[Z.J.] v. Aviva Insurance Company of Canada, 2020 CanLII 37597

Citation: [Z.J.] vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-012030/AABS

Released Date: 05/13/2020

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:

[Z.J.]

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

S. Braun

APPEARANCES:

For the Applicant:

Matthew J. Cino, Counsel

For the Respondent:

Petros Yannakis, Counsel

Heard by way of written submissions

OVERVIEW

1Z.J. (“the applicant”) was injured in an automobile accident (“the accident”) on December 21, 2000 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “1996 Schedule'')¹. She was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The applicant seeks funding for multidisciplinary catastrophic impairment (CAT) assessments, which the respondent denied. She submits she is financially unable to afford these herself and without reports of her own, is unable to proceed to a hearing on whether she has sustained a CAT impairment as a result of her accident.

ISSUES

3I have been asked to decide the following issues:

i. Is the applicant entitled to payment for the cost of examinations in the amount of $18,000.00² for a multidisciplinary CAT designation assessment, recommended by Dr. Tahani Al-Rifai in a treatment plan submitted August 15, 2017 and denied on November 26, 2017?

ii. Is the applicant entitled to payment in the amount of $400.00 for the cost of an OCF-19 and an OCF-18?

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

4The applicant is entitled to payment in the amount of $14,000.00 ($2,000.00 each) for the following multidisciplinary CAT assessments:

i. physiatry;

ii. neurocognitive;

iii. psychiatry;

iv. occupational therapy activities of daily living;

v. occupational therapy community functional/situational assessment;

vi. functional abilities evaluation; and

vii. whole person impairment (WPI) report/summary.

5I find the fees charged in relation to ‘file review musculoskeletal assessment’ ($2,000.00) and ‘psychometric testing’ ($2,000.00) are not in accordance with s. 25 of the Schedule and therefore not payable by the respondent.

6The applicant is also entitled to costs claimed in relation to the completion of the OCF-18 and OCF-19 as well as any applicable interest owing in accordance with the Schedule.

7The applicant is not entitled to an award under section 10 of Ontario Regulation 664.

Procedural Issue

8On February 13, 2020, the applicant served and filed a Notice of Motion to add J.A. v. Aviva Insurance Canada, 18-002124/AABS, 2020 CanLII 12736 (ON LAT) to her book of authorities. She submits the decision is factually similar and directly on point with the matter in dispute and the Tribunal should consider the most recent and pertinent case law when making its decision.

9No responding motion materials were received from the respondent. In my view, the findings in J.A. v. Aviva are similar to previous decisions of the Tribunal which the applicant has already included in her initial book of authorities.³ As such, I find the decision relevant and find no prejudice to the respondent in considering this case, especially given its lack of objection to the applicant’s motion.

ANALYSIS

Applicable legislation

10This accident occurred in December of 2000. Prior to September 1, 2010, an insurer was obligated to pay reasonable fees and expenses relating to assessments/examinations after the denial of a benefit or a determination that an applicant was not catastrophically impaired. These were called ‘rebuttal reports.’⁴

11On September 1, 2010, the 2010 Schedule came into effect and rebuttal reports for claims made after August 31, 2010 were eliminated.⁵ However, s. 25(1)(5) of the 2010 Schedule still obligates an insurer to pay “reasonable fees charged for preparing an application under s. 45 for a determination of whether the insured person sustained a catastrophic impairment, including any assessment or examination necessary for that purpose”. The 2010 Schedule also instituted a maximum payable fee of $2,000.00 per assessment.

12As the applicant’s claim relates to a 2017 treatment plan recommending a CAT assessment, the 2010 Schedule is applicable to cost of examination expenses.⁶ She must establish, on a balance of probabilities, that the assessments themselves are reasonable and necessary for the purpose of applying for a determination of catastrophic impairment under s.45 and further, that the fees charged in connection with the recommended assessments are reasonable.

Are multidisciplinary CAT assessments reasonable and necessary?

The applicant’s position:

13The applicant argues that the assessments claimed are reasonable and necessary in order to advance a claim for CAT determination. She submits an exploration of the CAT issue is warranted, as she was diagnosed with accident-related injuries which have persisted since December 2000 and her healthcare providers/assessors are of the opinion that the accident exacerbated her pre-existing conditions.⁷

14She notes the respondent conducted its own insurer’s examination (IE) CAT assessments in the spring of 2017. Although those assessors concluded she did not meet the CAT threshold, she argues the insurer’s act of conducting IE assessments is supportive of a decision allowing her to conduct her own assessments in order to proceed with a claim under s. 45 and respond to their position. She further argues that she is not required to prove causation at this stage in order to access funding for such assessments and relies on decisions at both the Financial Services Commission of Ontario (FSCO)⁸ and this Tribunal,⁹ which allowed funding in similar cases based on procedural fairness.

15Finally, she argues she should have an opportunity to obtain her own reports with respect to the issue of CAT impairment on the basis that the conclusions of one of the IE assessors, Dr. Wiseman (neuropsychologist), are invalid and unreliable.

The respondent’s position:

16The respondent submits the multidisciplinary CAT assessments claimed are not reasonable or necessary and the amounts claimed are not in accordance with section 25(1)5 of the Schedule. In support of its position, it relies on the conclusions of its IE assessors, who opine the applicant is not catastrophically impaired. It also argues that the assessments are not reasonable and necessary given there were no treatment plans submitted between 2003 and 2016. The respondent takes the position that there may be issues with respect to the applicant’s reliability/credibility as well as concerns surrounding causation.¹⁰

17The respondent submits the OCF-18 at issue is essentially an attempt by the applicant to submit a second OCF-19. It is further submitted that the OCF-18 should be declared invalid or not reasonable and necessary, as it is not compliant with ss. 38(3)(c)¹¹ and 45(2) 1¹² of the Schedule, because it was completed by a chiropractor who recommends a variety of specialized assessments outside the scope of his practice.

Analysis:

18I find it reasonable and necessary for the applicant to explore, through her own set of assessments, whether she is catastrophically impaired. I agree with the applicant, who argues that requiring her to prove causation to access funding at this stage unfairly forces her to prove what the assessments at issue are intended to determine.

19I was not persuaded by the respondent’s argument that the applicant’s reliability or credibility at this stage should impact her entitlement to be assessed. Similarly, I was not persuaded by the applicant’s argument that the reliability of an IE report entitles her to be assessed. Issues of causation, credibility, reliability and weight assigned to the evidence are all matters for an adjudicator to determine in the context of a potential future hearing on the issue of whether the applicant meets the threshold for catastrophic impairment.

20I also reject the respondent’s assertion that the OCF-18 is invalid/not reasonable and necessary because it does not comply with s. 38(3)(c) and 45(2) 1. Section 45(2) 1 is not applicable, as it speaks to who may conduct the actual CAT assessments, not who may make recommendations to attend such assessments. Further, there is no requirement in s. 38(3)(c) that the recommendations in an OCF-18 be limited to the scope of practice of the regulated health professional who completes it.

21Moreover, in this case, the OCF-18 was signed by the applicant’s chiropractor and co-signed by Dr. Gomez-Vargas, a neurologist. If I were to accept the respondent’s assertion, applicants would be forced to obtain multiple OCF-18s from different and specialized health professionals in order to access specialized assessments, thereby incurring unnecessary costs relating to the preparation of each document. I also reject the respondent’s argument that the OCF-18 is an attempt to submit a second OCF-19. The OCF-18 is clearly a treatment plan, which recommends assessments for the purposes of determining whether she is CAT impaired. The OCF-18s required for the applicant to obtain such assessments as a precursor to advancing a claim under s. 45.

22The goal of the OCF-18 is listed as a ‘catastrophic evaluation’. I find the recommended assessments therein to be reasonable and necessary for that purpose and I find the medical evidence (specifically, clinical notes and records of the applicant’s family physician and a 2006 psychological assessment) contains indicia of ongoing physical and psychological issues which, in my view, warrants exploration of the CAT issue. For instance, the clinical notes and records of the family physician from 2013 to 2017 chronicle persistent complaints of pain:

i. Jan 2017 – anxiety and depression

ii. July 2016 – painful ROM right knee and back

iii. May 2016 – chronic pain back

iv. Aug 2014 – painful ROM back

v. Sept 2013 – chronic back pain

vi. April & June 2013 – chronic pain right knee, lumbosacral spine painful ROM

vii. Jan & Feb 2013 – chronic back pain

23In addition, there are consistent recommendations for treatment in the form of physiotherapy and medications including Gabapentin, Arthrotec and Tylenol #3, as well as Elavil/Amitriptyline.

24Although the respondent alleges there were no treatment plans submitted between 2003 and 2016, a 2006 psychological report by Dr. Gouws confirmed impressions of psychological sequelae related to the December 21, 2000 accident and indicates that a treatment plan (OCF-18) was forwarded to the insurer to address a diagnosis of Mixed Anxiety and Depressive Disorder; likelihood of Mild Cognitive Disorder; and Chronic Pain.

25In addition to the persuasive medical evidence referred to above, I considered it significant that, despite the respondent’s various arguments against the applicant’s claim for CAT assessments, it conducted its own multidisciplinary CAT assessments. In my view, this suggests the insurer considered the applicant’s claim as warranting further investigation.

26A number of cases relied upon by the applicant were considered to be factually similar and helpful in this instance. For example, in J.A. v. Aviva,¹³ the insurer conducted IE CAT assessments and denied the insured funding to obtain his own assessments, arguing that funding for ‘rebuttals’ was eliminated by the 2010 amendments to the Schedule. Adjudicator Boyce rejected the respondent’s argument that the assessments constituted ‘rebuttals’, noting these would be the applicant’s first set of reports. He determined that to deny funding on the basis of the order in which assessments were completed would result in an obvious imbalance in the evidence and affect the insured’s ability to prove his case. Ultimately, he concluded such a result would run contrary to the consumer protection nature of the Schedule.

27Similarly, in Applicant v. Allstate Insurance¹⁴, Adjudicator Grant found the Schedule allows both parties in a CAT dispute to complete their own assessments. I found the following passage to be particularly helpful and persuasive in deciding the issue before me:

The balance cannot be in an insurer’s favour alone to determine whether an insured meets the catastrophic impairment criterion…There must be an opportunity for an insured to reasonably obtain a medical opinion from the appropriate medical expert(s) of their choosing. In this regard, the Schedule serves as a consumer protection measure to ensure insured persons have fair access in the determination of appropriate treatment for accident-related injuries. Where an insurer is seen to be placing itself in a more advantageous position, a balance must be re-established, in order to maintain the intended consumer protection nature of the Schedule. If not, an insured will always be at a disadvantage, resulting in a lack of consumer trust in a system designed to create a fair accident benefits process.

28Given the indicia of ongoing physical and psychological issues in the medical evidence before me and the insurer’s decision to conduct its own multidisciplinary CAT assessments, I am persuaded that the applicant is entitled to seek out the opinions of her own assessors and as such, find multidisciplinary assessments reasonable and necessary for her to advance a claim under s. 45 for determination of CAT impairment.

Are the fees claimed reasonable and necessary?

29I find the following assessments to be reasonable and necessary:

i. physiatry;

ii. neurocognitive;

iii. psychiatry;

iv. occupational therapy activities of daily living;

v. occupational therapy community functional/situational assessment;

vi. functional abilities evaluation; and

vii. whole person impairment (WPI) report/summary

30This is because the insurer completed very similar specialized assessments (physiatry, neurocognitive, psychology, ADL functional assessment, community functional assessment) and the medical evidence before me contains indicia of psychological, cognitive and chronic pain issues.¹⁵ I also find each assessment to be reasonable and necessary in order for the applicant to put forward a Whole Person Impairment Report (WPI) for the purposes of pursuing an application under s. 45 for CAT determination and fully responding to the position taken by the respondent, which is that she does not meet the CAT threshold.

31Section 25(1)(5) obligates an insurer to pay reasonable fees charged for preparing an application under s. 45 for a determination of whether the insured person sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. The $2,000.00 claimed in relation to each of the aforementioned assessments does not exceed the maximum amount set out in s. 25(5)(a) of the Schedule and consequently I find those fees to be reasonable.

32However, I find the fees claimed in relation to ‘file review musculoskeletal assessment’ and ‘psychometric testing’ are not in accordance with s. 25(1)(5) of the Schedule, which specifies that the insurer is not obligated to pay more than a total of $2,000.00 in respect of fees and expenses for conducting any one assessment or examination (emphasis mine) and for preparing reports in connection with it.

33I am of the view that file review is a necessary component of any assessment and does not constitute an independently billable task. Similarly, I view psychometric testing as part and parcel of a psychiatric assessment. As such, I find the $2,000.00 fees charged in relation to these two tasks to be duplicative, in contravention of the Schedule and therefore, these fees are not payable by the respondent.

Cost of OCF-18 and OCF-19 completion

34No specific submissions were made by either party with respect to entitlement to payment for the costs of preparing the OCF-18 and OCF-19. The respondent acknowledged receipt of the OCF-19 dated June 28, 2016 and included a copy in its written submissions. Similarly, the OCF-18, which is a required document for the applicant to access recommended treatments/assessments, was also received by the respondent.

35The OCF-19 and OCF-18 are both required for the applicant to advance her claim for CAT impairment. As I have found that a number of the CAT assessments set out in the OCF-18 are reasonable and necessary, it follows that the costs associated with the preparation of the documents are also reasonable and necessary and therefore payable by the respondent.

Is the applicant entitled to an award?

36Section 10 of Ontario Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of the amount to which the applicant was entitled at the time of the award together with interest on all amounts owing if it finds that the respondent has unreasonably withheld or delayed such payments.

37The applicant made no submissions with respect to the claim for an award. The respondent’s act of denial, in and of itself, does not constitute behaviour meeting the threshold to justify an award claim. As I have not been directed to any specific conduct or behaviour on the part of the respondent which would support an award under Ontario Regulation 664, I find the applicant is not entitled to same.

ORDER

38The applicant is entitled to payment for cost of examinations in the amount of $14,000.00 for multidisciplinary CAT assessments. She is entitled to $400.00 representing the cost of completing the OCF-18 and OCF-19 as well as any applicable interest owing on all amounts in accordance with the Schedule.

39The applicant is not entitled to an award under Ontario Regulation 664.

Footnotes

1. 1O.Reg. 403/96 [“1996 Schedule”].
2. 2The applicant’s submissions revised the amount claimed from $28,702.00 to $18,400.00, broken down as follows: $2,000.00 each for file review musculoskeletal; physiatry; neurocognitive; psychiatry; psychometric testing; occupational therapy activities of daily living; occupational therapy community functional/situational assessment; functional abilities evaluation; whole person impairment report/summary as well as $200.00 for the cost of completing the OCF-18 and $200.00 for the cost of completing the OCF-19.
3. 3See, for example, Applicant v. Allstate Insurance, 18-006253/AABS 2019 CanLII 101614 (ON LAT) and Applicant v. TD Insurance, 17-003496, 2018 CanLII 13167 (ON LAT)
4. 4See 1996 Schedule, supra note 1, s. 24(1)(10) and s. 42.1(3)
5. 5Section. 3 of the 1996 Schedule states that s. 24 from the 1996 Schedule (which allows for rebuttal reports) does not apply after August 31, 2010 and that any amount paid under the regulation shall be paid under the new regulation in an amount to be determined. Section 2(2) of the transitional rules of the 2010 Schedule states that any amounts previously paid under s. 24 would now be paid under s. 25(1), (3), (4) and (5).
6. 6Hereinafter, “the Schedule” references the 2010 Schedule.
7. 7Shoulder, neck and low back pain were noted on the Disability Certificate of February 26, 2001; Drs. Garner and Seigel, who assessed the applicant in 2002, both noted pre-existing depressive symptoms and chronic pain.
8. 8See, for example: R.J. and Dominion of Canada General Insurance Co. (FSCO A12-001233, September 17, 2013); Almousawi and TD General Insurance Co. (FSCO A12-000481, July 9, 2015); Deveau and Belair Insurance Company Inc. (FSCO A13-00459 & A14-009724, July 12, 2017).
9. 9See, for example: 17-0007962 and Scottish & York, 2018 CanLII 81950 (ON LAT); 17-003496 and TD Insurance, 2018 CanLII 13167 (ON LAT); 18-006253 and Allstate Insurance, 2019 CanLII 101614 (ON LAT).
10. 10On the basis of a subsequent motor vehicle accident which occurred in 2006.
11. 11A treatment and assessment plan must include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary.
12. 12The following rules apply with respect to an application under s. 45(1): an assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
13. 1318-002124/AABS, 2020 CanLII 12736 (ON LAT)
14. 1418-006253/AABS, 2019 CanLII 101614 (ON LAT)
15. 15Clinical notes and records of the family physician 2013-2017 and psychological assessment of Dr. Gouws, 2006.