D.M. v. Belair Direct Insurance Company, 2019 CanLII 94049

Licence Appeal Tribunal

Citation: D.M. vs. Belair Direct Insurance Company, 2019 ONLAT 18-005470/AABS

Tribunal File Number: 18-005470/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:

D.M

Applicant

and

Belair Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Counsel For the applicant: Naphtali Silverman, Counsel

Counsel for the respondent: Matthew Sutton, Counsel

HEARD in writing: March 8, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on June 30, 2015 when the vehicle she was driving on the highway was struck from behind by another vehicle. She sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”)¹.

2The applicant submitted a treatment plan (“OCF-18”) totaling $22,416.69 which proposed a multi-disciplinary assessment to determine the applicant’s entitlement to a catastrophic impairment (“CAT”) designation. The OCF-18 was partially approved by the respondent in the amount of $7,006.00, the unapproved amount was found by the respondent to not be reasonable and necessary.

3The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute. A case conference was held on November 5, 2018 and the parties could not resolve this issue and agreed to proceed to a written hearing before the Tribunal. Therefore, I will need to determine if the unapproved amount totaling $15,410.69 of the OCF-18 are reasonable and necessary.

ISSUES

4The disputed claims in this hearing are:

(i) Is the applicant entitled to payments for the cost of examinations for the unapproved OCF-18 amount of $15,410.69 (original OCF-18 submitted in the amount of $22,416.69) for assessments recommended by Dr. J. Douglas Salmon submitted March 5, 2018, and partially approved in the amount of $7,006.00 by the respondent on June 8, 2016?

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

RESULT

5I find that the applicant is entitled to payment for the following assessments:

(i) CAT Rating/Executive Summary in the amount of $2,000.00 plus HST where applicable and;

(ii) The OCF-19 (if not already paid by the respondent) in the amount of $200.00 plus HST where applicable.

6The applicant is not entitled to the remaining assessments in dispute as I do not find they are reasonable and necessary.

7The applicant is entitled to interest in accordance with section 51 of the Schedule.

ANALYSIS

8The applicant’s position is that all of the proposed assessments which form the basis of the OCF-18 in dispute are reasonable and necessary as they support the applicant’s entitlement to a designation of catastrophic impairment determination. The applicant submitted that she has incurred all of the assessments proposed within the disputed OCF-18 and the findings concluded the applicant meets the definition of catastrophic impairment under Criterion 8² as the applicant suffers a class 4 (marked impairment) within all four mental-behavioural domains. The applicant further submits she also meets the definition of catastrophic impairment under Criterion 7³ (whole person impairment).

9The applicant submitted that the respondent required the applicant to attend four insurer examinations (“IEs”) in 2018/19 to determine catastrophic impairment which included the following assessments: neurology, neuropsychology, psychiatry, home assessment - occupational therapy. The applicant has undergone a total of 22 IEs since the inception of the file.

10The respondent’s position is the opposite. The respondent submitted it is not liable to pay in excess of a $2,000.00 maximum cap per assessment and that the assessments which have been denied by the respondent are not reasonable and necessary.

11On March 5, 2018, Dr. J. Salmon, psychologist of Synergy Integrated Assessments submitted an OCF-18 proposing a multi-disciplinary catastrophic impairment determination assessment totaling $22, 416.69 which was partially approved on June 8, 2018 in the amount of $7,006.00. The OCF-18 included the following:

(i) Orthopedic Assessment $3,600.00

(ii) Range of Motion Kinesiology Assessment $1,650.00

(iii) Neuropsychological Assessment $2,000.00

(iv) Cognitive Evaluation Assessment for Concentration, Persistence, and Pace $2,000.00

(v) Analysis/Integration/Triangulation of Occupational Therapy and Collateral Interview $1,875.00

(vi) CAT Rating/Executive Summary $2,000.00

(vii) CAT File Review $975.00

(viii) OCF-18 Form Fee Completion $200.00

(ix) Form Fee Completion for Catastrophic Impairment Determination (“OCF-19”) $250.00

(x) Occupational Therapy In-home Evaluation $2,500.00

(xi) Occupational Therapy Situational Work Assessment $2,500.00

(xii) Occupational Therapy In-home Assessment Travel Time $299.25

(xiii) HST $2,567.44

12The assessments approved by the respondent were as follows:

(i) Orthopedic Assessment $2,000.00

(ii) Psychological Assessment $2,000.00

(iii) In-home Evaluation $2,000.00

(iv) Documentation fee for preparation of the OCF-18 $200.00

(v) HST $806.00

13The applicant argues that the assessments which have been denied by the respondent were reasonable and necessary to address the applicant’s psychological and physical impairments. In 2018, the respondent assessed the applicant for both physical and psychological impairments.

14The respondent assessed the disputed treatment plan through a paper review done by Dr. R. Lubbers, psychologist and Dr. A. Orner, general practitioner and a report dated May 22, 2018 was issued. Dr. Lubbers found the following assessments were not reasonable and necessary: cognitive assessment, the proposed analysis/integration/triangulation of the O.T. assessment and collateral interview, and an O.T. work assessment.

15Dr. Orner assessed the remaining assessments within the disputed treatment plan from a non-mental health perspective. His findings noted ample evidence was provided within the applicant’s records to estimate the impairments resulting from the subject accident, and to therefore determine whether the application for catastrophic impairment under the OCF-19 is reasonable. Dr. Orner concluded that one assessment should be done by file review incorporating the CAT Rating/Executive Summary and that it should be done by a clinician with the appropriate qualifications and expertise in this area and further that the fee for this one in-person assessment should not exceed $2,000.00.

Unapproved Amount of $1,600.00 for the Orthopedic Assessment

16I find the applicant is not entitled to the unapproved amount of $1,600.00 for the orthopedic assessment as it exceeds the maximum amount for an assessment as stipulated within the Schedule. Section 25 (5)(a) of the Schedule clearly states an insurer shall not pay more than $2,000.00 relating to fees and expenses for conducting any one assessment/examination and for the preparation of reports connected with it. The applicant made no submissions regarding why I should find in her favour regarding the $1,600.00 unapproved amount.

Range of Motion Kinesiology Assessment

17I find the range of motion kinesiology assessment in the amount of $1,650.00 is a duplication of service and is therefore not reasonable and necessary. The applicant obtained physical impairment ratings of 5% for her neck and 5% for her lumbar spine as noted within the orthopedic assessment done by Dr. Gallimore on April 17, 2018. A physical examination was performed as part of this assessment. Dr. Gallimore concluded the applicant had no signs of radiculopathy or myelopathy in her neck and back. The applicant has not produced any further medical evidence to support why both a kinesiology and orthopedic assessment are necessary.

18Dr. C. Gallimore’s orthopedic assessment report formed part of the multi-disciplinary catastrophic impairment determination assessment. Dr. Gallimore found the applicant would meet the DRE Classification II Minor Impairment for a 10 % whole person impairment for her orthopedic injuries (5% attributed to her neck and 5% to her lumbar spine).

19An in-home O.T. assessment was done by Ms. S. Javasky, O.T. and a report dated May 18, 2018 formed part of the multi-disciplinary assessment. Her report noted that as part of her assessment, formal testing in relation to functional range of motion was not completed, but functional observations were made. The applicant submitted as formal testing was not done by Ms. Javasky this is “partially why the formal assessment for range of motion” is being requested to be done by a kinesiologist.

20While I accept that formal range of motion testing was not done by Ms. Javasky, I do not find this supports a separate kinesiology assessment is reasonable and necessary. The applicant has not produced evidence which supports that both a kinesiology and an orthopedic assessment are necessary to obtain a physical impairment rating for catastrophic impairment determination.

Cognitive Evaluation Assessment for Concentration, Persistence, and Pace

21I find the proposed cognitive assessment in the amount of $2,000.00 is not reasonable and necessary. It was recommended by Dr. Salmon that a distinct cognitive assessment is indicated by the American Medical Association Guides⁴ (“AMA Guides”) to assess concentration, persistence, and pace, and also adaptation. However, I disagree that it is reasonable and necessary in the applicant’s case. I find assessing the impairment levels within these domains can be addressed within the psychological assessment. Dr. Salmon has not provided an explanation as to why these two domains cannot be assessed as part of the psychological assessment, rather he simply noted what is stipulated within the AMA Guides. I prefer the psychological opinion of Dr. Lubbers who noted within his May 22, 2018 report that the medical records do not suggest an organic head injury and that the cognitive difficulties were secondary to psycho-emotional difficulties and could be addressed within one psychological assessment.

Occupational Therapy In-home Evaluation

22The applicant made no submissions regarding the unapproved amount of $500.00 for this assessment. I find the applicant is entitled to a maximum of $2,000.00 plus applicable HST for this assessment which the respondent has approved as noted within their letter dated June 8, 2018. The respondent is not required to fund more than $2,000.00 for an assessment pursuant to s. 25 (5)(a) of the Schedule. Therefore, the applicant is not entitled to the unapproved amount of $500.00 for this assessment.

Occupational Therapy Situational Assessment

23I find the proposed occupational therapy situational assessment in the amount of $2,500.00 is not reasonable and necessary. I find this assessment to be ancillary to the psychological assessment and for the applicant to claim this assessment as a separate assessment contravenes s. 25(5)(a) of the Schedule. Part of the CAT psychological assessment is to assess the applicant’s impairment level within each of the four spheres as identified within Chapter 14 of the AMA Guides if the applicant is claiming a mental-behavioural impairment(s) under Criterion 8 on the OCF-19. Although, the findings contained within the O.T. situational assessment may have been relied on by Dr. Salmon in helping him reach his conclusion that the applicant suffered a class 4 (marked impairment) in the area of adaptation, I do not accept the O.T. situational assessment is reasonable and necessary on this basis alone as assessing the applicant within this domain can be done within the psychological assessment.

Analysis/Integration/Triangulation of Occupational Therapy and Collateral Interview

24I find this proposed assessment in the amount of $1,875.00 is not reasonable and necessary for the same reason which I found the O.T. situational assessment is not reasonable and necessary. I find this assessment also to be ancillary to the psychological assessment and for the applicant to claim this assessment as a separate assessment contravenes s. 25(5)(a) of the Schedule. Although the disputed treatment plan proposes the intention of this assessment is to support the psychological and neuro-cognitive assessment data for mental-behavioural ratings under Criterion 8 of the OCF-19, I find this separate assessment is not reasonable and necessary in order for Dr. Salmon to reach the conclusions he did. Therefore, this assessment should form part of the psychological assessment which the results are connected to.

CAT Rating/Executive Summary

25I find the CAT Rating/Executive Summary in the amount of $2,000.00 to be reasonable and necessary. I find this assessment is separate and distinct from the other assessments and that it was necessary for Dr. Salmon to review the multi-disciplinary CAT assessment in order to reach his conclusion that the applicant sustained a catastrophic impairment as a result of the accident. I find the jurisprudence relied upon by the respondent 16-004501 v. The Sovereign General Insurance Company⁵ is distinguishable from the case before me. While the case of 16-004501 addressed unapproved CAT assessments, adjudicator Sewrattan found the applicant was not entitled to a $2,000 assessment for file review as the file review was a necessary component of the assessment and to bill for it in addition to the $2,000.00 assessment would be duplicitous. In the case before me, the applicant is not requesting the respondent fund $2,000.00 for a file review. The applicant has requested the respondent fund $2,000.00 plus HST if applicable for the CAT Rating/Executive Summary which I find reasonable and necessary for the reasons I noted above.

CAT File Review

26I find the CAT file review in the amount of $975.00 is not reasonable and necessary. I am persuaded by the case 16-004501 noted above. I agree with the findings of adjudicator Sewrattan that the file review is a necessary component of the assessment and should be incorporated within the $2,000.00 assessment fee. Therefore, I find this assessment is duplicitous and contravenes s. 25 (5)(a) of the Schedule. The applicant has not made any submissions on why this assessment is reasonable and necessary.

Travel Time for Occupational Therapy In-home Assessment

27I find this expense in the amount of $299.25 is not reasonable and necessary. The applicant has not made any submissions as to why this expense is reasonable and necessary. Therefore, I find the applicant has not met their burden of proof in establishing the expense is reasonable and necessary.

Form Fee Completion for Catastrophic Impairment Determination (“OCF-19”)

28It was unclear if the applicant is disputing the fee for the completion of the OCF-19 in the amount of $250.00 as no submissions were made with respect to this. However, I find the insured person is entitled to receive payment up to $200.00 plus HST if applicable for the creation of a treatment plan submitted to the insurer. This is in accordance with the Superintendent’s Guideline No. 03/14.⁶

Interest

29I find interest is payable in accordance with s. 51 of the Schedule on the $2,000.00 CAT Rating/Executive Summary and if the OCF-19 has been submitted by the applicant but not funded by the respondent, interest is payable in accordance with s. 51 of the Schedule on the amount of $200.00. As no other benefits are payable, no further interest is owing.

CONCLUSION

30I find that the applicant is entitled to payment for the CAT Rating/Executive Summary in the amount of $2,000.00 plus HST where applicable and the OCF-19 (if not already paid by the respondent) in the amount of $200.00 plus HST where applicable. Interest is payable on the outstanding payment in accordance with s. 51 of the Schedule.

31The applicant is not entitled to payment for the following assessments:

(i) Unapproved amount of $1,600.00 for the orthopedic assessment;

(ii) Range of Motion Kinesiology Assessment in the amount of $1,650.00;

(iii) Cognitive Evaluation Assessment for Concentration, Persistence, and Pace in the amount of $2,000.00;

(iv) Unapproved amount of $500.00 for the Occupational Therapy In-home Evaluation;

(v) Occupational Therapy Situational Assessment in the amount of $2,500.00;

(vi) Analysis/Integration/Triangulation of Occupational Therapy and Collateral Interview in the amount of $1,875.00;

(vii) CAT File Review in the amount of $975.00 and;

(viii) Travel Time for In-Home Occupational Therapy Assessment in the amount of $299.25

Footnotes

1. 1O. Reg 34/10
2. 2Criterion 8 is noted under part 4 on the Application for Catastrophic Impairment Determination (“OCF-19”) and it notes: an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder”.
3. 3An impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person;
4. 4American Medical Association, AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993 by the American Medical Association.
5. 516-004501 v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ONLAT), at paras 17-21
6. 6Superintendent’s Guideline No. 03/14 (September 2014)