18-009077/AABS

Released Date: 05/27/2020

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:

[K.H]

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

[K.H], Applicant

Andrew Franzke, Counsel

For the Respondent:

The Personal Insurance Company

Karman Dhuga, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“KH”) was involved in an automobile accident on October 16, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). KH was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The issues in dispute were identified as follows:

i. Is the applicant entitled to the cost of a CAT assessment, in the amount of $25,779.25, recommended by Novo Medical Services, dated August 23, 2018?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

ANALYSIS

i. Cost of Examination of September 5, 2018 Multi-Disciplinary CAT Assessment

The Test Relating to Payment of CAT Assessments:

3The parties diverge significantly in their argument as to the appropriate test to apply to the issue of entitlement to CAT assessments. KH argues that this is governed by section 25 of the Schedule, while the respondent argues it is governed by section 15.

4In written submissions (at para 23), KH relies on the Tribunal’s reasoning in 17-003496 v TD Insurance, 2018 CanLII 13167 to argue that the Tribunal ought only to consider the reasonableness of the catastrophic impairment assessments as a substantive right under s.25 of the Schedule. Specifically, KH relied on the following:

As noted by Adjudicator Sewrattan in 17-003496 v TD Insurance, “[the] plain wording of s.25(1)5 suggests that TD must pay the applicant for any reasonable fee charged for an assessment that is necessary for a Catastrophic Impairment Assessment. Under this approach, I only need to consider the reasonableness of an assessment’s fee.”

5However, KH failed to provide the complete analysis performed by Adjudicator Sewrattan in paragraphs 19-21. The section cited by KH is a summary outlining one of two approaches presented to Adjudicator Sewrattan. In fact, Adjudicator Sewrattan came to no conclusion, finding the distinction meaningless in that instance. The relevant portions continue as follows:

[19] …The plain wording of s. 25(1)5 suggests that TD must pay the applicant for any reasonable fee charged for an assessment that is necessary for a Catastrophic Impairment Assessment. Under this approach, I only need to consider the reasonableness of an assessment’s fee.

[20] TD’s submits that payment for Catastrophic Impairment Assessment is a qualified right. The right is qualified to the extent that the constituent assessments must be reasonable and necessary expenses. In this sense, the analysis is the same as a consideration of a medical or rehabilitation benefit under ss. 15 and 16 of the Schedule.

[21] I do not propose to reconcile the debate between the parties. Regardless of the pathway taken, this case’s circumstances steer me to the same answer: the applicant is entitled to payment for the Catastrophic Impairment Assessment, with some qualifications. Because the answer is the same either way, I will use the more difficult pathway advanced by TD. I will consider whether each of the constituent assessments in the Catastrophic Impairment Assessment are reasonable and necessary [Emphasis added].

6I do not find the reasoning of Adjudicator Sewrattan persuasive in terms of deciding that a catastrophic impairment assessment ought to be governed by section 25 of the Schedule because this conclusion was not made. The “debate between the parties” remained open.

7On the other hand, the respondent argues (para 15 written submissions) that section 15 of the Schedule applies and relies on Adjudicator Lake’s reasoning in C.A. v Intact Insurance Company, 2018 CanLII 130861 (ON LAT) to that end. Adjudicator Lake addressed this issue in detail, and I found her reasons persuasive on this point. I have adapted her reasons accordingly, specifically those outlined in paragraphs 16-23 in which Adjudicator Lake found “…the correct test to determine entitlement to payment for a CAT Assessment is that each constituent assessment that makes up the multidisciplinary catastrophic impairment determination assessment must be reasonable and necessary”. The relevant portions of Adjudicator Lake’s reasoning are as follows:

[17] C.A. relies upon s. 45 of the Schedule, which allows an insured person who sustains an impairment as a result of an accident to apply to the insurer for a determination of whether his or her impairment is catastrophic.

[18] C.A. submits that the payment for a catastrophic impairment determination assessment is a substantive right and relies upon paragraph 5 of s. 25(1) of the Schedule, which she suggests requires Intact to pay for any reasonable fee charged for a catastrophic impairment determination assessment. To support this approach, C.A. relies upon Henderson, where the arbitrator stated, “the statute cannot be any clearer as to its intent and application. There is no room for ambiguity – the insurer shall pay the expenses of a CAT assessment.” C.A. argues that, so long as the fees are reasonable, Intact should automatically pay for the CAT Assessment.

[19] In contrast, Intact argues that payment for a CAT Assessment is a qualified right, meaning that the constituent assessments must be both “reasonable and necessary.” In this sense, Intact argues that the analysis is the same as the analysis undertaken for consideration of a medical or rehabilitation benefit in dispute under s. 15 of the Schedule, which governs the payment of benefits for services of a medical nature and requires payment only for “reasonable and necessary expenses.” Intact relies upon 16-002858 v State Farm Insurance Company, where the adjudicator found that the “reasonable and necessary test” applied to determine entitlement to a CAT Assessment…

[21] I do not agree with C.A.’s assertion that s. 45 of the Schedule and Henderson equate to the proposition that, simply because reasonable costs are incurred by an insured for a catastrophic impairment determination assessment, it is payable by an insurer. Acceptance of C.A.’s argument would create significant policy implications as the only threshold test to determine an insured’s entitlement to payment for a catastrophic impairment determination assessment would be that the fees charged were reasonable.

[22] I agree with the decision in 16-002858, which held that the correct test for entitlement to a catastrophic impairment determination assessment is reasonable and necessary…I agree… that each of the modalities is a request for a medical benefit and the test for determining entitlement to a medical benefit is well-established as “reasonable and necessary.”

[23] I also agree with 16-002858 that s. 25(5) of the Schedule is found in Part 4, entitled, “Payment of Other Expenses,” which addresses parameters for the payment of expenses. Entitlement to those payments is still found in s. 15(1) of the Schedule and, therefore, each assessment making up the catastrophic impairment determination assessment must be reasonable and necessary. Once each assessment is found to be reasonable and necessary, only then would s. 25 apply to determine if the fees charged for each assessment are reasonable.

8I find Adjudicator Lake’s reasoning persuasive and directly applicable to the current dispute. While I am not bound by this reasoning, it is much more persuasive than Adjudicator Sewrattan’s determination that the debate need not be resolved in circumstances where the result is unchanged in any event.

The Treatment Plan:

9The disputed CAT Assessment treatment plan was provided by both parties in their document briefs (Applicant at Tab 10, Respondent at Tab 1). The treatment plan is signed by Dr. Milad, dated August 23, 2018 and proposed funding of a total of $25,779.25. The claimed amounts are detailed further at pp. 11-13 of the treatment plan and include the following assessments:

1. Physical Evaluation ($2,000.00);

2. Executive Summary and Rating of Whole Person Impairment as per the Guides ($2,000.00);

3. Biopsychosocial Assessment ($2,000.00);

4. Medical File Review for CAT Assessment ($2,000.00);

5. Functional Ability Evaluation for Catastrophic Impairment Determination ($2,000.00);

6. Psychiatric Evaluation Part 1 ($2,000.00);

7. Psychiatric Evaluation Part 2 ($2,000.00);

8. Neuropsychological Assessment Part 1 ($2,000.00);

9. Neuropsychological Assessment Part 2 ($2,000.00);

10. Occupational Therapy In-Home Assessment for Catastrophic Impairment Determination ($2,000.00);

11. Occupational Therapy Situational Assessment for Catastrophic Impairment Determination ($2,000.00);

12. Neurological Assessment for Catastrophic Determination ($2,000.00); and

13. Various other travel, transportation and preparation fees.

10The injuries and sequelae described by Dr. Milad include: tension-type headache; lumbar and other intervertebral disc disorders with radiculopathy; dorsalgia; rotator cuff syndrome; and injury of muscle(s) and tendon(s) of the rotator cuff of shoulder. Dr. Milad indicated it was “unknown” if KH had a pre-existing injury contributing to impairment, or had developed any other conditions unrelated to the accident which might also contribute to his impairment. It was also unknown if the applicant was impaired relating to carry out the tasks of his employment. The goals of the treatment plan were: “To examine if the client meets the criteria of Catastrophic Impairment”.

Reasonableness and Necessity of Assessments:

11Having reviewed the clinical notes provided by the parties (Applicant’s Tab 5, Respondent’s Tab 4) KH attended very few appointments with his family physician, Dr. Girgis, after the date of the accident. Immediately following the accident, he attended in October and November 2013 and he returned in February 2014 for a single visit. There is very little other treatment documented following the accident. There were no appointments with the family physician from late February 2016 until late February 2017.

12A family physician is not the sole provider of medical treatment, however, and KH attended several physiotherapy sessions following the accident. Dr. Girgis made a referral to physiotherapy, massage and chiropractic on October 18, 2013. [Medical Centre] (Respondent’s Tab 5; Applicant’s Tab 8) provided physiotherapy services regularly to KH until February 2014, and once on March 31, 2014. After March 2014 there is no documentation suggesting that KH was treated with physiotherapy again despite his account of persistent and uncontrolled pain. This is also difficult to reconcile with the general lack of prescription medication for pain (Respondent’s Tab 10) outlined in the prescription records from 2010 to 2017. The applicant had prescriptions for anti-inflammatory medication which, if used as directed, would last approximately two weeks on two occasions in 2013; two occasions in 2014 and once in 2016 (Applicant’s Tab 9). This is difficult to reconcile with the notion of prolonged and worsening “sharp pain” such as that described by Dr. Abouali and Dr Rod (Applicant’s Tabs 3 and 4 respectively).

13The insurer arranged an examination of KH pursuant to s.44 of the Schedule on March 10, 2015. Dr. Karabatsos, an orthopedic surgeon, evaluated KH and determined he had “sprain/strain” and degenerative disc disease which were not related to the trauma of the accident. There was also no radicular pain, and KH indicated his pain came and went and was generally “better” than immediately following the accident, or had improved.

14On April 18, 2016, KH was examined by another general practitioner, Dr. Boucher, who determined he had a full range of motion in the cervical and lumbosacral spine, his neurological exam was normal, and he had a “normal physical examination”. Dr. Boucher concluded that additional treatment for soft-tissue injuries was “not medically supported”. This is consistent with the physiatry report prepared by Dr. Williams dated June 1, 2016 showing “no objective findings” and concluding he had reached maximum medical recovery.

15Although in many instances a person’s condition may deteriorate over time, the documentation provided in this instance is not indicative of such a decline. KH was evaluated by an orthopedic surgeon (Dr. Maistrelli) in 2018 and the July 30, 2018 report states that there were “minor soft tissue strain injuries… The soft tissue injuries appear to be uncomplicated…” there were “no neurological findings”, the “physical examination demonstrated satisfactory” range of motion and KH’s post-accident symptomatology was “entirely unrelated to any pathology arising from the low energy” accident in question. The energy of the accident is not of particular import in my analysis, but the physical findings and determinations regarding the lack of severity of both injuries and symptoms are not in keeping with the suggestion that a multi-disciplinary catastrophic impairment assessment is warranted.

16A psychological assessment was also performed on October 6, 2016 by Dr. Goodman who concluded KH “…does not require any further treatment as a result of the accident”.

17More recently, Dr. Auguste reported (February 26, 2019 Respondent’s Tab 15) that KH requires only “occasional” ibuprofen and Tylenol 3 for pain control and again confirmed there was no substantive evidence of accident related impairments. Dr. Hines (a psychiatrist) also reported that KH was able to attend the gym 3-4 times per week, took his child to school five days per week, sees friends and family regularly, his mood was generally “okay” despite occasional irritability, he is able to go out with friends for a few hours at a time, and that he “functioned very well” (Respondent’s Tab 16). In addition, Dr. Hines indicated that KH was able to travel out of the country on 2 or 3 occasions after the accident in question and “he does not have any accident related psychiatric illness or diagnosis and he does not require any mental health treatment as a direct result of the” accident.

18The goals outlined in the treatment plan are in my view minimal and somewhat vaguely stated. The goal to determine if KH is catastrophically impaired addresses no particular plan to improve or assist KH. KH has not attended any therapeutic treatment for a considerable period of time and despite this, on all examinations shows no evidence of significant accident related impairment and appears to function independently in the vast majority of areas of activity.

19KH was seen by another orthopedic surgeon, Dr. Abouali who reported (August 16, 2018) that his symptoms “have progressively gotten worse” but provided no corroborating reports or documentation to confirm the same, referencing the MRI completed June 15, 2014 to show disc bulging, and degenerative facet joint changes. Even though Dr. Abouali considered KH progressively worse by August 2018, he was observed to have a “normal gait”, “seemed comfortable” and showed a range of motion “within normal limits”.

20Dr. Rod also evaluated KH on December 6, 2016 and indicated the he had low back pain and aching for which he ought to attend physiotherapy. However, there is no indication that the applicant attended any additional physiotherapy or was referred to this again by his family physician. When a Functional Abilities Evaluation was completed on October 6, 2016, the results were considered invalidated by KH’s inconsistent effort throughout.

21A psychologist, Dr. Pilowsky, reported (December 23, 2015 Applicant’s Tab 6) that KH’s accident had “robbed” his “autonomy”, but this is very difficult to reconcile with the November 7, 2016 Future Cost Care report provided by the applicant (Applicant’s Tab 7) indicating that he is “independent” in every listed category. While it is true that some of these activities are completed by his family, there is no explanation for this provided and the completing occupational therapist, Brenda Labron, considered him “independent” despite the assistance. KH is able to lift and carry 10 pounds; transfer from all positions; has good balance; is able to stand, walk and sit and do many other tasks without assistance. This conclusion is also difficult to reconcile with the applicant’s infrequent and generally passive treatment.

22The applicant displayed normal range of motion and generally normal results in all performed physical examinations. He consistently reported independence in virtually all activity with the exception of heavy lifting or very physically strenuous tasks. His treatment is not in keeping with the severity of limit otherwise asserted. He is able to exercise consistently, attends to parenting tasks, travels as necessary or desired and maintains significant social contact within his family and friends. I agree with the respondent (Respondent’s Submissions at para 21) that the medical evidence generally shows a physically functional and cognitively intact individual and that this is not consistent with the type of functional limitations intended to be addressed in a CAT Assessment.

23Having reviewed the submitted OCF-18, I also find that it is not helpful or detailed in supporting that KH’s condition has gotten worse and fails to specify which activities are limited by his impairments. Again, Dr. Milad indicated that it is “unknown” whether his limitations impact his tasks of employment. It is “unknown” if he had pre-existing or later developed conditions that might influence his function. Although Dr. Milad replied “yes” to whether the impairments caused by the accident impact the applicant’s ability to carry out a normal life, the only detail provided to expand upon this is: “As a result of a motor vehicle accident, the patient experiences functional ability limitations and difficulties to perform activities of daily living”. There is no indication which activities are limited or in what way.

24Additionally, although Dr. Milad stated that she has identified barriers to KH’s recovery, when asked to identify these barriers, the only information provided is: “Barriers to recovery will be identified after all assessments”. This appears to contradict the notion that barriers have in fact been identified by Dr. Milad. As to strategies to overcome the identified barriers, Dr. Milad stated: “Recommendations and/or strategies to overcome barriers to recovery will be identified after all assessments.” I consider this information lacking in detail and potentially inaccurate or misleading in that the barriers to recovery are said to be identified, and yet will not be identified until the completion of assessments.

25In light of the foregoing, I find on the balance of probabilities that the applicant did not meet the onus on him to show that any of the 12 constituent assessment plans submitted in the treatment plan are reasonable or necessary. It follows that transportation and preparation fees are also not reasonable or necessary.

ii. Is the applicant entitled to interest on any overdue payment of benefits?

26The applicant is not entitled to interest on any overdue payment of benefits because I found that no benefits are overdue.

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

27There is no payment of benefit due in this instance. Therefore, the payment of benefits was not unreasonably withheld or delayed. Further, I agree with the respondent that the applicant’s submissions on this point are not specific and do not disclose any action on the respondent’s part to withhold or delay a payment to which KH was entitled. The applicant directed me specifically to paragraphs 22-25 of his written submission on this point. This includes the assertion that this type of assessment ought to be governed by s.25 which I do not accept as well as the propositions that applicants ought to have an opportunity to adduce necessary evidence and unfair advantage ought to be avoided. I do not disagree with these propositions. However, there is no information in these paragraphs which suggests the respondent acted in any way to withhold or delay payment of any benefit.

28I appreciate the consumer protection aspect of this legislation and agree with the applicant that the process ought not to be purely adversarial given that the insurance regime exists to provide such protection. However, I do not agree that the respondent refused to provide funding for these assessments simply based on a lack of updated clinical notes and records (Applicant’s Submissions at para 30). The respondent outlined in its submissions that the requested assessments were not considered reasonable and necessary. Having considered all of the available evidence, I am persuaded that the respondent was correct in this determination.

29While I agree generally with the applicant’s characterization that “If there’s absolutely no evidence before the Respondent to even raise the possibility that an applicant could be catastrophically impaired, then of course it would be within its rights to issue a denial” (Applicant’s Submissions at para 29) – this wording is not taken from the Schedule or any other applicable legislation and is unrelated to the relevant test. These are far from the only circumstances in which the respondent might be justified in denying coverage. As outlined above, I find that the respondent is within its rights to deny payment for an assessment when that assessment is not reasonable and necessary.

COSTS

30The respondent requested its costs in this matter. I am not satisfied that the actions or behaviour of either party in the conduct of this matter warrants an award of costs. There is no evidence before me to support such an award. The request for costs is denied accordingly.

CONCLUSION

31The applicant did not discharge the onus to show that the assessments sought are reasonable and necessary. As a result, no benefit is payable, and the applicant is not entitled to interest or an award pursuant to Regulation 664.

Released: May 27, 2020

__________________________

Nathan Ferguson

Adjudicator