Citation: P.V. vs. Aviva Insurance Company, 2019 ONLAT 18-009130/AABS

Tribunal File Number: 18-009130/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

P.V.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant: Christopher A. Obagi

Counsel for the Respondent: James M. Brown

Written Hearing on: September 26, 2019

OVERVIEW

1The applicant, P.V., was injured in a motor vehicle accident on December 19, 2009. P.V. sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2Aviva has paid out various accident benefits to P.V. since the accident. Here, Aviva partially denied P.V.’s claim for the cost of a slate of catastrophic examinations on the basis that they are not reasonable and necessary. P.V. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. A case conference was held, but the parties could not resolve the issues in dispute, prompting this written hearing on the following issues.

ISSUES IN DISPUTE

3The issues were outlined in the case conference order as follows:

i) Is the applicant entitled to the cost of examinations for CAT assessments in the amount of $12,566.00 recommended by Dr. Paitich, submitted May 18, 2018 and denied June 13, 2018?

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

RESULT

4I find P.V. is entitled to the costs, plus HST, of the Functional Review Evaluation portion of the OCF-18, as it is reasonable and necessary. Interest is payable on these overdue amounts, pursuant to s. 51 of the Schedule. P.V. is not entitled to the remaining assessments in the OCF-18, as they are not reasonable and necessary.

BACKGROUND

5On May 18, 2018, P.V. submitted an OCF-18 to Aviva in the amount of $20,566.00 for nine assessments related to a catastrophic determination she sought. Aviva determined that the treatment plan was only partially reasonable and necessary, approving four of the assessments and denying the remaining five. Aviva approved the following assessments as reasonable and necessary: an orthopaedic assessment; an occupational therapy in-home assessment; a psychiatry assessment; and an assessment to rate P.V.’s impairment pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”).

6Aviva determined that the following assessments were not reasonable and necessary: Occupational Therapy, Assessment of Motor Skills; Occupational Therapy, collateral interview using Partial ADL Profile; Functional Review Evaluation; File review and collation of information; and the Consensus Opinion of Catastrophic Assessment.² In issuing its denials, Aviva relied on the Orthopaedic Paper Review Assessment and Addendum of Dr. Paitich, both dated June 29, 2018.

7Despite the partial denial, P.V. underwent all nine assessments, incurring the expense for the denied portion of the OCF-18. A catastrophic report and OCF-19 dated February 28, 2019 were produced. The invoice for the denied assessments totals $10,000 plus HST and is the subject of this hearing.³

8Following the assessments, an OCF-19 was prepared by Dr. Pallandi, psychiatrist, on behalf of P.V. The OCF-19 indicates that P.V. sustained a catastrophic impairment under Criterion 1 (paraplegia or quadriplegia) and Criterion 7 (55% whole person impairment) pursuant to the Guides and therefore met the definition for catastrophic impairment under the Schedule. P.V. is currently undergoing insurer’s examinations pursuant to section 44 of the Schedule.

Aviva’s Motion to Strike

9In its responding submissions and again following the parties’ submissions, Aviva raised the issue of a discrepancy in the invoice from AssessNet Inc., submitted by P.V. in her reply, that it argues materially affects the Tribunal’s analysis. Aviva seeks an order that the reply evidence be struck from the record. Aviva’s submissions are two-fold.

10First, Aviva submits that P.V.’s claim for the five denied assessments is incorrect because the original invoice for the denied assessments includes an assessment called “Clinic Director - WPl Formulation." Aviva argues that this assessment was listed on the OCF-18 as item "S. Dr. A. Persi, DC - Rating of Whole Person Impairment as per the Guides", which Aviva approved and therefore the amount cannot be in dispute.

11Second, Aviva submits that the original invoice indicates that another proposed assessment was never completed. The invoice refers to "'Clinic Director —SABS CAT Rvw” which it argues could be either of items "7. Dr. A. Persi, DC - File review and collation of information” or "P. Dr. A. Persi, DC - Consensus Opinion of Catastrophic Assessment" on the OCF-18. Aviva submits both items were denied, that it is unclear which one was invoiced and since the report included a file review but made no reference to a consensus opinion, the invoice must refer to the file review. In sum, according to the original invoice, Aviva argues there are only four assessments in dispute, at a cost of $8,200.00 plus HST.

12In reply submissions, P.V. addressed the discrepancy, arguing it was a clerical error in the invoice made by the assessment center, AssessNet Inc. P.V. provided correspondence to the Tribunal indicating her attempts to correct the mistake. In reply submissions, P.V. submitted the supposedly accurate, updated invoice indicating the following five assessments as remaining in dispute: Chiropractor – Functional Review; OT – ADL Profile; OT – AMPS Situational Evaluation; File Review and Collation of Information; and Consensus Opinion of Catastrophic Assessment.

13I have accepted Aviva’s written motion submissions as a sur-reply in this matter. I find Aviva’s confusion to be warranted. Indeed, on review of the two invoices against the sections of the catastrophic report from AssessNet Inc., it is at first difficult to discern how the items claimed in the invoices align with the sections of the report and what was actually completed. I will focus on the items that comprise the alleged clerical error.

14The original invoice from AssessNet Inc., dated February 28, 2019, contains the following three assessments: “Clinic Director - WPI Formulation”, “Clinic Director - SABS CAT Rvw” and “Completion and submission of OCF-18”. In the amended invoice from AssessNet Inc., also dated February 28, 2019 but with a “PAID” stamp dated April 12, 2019 at the top, the three assessments above are replaced with the following two assessments: “File Review and Collation of Information” and “Consensus Opinion of Catastrophic Assessment.” The parties agree that the “Completion and submission of OCF-18” is payable and that it is not at issue. The remaining questions for the Tribunal are whether the items in the amended invoice, which now mirror those in the OCF-18, should be struck from the evidence and, if not, whether Aviva has already approved them as reasonable and necessary or denied the assessments.

15While I agree with Aviva that the deadline for productions and new evidence had come and gone and that a reply is not the proper forum to adduce new evidence, I find the requested relief of striking the invoice from the record to be extreme given the issues in dispute and on the evidence before the Tribunal.

16First, I find no evidence to suggest that the discrepancy was anything more than a clerical error by AssessNet Inc. and that P.V., upon realizing the error, took the necessary steps to correct it so that accurate documentation would be provided to Aviva and put before the Tribunal. I do not find this is an attempt by P.V. to “split her case.” Second, while production deadlines are important to ensure parties are on equal footing and I am alive to the Tribunal’s Common Rules of Practice and Procedure, it is equally important to ensure that the Tribunal has accurate information before it to ensure a decision is made on the merits of a case and to avoid compounding any error. Third, I find the ultimate consideration here is relevance, and whether justice will best be served with accurate information. I find the amended invoice to be relevant to the issues in dispute and that both parties—and the Tribunal as well—benefit from having the discrepancy addressed, even if it was done improperly in reply submissions.

17Finally, I find Aviva laid out the discrepancies clearly in its sur-reply, directing the Tribunal to the alleged inconsistencies between its denials, the AssessNet Inc. report and the invoices submitted. This allows the Tribunal to assign the appropriate weight and, as result, I find there is no prejudice to Aviva in admitting the invoice in this hearing.

18Accordingly, I deny Aviva’s request to have the invoice struck but address all five of the assessments in dispute with its submissions in mind.

Are the assessments reasonable and necessary?

19Section 25(1)5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. This is to be read in combination with s. 25(5)(a), which limits the cost of any one assessment or examination to $2000. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

20While there is only one OCF-18 at issue, there are five assessments contained within the treatment plan that must be addressed individually to determine whether each is reasonable and necessary. On the evidence before the Tribunal, I find P.V. is entitled to payment for one of the assessments in the OCF-18—the Functional Review Evaluation—but is not entitled to payment for the remaining assessments, as they are not reasonable and necessary.

Assessment of Motor Skills and Process Skills (“AMPS”)

21I find the AMPS portion of the OCF-18 to be not reasonable and necessary on the basis that the AMPS evaluation is a not an essential assessment to catastrophic determination but a complementary assessment.

22P.V. submits that the AMPS assessment is not the same as the OT In-Home Evaluation Aviva approved and is reasonable and necessary because it requires a separate appointment, administers a different set of tests which focus on objective measures in conjunction with the Guides, and because the assessor who conducts the test requires specialized certification. P.V. argues that the AMPS produce separate conclusions that can be used independently to support a finding of catastrophic impairment. I agree with P.V. that when assessing catastrophic impairment, what constitutes “useful function” is often a contested area and that more information on an applicant’s useful function can be helpful. However, I disagree that this assessment is a necessary component to providing a complete picture of P.V.’s impairment. Indeed, in the letter from AssessNet Inc. provided by P.V., the AMPS is referred to as a “complementary assessment” and the “report” itself was conducted in a clinical setting, not in P.V.’s home environment. In my view, this renders the assessment not necessary, even if the stated goals—providing a specialized analysis of useful function across a range of outcomes as a complement to a standard in home evaluation—appear reasonable, albeit somewhat vague. To borrow Aviva’s phrase, I find it is not “essential” to the completion of the OCF-19.

23Aviva further submits that the results of this particular assessment—a ten-page Activities of Daily Living Evaluation report; a three-page Collateral Interview report; and the three-page AMPS report—which were carried out on a single day, are not reasonable due to the fact that it already approved an In-Home Occupational Assessment and that multiple reports from a single assessor from a single day should not be billed multiple times. While I agree that the AMPS is not payable because it is not an essential assessment, I disagree that multiple reports from a single assessor cannot be billed multiple times. Contrary to P.V.’s position, however, I find this assessment to be largely duplicative as there were already other measures of function administered and, in any event, find the AMPS not essential to the catastrophic determination or completion of the OCF-19.

24For these reasons, I find the AMPS portion of the OCF-18 to be not reasonable and necessary as it is not an essential component to complete an OCF-19, or to aid assessors and, potentially, the trier of fact, in determining catastrophic impairment.

Partial ADL Profile and Collateral Interview

25I find P.V. is not entitled to the cost of this assessment, as it is not reasonable and necessary.

26In the letter from AssessNet Inc., this assessment is described as a “collateral interview tool to obtain corollary information that is implemented for CAT assessments.” P.V. argues it is reasonable and necessary to interview someone who knew her well before and after the accident—in this case, her husband—when considering impairments across the four spheres of function due to a mental or behavioural disorder. P.V. argues that individuals with a significant psychiatric/psychological history often do not have clear insight into their emotional difficulties, so it is necessary to collect corollary information to provide context. She further argues that according to the Guides, corollary information is essential and needs to be considered and that it is a distinct assessment that uses separate tests. Finally, P.V. argues that collateral interviews can be determinative of which expert report an adjudicator may prefer.

27In response, Aviva contends that P.V. has adduced no evidence to explain why the Collateral Interview should be considered a separate assessment given the clear overlap between it and the information already required for the Activities of Daily Living Evaluation. Similarly, Aviva argues that there is no evidence to explain why the Collateral Interview could not simply have formed part of the Activities of Daily Living Evaluation.

28I agree with Aviva. First, contrary to P.V.’s assertion, the Guides do not indicate that corollary information is “essential” or “needs to be taken into account”. Rather, the Guides state that “information from nonmedical sources, such as family members and others who have knowledge of the patient, may be useful in indicating the level of functioning and the severity of the impairment.” In my view, this means that collateral interviewing, while potentially helpful to determine function over time, is not necessary to a catastrophic determination or the completion of an OCF-19. Second, as this was a 2009 accident where Aviva has adjusted P.V.’s claims for benefits over a period of ten years and there is a significant body of medical evidence detailing P.V.’s function and physical decline over this time, I find it unlikely that a three-page collateral interview report based on subjective self-reporting will provide essential context not already captured by a voluminous medical file. Third, I find that the responses by P.V. in the report are largely duplicative and the responses from her husband are quite disproportional to hers.

29Finally, I agree with Aviva that charging the full assessment cost of $2000 for what amounts to less than three-pages of a report is not a reasonable cost or a necessary expense to complete an OCF-19. Indeed, P.V. did not explain why it was reasonable and necessary for the assessor to conduct the collateral interview with P.V.’s husband separately and on a separate day or why it could not be conducted over the phone or at the same time as her own.

30For these reasons, I find this portion of the OCF-18 is not reasonable and necessary.

Functional Review Evaluation

31I find that P.V. is entitled to the cost of this assessment as it is reasonable and necessary to procure accurate, digital measurements under the protocols of the Guides.

32P.V. argues that this assessment is reasonable and necessary in order to obtain objective measures of the ranges of motion that are implemented for catastrophic assessments. She argues that this assessment follows the specific protocols of the Guides (for example: body positioning and standard deviations of measurement) using a digital goniometer and, where possible, dual digital inclinometers system, as recommended by the Guides, to obtain accurate measures of the range of motion. P.V. submits that the results from this assessment are necessary to provide ratings of impairment based on her impaired range of motion. In the AssessNet Inc. letter, it states that this testing can only be performed by an assessor who is certified in the “Hanoun Diagnostic System”.

33In response, Aviva offers two main arguments. First, it argues that there is no evidence to explain why this testing, even if necessary, was not completed as part of either the approved orthopaedic or occupational therapy assessments. While this assessment measured P.V.’s range of motion, similar measurements had already been done during the orthopaedic assessment. While Aviva concedes that digital equipment was used in this assessment for more accurate measurements, it argues there is no explanation why accurate measurements were not done in the other assessments. Second, Aviva argues there is no evidence to explain why an assessment using the Hanoun Diagnostic System was indispensable to the preparation of the OCF-19.

34I agree with P.V. I find it is important to collect accurate measurements and that the Guides speak to the use of a digital goniometer and certain other digital inclinometers. I find the testing results in Appendix II to be quite comprehensive and, importantly, that the digital results meet the requirements to qualify under the Guides. In my view, this demonstrates why this particular report, detailing her girth measurements, hand and grip dexterity, leg length, spine ranges, etc., is indispensable to her catastrophic determination because it captures measurements not conducted in the orthopaedic evaluation report, which does have a functional examination section but does not provide the digital measurements referenced in the Guides. While I am alive to Aviva’s argument that P.V. has not offered a compelling explanation as to why the Hanoun system is reasonable and necessary in the face of the approval of similar assessments, I find it reasonable that an applicant for catastrophic impairment follow the direction in the Guides to secure assessments that use digital measurements. With this in mind, I accept that the Hanoun system requires specific training to secure accurate measurements and, combined with the fact that the assessment took place with a chiropractor on a separate day, I find it to be reasonable and necessary.

35For these reasons, I find this portion of the OCF-18 to be reasonable and necessary.

File Review and Collation of Information

36I find the file review and collation of information portion of the OCF-18 is duplicative and therefore not reasonable and necessary.

37In support of this portion of the OCF-18, P.V. cites chapter two of the Guides, arguing that in order to provide an accurate and valid estimate of impairment, a comprehensive review of the entire file is important and essential to avoid disparities. She argues that this is a complex case with several years of medical records and accordingly, the assessors need to invest more time to complete a thorough review and analysis of the file documentation from multiple sources in order to avoid bias.

38In response, Aviva contends that it is well-accepted that assessors will independently review medical records as part of their own assessments and that a separate file review is a needless duplication of this effort. Further, it submits that P.V. has not provided an explanation as to why a global file review is reasonable and necessary when each of the assessors conducted their own file reviews.

39I agree with Aviva. Although I agree that the Guides state that a review of the medical evidence is the first step in determining a catastrophic impairment, I find the Guides do not require a global review and collation of the medical evidence by a clinic or assessment team. Instead, the language of the Guides, in my view, requires that each assessor take the time to review the medical records of each applicant in order to better inform themselves of the medical history prior to conducting an examination. On review of the reports, I find that is precisely what occurred in this matter. For example, as Aviva points out, all of Dr. Wismer, Dr. Pallandi, Ms. Franic and Dr. Persi conducted their own file reviews as part of their respective reports. A global file review—especially in the face of the Consensus Opinion, addressed below—would be duplicative and therefore not necessary. Finally, while I accept that volumes of documentation need to be organized and collated, I do not find the alleged cost at the maximum rate of $2000 for this largely administrative exercise—the same cost as a full day assessment and report from a medical professional—to be reasonable.

40Accordingly, I find P.V. is not entitled to the cost of this portion of the OCF-18.

Consensus Opinion of Catastrophic Assessment

41I find P.V. is not entitled to the cost of this portion of the OCF-18 as it is a duplication of an already approved assessment and is therefore not reasonable and necessary.

42Here, P.V. argues that the consensus assessment is reasonable and necessary because it consolidates the various opinions in the reports. She argues it has a different purpose than the other assessments because it does not focus on one sphere of impairment, but rather considers all of the individual assessors’ opinions to provide an overall opinion of her impairments for each of the OCF-19 criteria in Part 4. Further, she argues that no other assessment provides this overall opinion and it is distinct from the rating of WPI because that rating only concerns Criterion 7 of the OCF-19. P.V. submits that her injuries involve other criteria of the OCF-19 and therefore require a consensus opinion using all the data obtained from all the assessments to provide an overall opinion on the issue of catastrophic impairment.

43In response, Aviva argues that the original invoice does not refer to a “Consensus Opinion of Catastrophic Assessment” and only refers to "'Clinic Director - SABS CAT Rvw", which it argues appears to relate to the file abstract. Aviva submits that if this entry in fact relates to a consensus opinion, then it cannot be recoverable since the multi-disciplinary report makes no reference to a consensus opinion. In turn, it argues that a consensus opinion was therefore not necessary for the completion of the OCF-19.

44I disagree. Although I find the errors in the invoice cloud the situation somewhat and I am alive to Aviva’s sur-reply, I find the multi-disciplinary report does refer to a consensus opinion and that same is identified in the OCF-18. Indeed, despite Aviva’s contention, the table of contents has a “Review of SABS Catastrophic Criteria” section and the report itself concludes with 15 pages dedicated to the findings of the various assessors and ultimately, a conclusion on P.V.’s catastrophic determination in the positive. In my view, it is reasonable to conclude that this constitutes a “Consensus Opinion” that is separate from the other reports but incorporates all of the results and, in any event, is certainly not out of the ordinary in catastrophic cases.

45Further, regardless of what these reports are called—consensus opinions, executive summaries, conclusion, etc.—I disagree with Aviva and find these conclusory reports to be quite necessary in catastrophic determination cases because they cull the opinions and findings of the various assessment reports together and deliver an opinion that is helpful in completing not only an OCF-19 but also in potentially assisting the trier of fact if the matter proceeds to a hearing. Finally, I accept that this concluding exercise is time-consuming, requires some expertise and a thorough understanding of the nuances of the Guides, so the rate, in my view, is reasonable.

46However, contrary to P.V.’s assertion, I find she is not entitled to payment for this item because, as far as I can tell, it is not substantially different from what Aviva already approved in the item called “An assessment to rate P.V.’s impairment pursuant to the Guides” and would otherwise be a duplication and therefore not necessary. Further, I disagree with both of P.V.’s arguments that this item is required because it “considers all of the assessors’ opinions to provide an overall opinion of her impairments for each of the OCF-19 criteria in Part 4” and that “no other assessment provides an overall opinion and it is distinct from the rating of WPI because that rating only concerns Criterion 7 of the OCF-19.”

47Indeed, on review of the report, the chapter titled “Review of SABS Catastrophic Criteria” at the end provides a rather comprehensive analysis and presentation of P.V.’s entire catastrophic claim, including a recap of the various assessments, sections dedicated to all of criterion (a), (g) and (f) and, ultimately, a conclusion on her impairment. In my view, P.V. has failed to provide compelling evidence—other than AssessNet Inc.’s assertion that it is required for a “thorough and valid multidisciplinary report”—that this assessment is reasonable and necessary in the face of Aviva’s approval for an assessment to rate P.V.’s impairment under the Guides. Further, that the Review section includes analysis on all of criterion (a), (g) and (f) undermines, in my view, P.V.’s argument that separate assessments are necessary in order to consider the various criteria of an OCF-19.

48Accordingly, I find P.V. is not entitled to payment for this portion of the OCF-18 as it is not reasonable and necessary.

CONCLUSION

49I find P.V. is entitled to the costs, plus HST, of the Functional Review Evaluation portion of the OCF-18, as it is reasonable and necessary. Interest is payable on this overdue amount, pursuant to s. 51 of the Schedule.

50I find P.V. is not entitled to costs of the remaining portions of the OCF-18—being the AMPS, the Partial ADL Profile and Collateral Interview, the File Review and Collation of Information and the Consensus Opinion of Catastrophic Assessment—as they are not reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10.
2. 2Aviva contests the list of assessments, as it was not mirrored by the original OCF-18. This issue is addressed below.
3. 3This amount was disputed by Aviva in submissions and is part of the subject of its motion.