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:
M.B.
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
David Carranza, Paralegal
For the Respondent:
Gina Nardella, Counsel .
HEARD:
In Writing on: September 10, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant, M.B., was injured in an automobile accident on January 27, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2M.B. appealed to the Licence Appeal Tribunal (“the Tribunal”) when the disputed benefits were denied by the respondent, Aviva Insurance Company (“Aviva”).
3M.B. has had the assessments that he claims completed, and has submitted them as evidence that they were reasonable and necessary.
DISPUTED BENEFITS
4The issues before me are:
Is M.B. entitled to payments for the cost of examinations in the amount of $4,663.50 for a Functional Abilities Evaluation (“FAE”), Transferable Skills Analysis and Vocational Assessment, recommended by Rehabilitation Network Canada in a treatment and assessment plan (“OCF-18”) dated March 7, 2016, and denied by the respondent on March 17, 2016?
Is M.B. entitled to payments for the cost of examinations in the amount of $2,562.83 for a Chronic Pain Assessment (CPA), recommended by Excel Medical Diagnostics Inc. in an OCF-18 dated November 23, 2017, and denied by the respondent on November 30, 2017?
Is M.B. entitled to interest for the overdue payment of benefits?
FINDINGS
5M.B. is entitled to payment of the benefits he claims in issue 1 above, but only the prescribed maximum of $4,400.00. Interest is payable on this amount at the prescribed rate.
6M.B. is not entitled to a benefit for a CPA. The issue of overdue payments on this amount is moot.
7Aviva’s request for costs is dismissed.
REASONS
Issue 1: FAE and Vocational Assessments
8Section 16(1) of the Schedule prescribes that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures [that are] reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.
9Under s. 16(2), measures to reintegrate an insured person into the labour market are considered reasonable and necessary, taking into consideration the person’s personal and vocational characteristics, if they enable the person to engage in employment or self-employment that is as similar as possible to the employment or self-employment in which he or she was engaged at the time of the accident; or lead as normal a work life as possible.
10Section 16(3) lists various kinds of counselling and training and expressly includes vocational assessments in its definition of reasonable and necessary measures.
11The onus is on the applicant to show that each proposed assessment plan is reasonable and necessary.2
12The parties agree that M.B. worked as a security guard from 2007 until November 2013. He then became a full-time drywaller and painter, and was working full-time in this capacity when the accident happened.
13M.B. supports his claim with the following arguments:
i. Section 16 of the Schedule “supports the need for” the claimed assessments and requires Aviva to pay for such assessments as part of the prescribed requirement to pay for all reasonable and necessary expenses he incurred to address the effects of any disability.
ii. Aviva supplied the FAE and the Vocational Assessments to its medical assessors who used them in Insurer’s Examination (IE) reports “and as such as an element of fairness, they ought to pay for them in good faith”.
14Aviva rebuts M.B.’s claim with the following submissions:
i. Aviva relies on the IE report of Dr. Lyndon Mascarenhas, general practitioner, dated April 13, 2016, which found that the claimed FAE assessment was not reasonable and necessary. More specifically, Dr. Mascarenhas opined that he found no objective clinical evidence of impairment. Dr. Mascarenhas maintained this position in an addendum report dated July 14, 2016 and another dated October 6, 2016.
ii. M.B. adduced no evidence that he is unable to work at one of the two jobs he held in the 52 weeks prior to the accident. M.B. was a security guard between 2007 and November 28, 2013, and there is no evidence that he is unable to work as a security guard as the result of accident-related injuries.
iii. M.B.’s OCF-18 is not reasonable and necessary because it fails to address functionality and transferable skills relating to both positions he held during the 52 weeks before the accident. The OCF-18 is focused on assessing transferable skills in relation to working as a drywaller and painter.
iv. A Multidisciplinary Report dated November 10, 2014 found that M.B. had no accident-related impairment that would prevent him from completing the essential tasks of his pre-accident employment. Given that M.B.’s ability to perform his pre-accident employment tasks is unimpaired, he does not need the requested assessments.
v. Aviva commissioned surveillance between April 18, 2016 and June 15, 2017. Noting that the disputed FAE was conducted in April or May of 2016, Aviva’s surveillance reports indicated no sign of impairment and observed M.B. driving aggressively and speeding, which undermined his claims of driver anxiety.3
15Aviva concludes its rebuttal by arguing that a Transferable Skills Analysis and Vocational Assessment are intended to assess an applicant’s capacity for reintegration and rehabilitation. Since M.B. has failed to show that he is in fact impaired from working, he has failed to establish that the claimed FAE is necessary.
16I find that M.B. is entitled to the claimed assessment because:
i. I disagree with Aviva about the relevance of M.B.’s pre-accident employment history as a security guard. A plain reading of Section 16(2)(a) of the Schedule clearly refers to “employment or self-employment that is as similar as possible to the employment or self-employment that [the applicant] was engaged in at the time of the accident” [emphasis mine]. What M.B. was doing and stopped doing two months before the accident is irrelevant to his entitlement to an FAE and vocational assessment: it is uncontested that he was a full-time drywaller and painter when the accident occurred. It is against this background that I read his OCF-18 as reasonable and necessary.
ii. The reports comprising the multidisciplinary report of 2014 do note M.B.’s drywalling and painting job. However, they do not make it at all clear that their conclusions – that M.B. could work – apply to the heavy physical demands of this occupation. Aviva’s sharp and sole emphasis in submissions was on M.B.’s previous job as a security guard. Aviva was silent about M.B.’s capacity to drywall and paint. I find it telling that Aviva did not actually state that M.B. can paint and drywall. As a result, I give little weight to Aviva’s medical evidence from 2014 on M.B.’s level of impairment in relation to his pre-accident employment.
iii. Dr. Macarenhas opined that “further assessments and treatment” for M.B. were unnecessary. My reading of his report is that this view applied to medical treatment and assessment. It does not apply to FAE or vocational assessments. The issue of MMI addressed by Dr. Macarenhas is, I find, irrelevant to M.B.’s capacity to work and immaterial to the issue of assessments necessary to determine occupational options that meet the goals of s. 16 of the Schedule. This report does not refute M.B.’s claim.
iv. M.B.’s evidence brief included an orthopedic assessment report by Dr. Tommy Chan, orthopedic surgeon, dated April 25, 2017. Dr. Chan conducted a physical examination, interviewed M.B. and reviewed his medical documentation. The physician found that M.B. was unable to return to his duties as a drywaller and painter.
v. M.B. submitted a CPA dated July 19, 2018 by Dr. Stephen Brown, anesthesiologist, and an accredited expert in chronic pain and pain management. Dr. Brown noted M.B.’s employment history as a security guard, and included it in his opinion that M.B. “suffers an inability to engage in any employment for which he is suited by education, training and experience.” This persuasively negates Aviva’s core argument. The CPA provides a firm basis on which to find that FAE and vocational assessments were necessary.4
vi. The vocational assessment included a review of “security guard”. Using the Career Handbook, the assessor found that MB did not meet the indicated strength requirements, according to his FAE. Again, Aviva’s arguments about the appropriate assessment of MB’s vocational options appears refuted.
17M.B.’s claim for an FAE and Vocational Assessment is allowed.
18Aviva notes correctly that there is a cap imposed on costs of assessments by the Schedule. It argues that the amount claimed by M.B. exceeds the limit, which it submits is $2000.00.
19I have determined that M.B. is entitled to $4,400.00 for the assessments claimed in issue 2, because:
i. Aviva forgot to include in its calculation the cost of preparing the OCF-18, which is excluded from the prescribed maximum cost of examination or assessment.5 The prescribed maximum fee for this service is $200.00
ii. The prescribed maximum for a cost of examination or assessment is $2000.00.6 Although M.B. submitted one OCF-18, he underwent two assessments, one for FAE (with Alexandra Paolini on April 14, 2016) and one for the Vocational Assessment and Transferable Skills Analysis (with Sacha Thompson on May 11, 2016). M.B. is entitled to $2000 for each assessment.7
Issue 2: CPA
20To back his claim for a CPA, M.B. relies on the following evidence:
i. An orthopedic assessment report by Dr. Tommy Chan, orthopedic surgeon, dated April 25, 2017. Dr. Chan conducted a physical examination, interviewed M.B. and reviewed his medical documentation. The physician found that:
a. M.B. reported continuing severe, intermittent but daily headaches, neck pain radiating down through his left arm with numbness, constant lower back pain radiating down his left leg with some numbness in the left foot, left knee pain. These symptoms are consistent with uncontested injuries sustained by M.B. in the accident.
b. M.B.’s pain was directly caused by the index accident. Dr. Chan ruled out the observed degenerative disc disease as a factor.
c. M.B. has a chronic pain disorder with a poor prognosis for complete recovery and a strong probability that his symptoms may persist on an indefinite basis.
d. M.B. should be treated in “a multidisciplinary approach with an exercise program for his musculoskeletal system”.
21To rebut M.B.’s claim, Aviva relies on an Insurer’s Examination (IE) report dated February 20, 2018 by Dr. Deborah Rabinovitch, physiatrist, who found that the proposed CPA was not reasonable and necessary, and who reported that:
i. M.B. told her that he had returned to normal activities of daily living;
ii. At four years post-accident, M.B. had reached maximum medical improvement in relation to ongoing assessments and facility-based therapies8 which would make a chronic pain assessment unnecessary.
22Aviva further argues that various post-accident imaging reports reference degenerative disc disease that would have predated the accident. It submits that pain and impairment arising from these conditions cannot be the subject of a CPA funded by Aviva under the Schedule. This is unsupported by any reference to specific medical opinion, and is controverted by both Dr. Chan and Dr. Brown. I reject this contention a non-credible on the evidence.
23I find that the proposed CPA is not reasonable and necessary, because
i. Among the parties’ medical assessors, my review of their reports indicates that there was, in all of them, consistent acknowledgment of severe and persistent pain, and a consensus on M.B.’s poor prognosis and the limited efficacy of standard treatments.
ii. M.B. already had a diagnosis of chronic pain disorder and medical advice on how to deal with it from Dr. Chan. Dr. Chan’s report was extensive, thorough and clear, and covered the impact of pain symptoms on M.B.’s functionality.
iii. My reading of Dr. Brown’s report is that it did not reveal anything medically that wasn’t already known. The report provides no guidance on next steps, which might have contributed to a finding that the assessment was reasonable and necessary.
iv. M.B. fails to explain why, given the above facts, he needed the claimed CPA. His submission focuses on the fact that he has chronic pain.
24As a result of the foregoing findings, I conclude that the claimed CPA was not reasonable and necessary.
Interest
25Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
26M.B. is owed interest on overdue benefit payments for the assessments claimed in issue # 1, at the prescribed rate. I have determined the overdue amount to be $4,400.00
Costs
25Aviva has not established that M.B. acted unreasonably during this proceeding within the meaning prescribed in the Schedule. I reject Aviva’s contention, which is in effect that M.B.’s appeal itself is frivolous and vexatious.
27Aviva’s request for costs is denied.
CONCLUSIONS
28M.B.’s appeal for FAE and vocational assessments is allowed. Interest is payable on $4,400 in overdue payments.
29M.B.’s appeal for a CPA is denied.
30Aviva’s request for costs is dismissed.
Released: January 30, 2019
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10.
- Scarlett v. Belair, 2015 ONSC 3635
- Four reports by Wruck and Associates dated May 11, 2016, June 27, 2016, October 19, 2016 and July 13, 2017 respectively, with video footage.
- I note, to assist with clarity, that I prefer Dr. Brown’s evidence to any of the evidence adduced by Aviva, because of Dr. Brown’s specialized expertise, and because the assessment was comprehensive (including testing).
- Insurance Superintendent’s Guideline No. 03/14, pp.2-3
- S.25(4) of the Schedule
- I note that Aviva did not suggest that the costs of the assessments were unreasonable per se, simply that the overall claim exceeds the prescribed maximum for assessments.
- I note that the report indicated that MB stated that he was no longer improving as the result of facility-based treatments. His neck and should pain had improved by 50% since the accident, but lower back and left knee pain was persisting. Dr. Rabinovitch recommended a home exercise program.