RECONSIDERATION DECISION
Before: S. Braun, Adjudicator
File: 18-012030/AABS
Case Name: Z.J. vs. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Matthew J. Cino, Counsel
For the Respondent: Petros Yannakis, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent, Aviva. It arises out of a May 13, 2020 decision in which I found the applicant, Z.J., was entitled to partial payment for the cost of multidisciplinary catastrophic (CAT) assessments in the amount of $14,000.00, as well as $400.00 for the completion of the OCF-18 and OCF-19, along with applicable interest on amounts owing in accordance with the Schedule.
RESULT
2The request for reconsideration is denied.
ANALYSIS
3The criteria for granting reconsiderations are set out in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. In this instance, the request for reconsideration falls under Rules 18.2(b), significant errors of law and 18.2 (a), violation of procedural fairness. Specifically, the errors alleged are as follows:
a) It was an error of law to find that 38(3)(c) has no requirement for the recommendations in the OCF-18 to be limited to the scope of the practice of the regulated health professional who completes it;
b) It was an error of law to find the applicant was entitled to partial funding for the cost of CAT assessments because the assessments constitute ‘rebuttal’ reports; and
c) It was procedurally unfair to accept further submissions from the applicant after the hearing without advising the insurer and without formally opening submissions to the insurer to seek its position on the matter.
Does the OCF-18 comply with s. 38(3)(c)?
4The respondent takes the position that the OCF-18 in dispute is not payable because it was completed by a chiropractor, who is not authorized by law to treat some of the conditions listed in Part 6 of the OCF-18 (specifically mental and cognitive impairments).
5It is submitted that s. 38(3)(c) requires a health practitioner to approve the OCF-18, stating that she is of the opinion the goods, services, assessments and examinations and the costs thereof are reasonable and necessary. It is further submitted that a chiropractor is a “health practitioner” only in respect of a particular impairment that a chiropractor is authorized by law to treat. 1
6The respondent argues that a chiropractor is not authorized by law to treat mental/cognitive impairments and therefore, the OCF-18 at issue which, recommends multidisciplinary CAT assessments is not payable. It is also argued, with reference to s. 45, that assessments/examinations in connection with an application for CAT determination can only be conducted by a physician and therefore, a chiropractor is not authorized to recommend a multidisciplinary CAT assessment or determine whether the CAT threshold has been met.
7In order for the applicant to pursue a claim for CAT determination under s. 45 of the Schedule, she requires a Whole Person Impairment (WPI) report, which can only be rendered after the completion of a multidisciplinary assessment. The OCF-18 recommending such an assessment is a necessary precursor to accessing same to advance a claim under s. 45.
8In this particular case, the OCF-18 at issue was completed by both a chiropractor and a neurologist. The goal of the OCF-18 is clearly identified in Part 9 as: “Catastrophic Evaluation” and, to that end, it is recommended that the applicant attend a multidisciplinary CAT assessment.
9In Part 4 (Treatment and Assessment Plan Certification), the chiropractor confirms that, in her opinion, the recommended assessments are reasonable and necessary with reference to the listed injuries/impairments in Part 6.2 It is noteworthy that Part 7 (Prior and Concurrent Conditions) lists other medical conditions in the preceding year, including the mental impairment of depression. Part 5 (Treatment and Assessment Plan Preparation and Supervision) was completed by a neurologist who, according to the declarations in the OCF-18 reviewed the recommendations with the applicant. Part 11 identifies specific physicians and other health practitioners to be involved in conducting the recommended CAT assessment.
10The Additional Comments section states, “we (my emphasis) are submitting this OCF-18 to determine CAT impairments based on Criteria 7 and/or 8, which require a series of assessments to be implied (sic) by our team of health professionals…”
11The respondent argues a chiropractor is not authorized by law to provide opinions with regard to a number of the conditions listed in Part 6 (and in particular mental and cognitive impairments), invalidating her certification in Part 4 that the assessments are reasonable and necessary, which renders the OCF-18 unpayable due to non-compliance with section 38(3)(c).
12The Tribunal was directed to M.R. v. Belair Direct3, in which Adjudicator Johal dismissed M.R.’s claim for a cognitive assessment, which was to be performed by an occupational therapist at the recommendation of a chiropractor. He states at paragraph 44:
In my opinion, it would be beyond the scope of practice for a chiropractor and occupational therapist to opine on a person’s cognitive ability. Furthermore, [M. R.] has not provided any submissions or directed me to any evidence to corroborate the treatment plan and the requirement for a cognitive assessment.
13I am not bound by previous decisions of this Tribunal and find the case relied upon to be distinguishable. The recommended assessment in M.R. v. Belair Direct was to be completed by an occupational therapist, who would ultimately provide an opinion on M.R.’s cognitive ability.
14While I agree with Adjudicator Johal that it would be beyond the scope of practice for a chiropractor and occupational therapist to opine on cognitive functioning, in my view, recommending one have an impairment (or suspected impairment) assessed by a relevant specialist is quite different than offering an opinion with respect to that particular impairment and/or recommending treatment. In this case, a chiropractor states that it is reasonable and necessary for the applicant to have a CAT assessment conducted by a team of qualified physicians and health professionals and offers no opinion on the applicant’s ability or inability to function in any of the areas listed in Part 6.
15Additionally, in M.R v. Belair Direct, Adjudicator Johal noted that M.R. had not provided any medical evidence to suggest the existence of any cognitive impairment(s) warranting assessment. In this case, the specific medical evidence before me contained what I considered to be sufficient indicia of ongoing physical and psychological issues, leading me to find that an exploration of the CAT issue was warranted.
16While I acknowledge the argument that it was the chiropractor and not the neurologist who completed Part 4 (certifying the assessment to be reasonable and necessary with reference to the injuries listed in Part 6) and that some of the conditions listed in Part 6 fall outside the chiropractor’s scope of practice, I find this to be an overly technical view which fails to consider the OCF-18 as a whole. In this particular case, the OCF-18 represents a collaborative effort between a chiropractor and neurologist from the same multidisciplinary assessment facility who jointly recommend an assessment to determine whether the applicant meets the CAT threshold on the basis of current information/complaints and relevant medical history.
17Moreover, I am of the view that it is within the chiropractor’s scope of practice to make the statement in Part 4, despite the fact that she is not authorized to treat some of the injuries listed in Part 6. Those holding the designation of Doctor of Chiropractic (D.C.) are front-line health practitioners trained to recognize presenting conditions that fall outside their specific scope of practice. They routinely recommend and refer patients to other healthcare providers for assessments relating to conditions they themselves are unable to treat. In making the statement that the assessment is reasonable and necessary, the chiropractor does not offer any medical opinion on the applicant’s ability or inability to function in any of the areas to be assessed, nor does she make any treatment recommendations. Rather, she states that it is reasonable and necessary for the applicant to pursue an assessment in relation to the listed conditions in Part 6.
18The respondent also takes issue with the fact that the OCF-18 lists the chiropractor as the individual who will compile the final executive summary and WPI report. It is submitted that, under s. 45, only a physician is qualified to determine if someone meets the threshold of CAT impairment and therefore, the relevant “health practitioner” with respect to that “particular impairment” is a physician. The respondent also submits that s. 45 “specifically does not allow chiropractors to render such opinions”.
19The Tribunal was directed to the case of A.B. v. Aviva4, in which Adjudicator Ferguson dismissed a claim for CAT assessments performed by an occupational therapist. He notes, with reference to s. 45 that CAT assessments must be conducted by a physician and notes that there was no reference to a physician in the completion of the assessments or in any related examination(s). I find A.B. v. Aviva to be distinguishable because, in this case, it is quite clear that the multidisciplinary CAT assessment will be conducted by a team of physicians and other health professionals.
20Turning to the issue of the chiropractor compiling the final executive summary and WPI rating, the applicant notes in her submissions that this particular chiropractor possesses additional certification (under the AMA Guides to the Evaluation of Permanent Impairment5) to collate CAT assessments and provide an executive summary and WPI rating. The respondent submits that the certification the chiropractor claims to have cannot expand her scope of practice beyond what is explicitly stated in the Chiropractic Act, 1991. It is argued that an executive summary and WPI report constitutes an assessment/determination of CAT for the purposes of s. 45 of the SABS, which does not allow a chiropractor to perform such assessments
21It is noted that executive summaries and WPI reports compiled by chiropractors are neither a new nor singular occurrence in cases before the Tribunal. Moreover, beyond any additional certification possessed by the chiropractor, in my view, the final report is simply part of the overall CAT assessment and the task of the chiropractor in compiling same is assistive in nature. Section 45 clearly contemplates that other regulated health professionals (such as a chiropractor) may assist the physician(s) in an assessment.
22Put another way, I do not view the executive summary and WPI rating as an assessment in and of itself, but is rather, a written summarization of opinions previously provided. The individual who compiles the executive summary and WPI rating does not offer any fresh medical opinion of their own, but simply recaps the medical opinions of various assessing physicians and assigns a numeric WPI rating in accordance with AMA Guidelines.
23Based on all the foregoing, I am not persuaded by the respondent’s various arguments that the OCF-18 is invalid and not payable by the insurer.
Do the assessments claimed constitute a ‘rebuttal’?
24The Respondent submits that the applicant submitted the OCF-18 at issue after filing an OCF-19 and after the insurer conducted its own set of Insurer Examinations (IEs) which concluded she did not meet the CAT threshold. The respondent points to the following statement in the Additional Comments section the OCF-18: “[t]his OCF-18 is to rebuttal (sic) IE multidisciplinary catastrophic impairment report dated 29 May 2017”.
25Based on the description of the purpose of the proposed assessment and the circumstances under which it was submitted, the respondent asserts that the OCF-18 is, by definition, for rebuttal catastrophic impairment assessments. It is argued that the right to rebuttal assessments was removed by the enactment of the 2010 Schedule and my finding that such assessments were partially payable was an error of law.
26In my view, the argument made by the respondent on this point is one of semantics. It relies on the use of the phrase ‘to rebut’, as written in the OCF-18, and uses that technicality to incorrectly characterize assessments of first instance as ‘rebuttal’ reports, to deny funding of same. Similarly, it is argued, with reference to the timing of events, that the applicant is barred from seeking funding for her own CAT reports because the OCF-18 was filed after the submission of the OCF-19 and after the insurer obtained its own CAT reports.
27Neither the timing of events nor the wording in the OCF-18 can turn the assessments claimed by the applicant into something they are not. These are quite simply the first set of CAT assessments sought by the applicant. The purpose of these assessments is to provide her with evidence to advance a claim for CAT determination.
28The Schedule does not specify any time limits or necessary sequence of events which might bar the applicant from obtaining her own first set of CAT assessments. I agree with the following statement of Adjudicator Boyce in J.A. v. Aviva6 at paragraph 20,
I struggle to understand how the end of an insured’s right to true “rebuttal” reports also meant the end of funding to obtain any CAT report of his or her own simply because the insurer obtained its own reports first. In situations where the applicant’s initial CAT reports happen to occur after the insurer’s, the 2010 amendments would, in Aviva’s view, completely freeze an applicant out of his substantive right to be assessed. That, obviously, would be unfair.
29In this particular case, if I were to accept the respondent’s characterization of the reports claimed by the applicant as “rebuttal” reports, which are not payable in accordance with the 2010 Schedule, the applicant would be unable to advance her claim for CAT determination. At a hearing on the merits, the respondent would rely on its IE reports, which found the applicant is not CAT and the applicant would have no reports of her own to rely upon. As suggested by Delegate Blackman in Cook v. RBC General Insurance Co7, in such a circumstance, not having one’s own reports would render any hearing a fait accompli.
30In the recent reconsideration of J.A. v. Aviva8, Adjudicator Boyce at paragraph 11 states, with reference to his original decision:
…I determined Aviva’s interpretation of “rebuttal reports” would result in J.A. being unable to present a CAT case on the merits. In the decision – and again here on reconsideration – I do not accept that the 2010 amendments to the Schedule were designed to lead to this result…
31In both the initial decision and the reconsideration, Adjudicator Boyce rejected the assertion that the timing of events and the characterization/labelling of the applicant’s first set of CAT reports as ‘rebuttals’ make them true rebuttals and not payable by the insurer by virtue of the 2010 Schedule.
32As noted in my original decision, Adjudicator Grant in Applicant v. Allstate Insurance9 found that the balance cannot be in an insurer’s favour alone to determine whether an insured meets the CAT impairment criterion and therefore the Schedule, which is consumer protection legislation, allows both parties in a CAT dispute to complete their own assessments.
33In my view, the use of the words “to rebut” in the OCF-18 and the fact that IE reports were conducted first do not render the assessments claimed in this case true rebuttals. These are quite clearly the applicant’s first and only set of assessments, the true purpose of which are to apply for and advance a claim for CAT determination under s. 45.
Was there procedural unfairness?
34The respondent argues that upon receipt of the applicant’s motion to add a case to their book of authorities after the close of submissions for the written hearing, the Tribunal was required to hold a motion allowing both parties to present their positions on the issue. The respondent submits that, while it was aware of the applicant’s motion it was unaware, until the decision on the substantive issues had been rendered, that the Tribunal had accepted the additional case.
35In this instance, the respondent correctly identifies an instance of procedural unfairness. Upon receipt of the applicant’s motion to add what was then a very recently released decision (J.A. v. Aviva Insurance Canada) to her book of authorities, I instructed a Tribunal staff member to contact the respondent requesting written motion materials on the issue and to impose a deadline for the filing of same.
36Although I delayed rendering decisions on both the motion and the substantive issues until a few weeks after the passing of this deadline, I became aware, upon receiving submissions for this reconsideration that, due to an administrative error related to the COVID-19 pandemic and new work-from-home protocols, the Tribunal had not received my instructions and the respondent was not contacted.
37My original decision accepted the applicant’s request to add J.A. v. Aviva to their book of authorities, specifically indicating that no responding motion materials had been received and, as such, I proceeded under the assumption that the respondent raised no objection to the addition of this case. It was also noted that the facts and reasoning contained within J.A. v. Aviva were similar to a number of cases already included within the applicant’s original book of authorities and therefore the acceptance of this case would result in no prejudice to the respondent.
38In this instance, although the effect of the administrative error amounted to a breach of procedural fairness in that the respondent was considered to have raised no objection when this was not in fact the case, I am of the view that any resulting prejudice has effectively been remedied on reconsideration. This is because the respondent, through its submissions, was able to put forward its position on the J.A. v. Aviva case.
39This is precisely one of the circumstances that the Rule permitting reconsideration is designed to address, as noted by Associate Chair Batty in J.R. v. Coachman Ins. Co.10: The rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.
40The respondent argues that J.A. v. Aviva should not have been accepted by the Tribunal and that the “scorekeeping, procedural fairness approach” taken by the Adjudicator in that decision was an error.
41I am nevertheless of the view that J.A. v. Aviva is directly relevant to the issues in dispute and also note that the “scorekeeping, procedural fairness approach” taken by Adjudicator Boyce was found, on reconsideration, not to be in error and the original decision was upheld.
42Even if I had refused to accept and consider the J.A. v. Aviva case, my decision on the substantive issues would not have changed, as I remain of the view that Adjudicator Boyce simply followed a similar line of Tribunal decisions contained within the initial book of authorities (and specifically referred to in my original decision). That line of decisions establishes that an applicant is entitled to obtain their own medical opinion for the purpose of pursuing an application for CAT determination under s. 45. I remain of the view that the assessment in this case is one of first instance rather than a true rebuttal and it is therefore partially payable in accordance with my original order.
Is the applicant entitled to costs?
43Finally, the applicant sought costs for having to prepare responding materials for this reconsideration, arguing that the request was frivolous because it raised no new arguments, no errors of law and ultimately delayed the Applicant from proceeding with her claim on the merits.
44Rule 19 empowers the Tribunal to award costs in situations where a party’s actions are unreasonable, frivolous, vexatious or in bad faith. Although the respondent’s arguments in support of reconsideration were ultimately not successful, I do not find the request was frivolous, unreasonable, etc. Consequently, the applicant’s request for costs is denied.
CONCLUSION
45The respondent’s request for reconsideration is dismissed. No costs are payable by either party.
Released: December 3, 2020
___________________________
Shannon Braun
Adjudicator
Footnotes
- Section 3(1).
- Pain in joint, low back pain, pain in thoracic spine, pain in limb, cervicalgia, chronic post traumatic headache, other symptoms and signs involving cognitive functions and awareness, other anxiety disorders, other sleep disorders, depressive episode, restlessness and agitation, temporomandibular joint disorders (TMJ) and limitation of activities due to disability
- 2020 CanLII 34455 (ON LAT).
- 2019 CanLII 130375 (ON LAT).
- The AMA Guides are endorsed in the SABS and followed in all cases where CAT is at issue.
- 18-002124/AABS, 2020 CanLII 12736 (ON LAT).
- FSCO Appeal P14-00038, May 4, 2015.
- ONLAT 18-002124/AABS May 25, 2020.
- 18-006253/AABS 2019 CanLII 101614 (ON LAT).
- 2018 CanLII 390372 (ON LAT Reconsideration) para 30.