable by failing to change its position with regard to the funding of CAT assessments in light of numerous Tribunal decisions and case law that supports the applicant’s position.

42The respondent argues that it considered all the evidence, the case law, the Schedule and the Insurance Act in denying the applicant and that it was entitled to rely on the decisions it used to support its position. The respondent states that it should not be held to a standard of perfection and a wrong conclusion is not enough for an award.

43In reply, the applicant adds that the respondent has also acted unreasonably by denying the CAT assessments for one reason (funding) and then, mid-hearing, denying them for another reason (reasonable and necessary) without prior notice to the applicant.

Analysis

44I decline to grant an award in this case.

45The respondent is not held to a standard of perfection. A wrong conclusion, particularly in relation to a question of statutory interpretation that has not yet been conclusively determined by a court, is not enough for an award. I do agree that the respondent did appear to modify its reasons for denial mid-hearing, however, I do not find this change in position justifies an award in this case. The bar for an award is high and in this case it is not met.

CONCLUSION

46The CAT assessments do no confer a benefit and therefore their funding does not fall within the s. 18(5) limits. The CAT assessments are reasonable and necessary. The applicant is therefore entitled to the CAT assessments to be provided by Omega Medial Services, submitted August 2, 2018 and denied by the respondent August 13, 2018.

47No award shall be granted.

Footnotes

1. 1The OCF-19 Form is the Application for Determination of Catastrophic Impairment.
2. 218-000579 at para 20.
3. 3See 16-002858 at para. 11.
4. 4Ambulatory Psychiatric Consult, August 8, 2016
5. 5Social Work Assessment report September 2, 2017