Release date: 04/22/2021
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:
[MA-Y]
Applicant
and
Coachman Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Paul DeLuca, Counsel
For the Respondent:
Linda Kiley, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[MA-Y] (“applicant”), as a pedestrian, was involved in an automobile accident on May 5, 2010 (“accident”) and sought benefits from Coachman Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2The applicant was denied benefits by the respondent and she submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3The applicant withdrew her issue of catastrophic determination,2 and proceeded with the other, remaining issues.
PRELIMINARY ISSUE – Applicant’s Objection to Respondent’s Submissions
4In her reply submissions, the applicant submits that the respondent has exceeded the ordered 10 pages of submissions by submitting well over 20 pages and requests that the applicant be permitted to make submissions in reply “that may arguably be more appropriate for initial submissions.”3
5The applicant’s submission about the length of submissions is factually incorrect. While originally set at 10 pages, at the case conference held April 17, 2020, the Tribunal ordered on consent of both parties that both the applicant’s and respondent’s submissions may be up to 20 pages and the applicant’s reply submission may be up to 10 pages.
6The respondent’s submissions are 24 pages, one of which is a partial page stating the requested relief. The applicant’s reply submissions are 10 pages.
7While breach of a Tribunal Order is always concerning, the extra three pages of substantive submissions submitted by the respondent do not significantly exceed the 20-page limit allowed. Further, the applicant has failed to demonstrate any prejudice. Still further, if the applicant had been prejudiced, the applicant could have brought a motion seeking an Order allowing her to file more lengthy reply submissions but did not so. Instead, the applicant chose to reply. As a result, I allow the respondent’s submissions to be filed for this hearing.
ISSUES
8The issues to be decided in this hearing are:
i. Is the applicant entitled to the costs of examination in the amount of $26,919.25 comprised of $24,200.00 for catastrophic determination assessments, $200.00 for documentation support, $1,319.25 for transportation, and/or $1,200.00 for interpretation services, recommended by Novo Medical Services in a treatment plan dated January 11, 2019 and denied on October 7, 2019 (“CAT assessment”)?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
9I find that the applicant is not entitled to the costs of the CAT assessment. No interest is payable. No special award is made. The applicant’s application is dismissed.
LAW
10Section 25 (1) 5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured charged for preparing an application under s. 45 for a determination of whether the insured has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 45 (1) provides that an insured who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
11Section 25 (1) 5 is to be read in conjunction with s. 25 (5) (a) which limits the cost of any one assessment or examination to $2,000.00.
12The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.
ANALYSIS
Is the Denied CAT Assessment Reasonable and Necessary?
13The denied CAT assessment that the applicant argues is reasonable and necessary is made by Dr. Milad of Novo Medical Services Inc., a physician, and proposes a number of examinations with the goal of determining if the applicant meets the criteria of catastrophic impairment. The CAT assessment was proposed some nine years post-accident and includes 12 separate assessments at $2,000.00 each, one at $200.00, documentation support at $200.00, $1,319.25 for transportation and $1,200.00 for interpretation services for a total of $26,919.25.
14The applicant’s claim is really for the cost of a rebuttal CAT assessment. The applicant submits that because the respondent conducted CAT insurer examinations (“IEs”) in 2017 including psychiatric, psychological, physiatry and occupational therapy IEs and produced a report in 2018 which found accident-related whole person impairment rating totalling 26%, the respondent has for all intents and purposes agreed that the applicant is entitled to explore the possibility of whether she is catastrophically impaired on the grounds of procedural fairness.4 The applicant also submits that the translation services ought to be approved as there “may be” a significant language barrier and that the transportation expenses ought to be approved as the applicant’s does not have a driver’s licence.
15I find the applicant is not entitled to payment of $26,499.00 for the CAT assessment, or any portion of it, because there is no reasonable basis to investigate whether the applicant is catastrophically impaired.
16Further, there is insufficient objective medical evidence to suggest that it is reasonably possible that the applicant is catastrophically impaired. Even bearing in mind that, by their nature, assessments are speculative and their purpose is to determine if an applicant has a specific condition or meets a specific threshold, there must be some suggestion that the specific condition exists and arose from the accident and that further investigation is reasonable and necessary. That has not been established.
17I find that the applicant has not brought forward sufficient evidence to establish that any of the modalities proposed in the CAT assessment are reasonable and necessary. The applicant’s submissions refer to “Dr. Koch referral for CAT assessment dated January 14, 2014,” which is not a referral but a letter from counsel asking Dr. Koch to submit an OCF-18 for CAT assessment. This letter does not constitute medical evidence of the necessity for CAT assessment.
18Post-accident, there is no significant evidence from the applicant’s family physicians, Dr. Snyder and Dr. Delorme, that the applicant may have sustained catastrophic impairment as a result of the accident.
19Although the applicant suggests that she sustained a mild traumatic brain injury in the accident, the report from her own neurologist Dr. Giles in 2015 records that Dr. Giles is not concerned about her from a neurologic perspective.
20The applicant’s testing when trying to get her driver’s licence reinstated in 2018 was better than other testing, tending to indicate the applicant was feigning cognitive difficulties. This is consistent with the findings of the respondent’s IE assessors who noted issues of symptom amplification.
21I find that the balance of the CAT assessment is not reasonable and necessary including the travel, documentation and interpretive services charges. In totality, the cost of the CAT assessment is not reasonable and necessary.
22The applicant’s argument that she is entitled to the cost of the CAT assessment to rebut the assessments completed by the respondent is not persuasive and the cases relied on in her initial and reply submissions are unpersuasive. The previous Tribunal and other adjudicator decisions cited by the applicant are not binding on me, are fact specific and I decline to follow them. Entitlement to payment for a CAT assessment is not absolute. An insurer is not obligated to pay all CAT assessments but only those that are reasonable and necessary. This has been expressed by the Tribunal before. Although I am not bound by previous Tribunal decisions, I find persuasive the following words of Vice Chair Lester:
…it does not seem in line with the Schedule that there would be no test for entitlement to catastrophic assessment as long as the fees charged were reasonable. Although section 45 does not stipulate a test for determining entitlement to the catastrophic assessment, it is only reasonable to conclude, on the balance of probabilities, that reasonableness and necessity would be the appropriate test. This is the test consistently used in the Schedule for determinations of entitlements for assessments.5
23Although the applicant may have sustained some injuries in the accident and undergone some treatment as a result, in totality, the weight of the applicant’s medical evidence does not approach catastrophic impairment levels. As a result, the CAT assessment is not reasonable and necessary.
24I also find that the overall cost of the CAT assessment is not reasonable given the lack of evidence that such assessment is warranted.
25I find that the applicant has not established that the CAT assessment is reasonable and necessary with respect to injuries resulting from the accident and that the applicant is not entitled to the payment claimed.
Interest
26As no benefits are payable, no interest is payable.
Special Award
27Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. Having reviewed the evidence I see no basis for an award as I find that there was no payment unreasonably withheld or delayed.
ORDER
28For the reasons outlined above, I find that the applicant is not entitled to the costs of the CAT assessment. No interest is payable. No special award is made. The applicant’s application is dismissed.
Date of Issue: April 22, 2021
Avril A. Farlam, Vice Chair
Footnotes
- O. Reg. 34/10.
- Tribunal’s Case Conference Report released March 27, 2020, para 6.
- Reply Submissions of the Applicant dated June 23, 2020, para 2.
- Applicant relies on 17-003496 v. TD Insurance, 2018 CanLII 13167 (ON LAT).
- Reconsideration Decision C.A. v. Intact Insurance Company, 2019 CanLII 101845 (ONLAT) at para 11.