Released Date: 12/18/2020
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:
Miradije Berisha
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Michelle F. Jorge, Counsel
For the Respondent:
Michael W. Chadwick, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was permanently impaired in an accident on May 18, 2016, and sought various benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). On June 29, 2019, following a series of assessments, Certas accepted that the applicant was catastrophically impaired (“CAT”) as a result of the accident. Accordingly, the applicant’s impairments are not in dispute.
2Instead, the dispute giving rise to this written hearing concerns whether the cost of various assessments proposed by the applicant—denied or only partially approved by Certas—are reasonable under s. 25. In submissions, the parties agree that Certas approved payment for the incurred treatment plan identified in issue (d) below, so that issue is no longer before the Tribunal.
ISSUES IN DISPUTE
3The parties agree that the following issues are in dispute:
a. Is the applicant entitled to $359.76 for an in-home assessment recommended by Injury Management and Medical Assessments in a treatment plan (OCF-18) dated July 8, 2019 in the amount of $2,532.37 and partially approved in the amount of $2,172.61?
b. Is the applicant entitled to $8,527.00 for catastrophic assessments, recommended by Omega Medical Associates in a treatment plan dated June 11, 2018?
c. Is the applicant entitled to $2,000.00 for a neuropsychological assessment recommended by Injury Management and Medical Assessments in a treatment plan (OCF-18) dated July 11, 2019 in the amount of $4,595.50 and partially approved in the amount of $2,595.50?
d. Is the applicant entitled to $1,921.00 for an In-home Assessment recommended by Injury Management and Medical Assessments in a treatment plan (OCF-18) dated June 26, 2018?
e. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to payment for any of the assessments in dispute.
ANALYSIS
Section 25
5Section 25(1) of the Schedule provides that the insurer shall pay expenses incurred by or on behalf of the insured for any assessment or examination necessary for the purpose of preparing a report. Section 25(4) states that the insurer shall pay reasonable expenses for authorized transportation expenses incurred in transporting the insured to and from an assessment. Section 25(5)(a) states that an insurer is not liable to pay more than a total of $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. In all cases, the applicant bears the burden of proving that the cost of the assessment is reasonable.
$359.76 for an in-home assessment (travel expenses)
6This treatment plan was partially approved by Certas. The $359.76 in remaining funds in dispute relate to the travel expenses of the assessor, not the travel expenses of the insured. In submissions, the applicant incorrectly relied on s. 25(4) which applies to transportation expenses for insureds, not their providers. However, in her reply submissions, she then argues that the cost is reasonable because she lives in a rural area near Cambridge, Ontario. To this end, she submits that an “assessor would incur major expense to travel to the applicant’s home for the In-Home Examination” and without the $359.76 in provider travel expense approved, “it is difficult to conceive any provider being willing to travel to conduct the In-Home assessment.”
7I find the applicant has not demonstrated that the unapproved portion of the treatment plan is reasonable or payable. Item 3 in Part 12 of the OCF-18 clearly states that the $359.76 fee is for “provider time travel, provider to treatment.” I agree with Certas that s. 25(4) does not obligate it to pay for the provider’s travel expenses in addition to the $2,000.00 cap mandated by s. 25(5)(a). Further, I agree that while s. 25(4) does obligate the insurer to provide transportation expenses for the insured in travelling to the provider, it does not mandate payment of transportation expenses for the provider because transportation costs for the provider are included in the s. 25(5)(a) cap of $2,000.00 for fees and expenses relating to any one assessment. In any event, I disagree with the applicant’s assertion that her residence in a rural area near Cambridge (with a population well over 100,000 people) would somehow make it difficult to find a provider willing to travel to her if travel expenses are not paid and she has provided no evidence of same.
$8,527.00 for catastrophic assessments (the balance of the neuropsychiatric assessment and the file review)
8The applicant submitted an OCF-18 dated June 11, 2018 proposing a series of CAT examinations: a Physiatry examination totalling $2,000.00; a Neuropsychiatric examination in the amount of $7,500.00; an Occupational Therapy activities of daily living assessment for $2,000.00; an Occupational Therapy situational assessment totalling $2,000.00; a Clinical file review in the amount of $2,000.00; a Clinic summary/CAT rating report totalling $2,000.00; and $400.00 for the completion of the OCF-18 forms. The plan was partially approved by Certas in the amount of $10,400.00, plus HST.
9Notably, partial approval was given for the Neuropsychiatric examination by Dr. Snaiderman in the amount of $2,000.00. The balance of the claim was denied by Certas on the basis that it exceeded the limit on assessment costs as set out in s. 25(5)(a). Certas also denied the Clinical file review claim in the amount of $2,000.00 on the basis that the s. 25(5)(a) limit includes file review.
10The applicant submits that the assessment has two major components, being psychological and neurological. She relies on the opinions of Ms. Manuschevich, who recommended psychotherapy treatments and Dr. Kurzman, who recommended psychological therapy, psychological counselling, psychiatric treatment and ongoing cognitive rehabilitation. The applicant asserts that it is evident that she suffers from both neurological injuries that have caused her cognitive difficulties as well as psychological impairments. On this basis, she submits that the Neuropsychological assessment proposed in the OCF-18 is “in reality, two separate, major assessments conducted by one assessor combined into one “assessment” proposed in the OCF-18. Therefore, the $2,000 cap does not apply to this case, as there are, in reality, two assessments in the Neuropsychological Assessment – neurological and psychological.”
11In response, Certas submits that under s. 25(5)(a), it is not obligated to pay more than $2,000.00 for any one assessment. It argues that s. 25(5)(a) mandates that the $2,000.00 fee for each assessment includes conducting the examination, preparing the report in connection with it and also includes fees and expenses. Further, Certas submits that the applicant’s submissions do not speak to the $2,000.00 fee that was denied for “clinic file review” and it submits that clinic file review comes within the purview of “fees and expenses” as set out in s. 25(5)(a) for conducting any one assessment or examination and for preparing reports in connection with them.
12I agree with Certas and find that the applicant has not demonstrated why the unapproved portions of the treatment plan are reasonable or payable. First, Certas is not obligated to fund assessments that exceed $2,000.00 and the OCF-18 itself does not provide any particulars to explain why the assessment in dispute—which is actually identified as a “Neuropsychiatric” assessment and not a Neuropsychological assessment—identified in Item 2 is a reasonable and necessary expense where the proposed cost is $5,500.00 more than every other assessment and where it is well-settled that individual CAT assessments are capped at $2,000.00 each. The FSCO case Cook and RBC General [A13-015449, September 18, 2014] cited by the applicant is not binding on me and, in any event, it is easily distinguished for the reasons below.
13While the applicant argues in reply that it is really two assessments combined into one, I find this is merely an argument and ultimately unpersuasive, as there is no medical evidence to support this position in the OCF-18 or in the additional comments section, which are blank. If this indeed were two separate assessments and reports and such was Dr. Snaiderman’s intention, the separate assessments should have been identified as separate items in the OCF-18 and an explanation for same provided. On the actual evidence before the Tribunal, there is no explanation for what this item would actually entail, let alone evidence that it is two assessments or a reasonable expense that Certas should be obligated to pay. Even if I agreed that this item constituted separate assessments—which on the evidence I do not—the applicant’s submissions fall well-short of demonstrating why the additional cost is reasonable, nor do they account for the $3,000.00 that would remain unaddressed. It is not sufficient for the applicant to simply state that the s. 25(5)(a) cap does not apply.
14Further, with regards to Item 5 in the OCF-18, I agree with Certas that the Clinic File Review in the amount of $2,000.00 is not reasonable or payable. First, the applicant did not make submissions on this item, so she has not met her burden of proof. Second, I agree with Certas that a clinic file review comes within the purview of “fees and expenses” as set out in s. 25(5)(a) for conducting any one assessment or examination and for preparing reports in connection with them. The Tribunal has consistently found that file review necessarily forms part of the role of an assessor conducting an assessment and does not attract a separate $2,000.00 payment. I see no basis to depart from this reasoning here.
$2,000.00 for a neuropsychological assessment
15Here, the applicant sought $4,595.00 for a neuropsychological assessment which was partially approved by Certas in the amount of $2,595.50. The balance was again denied by Certas on the basis that it exceeded the limit on assessment costs set out in s. 25(5)(a). The applicant submits that the remaining $2,000.00 is reasonable and necessary on the same basis she proposed above: because the OCF-18 is actually for two separate assessments, one neurological and one psychological. She argues that her accident-related impairments support payment of the plan in its entirety.
16I disagree. The assessments set out at Items 2 and 3 of the OCF-18 are to be carried out by the same assessor and no other explanation as to the proposed assessment is provided by the applicant in her submissions. In the additional comments section of the OCF-18, it states that “a psycho-neuro-cognitive assessments should be provided in two parts: - Part 1 (approximately 14 hours): neuro-cognitive screening, interview, neuro-cognitive questionnaires, review of documents, consultation with treatment team, documentation) - Part 2 (approximately 14 hours): neuro-psychological testing with direct measures. In order to provide a comprehensive psycho-neuro-cognitive assessment consistent with the OPA guidelines and due to the FSCO limits of funds to $2000 for any assessment, two assessments are listed in this regard.”
17On this explanation, I agree with Certas that the assessments are a clear attempt to skirt the s. 25(5)(a) restriction on fees for assessments in excess of $2,000.00, which the Tribunal has consistently found to be inappropriate. Indeed, the OCF-18 itself clearly lays out how a single assessment—the descriptions and codes are identical—was intentionally bifurcated into two parts in order to attract separate $2,000.00 payments. The applicant’s submissions provide no insight as to why two assessments are being proposed by the same assessor or why it is reasonable or necessary to dedicate so much time to each part.
18In this vein, I agree with Certas that the applicant has not addressed the actual legal test to demonstrate why a bifurcated assessment is reasonable or payable where no evidence has been provided to explain why over three full days of assessment hours are required. As Certas is not required to pay more than $2,000.00 for an assessment under s. 25(5)(a) and where there is clear evidence that the assessment was intentionally bifurcated in order to attract separate payments, I find the applicant has not met her onus of proof as to the reasonableness of the unapproved portion of the OCF-18.
Interest
19As no benefits are overdue, it follows that no interest is payable under s. 51.
CONCLUSION
20The applicant is not entitled to payment for any of the assessments in dispute.
Released: December 18, 2020
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.