R.J. v. Certas Direct Insurance Company, 2020 CanLII 101804

Citation: R.J. vs. Certas Direct Insurance Company, 2020 ONLAT 19-009603/AABS

Released Date: 12/10/2020

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:

R. J.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Gary Mazin, Counsel

For the Respondent:

Paul Barnes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, R.J., was involved in an automobile accident on November 23, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ R.J. was denied certain benefits by the respondent, Certas Direct Insurance Company (“Certas”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2R.J. suffered numerous functional limitations as a result of his injuries and in October 2017, Certas deemed him catastrophically impaired.

3R.J.’s treating occupational therapist submitted a Treatment Plan (“OCF-18”) in the amount of $7,028.11 with the goals listed as increased safety, accessibility and independence in the home, return to activities of daily living, and safe and accessible home environment. This OCF-18 was for an assessment of the modifications needed for R.J.’s home to permit increased safety and accessibility.

4On November 29, 2017, Certas informed R.J. that the OCF-18 for a home accessibility assessment was partially approved up to $2,460.00 (the $2,000.00 limit placed on assessments and examinations under section 25(5)(a) of the Schedule, and taxes in the amount of $460.00).

5Certas’ position is that the home accessibility assessment is subject to the limit set out in s. 25 of the Schedule. R.J. disagrees with Certas’ position and argues that the home accessibility assessment is not subject to the $2,000.00 cap placed on assessments and examinations pursuant to Section 25(5)(a) of the Schedule.

ISSUES IN DISPUTE

6The issues I am asked to decide are as follows:

a. Is the rehabilitation benefit in the amount of $7,028.11 for a housing assessment recommended by MedEx Health Services in a treatment plan (OCF-18) submitted on September 18, 2017 and partially approved up to the amount of $2,486.00 (subsequently paid at the amount of $2,460.00) on September 29, 2019, reasonable and necessary?

b. Is the medical and rehabilitation benefit in the amount of $7,874.88 for OT cognitive training sessions provided by MedEx Health Services, submitted on December 14, 2017 and partially approved up to the amount of $5,356.56 on December 20, 2017, reasonable and necessary?

c. Is R.J. entitled to interest on any overdue payment of benefits?

d. Is R.J. entitled to an award under Ontario Regulation 664 because Certas unreasonably withheld or delayed the payment of benefits?

7In its submissions, Certas agreed to pay for the outstanding amount for the issue identified in paragraph 6(b) above so I need not deal with that issue.

RESULT

8The home accessibility assessment is subject to the $2,000.00 limit placed on assessments and examinations pursuant to Section 25(5)(a) of the Schedule.

9R.J. is not entitled to interest.

10R.J. is entitled to an award.

LAW and ANALYSIS

11Section 25 of the Schedule states:

(5) Despite any other provision of this Regulation an insurer shall not pay,

(a) more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.

12The parties agree that section 25 of the Schedule governs the costs of the examinations. Section 25 must be read in conjunction with Superintendent’s Guideline 08/10 entitled “Cost of Assessments and Examinations Guideline” (“Guideline 08/10”).

13Guideline 08/10 sets out provisions with respect to the $2,000.00 cap placed on assessments and examinations under section 25(5)(a) of the Schedule. Guideline 8/10 defines the terms “assessment” and “examination” as follows:

“Assessment” and “examination” have the same meaning under the [Schedule]. An assessment or examination is a clinical evaluation or appraisal of a claimant’s health status.

14Guideline 08/10 also provides that fees and expenses for conducting any one assessment includes all costs, fees, etc. incurred by or on behalf of the health care provider who conducted the assessment or examination.

15R.J. submits that Guideline 08/10 clarifies that when section 25(5)(a) of the Schedule refers to “any assessment or examination”, it means a medical assessment or evaluation performed by a health care practitioner in a medical context. Furthermore, to fall under section 25(5)(a) of the Schedule, the assessment or examination must be a “clinical evaluation or appraisal of a claimant’s health status”.

16R.J. submits that the Home Accessibility Assessment Report dated February 12, 2018, completed by John Groe of Accessible Daily Living (“ADL”) contains no clinical evaluation or appraisal of R.J.’s health status. R.J.’s position is that the references under Guideline 08/10 to assessors completing the assessments, it specifically refers to a “health care provider” or an individual “on behalf of a health care provider”. As such, R.J. submits that the disputed OCF-18 is not subject to the $2,000.00 cap placed on assessments and examinations under section 25(5)(a) of the Schedule.

17Certas bases its submissions on the opening words of s. 25(5) which state: “Despite any other provision of this Regulation, an insurer shall not pay…” It submits that “the preamble to s. 25(5) consists of mandatory language that prevents the carving out of exceptions for full payment of” OCF-18s that are outside the narrow scope of an “appraisal of health status”, as submitted by R.J.

18Certas relies on the Tribunal decision of Adjudicator Gosio, 17-006934 v State Farm Insurance² ("R.G."). In R.G., Adjudicator Gosio held that home accessibility assessments were subject to the $2,00.00 limit under s. 25 (5) of the Schedule. Certas submits that R.J.’s argument that the housing accessibility assessment is not an evaluation of his medical or health status within the meaning of s. 25(5) is the same argument put forward in R.G. Certas submits that I should follow R.G. and hold that the OCF-18 at issue is subject to the $2,000.00 cap placed on assessments and examinations under 25(5)(a) of the Schedule.

19While I am not bound by the decisions of my colleagues, I find the R.G. decision persuasive. Adjudicator Gosio was clear in his interpretation of s. 25(5)(a) at paragraph 17, where he states, “it places a $2,000.00 cap on the fees and expenses charged for conduction any one assessment or examination”. The Adjudicator went on to state that there are no built-in exceptions with respect to the type of assessment covered by the limit. Included in his analysis, Adjudicator Gosio also found that the disputed assessments fell within the definition of “assessment” and “examination” under Guideline 08/10.

20The R.G. decision was upheld on reconsideration, by Adjudicator Paluch, who also held that the use of the word “any” under s. 25(5)(a) referred to any type of assessment “and was not necessarily restricted to a medical assessment prepared by a medical practitioner in a medical context”.³

21I agree with both Adjudicators Gosio and Paluch. Section 25(5) starts with “Despite any other provision of this Regulation, an insurer shall not pay….” Thereafter in subsection (a) it sets out a $2,000.00 limit in respect of fees and expenses for conducting any assessment or examination. There is no ambiguity in the provision. If there were to be exceptions, the legislation would have enumerated the exceptions or conditions.

22I find that the omission of a condition under s. 25 specifically addressing medical assessments was intentional. The result is that the interpretation of s. 25(5)(a) does not create a separation between medical assessments, housing accessibility assessments, or any other assessment or for preparing reports in connection with that assessment or examination. As summarized by Adjudicator Paluch, “looked at differently, if the legislature wanted to limit the assessments to only medical assessments it could have substituted the word ’any’ for ’medical assessments’”.

23I disagree with R.J.’s submission that Guideline 08/10 clarifies that when section 25(5)(a) of the Schedule refers to “any assessment or examination”, it means a medical assessment or evaluation performed by a health care practitioner in a medical context. This position is not supported by a plain reading of section 25(5)(a) of the Schedule or Guideline 08/10.

24Guideline 08/10 defers to s. 25(5)(a) as the regulation that sets out the provisions regarding the fees and expenses for any one assessment or examination including all fees and expenses for preparing and delivering reports in connection with an assessment or examination. There is no provision under s. 25(5)(a) or Guideline 08/10 that sets apart medical assessments as a separate category with respect to fees and expenses. The wording of s. 25(5)(a) and Guideline 08/10 is clear: any assessment or examination is subject to the $2,000.00 limit “despite any other provision of the Regulation”.

25Similar to the treatment plan and the report by Adapt-Able considered in R.G., R.J.’s functional needs are considered throughout ADL’s report. Specifically, in R.G. at paragraph 18, Adapt-Able,

made recommendations with respect to the home modifications that would be necessary to accommodate the applicant. The recommendations were based on: “the medical information provided to it, a meeting with the applicant, a home site visit, consultation with treating rehabilitation professionals and an investigation of zoning restrictions for the property.

26Similar to Adjudicator Gosio’s conclusion regarding Adapt-Able, I find that ADL’s report, “by its very nature, involves an appraisal of the applicant’s health status”. The fact that there are considerations throughout ADL’s report of R.J.’s physical and psychological functionality (and recommendations for modifications based on them), indicates that an assessment of his well-being was considered in preparation of this report. As a result, s. 25(5)(a) mandates that maximum payable by the insurer for each assessment is $2,000.00.

Supplementary Submissions – S.M. v. Unica Insurance Inc.[^4]

27The parties were asked to provide supplemental submissions on Adjudicator Punyarthi’s analysis in her decision, S.M. and Unica (“S.M.”), specifically regarding the issue of the cost of a housing analysis assessment. R.J. submits the housing assessment in question is not an assessment or examination as referred to under s. 25 and is therefore not capped at $2,000.00 as alleged by Certas. His position is that the housing assessment is an assessment of R.J.’s home which includes housing and design recommendations, calculations of the cost of renovations and a final value of the recommended renovations. In addition, that the report is prepared in order to quantify the cost of renovations to R.J.’s home and is therefore not an appraisal of R.J.’s health status.

28Certas submits that the S.M. decision is distinguishable as it was a home value analysis of different properties with no assessment or consideration of what the specific applicant’s mobility needs were inside his own home. Certas’ position is that the assessment considered in R.G. is in line with that which is in dispute before me. I agree.

29The supplemental submissions were received, reviewed and I find that my decision remains unchanged. I do not find that the analysis provided in S.M. is applicable in this proceeding. The S.M. decision is distinguishable in that it did not consider an evaluation of the applicant’s current residence, as was done in this proceeding. Further, and similarly to the Adapt-Able report in R.G., the ADL report contains “an appraisal of health status”.

30For these reasons and those discussed above, I am not persuaded by R.J.’s argument that the housing assessing cost should exceed the $2,000.00 limit mandated by s. 25 of the Schedule.

AWARD

31Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. R.J.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Certas) has “unreasonably” withheld or delayed payments. R.J. bears the onus of establishing, on a balance of probabilities that Certs acted unreasonably in withholding or delaying the payment of a disputed benefit.

32The OCF-18 submitted on December 14, 2017 was partially approved by Certas on December 20, 2017. The evidence suggests that the partial denial was due to “excessive” brokerage and travel fees.⁵ R.J. submits that Certas paid an identical OCF-18 dated July 6, 2018 in full. R.J.’s position is that the balance of the OCF-18 submitted on December 14, 2017 is reasonable and necessary as Certas approved a subsequent identical OCF-18 with the same amount listed for brokerage and travel fees.

33Certas submits that R.J. failed to disclose the particulars of the special award claim by the March 31, 2020 deadline imposed in the Tribunal Order, and that R.J. did not mention anything in the March 31, 2020 particulars about the occupational therapy OCF-18. Certas did not point me to any evidence of when the March 31, 2020 award particulars correspondence was received. I note that R.J. provided me with the March 31, 2020 particulars, and contrary to Certas’ submission, the correspondence specifically states, “despite having a multitude of medical records and supporting documentation, the Insurer continues to unreasonably deny…OT cognitive training sessions”.

34Certas claims that the service provider MedEx and R.J. have not provided “any rationale as to why the travel and brokerage amounts in dispute were reasonable and necessary”. Despite this, Certas submits that R.J. was not deprived of treatment, and resolved the administrative charges out of good faith.

35There is no dispute that Certas paid a subsequent identical OCF-18, which contained identical brokerage and travel expense fees. This payment suggests Certas accepted that the identical fees associated with the later OCF-18 were reasonable and necessary.

36I am not pointed to any evidence by Certas that it disputes that the December 14, 2017 OCF-18 is not identical to the subsequently approved July 6, 2018 OCF-18. Further, in its submissions, Certas confirms that it agrees to pay for the amount outstanding under the December 14, 2017 OCF-18. Certas does not provide any evidence or submissions on why it approved the July 6, 2018 OCF-18 and not the December 14, 2017 one. It also pointed to no clear rationale for refusing to pay these fees in the first place.

37Considering the evidence, I find that Certas’ actions amount to an unreasonable withholding or delay of payments for the December 14, 2017 OCF-18 after it was received. While I am able to award up to 50% of the amount R.J. is entitled to, I find that to be excessive in this circumstance.

38Certas noted that R.J. was not deprived of treatment, and I take that into consideration in making a determination of an amount for an award. I find that an award in the amount of $200.00 would be appropriate, plus interest at 2% per month compounded monthly on the amount outstanding from January 2, 2018 (which is the 10th business day after the presumed receipt of the OCF-18) to the date of payment.

CONCLUSION

39For the reason outlined above, I find that the home accessibility assessment is subject to the $2,000.00 limit placed on any assessment and examination pursuant to Section 25(5)(a) of the Schedule.

40R.J. is entitled to an award under s. 10 of Regulation 664, in the amount of $200.00 plus interest as detailed above.

Footnotes

1. 1Ontario Regulation 34/10 – Statutory Accident Benefit Schedule Effective September 1, 2010.
2. 217-006934 v State Farm Insurance, 2019 CanLII 18340 (ON LAT)
3. 317-006934 v. State Farm Insurance, 2019 CanLII 72227 (ON LAT) at para 22.
4. 5Correspondence from Certas Direct Insurance dated December 20, 2017 – Applicant Document Brief – Tab 9
5. 4S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT)