Licence Appeal Tribunal
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.G.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION [AND ORDER]
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Arthur Robert Camporese
Counsel for the Respondent: Cara Boddy
Heard in writing on: September 10, 2018
OVERVIEW
1The applicant was injured in an automobile accident on June 12, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). The applicant was injured in a motor vehicle collision when her vehicle was struck by a transport truck. She was transported by ambulance to the hospital and has suffered physical, psychological and a mild head injury with symptoms of headache, dizziness and drowsiness.
2The applicant applied to the respondent for payment of the cost of examinations for a catastrophic determination which were denied. The reason for the denial was that the examinations were already done by the respondent and therefore not reasonable and necessary. The applicant disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of their dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided as set out in the case conference order dated August 8, 2018:
i. Is the applicant entitled to payment for the cost of examinations in the amount of $18,532.00 for Catastrophic Impairment Determination Assessments recommended by Kaplan and Levitt Psychologists, in a treatment plan submitted on November 16, 2017 and denied by the respondent on November 21, 2017?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
4According to the submissions of the parties there is an additional issue that needs to be addressed as part of this hearing in order to determine whether the applicant is entitled to the cost of examinations. It is as follows:
i. Is the applicant precluded from seeking payment for the cost of examinations as they were not submitted at the time an application for a catastrophic impairment designation was made?
RESULT
5Based on the totality of the evidence before me, I find the applicant is entitled to the following:
a. A clinical psychological psychometric testing assessment in the amount of $2,000;
b. A psychological examination and cognitive assessment in the amount of $2,000;
c. An Integrated analysis and catastrophic determination of WPI ratings assessment and report in the amount of $2,000;
d. Documentation fee in the amount of $200 for the completion of the OCF-18 assessment application;
e. Documentation fee in the amount of $200 for the completion of the OCF-19 catastrophic impairment application; and
f. Interest in accordance with the Schedule for any overdue payments on the above cost of examinations and documentation fees.
6I find the applicant is not entitled to the following:
a. A clinical intake screen in the amount of $2,000;
b. A file review in the amount of $2,000;
c. A clinical psychological assessment interview and mental status examination/behavioural observations in the amount of $2,000;
d. A psychological assessment interview of collateral sources – i.e., family members in the amount of $2,000; and
e. A medical review/Quality assurance assessment in the amount of $2,000.
ANALYSIS
Is the applicant precluded from seeking payment for the cost of examinations as they were not submitted at the time of an application for a catastrophic impairment designation as per section 25(1).5. of the Schedule?
7It is my finding that the applicant is not precluded from seeking payment for the cost of examinations for a catastrophic impairment designation for the following reasons.
8The cost of examinations to determine whether the applicant has a catastrophic impairment is under section 25 and the process to apply for a catastrophic designation is under section 45 of the Schedule. The test to determine whether the examinations are required is under section 15 and the test is whether each examination is reasonable and necessary. Once the examinations have been determined to be reasonable and necessary, then it can be determined whether the cost of the examination is reasonable in accordance with section 25.
9In this case the respondent submits that funding for the applicant’s examinations are not reasonable and necessary because the catastrophic insurer examinations (IE) had already been completed and according to the wording in section 25(1).5. of the Schedule there is a second requirement that must be met before a funding obligation arises and that is that “…the proposed fee has to be for the purpose of preparing an application under s.45 for a determination of whether the insured person has sustained a catastrophic impairment”.2 (emphasis in original). And in this case, such an application has already been prepared.
10The respondent further submits that because an application under section 45 for a determination of catastrophic impairment was already submitted to the respondent in January 2017 and the treatment plan seeking the cost of examinations was submitted subsequent to that in August 2017 therefore the examinations were not to prepare an application for catastrophic impairment but instead to “rebut” the respondent’s already completed catastrophic IE’s.
11The applicant submits that catastrophic impairment assessments are necessary in order to determine if the applicant has sustained a catastrophic impairment and in accordance with case law from the Financial Services Commission of Ontario (FSCO) and this Tribunal, the applicant has a right to obtain his or her own examinations responding to the insurer’s catastrophic impairment examinations and to have it paid for by the insurer.3 Furthermore, the applicant submits, there is no requirement in section 25 (cost of assessments) or section 45 (application for a determination of catastrophic impairment) of the Schedule that requires the applicant to submit a request for funding for catastrophic impairment examinations prior to submitting an OCF-19 application under section 45.
12I note that the Tribunal is not bound by FSCO case law and the Tribunal decision in 17-3486 v. TD Insurance did not delve into whether the applicant was entitled to “rebuttal reports”. What the decision does state is that the applicant is entitled to rebuttal assessments which address the causation question raised by the IE assessors.4 Furthermore at paragraph 35 the adjudicator states that procedural fairness suggests that the applicant be given an opportunity to provide evidence from his own assessors for catastrophic impairment examinations. I agree.
13To accept the respondent’s submissions would mean that once the respondent conducts catastrophic IE assessments, there can be no further funding for medical opinions that need to be considered from the applicant. In my opinion, this would run counter to the respondent’s ongoing duty to continuously adjust the file and to consider all relevant medical information necessary with respect to the applicant’s ongoing treatment and care.
14In my opinion section 25 of the Schedule provides that the applicant be provided with reasonable funding for her own catastrophic examinations in order to level the playing field with respect to the most serious types of injuries under the Schedule. To deny the applicant that right would provide the respondent with the unfair advantage in two ways. First, it would be to deny the applicant the right to provide her own evidence, which in my opinion is vital as the onus is on the applicant to prove her case and second, the respondent would gain an unfair advantage from the applicant’s lack of resources and as a result, not being able to fund her own assessments and evidence.
15Even if I were to agree with the respondent’s interpretation of section 25, I would still find the applicant to be entitled to the payment of the examinations because the examinations are reasonable and necessary to determine whether or not the applicant has sustained catastrophic impairments and in my opinion that would be part of the preparation of the application under section 45. Furthermore, there is no requirement that one must be done before the other. The purpose is to allow the applicant an opportunity to have their own examination and whether that means before or after the IE examinations, in my opinion it does not make a difference when keeping in mind the procedural fairness aspects and the purpose of the Schedule being consumer protection.
16As a result of the above and to ensure the Tribunal has available to it the best and complete evidence in order to fairly arrive a just decision, I find that the applicant is not precluded from submitting the cost of examinations after the OCF-19 application was submitted to the respondent. I now turn to whether each assessment being conducted is reasonable and necessary and whether the fee is reasonable.
Is the applicant entitled to payment for each of the examinations as listed in the treatment plan?
17The applicant is seeking payment in the sum of $2,000 for the following cost of examinations to determine whether the applicant has sustained a catastrophic impairment.
a. Clinical intake screen
b. File review
c. Clinical psychological assessment interview and mental status examination/behavioural observations
d. Clinical psychological psychometric testing assessment
e. Psychological cognitive testing/examination
f. Psychological assessment interview of collateral sources – i.e., family members
g. Integrated analysis and catastrophic determination of WPI ratings assessment and report and
h. Medical review/Quality Assurance
18The applicant also seeks $200 for the completion of the OFC-18 examination application and $200 for the completion of the OCF-19 catastrophic impairment application.
19The applicant submits that the requirement to pay for an insured person’s catastrophic impairment examinations under section 25(1)5 is mandatory and the only consideration is whether the examination fees are reasonable. I agree in part, that the fee must be reasonable, however I do not agree that payment for each examination is mandatory.
The test to determine whether each examination is necessary
20The treatment plan was divided into different examinations. In my opinion, each examination is a request for a medical benefit on behalf of the applicant and the test for a medical benefit is the well-established test of ‘reasonable and necessary’. The ‘reasonable and necessary’ test is outlined in s. 15 of the Schedule and falls under Part 3 of the Schedule which is for medical, rehabilitation and attendant care benefits. The applicant, in this case, is seeking the approval of the treatment plan for cost of examinations for medical benefits.
21Once each examination is determined to be reasonable and necessary, s. 25 would apply to determine if the fees charged are reasonable. Section 25 falls under Part 4 of the Schedule entitled ‘Payment of Other Expenses’ and it is not the section or part that determines whether the assessments or examinations are reasonable and necessary.
22The onus is on the applicant to prove on a balance of probabilities that each of the examinations requested within the treatment plan are reasonable and necessary and if so, is the fee reasonable. I do not find all the examinations listed in part 13 of the treatment plan to be reasonable and necessary for the following reasons.
Are the examinations being requested reasonable and necessary?
23The applicant has not provided submissions on why all the assessments listed are required and a reading of the treatment plan in its entirety does not shed light on whether they are all required and why some could not be a part of any of the other examinations.
24A clinical intake screen in my opinion is not an examination of the applicant to determine whether she has sustained a catastrophic injury. The applicant has not provided submissions or evidence on what would be comprised of the clinical intake screen or how it would help to determine whether the applicant may have a catastrophic injury. As a result, I do not find it to be reasonable and necessary and it is therefore denied.
25A file review, in my opinion is something that could be done as part of any other examination in reviewing all available medical information before meeting with the applicant to conduct further clinical testing to determine if the applicant may have a catastrophic injury. The applicant has not provided any submissions or evidence on why a file review should be considered an examination on its own and as a result, I do not find it to be reasonable and necessary and it is therefore denied.
26A psychological assessment interview with the applicant’s family members in my opinion is not an examination of the applicant and with no submissions from the applicant on why this should be considered an examination on its own, I do not find it to be reasonable and necessary and it is therefore denied.
27With respect to a medical review, again I am not provided with any submissions on how a medical review is different from a file review and why it cannot be done as part of any of the other examinations. As a result, I do not find it to be reasonable and necessary and it is therefore denied.
28The Schedule allows for the fees to prepare and submit a treatment plan in the sum of $200 and as a result I find the fees for the preparation of the OCF-18 and OCF-19 in the amount of $200 each to be reasonable and necessary.
29To summarize, as a result of the above, I do not find the cost of examinations for a clinical intake, file review, psychological interview of family members and a medical review to be reasonable and necessary and the request for funding of those are denied.
Are the remaining examinations reasonable and necessary?
30The following need to be determined to be reasonable and necessary:
i. Clinical psychological assessment interview and mental status examination and behavioural observations
ii. Clinical psychological psychometric testing assessment
iii. Clinical psychological examination and cognitive testing and the
iv. Integrated analysis and catastrophic determination of WPI ratings assessment and report
31It is my finding that the remaining psychological examinations being proposed by the applicant are not all reasonable and necessary. The applicant is seeking payment for multiple psychological examinations listed above and submits that the nature and scope of the proposed work constitutes separate examinations and accordingly are each subject to a fee of $2,000. However, as discussed above, the onus is on the applicant to prove that each examination is reasonable and necessary and it is not clear to me what the difference is between the psychological examinations and why they cannot be combined as one and the applicant’s submissions do not provide any clarity on the need for the separate assessments which appear to be duplicative.
32In determining whether the applicant has sustained a catastrophic impairment according section 3.1 of the Schedule due to a mental or behavioural impairment it would be reasonable and necessary in my opinion for a cognitive and psychometric examinations however I do not find in addition to those that a separate mental status examination is reasonable and necessary. It would appear to be duplicative and in my opinion is not reasonable and necessary. The applicant has not provided submissions or evidence on what the mental status examination would entail and how it would be different from the other examinations. As a result, I find that the applicant is entitled to a clinical psychological psychometric testing assessment and a clinical psychological cognitive testing, however I find the clinical psychological assessment interview and mental status examination duplicative and not reasonable and necessary.
33It is my finding that the integrated analysis and catastrophic determination of WPI ratings assessment and report by Dr. Nguyen is reasonable and necessary in order to determine the applicant’s catastrophic impairments because according to section 3.1 of the Schedule a WPI rating of 55% or higher would qualify the applicant’s injuries as catastrophic and accordingly I find an examination to determine the applicant’s WPI rating to be a reasonable and necessary examination.
Are the fees charged for the examinations reasonable?
34I find the cost of the examinations in the amount of $2,000 each to be reasonable for the following reasons.
35The respondent submits that if the examinations are deemed to be reasonable and necessary, then the fee for the examinations is not broken down and if the fee is not broken down into an hourly rate within the treatment plan then the respondent is unable to determine whether it is in accordance with the Professional Services Guideline.5 The respondent relies on the case of Applicant v State Farm Insurance Company 2018 CanLII 2312 (ONLAT) from the Tribunal in support of its position.
36The applicant submits the fees are within the cap as established in section 25(5)(a) of the Schedule which limits the amount payable for any one examination to $2,000.
37In my opinion, the Schedule does not state that an hourly amount must be included for the purposes of section 25 in determining if the fee is reasonable. The Schedule states the “an insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment or examination…”6 (emphasis added).
38Section 25(3) refers to the FSCO Guideline that professional services cannot exceed the maximum rate established under the FSCO Guidelines, however there is nothing in the Schedule and I am not provided with any submissions or evidence from the respondent that state that if the hourly rate is not included then the entire treatment plan is deemed to be not reasonable and necessary.
39The treatment plan in question provides a description of the services to be provided in part 12. In line 4 of part 12 for example it is listed as a “Test, mental health and addictions”, Dr. Brian Levitt as the service provider, and then states “1” for the quantity which in my opinion would mean one examination is being provided at a cost of $2000. I find this to be reasonable. Part 12 does not have a column to list the number of hours, it only has a column for the quantity of that service to be provided.
40I do not agree with the respondent’s position that the fee [which is in accordance with the maximum in section 25(5)(a)] is unreasonable simply because it did not state the number of hours the examination would take. The treatment plan form itself does not have a column to input the number of hours and the respondent has not directed me to anywhere else on the form where it requires this information.
41Furthermore, the respondent has not provided any submissions or evidence of an hourly breakdown completed by its IE assessors and whether the IE assessors were able to conduct the comparable assessments for less than $2,000. In my opinion, not providing an hourly figure on the cost of examination does not render the entire examination as not reasonable and necessary because section 25(5)(a) states “Despite any other provision… an insurer shall not pay more than a total of $2,000… for preparing any one assessment or examination..”
42Having found that the fee is reasonable, I now turn to whether or not they must be incurred.
Are the assessments not payable because they have not been incurred?
43The respondent submits that the Tribunal cannot make an order for entitlement to the examinations because they have not been “incurred” in accordance with section 3(7)(e) of the Schedule. That section requires an expense for goods or services to have been received or that the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense.
44The applicant submits that the assessments were not incurred because the respondent unreasonably withheld the payment and in accordance with section 3(8) of the Schedule the Tribunal may deem the expense to have been incurred.7
45In my opinion, an applicant may apply to the Tribunal for a finding that a denied treatment plan is reasonable and necessary once it has been denied by the respondent. If the Tribunal makes a finding that the treatment plan was in fact, reasonable and necessary, then the respondent is liable to pay the amount from the treatment plan once the applicant incurs the treatment or in this case, once the examination is incurred.
46As it has been determined that the certain examinations are reasonable and necessary, I find that the respondent is liable to pay for them once they have been incurred by the applicant.
INTEREST
47Having found certain examinations and documentation fees to be reasonable and necessary, the applicant is entitled to interest on them in accordance with the Schedule.
ORDER
For the reasons outlined above, I find that the applicant is entitled to:
a. Clinical psychological psychometric testing assessment in the amount of $2,000
b. Clinical psychological examination and cognitive testing in the amount of $2,000
c. Integrated analysis and catastrophic determination of WPI ratings assessment and report in the amount of $2,000
d. Documentation fee in the amount of $200 for the completion of the OCF-18 assessment application;
e. Documentation fee in the amount of $200 for the completion of the OCF-19 catastrophic impairment application; and
f. Interest in accordance with the Schedule for any overdue payments on the above cost of examinations and documentation fees.
48I find the applicant is not entitled to the following:
a. A clinical intake screen in the amount of $2,000;
b. A file review in the amount of $2,000;
c. A clinical psychological assessment interview and mental status examination/behavioural observations in the amount of $2,000;
d. A psychological assessment interview of collateral sources – i.e., family members in the amount of $2,000; and
e. A medical review/Quality assurance assessment in the amount of $2,000.
Released: April 10, 2019
_________________
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- Respondent’s written submissions para. 5.
- R.J. v Dominion of Canada General Insurance Co., [2013] O.F.S.C.D No. 125 page 33, para 62; Fernandes v Wester Assurance Co., [2015] O.F.S.C.D. No. 110 at page 43, para 15; Hassani v Guarantee Co. of North America [2018] O.F.S.C.D. No. 2 at page 53, paras 61-62 and 17-003496 v TD Insurance 2018 CanLII 13167 (ONLAT) at pages 11-12 paras 33-35.
- 17-003496 v TD Insurance 2018 CanLII 13167 (ONLAT) at page 12 paras 34.
- Financial Services Commission of Ontario Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014. (“FSCO Guideline”)
- Section 25(5)(a) of the Schedule
- Section 3(8) of the Schedule. If in a dispute described in subsection 280(1) of the (Insurance) Act, the (Tribunal) finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.