[The Applicant] v. Allstate Insurance, 2019 CanLII 101614

Citation: [The Applicant] vs. Allstate Insurance, 2019 CanLII 101614

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]

Appellant

and

Allstate Insurance

Respondent

AMENDED DECISION

ADJUDICATOR:

Derek Grant

For the Appellant:

Samia Alam, Counsel

For the Respondent:

Lisa Pool, Counsel

Heard: In Writing

Hearing: March 18, 2019

OVERVIEW

1The applicant [ ] was involved in an automobile accident on October 29, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). [The applicant] was denied certain benefits by the respondent (“Allstate”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2In this case, [the applicant] seeks funding for a multidisciplinary assessment to determine whether he has suffered a catastrophic impairment. The central issue before me is whether the cost of a multidisciplinary catastrophic impairment assessment is reasonable and necessary.

3[The applicant] and Allstate disagreed over the reasonableness or necessity of assessments or examinations related to a determination of catastrophic impairment and whether the fees charged are reasonable.

ISSUES

4The issues to be decided are as follows:

(i) Is the treatment plan in the amount of $24,700.00 for a rebuttal CAT¹ determination assessment, recommended by Alliance Diagnostic and Treatment Inc. in an assessment plan dated January 2, 2018, and denied January 24, 2018, reasonable and necessary?

(ii) Is [the applicant] entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me,

(i) I find that [the applicant] is entitled to the cost of assessments as recommended by Alliance Diagnostic and Treatment Inc.;

(ii) I find that [the applicant] is not entitled to the costs of the duplicate entries for assessments (by the same provider/s) or documentation fees in excess of $200.00; and

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

DISCUSSION

6This matter involves three sub issues which I need to determine. The first is whether [the applicant] is statute barred in accordance with section 56 of the Schedule. This section states that an application in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

7The second sub issue is whether the proposed assessments are reasonable and necessary. Allstate’s position is that the treatment plan is not reasonable and necessary.

8The 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,² plus $200.00 for form completion.

CAT Assessments

9Section 25(1)5 of the Schedule requires the insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under section 45, including any assessment or examination necessary for that purpose.

10Section 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.

11Applying this approach, it is clear that section 25 creates an obligation on the respondent to pay expenses, including assessments. It lists five types of expenses:

a. Reasonable fees charged for preparing a disability certificate if required under section 21, 36 or 37, including any assessment or examination necessary for that purpose.

b. Fees charged in accordance with the Minor Injury Guideline by a person authorized by the Guideline for preparing a treatment confirmation form and for conducting an assessment or examination and preparing a report as authorized by the Guideline.

c. Reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been:

i. approved by the insurer,

ii. deemed by this Regulation to be payable by the insurer, or

iii. determined to be payable by the insurer on the resolution of a dispute described in subsection 280 (1) of the Act.

d. Reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose.

e. 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.

ANALYSIS

12[The applicant] submits that the appropriate legal test is outlined in section 25(1)(5) of the Schedule. The section 25 test is established in the Machaj case³, 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, section 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. [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.

13Section 25(1)5 clearly covers catastrophic impairment assessments. I agree with [the applicant]’s submission regarding the reasoning in Henderson⁴ 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”.

14I find that [the applicant] has properly relied on section 25 in arguing that Allstate is required to pay for the cost of the assessments listed in the disputed treatment plan. Further, I find section 56 of the Schedule excludes assessments not directly related to a specific benefit or benefits.

15I find that pursuant to section 25, Allstate 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 1: Whether [the applicant] is statute-barred in accordance with section 56 of the Schedule?

16There is no limitation period in connection with assessments to determine catastrophic impairment. I find that [the applicant] is not statute-barred for the reasons that follow. Allstate contends that it already denied a previous treatment plan⁵ for catastrophic impairment, and as such, [the applicant] is statute-barred by way of the limitation period from applying for the subject treatment plan.

17Section 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.

18The January 2015 treatment plan for catastrophic impairments was denied when Allstate’s assessors rated [the applicant] at a 0% WPI related to a 2012 accident. After the subject accident, Allstate’s assessor rated [the applicant] at a 27% WPI rating. [The applicant] submits that there is clearly a decline between the 2012 and 2013 accidents that may warrant getting a separate opinion regarding whether [the applicant] may be catastrophically impaired.

19The treatment plan that is the subject of this proceeding, as with the first treatment plan, is not tied to a benefit. It is trite law that catastrophic impairment assessments are not tied to a benefit but determine whether an insured has access to the next tier of accident benefits above the $50,000 non-catastrophic limit. Allstate denied a request for a catastrophic impairment assessment regarding a 2012 accident. The subject treatment plan in relation to the 2013 accident is not only separate and apart from the 2012 accident, it also is not tied to a benefit.

20In accordance with section 56 of the Schedule, an application “in respect of a benefit shall be commenced within two years after the insurer’s refusal”. On a plain reading of this wording, this does not include catastrophic impairment assessments, rightly, as those are not benefits.

21I disagree with Allstate’s submission [the applicant] is not statute-barred from proceeding with the January 2018 treatment plan, as there was no limitation period commenced with the denial of the January 2015 treatment plan for catastrophic impairment assessments.

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

22For the reasons that follow, I find the assessments to be reasonable and necessary. [The applicant] is requesting assessments⁶ in response to the two sets of assessments that Allstate has conducted. The onus is on [the applicant] to show that the assessments recommended by Dr. Rhuel Maano are reasonable and necessary and in accordance with the Schedule.

23Allstate’s position is that only assessments which are necessary for the purpose of the completion of an OCF-19 should be funded. Allstate submits that there is no provision under section 25 for the treatment plan to be payable. I disagree with Allstate’s position, because section 25 does not connect catastrophic impairment assessments to a benefit, and as I have determined above, there is no limitation period on a denial of catastrophic assessments.

24[The applicant] was diagnosed with a number of accident-related injuries.⁷ [The applicant] submits that these impairments 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.⁸ The disputed treatment plan is a request for funding for [the applicant] to get his own opinion(s) on similar assessments that were conducted by Allstate. I agree.

25I note that in the course of adjusting [the applicant]’s file, Allstate conducted a series of assessments⁹ under section 44 of the Schedule to make a determination that [the applicant] was not catastrophically impaired, and the proposed treatment plan was not reasonable and necessary.

26Under 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. Maano’s treatment plan to be reasonable. Based on Dr. Maano’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, since Allstate 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.

27To 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 the 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 applicant]’s impairments in this case, I find his request for the assessments to be reasonable to determine whether or not he has suffered a catastrophic impairment as a result of the subject accident.

28There 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.

29For the reasons above, I find that [the applicant]’s request for assessments under section 25 of the Schedule to be reasonable and necessary.

Sub-Issue 3: Whether the fees are reasonable and necessary?

30[The applicant] is requesting the cost of various assessments. In this case, each of [the applicant]’s assessments are within the $2000 cap. As such, Allstate is required to pay for the reasonable fees for the assessments listed in the disputed treatment plan, with exceptions. I note that there is duplication in the treatment plan, which I do not find reasonable or necessary. For example:

a. “Assessment, mental health and addictions”, is listed twice; and

b. “Assessment, environment”, listed twice.

31These may have been duplicated in error, in any event, I do not find the duplicate entries to be payable.

32In addition, the entry, “Documentation, support activity for claim form….”, is entered twice, for the same ‘Quantity’ (1), yet has two different amounts entered. I find the $500 amount for the first entry to be unreasonable, as there is no reasonable explanation why the amount is more than the $200.00 listed for the second similar entry. $200 is allowable as the fee for form completion¹⁰. I find the $500 amount is not payable, as it exceeds the allowable fee.

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 assessments;

ii. [The applicant] is entitled to payment of $200 cost of documentation completion, in accordance with the Guideline;

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

34[The applicant] is not entitled to the cost of any duplicate provider assessment amounts.

Footnotes

1. 1“CAT” refers to “catastrophic impairment” as defined by the Schedule.
2. 2Section 25(5)(a) of the Schedule.
3. 3Machaj v. RBC General Insurance Company, 2016 ONCA 257
4. 4Henderson v. Wawanesa Mutual Insurance Company, FSCO A-14-001758 p.12
5. 5OCF-18 dated January 18, 2015
6. 6Respondent’s submissions p. 27
7. 7Applicant submissions at Tab 22
8. 8The thresholds for both the WPI and four spheres are established in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993.
9. 9Applicant submissions at Tab 12
10. 10Superintendent's Guideline No. 01/15