Tribunal File Number: 19-003405/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:
N. K.
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Elvis Viskovic, Paralegal
For the Respondent:
Sharla Bandoquillo, Counsel
HEARD:
In writing on November 12, 2019
OVERVIEW
1The applicant was injured in an automobile accident on October 7, 2013 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain costs of assessments and, in response, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issues to be determined are as follows:
i) Is the applicant entitled to a cost of examination in the amount of $5,311.00 for a psychiatric assessment recommended by Omega Medical in a treatment plan dated September 29, 2017?
ii) Is the applicant entitled to the cost of examination in the amount of $4,746.00 for occupational therapy assessments recommended by Omega Medical in a treatment plan dated February 26, 2018?
iii) Is the applicant entitled to interest on any overdue payment of benefits?
iv) Is the applicant entitled to an award under Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
3The applicant is entitled to $2,000.00 for the psychiatric assessment and $4,000.00 for two occupational therapy assessments, plus interest.
4The applicant is not entitled to an award.
BACKGROUND
5The applicant was a pedestrian who was struck by a vehicle at a crosswalk. He suffered from several injuries as a result of the collision, predominated by a concussion and post-concussion complications. As a result of the injuries, the applicant sought a determination of catastrophic impairment pursuant to section 45 of the Schedule.
6The applicant’s claim for a determination of catastrophic impairment was accepted after several assessments were conducted by medical teams chosen by both the applicant and respondent.
7At issue for this hearing, is whether the applicant is entitled to funding for certain assessments performed as part of the catastrophic impairment assessments (“the CAT assessments”).
PSYCHIATRIC ASSESSMENT
8The applicant claims entitlement to the cost of the psychiatric assessment on the grounds that it was reasonable and necessary as part of the comprehensive catastrophic impairment assessments. The respondent denied funding for it and submits that, according to its assessor Dr. M. Khaled, physician, it is unnecessary because it previously approved funding for a psychological assessment as part of the CAT assessments.
9The applicant further submits the psychiatric assessment is required instead of a psychological assessment because he was in a state of psychosis, paranoid, and hearing voices. He submits this was discovered upon meeting with Dr. D. Becker, psychologist, for the psychological assessment which was approved as part of the CAT assessments. According to the applicant, Dr. Becker declined to conduct the assessment and, instead, recommended a psychiatric assessment occur. The applicant later participated in the psychiatric assessment, the results of which were included in the final report from the CAT assessments. Dr. Becker did not charge the applicant or the respondent for the cancelled psychological assessment.
10Pursuant to section 25(5) of the Schedule, the applicant is entitled to seek funding for reasonable and necessary assessments performed in connection with a determination of whether he suffered a catastrophic impairment.
11I find that either a psychiatric or psychological assessment is reasonable and necessary in light of the applicant’s post-concussion mental condition. It is uncontested that the applicant exhibits symptoms of an impairment such as hearing voices and paranoia and these symptoms required investigation. Considering the applicant declined to proceed with the psychological assessment and, instead, participated in a psychiatric assessment, I find the psychiatric assessment is reasonable and necessary.
12I see no evidence before me to distinguish a preference of one assessment over the other. The applicant submits the psychiatric assessment was requested on the recommendation of Dr. Becker however, there is no record of such a recommendation and submissions are not evidence. The respondent’s key objection to the psychiatric assessment is that it is duplicative to the psychological assessment. This position fails to consider that the psychological assessment was not performed, thus making the argument moot. While the respondent notes a previous Tribunal decision where the opinion of a psychologist was preferred over that of a psychiatrist, I find this fails to detract from the applicant’s position that a psychiatric assessment, instead of a psychological assessment, is reasonable and necessary. One example of a psychologist’s opinion being preferred over a psychiatrist’s opinion does not mean that a psychiatric assessment is not reasonable and necessary.
13Having found the psychiatric assessment is reasonable and necessary as part of the CAT assessments, I must determine whether the proposed costs are in accordance with the Schedule. Pursuant to section 25(5)(a) of the Schedule, assessment costs are capped at $2,000.00.
14I find the applicant is only entitled to $2,000.00 for the cost of the psychiatric assessment because the applicant has provided no basis for entitlement beyond the funding cap proposed by section 25(5)(a). The fact that the psychiatric assessment formed the basis of the catastrophic impairment determination does not entitle the applicant to funding above the $2,000.00 limit. Likewise, the fact that the respondent had two separate assessments conducted by a neuropsychologist, as submitted by the applicant, does not entitle the applicant to an increased funding limit.
OCCUPATIONAL THERAPY ASSESSMENTS
15The occupational therapy assessments proposed in the disputed treatment plan are the second and third occupational therapy assessments proposed as part of the CAT assessments.
16The applicant initially sought funding for one occupational therapy assessment as part of the CAT assessments. It was approved by the respondent following a paper review section 44 insurer’s examination. About a year later, the applicant submitted the disputed treatment and assessment plan which requests funding for two more occupational therapy assessments “in conjunction with a previous submitted OCF-18”. The applicant claims the respondent sent this treatment plan for a paper review section 44 insurer’s examination but never received any further response to the treatment and assessment plan. He further submits he incurred the disputed assessments and Omega Medical Assessments has not been paid for them.
17The respondent submits it has approved funding for two occupational therapy assessments and conducting a third assessment which is separate and distinct from the others, is not reasonable and necessary.
18I agree with the respondent and find the applicant is entitled to two of the three occupational therapy assessments. Upon review of his submissions, so does the applicant.
19With respect to the disputed occupational therapy assessments, there is a disconnect between what the applicant claims, what was approved, and what has been paid.
20The applicant only seeks funding for two occupational therapy assessments. His submissions refer to S. B. and State Farm1, which found two occupational therapy assessments were reasonable and necessary for that applicant. The submissions also refer to the respondent’s own insurer’s examinations, which included two occupational therapy assessments. The applicant, at no point, provides any rationale for a third occupational therapy assessment.
21The applicant submitted an invoice from Omega Medical Assessments which shows the entirety of the disputed occupational therapy assessment remains unpaid. He did not comment on, or provide evidence about, whether the balance of the CAT assessments was paid. This may be the source of the applicant’s confusion.
22In any event, the applicant is entitled to a total of two occupational therapy assessments as part of the CAT assessments. The two assessments have been incurred and the respondent is liable to pay for them, if it has not done so already. As noted above, pursuant to section 25(5)(a), the applicant is entitled to up to $2,000.00 per occupational therapy assessment.
INTEREST
23Pursuant to section 51 of the Schedule, the applicant is entitled to interest on the overdue payment of benefits. For the psychiatric assessment, interest accrues on the $2,000.00 found payable pursuant to section 25(5)(a) of the Schedule. Likewise, for the occupational therapy assessments, interest accrues on the unpaid amounts. For clarity, I find the pre-interest amount payable for the occupational therapy assessments is limited to $2,000.00 per assessment.
AWARD
24Pursuant to section 10 of O. Reg. 664, the applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.
25I find no award payable because respondent did not unreasonably withhold or delay payment of a benefit.
26The respondent had reason to deny the disputed assessments. The treatment and assessment plans proposing the psychiatric and occupational therapy assessments appeared to be a duplication of services which were already approved.
27For the psychiatric assessment, a psychological assessment was already approved. The psychiatric assessment plan stated it was submitted in conjunction with the CAT assessments and not in exchange of the psychological assessment.
28Regarding the occupational therapy assessments, one was previously approved and the respondent, upon advice from the insurer’s examination assessor, approved a second one. The third occupational therapy assessment was found not reasonable and necessary and as a result, is not payable and not unreasonably withheld.
CONCLUSION
29The applicant is entitled to $2,000.00 for the psychiatric assessment, plus interest.
30The applicant is entitled to up to $4,000.00 for the two occupational therapy assessments he incurred, if not already paid by the respondent, plus interest.
31The applicant is not entitled to an award because no benefits were unreasonably withheld.
Released: April 17, 2020
___________________________
Brian Norris
Adjudicator
Footnotes
- 17-003290 v. State Farm Insurance, 2017 CanLII 87153 (ON LAT).