Released Date: 08/11/2020
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:
E. C.
Applicant
and
Northbridge Commercial Insurance Corporation
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Andrew Franzke, Counsel
For the Respondent:
Stacey Morrow, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, E.C., was involved in an automobile accident on February 9, 2006 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg 403/96 (the ''Schedule''). He was denied benefits by the respondent, Northbridge Commercial Insurance Corporation (“Northbridge”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2E.C. asserts that Northbridge is obliged by the Schedule to pay for a treatment and assessment plan (“OCF-25”) submitted for various catastrophic assessments. He also alleges that Northbridge unreasonably withheld approval of this OCF-25 and, as a result, he is entitled to an award under section 10 of O. Reg. 664 of up to 50% of the unreasonably withheld amounts plus interest from the date they became due at the rate of 2% monthly, compounded monthly.
3Northbridge takes the position that E.C. suffered only minor, soft tissue injuries. Northbridge submits that E.C. has not established that the OCF-25 is reasonable and necessary.
ISSUES
4The issues in dispute were identified and agreed to as follows:
a. Is the cost of examination in the amount of $25,659.25 catastrophic (“CAT”) assessments recommended by Novo Medical Services in a treatment plan (OCF-25) submitted on, June 18, 2018 and denied on July 7, 2018, reasonable and necessary?
b. Is E.C. entitled to interest on any overdue payment of benefits?
c. Is E.C. entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
LAW
CAT Assessments
5Section 25(1)5 of the Schedule requires the insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under s.45, including any assessment or examination necessary for that purpose.
6Section 45 of the Schedule prescribes the process for making an application for determination of CAT impairment and contemplates medical examinations and assessments as part of the application process.
ANALYSIS
Is the CAT assessment reasonable and necessary?
7For the reasons to follow, I find that E.C. is not entitled to the OCF-25 for catastrophic assessments. E.C. has submitted an OCF-25 to determine if he is catastrophically impaired. The respondent argues that there is no evidence to suggest that a catastrophic impairment assessment is reasonable and necessary. It argues that the lapse of almost six years since the accident and the filing of the Tribunal application is indicative that E.C.’s injuries did not require treatment or other intervention. In Northbridge’s view, the lack of need for medical services is indicative of the fact that it is unreasonable to conduct an assessment to determine if E.C. is catastrophically impaired.
8In addressing the issue of the reasonableness and necessity of a catastrophic impairment assessment, I note that E.C. bears the onus, on balance of probabilities, to show entitlement to the assessment. I also note that, by their nature, assessments are speculative. They are conducted to determine if an applicant has a specific condition or meets a specific threshold. There is a likelihood that the assessment will prove negative. Having said that, I accept Northbridge’s position that there must be some suggestion that the specified condition exists, and that further investigation is reasonable and necessary.
9E.C. relies on an OCF-25 dated June 18, 2018 prepared by Physician Dr. Naguib Milad. The OCF-25 identifies the following complaints:
a. Whiplash Associated Disorder (WAD I) with complaint of neck pain, stiffness or tenderness only;
b. Low back pain;
c. Chronic post-traumatic headache; and
d. Sprain and strain of acromioclavicular joint.
10Northbridge relies on a paper review assessment of the OCF-25, conducted on its behalf, by Dr. David Mula, a primary care physician on October 19, 2018. After a review of E.C.’s medical record, Dr. Mula concluded:
The medical brief does not support the existence of impairment solely attributable to the accident. There is no further medical documentation available until over six years later, in 2012. Since there is no clear causal relationship between the shoulder pain (documented almost 6 years after the accident), the proposed catastrophic assessments are not reasonably required in this case.
11Dr. Mula’s evaluation is synchronous with the medial evidence and I accept it. It acknowledges that E.C. had injuries from an initial 2002 accident and that the current pain complaints were the same as the pains he had before the subject accident. It also considers that there is no medical evidence that supports that the current pain complaints were directly caused by the accident. The limited medical information provided to Dr. Mula does not support that the OCF-25 is reasonable and necessary.
12With respect to Dr. Mula’s conclusions regarding E.C.’s psychological condition, I note that Dr. Mula was not provided with any information to support psychological impairment. Dr. Mula reported:
It should be noted that there is no indication of any kind in the medical brief of mental/behavioural or neurocognitive impairment.
13On the facts before me, I can see no reasonable basis to conduct an assessment to determine if E.C. is catastrophically impaired. The physical injuries identified in the OCF-25 are minor in nature. The psychologically-based assessments recommended by Dr. Milad are not supported by the medical evidence. There is no evidence that E.C. suffered a head or brain injury or any emotional or psychological impairment as a result of the accident.
AWARD
14Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. E.C.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Northbridge) has “unreasonably” withheld or delayed payments.
15Northbridge alleges that E.C. was in violation of the Tribunal Order dated November 19, 2019, wherein E.C. was ordered to provide particulars of the claim for a special award by February 4, 2020. In addition, E.C. has made no submissions regarding his claim for a special award.
16I have already found that E.C. is not entitled to the OCF-25, therefore Northbridge cannot be found to have unreasonably withheld payment. As such, E.C. is not entitled to an award.
CONCLUSION
17E.C. is not entitled to payment for the OCF-25 as he has not demonstrated that the catastrophic assessments are reasonable and necessary. E.C. is not entitled to an interest or an award under s. 10.
Released: August 11, 2020
__________________________
Derek Grant
Adjudicator