Tribunal File Number: 18-003802/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:
V.L.
Applicant
and
Pafco Insurance Company
Respondent
DECISION
PANEL:
Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant:
Kevan Wylie
For the Respondent:
Caroline L. Meyer
HEARD:
In Writing on: October 28, 2019
OVERVIEW
1The applicant, V.L., was injured in a motor vehicle accident on March 10, 2014. V.L. sought benefits from the respondent, Pafco, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2Pafco partially denied V.L.’s claim for the cost of a slate of catastrophic examinations on the basis that they are not reasonable and necessary. Pafco also denied her claims for chiropractic treatment on the basis that they were not reasonable and necessary. V.L. 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:
a. Is the applicant entitled to receive a medical benefit in the amount of $885.00 for Chiropractic Services, recommended by Dr. K. Lutzer in a treatment plan submitted October 31, 2016, and denied by the respondent on November 17, 2016?
b. Is the applicant entitled to receive a medical benefit in the amount of $2,080.00 for Chiropractic Services, recommended by Dr. K. Lutzer in a treatment plan dated November 17, 2016 and denied by the respondent on November 30, 2016?
c. Is the applicant entitled to receive the costs of examination of catastrophic impairment in the amount of $8,884.00 ($16,835.25 was partially approved from a total claim of $25,719.25), as completed by Novo Medical Services and claimed in a treatment plan dated May 8, 2018 and denied on June 1, 2018?
d. Is the applicant entitled to interest on any overdue payment of benefits?
e. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4I find V.L. is entitled to payment for the Functional Abilities Evaluation component of the costs of examination of catastrophic impairment identified in issue c. She is also entitled to the costs of completing the OCF-19 and OCF-18s approved, the travel fees associated with the FAE and any interest payable on these amounts, pursuant to s. 51 of the Schedule.
5I find V.L. is not entitled to the remaining items in issue c, as they are not reasonable and necessary.
6I find V.L. is not entitled to the chiropractic treatment plans listed as issues a and b, as she has not demonstrated why the treatment is reasonable and necessary.
7I find an award under s. 10 of O. Reg. 664 is not warranted.
ANALYSIS
Are the denied CAT assessments reasonable and necessary?
8Section 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.
9Pafco partially approved $16,835.25 out of the total claim for $25,719.25. However, there are six denied items that V.L. argues are reasonable and necessary and should be paid: Psychiatric Assessment Part 2; Neuropsychological Assessment Part 2; Functional Abilities Evaluation (“FAE”); Biopsychosocial Assessment; Completion fees for the OCF-19; and Travel Costs for Assessors in the amount of $600.
10On the evidence before the Tribunal, I find V.L. is entitled to payment for the FAE and travel fees associated with it and the completion fees for the OCF-19 and OCF-18s but is not entitled to payment for the remaining items in dispute as they are not reasonable and necessary.
Part 2 of the Psychiatric Assessment and Neuropsychological Assessments
11I find Part 2 of both the Psychiatric and Neuropsychological assessments in the OCF-18 are not reasonable and necessary on the basis that they are extensions of the assessments already approved but merely split into two parts to garner two payments. While these items are listed separately in the OCF-18, V.L.’s submissions on the items are largely the same and I find my reasons for denying entitlement to be identical.
12V.L. submits that the second parts of these assessments are reasonable and necessary and should be payable because they are “separate and distinct” assessments from Part 1 in methodology, testing and results. V.L. argues these assessments are needed to determine catastrophic impairment, are not duplicative and can be differentiated based on the fact that Part 1 is for “testing” and Part 2 is for “scoring and analysis.”
13In response, Pafco argues that the language, content and nature of the two parts supports the finding that the two parts constitute one assessment. Pafco argues that Part 2 of each assessment has the same purpose as the approved Part 1, have the same author, the same dates of examination and the same result.
14I agree with Pafco. I find that Part 2 of both the Psychiatric Assessment and the Neuropsychological Assessment do not constitute separate and distinct assessments, but rather are merely extensions of the approved assessments in Part 1. While I am alive to V.L.’s submissions about the alleged time needed to complete the analysis and that a neurological test was necessary for her impairments, I find the splitting of the assessments into two parts to be a needless bifurcation of tasks, amounting to an unreasonable cost to the insurer, to achieve the same result.
15Indeed, Pafco has already approved both Part 1’s and the accompanying reports for same. I agree with Pafco that the assessments are arbitrarily split into two parts. In both parts of the psychiatric and neuropsychological assessments, the same purpose and goal is identified, the assessments have the same authors and are conducted on the same date. I find splitting the assessments into two parts is a strategic decision driven by the clinic and not by necessity or some direction in the Schedule or jurisprudence. While the law is clear that separate reports may attract separate payments, I find this is not the case here, as there is only one psychiatric report and one neuropsychological report produced, despite V.L.’s urging that the two parts are wholly distinct. In my view, if separate reports were produced, then it may be reasonable to argue that separate payments are justified. However, I find that is not the case here and, on review of the reports, I find the splitting of tasks was not necessary to deliver an opinion.
16For these reasons, I find V.L. is not entitled to payment for Part 2 of either of the Psychiatric or Neuropsychological Assessments as they are not reasonable and necessary.
Functional Abilities Evaluation (“FAE”)
17I find V.L. is entitled to the cost of the FAE as it is reasonable and necessary.
18V.L. agues that the FAE may be “the most important part of the catastrophic determination” and submits that the FAE is reasonable and necessary on this basis because it is not duplicative, is used to guide treatment with an eye to returning to the workplace and identifies potential barriers for recovery and reintegration.
19In response, Pafco contends that the two Occupational Therapy assessments it already approved overlap with the FAE. It argues that the methodologies used in the approved assessments—which included an interview with V.L., a home and situational community assessment to assess physical and psychological function and also validity testing measures—are duplicative of those identified in the FAE, as they cover both in home and situational functional considerations.
20I agree with V.L. In the OCF-18 completed by Dr. Milad, he states that the FAE “may be the most important part of the evaluation as each of the selected tests is an objective measure of functional loss which is the definition of "impairment." He further states that the FAE “validates in a qualitative manner the presence of impairment” and that the FAE will then be “correlated with the AMA Guides method which is very helpful for everyone involved who are reviewing the case.” While I am alive to Pafco’s submission that the FAE overlaps with some of the other assessments it has approved, I find that the FAE provides useful information on function, specifically in the workplace. As a catastrophic determination focuses on the function of the impaired individual and how it affects their day to day lives at home and, potentially, in the workplace, the additional information and insight provided by a FAE is, in my view, a reasonable and necessary expense in the grand scheme of a catastrophic determination. Although not part of the legal test, I have found the FAE helpful in providing insight into what applicants in catastrophic disputes can and cannot do in the workplace and how their pre and post-accident function has been altered. In turn, I agree that this information will be helpful to the overall determination of V.L.’s functional abilities.
21For these reasons, I find V.L. is entitled to payment for the cost of the FAE as it is reasonable and necessary.
Biopsychosocial Assessment
22I find that V.L. is not entitled to the biopsychosocial assessment as it is not reasonable and necessary.
23V.L. submits that this assessment is reasonable and necessary because it is used by the psychiatrist in forming that report, will address the “presenting problem and environmental factors, medical factors, and psychological factors that affect [V.L.’s] impairments.” Further, V.L. argues the biopsychosocial assessment provides underlying context for the results found in the psychiatric, neuropsychological, occupational therapy and functional abilities assessments. Finally, V.L. submits that this assessment is differentiated from the other assessments because it includes the Holmes-Rahe Life Stress Inventory test, which identifies stressors that may lead to illness.
24In response, Pafco submits this assessment is a duplication of the psychiatric and neuropsychiatric assessments that were already approved.
25I agree with Pafco. V.L. refers to this assessment as an “assistive report” but that it is still necessary for completion of the psychiatric assessment. The Holmes-Rahe test—which V.L. indicates is the primary differentiator—may be helpful in certain circumstances to provide context. However, here, I find on review of the reports in evidence that it was not a requirement of the psychological assessor to evaluate V.L.’s social functioning under Criterion 8, as alleged. The psychological report was able to asses V.L. at a Class 4 Marked impairment without conducting the Holmes-Rahe test, or, at least without requiring payment for the cost of an entire assessment to do so. Further, V.L. did not explain why certain elements allegedly captured only by the biopsychosocial assessment—identified as environmental factors, medical factors, psychological factors—are so unique to this particular assessment and could not be gleaned from the information captured in the myriad interviews and reports (and medical documentation on file) from the other assessments.
26For these reasons, I find the biopsychosocial assessment is not reasonable and necessary.
Completion Fees for the OCF-19 and OCF-18s
27I find V.L. is entitled to payment for the cost of completing the OCF-19 as it is reasonable and necessary for the completion of the standard form, which is in evidence, and s. 25(1)(5) of the Schedule states that reasonable fees charged for preparing an application for a catastrophic determination are payable. As there is no disagreement that V.L.’s catastrophic determination is in dispute and a valid OCF-19 is in evidence, it follows that this item is payable.
28Additionally, I find V.L. is also entitled to payment for the cost of completing any remaining, approved OCF-18s. Pafco’s responding submissions are silent on this issue, so it is unclear what fees remain outstanding. In any event, I find that the assistance of other medical professionals in connection with a catastrophic determination is necessary and, indeed, contemplated by s. 45(2)1 of the Schedule, so it follows that any fees for completing OCF-18s in support of an OCF-19 are also payable.
Travel Fees for the Assessors
29Having determined that the FAE is reasonable and necessary, I find the travel fees related to this assessment are reasonable and necessary, subject to the 50-kilometre deductible in the Schedule. Accordingly, travel fees related to the denied assessments are not reasonable and necessary and therefore not payable.
Are the Chiropractic treatments reasonable and necessary?
30Section 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.
31I find V.L. is not entitled to either of the treatment plans for chiropractic services as she has not demonstrated why they are reasonable and necessary.
32In submissions, V.L. directs the Tribunal to evidence from various dates indicating she suffers from back and neck pain and chronic pain, as well as a degenerative disk disease dating back to 2010. I find these complaints are documented in the years since the accident. However, as it is her onus to prove entitlement, I find V.L. has not demonstrated why these specific passive modalities are reasonable and necessary to address her impairments. Her submissions do not explain, for example, why a TENS machine, comprising half the cost of the $850 treatment plan, is necessary when one was denied previously. Her submissions do not explain how the proposed slate of ten treatment sessions—identified here as spinal manipulation, shoulder exercises and head/neck stimulation—would help to further the goals of increasing her function or addressing her chronic pain or, generally, help her to overcome the potential plateau identified in the reports. While I am alive to V.L.’s argument that Pafco’s denials were based on a stale report and see the documentation of pain in her files, I find that V.L. has not provided the Tribunal with compelling evidence to support her argument that chiropractic treatment is necessary to achieve her goals or that the cost for same is reasonable. The existence of pain, diagnosed or otherwise, is not sufficient on its own to make every treatment plan automatically payable; the applicant must support the plan with evidence that it is reasonable and necessary to address the pain.
33Accordingly, I find P.V. is not entitled to payment for either OCF-18 as she has not demonstrated why the chiropractic treatment is reasonable and necessary.
Award
34V.L. claims entitlement to an award under s. 10 of Ontario Regulation 664 on the basis that Pafco unreasonably delayed payment of the treatment plans for chiropractic services over a three-year period in the face of evidence that she is entitled. Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which V.L. is entitled if the Tribunal finds that Pafco has unreasonably withheld or delayed payments. In response, Pafco argues that the payment for the treatment plans was not unreasonably withheld or delayed.
1On the facts and evidence before me, I find an award is not warranted. While V.L. again refers to the medical evidence indicating that she was reporting complaints of pain and received a diagnosis of chronic pain since the accident, Pafco was entitled to deny the treatment plans on the basis that they were not reasonable and necessary, a determination I agree with here. In my view, this conduct was not unreasonable. V.L. has failed to establish that Pafco unreasonably withheld or delayed payments to warrant an award.
CONCLUSION
35I find V.L. is entitled to payment for the FAE component of the costs of examination of catastrophic impairment identified in issue c and any travel fees associated with the FAE. She is also entitled to the costs of completing the OCF-19 and OCF-18s approved and any interest payable on those amounts, pursuant to s. 51 of the Schedule.
36I find V.L. is not entitled to the remaining items in issue c, as they are not reasonable and necessary.
37I find V.L. is not entitled to the chiropractic treatment plans listed as issues a and b, as she has not demonstrated why the treatment is reasonable and necessary.
38I find an award under s. 10 of O. Reg. 664 is not warranted.
Released: November 5, 2019
Jesse A. Boyce
Adjudicator