M.A-Y v. Coachman Insurance, 2021 CanLII 120920

Citation: M.A-Y v. Coachman Insurance, 2021 ONLAT 19-001026/AABS

Licence Appeal Tribunal File Number: 19-001026/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:

[M A-Y]

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Andrew Franzke, Counsel Paul Deluca, Counsel

For the Respondent: Linda Kiley, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident as a pedestrian on May 5, 2010. She sought benefits, including a determination on whether she is catastrophically impaired (“CAT”), from the respondent, Coachman Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).

2The applicant submitted an OCF-18 proposing $26,919.25 for a multitude of assessments to determine whether she was CAT. Coachman completed its own s. 44 assessments (“IEs”) in 2018 and determined that the applicant did not meet the criteria for CAT. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

3A written hearing proceeded. The Tribunal released a decision dated April 22, 2021 finding that the applicant was not entitled to costs of the CAT assessments as they are not reasonable and necessary. The Tribunal also declined to order a s. 10 award or interest.

4On May 13, 2021, the applicant requested reconsideration of the Tribunal’s decision, pointing to the Divisional Court’s decision in Aviva Insurance Company of Canada v. J.A., 2021 ONSC 3185 that was not before the adjudicator. The applicant argued that the Tribunal erred in law by applying the incorrect test to determine whether CAT assessments were payable in circumstances where an insurer is in possession of CAT reports and the insured is not.

5In a reconsideration decision dated October 8, 2021, the Tribunal granted the applicant’s request for reconsideration and ordered that the matter be reheard in writing by a different adjudicator on the original submissions filed by the parties, together with reference to the Divisional Court’s decision in Aviva and J.A.

ISSUE IN DISPUTE

6The issues in dispute are as follows:

i. Is the applicant entitled to the costs of examination in the amount of $26,919.25 comprised of $24,200.00 for catastrophic determination assessments, $200.00 for documentation support, $1,319.25 for transportation, and/or $1,200.00 for interpretation services, recommended by Novo Medical Services in a treatment plan dated January 11, 2019 and denied on October 7, 2019 (“CAT assessment”)?

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

iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

7The applicant has not demonstrated that the OCF-18 proposing 12 CAT assessments is necessary for the purpose of her CAT application or that the proposed amount of $26,919.25 is a reasonable fee or that it was incurred. As no benefits are overdue, it follows that no interest is payable, and an award is not appropriate.

ANALYSIS

The CAT assessments

8The slate of CAT assessments was proposed by Dr. Milad of Novo Medical Services Inc. in the amount of $26,919.25. The OCF-18 proposes 12 separate assessments totalling $2,000.00 each, with documentation support at $200.00, $1,319.25 for transportation and $1,200.00 for interpretation services. The goal of the assessments is to determine whether the applicant meets the criteria for CAT under the Schedule.

9Section 25(1)5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured charged for preparing an application under s. 45 for a determination of whether the insured is CAT, including any assessment necessary for that purpose. Section 45(1) provides that an insured who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is CAT. Section 25(1)5 is to be read in conjunction with s. 25(5)(a), which limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

Aviva Insurance Company of Canada v. J.A., 2021 ONSC 3185

10The Divisional Court’s decision was preceded by a first instance hearing and a reconsideration decision by the Tribunal.¹ In that case, the applicant submitted an OCF-19 that was not supported by a medical opinion, which prompted the insurer to conduct its CAT assessments prior to the applicant conducting assessments of his own. After the insurer took the position that the applicant was not CAT, the applicant requested funding for CAT “rebuttal” assessments, which were denied by the insurer due to the 2010 amendments to the Schedule making “rebuttal” assessments not payable. The applicant appealed.

11The insurer offered a technical defence centred on its belief that because the applicant’s OCF-18s constituted “rebuttal” reports, they were therefore not payable regardless of whether same were reasonable and necessary. At first instance, I determined that the applicant was entitled to partial payment of the assessments that were reasonable and necessary to assess his CAT claim. More centrally, I also determined that the order in which CAT assessments are conducted is not determinative of funding obligations and that procedural fairness dictated that the applicant be afforded the opportunity to seek his own CAT determination to ensure that the parties were on equal evidentiary footing. On reconsideration, I again dismissed the insurer’s arguments that the order in which CAT assessments are completed is determinative of funding and upheld my decision to order the assessments partially payable.

12The Divisional Court agreed. However, notable for this rehearing, the Divisional Court did not address my finding that some but not all of the proposed CAT assessments in dispute were reasonable and necessary. While the Court agreed on the technical issue that the order in which CAT assessments are conducted should not be determinative of funding, the Court’s decision did not augment the test for entitlement.

13Therefore, contrary to the applicant’s claim, it is not the case that funding for all CAT assessments must be approved as a matter of procedural fairness when insurers conduct CAT assessments. Nor are CAT assessments an absolute right of insureds that eliminates the burden to demonstrate that same are reasonable and necessary. Rather, put simply: it remains the applicant’s burden to prove that the OCF-18s for CAT assessments are reasonable and necessary.

The applicant’s impairments and Coachman’s CAT assessments

14The accident occurred on May 5, 2010 and, aside from reports of pain, resulted in no objective injuries. The applicant’s background is, however, notable for a history of physical and psychological symptoms, including depression, headaches, gastroesophageal reflux disease (GERD) and stomach pain, high blood pressure, as well as diagnoses of fibromyalgia and Bell’s Palsy, which has led to the applicant being unable to work. However, in the ten years post-accident, the applicant has purportedly only sought approximately $10,000 in funding for her impairments.

15Then, 9.5 years post-accident, the applicant sought funding for multidisciplinary CAT assessments in the amount of $26,919.25 based on an OCF-19 dated September 9, 2016, or three years earlier. In response, Coachman conducted a slate of assessments to evaluate the applicant’s eligibility for a CAT designation and, based on neuropsychological, psychiatric, psychological, physiatry and occupational therapy reports, determined that the applicant did not sustain a CAT impairment under criterion 7 or 8 as a result of the accident and that her whole person impairment (“WPI”) score was 26%. A psychiatric paper review by Dr. Sharma dated October 3, 2019 relied on the multidisciplinary report and concluded that the OCF-18 proposing CAT assessments was not reasonable and necessary.

16While the applicant’s submissions take aim at the reports that Coachman relied on, problematically, the applicant’s submissions on the reasonableness and necessity of the proposed OCF-18 are not particularly fulsome and are not accompanied by particularly persuasive medical evidence. Rather, her position is seemingly based on a two pronged argument that: i) there is a reasonable possibility that she is CAT; and, ii) because Coachman conducted CAT assessments in 2017, that it has, for all intents and purposes, agreed that the applicant is entitled to explore the possibility of whether she is CAT on the grounds of procedural fairness. The applicant also submits that the translation services ought to be approved as there “may be” a significant language barrier and that the transportation expenses ought to be approved as the applicant does not have a driver’s licence. She argues that the test presents a low threshold and that the multidisciplinary report on which Coachman relies arrived at an accident-related 26% WPI, which she submits is “not a trivial” rating.

Not reasonable and necessary

17With respect, and after reviewing the applicant’s submissions and medical evidence, it remains unclear what accident-related impairments she believes will result in a CAT designation in order to justify that the slate of assessments proposed in the OCF-18 are necessary or that the costs of same are reasonable. In a similar vein, other than her assertion that funding her assessments would be procedurally fair, she has not provided specific submissions to speak to why each of the CAT assessments proposed is necessary or why the cost is reasonable. Accordingly, I find the applicant is not entitled to payment for the CAT assessments because there is no reasonable basis to investigate whether the applicant is catastrophically impaired.

18It is important to first reiterate that in the ten years post-accident, it is undisputed that the applicant has yet to incur more than $10,000 in treatment. Indeed, even if the Tribunal were to include the $26,499.00 in CAT assessments in dispute, her total accident-related benefit claims still fall well short of the non-CAT monetary threshold at ten years post-accident. While the quantum of treatment received is not determinative of a CAT claim on its face—and I accept that an insured’s condition may deteriorate over time—I find it is a relevant consideration when this fact is combined with a dearth of objective medical evidence to support the applicant’s assertion that she may be CAT. It is the applicant’s burden.

19For example, post-accident, medical services were called, and the applicant was found by paramedics to be in “no distress”. She complained of minor right leg pain and generalized head pain. The paramedics noted no specific injuries and no vision problems. Two Glasgow Coma Scale scores were taken at 10:16pm and 10:20pm, both of which were 15/15. At the hospital, it was noted that she had no obvious injuries. In the weeks and months that followed the accident, the applicant had two CT scans at the hospital that were found to be negative. There was no sign of hemorrhage and no sign of fractures confirmed in x-rays taken of her chest, femur, knee, pelvis and spine. Later x-rays of the same target areas were normal. CT scans of her head dated May 5, 7 and June 19, 2010 were also found to be normal. The injuries identified in the May 5, 2010 Functional Rehabilitation report were as follows: Whiplash Associated Disorder II, Right shoulder pain, Possible concussion, Right patellar abrasion, Symptoms of depression, Query symptoms of Post-traumatic Stress Disorder (PTSD) and Query driving anxiety. With respect, these are not CAT impairments.

20The clinical notes indicate that the applicant has a history of chronic low back pain with disc bulges that has led to her receipt of various provincial disability benefits. Later, Dr. Snyder noted in August 2011, that the applicant had been treated for headaches since at least 2003 but stated that he did not “think these are substantially any different since she’s had her accident than they were before that.” After the subject accident, the applicant had physiotherapy at [Rehabilitation Clinic] from May 21, 2010 to January 11, 2011. The insurer funded $4,938.14 for this treatment. After failing to attend treatment for a year, she was discharged from [Rehab] on January 30, 2012. The applicant also received funding for psychological treatment at [Psychology Centre] to treat her depression. Further, since the date of the accident, the applicant has been under the care of her family doctors, Dr. Snyder and Dr. Delorme. On review of their medical records, I agree with Coachman that there is no evidence that either doctor believed it was reasonably possible that the applicant was CAT because of this accident.

21There is no indication from the treatment notes and medical records available that the applicant’s impairments were remotely close to being CAT or, more importantly, that it is reasonably possible that the applicant is CAT as a result of the 2010 accident. Yet, on these facts, the applicant’s theory appears to be that it is possible that she sustained a mild traumatic brain injury as a result of the 2010 accident and that Coachman’s assessors were not alive to the mosaic of her symptoms. However, I agree with Coachman that Dr. Giles, the applicant’s own neurologist, was not concerned with her neurological condition as of April 2015. It also does not appear that either of her physicians were consulted for the purpose of completing the disputed OCF-18.

22While the applicant has had ample funding available to her over the last ten years, she has seemingly not proposed allocating it to fund medical opinions to support her claim or tailor ongoing treatment to address what she argues is a unique constellation of impairments. Indeed, a significant majority of her evidence appears to be based strictly on her own subjective reporting (and counsel’s submissions) and not on any objective reports from a qualified practitioner. To be frank, the bulk of the documentation relied on by the applicant is rather stale, as it is from 2012-2016, with references to the accident being infrequent and causation tenuous. While I accept that the applicant may have sustained impairments in the 2010 accident and that she has received treatment to date, on balance, the weight of the applicant’s medical evidence—even when accounting for her pre-existing conditions and cultural nuances—does not come close to approaching CAT levels that would lead me to believe that assessments are necessary or reasonable at the costs proposed.

23Further complicating the lack of objective medical evidence is the recurrent theme in the documentation that the applicant is an incredibly poor historian whose credibility cannot be relied upon. Coachman urged the Tribunal to consider the volume of inconsistencies. Indeed, the applicant’s own submissions acknowledge the concerns surrounding how forthcoming the applicant is with her complaints, both pre- and post-accident. The s. 44 assessors, including Dr. Heitzner, Dr. Siegel, Mr. Kaplun, Dr. Gnam and Dr. Dowhaniuk, all raised concerns about the applicant’s credibility, including symptom magnification and her unusually low scores on symptom validity testing.

24These reports are consistent with previous credibility concerns that arose when the applicant was trying to obtain disability benefits. On April 24, 2018, the applicant’s cognition was re-assessed by occupational therapist Ms. Cockbain, as she wanted to resume driving after having her licence taken away due to poor MoCA scores of 12/28 in October 2016 and 14/30 in September 2017. This time, the applicant reported that overall, she was doing much better. The applicant stated that she did housekeeping, laundry and cooking. She admitted that she had burned a pot on the stove once, which had been an isolated incident. Ms. Cockbain reported that: “Functionally, Pt reports independence in all ADLs” and she observed that the applicant was using a smartphone without difficulty and reported that she regularly watched her 3-year-old grandson. The applicant was then able to score 27/30 on the MoCA. These reporting inconsistencies are present throughout the file, for example, in Dr. Snyder’s notes as far back as 2008 (“As usual it’s hard to get a good history”) and in the post-accident SGI Tertiary Assessment report from December 2010 (“Perceived abilities and demonstrated abilities were below what would be expected for her known pathology”). Here, it is difficult to reconcile the applicant’s reported functional independence in 2018 when she was attempting to get her driver’s licence back with the OCF-19 from 2016 indicating CAT or the OCF-18 for CAT assessments in 2019.

25In any case, and despite the lack of evidence to support it, the applicant asserts that she should be automatically entitled to conduct her own CAT assessments because Coachman conducted CAT assessments. I agree that this assertion ignores the fact that the applicant initiated the process by submitting an OCF-19 which forced Coachman to respond within 10 days. Regardless of how unsubstantiated Coachman believed the applicant’s OCF-19 to be, Coachman was compelled by s. 45(3) of the Schedule to accept it or arrange CAT assessments of its own. Contrary to the applicant’s claim, Coachman’s decision to conduct CAT assessments was not an agreement, “for all intents and purposes”, that the applicant is entitled to explore the possibility of whether she is CAT. It was an obligation under the Schedule.

26I also agree with Coachman that the applicant’s assertion—and in her flawed interpretation of the Divisional Court’s finding in Aviva and J.A.—assumes that every OCF-19 is supported by medical evidence and that every OCF-19 automatically obliges the insurer to fund two multidisciplinary CAT assessments regardless of how unsubstantiated that CAT claim may be. This is not the case here, as the applicant has provided virtually no medical opinion to support the slate of assessments proposed or to tether her purported CAT impairment to the accident. Coachman also did not take the position that the OCF-18 is not payable because it is a rebuttal assessment, as was the case in Aviva and J.A. While the Schedule is consumer-protection legislation, I agree that the applicant’s interpretation would encourage all insureds to submit an OCF-19, regardless of merit, to force insurers to fund costly CAT assessments to bolster their claims.

27Rather, s. 25(1)5 states that an insurer shall pay expenses incurred by or on behalf of an insured, including reasonable fees charged for preparing an application under s. 45 for a CAT determination, including any assessment or examination necessary for that purpose. The applicant has provided no medical evidence that establishes a causal link between the accident and her contention that CAT assessments are necessary because of the accident or that the costs of same are reasonable.

28For completeness, the actual OCF-18 itself provided no attachments or further explanation as to why each of the 12 individual assessments were reasonable and necessary as a result of the accident. I agree with Coachman that the information contained in the OCF-18 was minimal and was not tailored to any of the applicant’s specific impairments. Rather, the additional comments section is a boilerplate account of the assessments and does not mention the applicant by name or tie the need for each assessment to her specific condition. The treatment relationship between Novo Medical and the applicant, if any, is unclear. Given that the applicant has also failed to even come close to exhausting her non-CAT funding over the course of ten years, I find the necessity of the whole proposal to be questionable.

29Further, without elaboration from the applicant, it is difficult to find that she has met her burden to prove that any of the assessments are “necessary” for the purpose of preparing her application or why she needed more than twice as many assessments as Coachman to do so. There are also several needless bifurcations and overlaps of assessments that artificially inflate the total cost. For example, it is unclear why a $2,000 physical evaluation and a $2,000 functional ability evaluation are both needed or why the psychiatric, neuropsychological and occupational therapy assessments were all split into two separate $2,000 parts. The Tribunal has consistently determined that assessment splitting to garner higher payments to a clinic is not reasonable and necessary and that insurers are not obligated to fund authorized transportation expenses that are not incurred.² The OCF-18 also proposed both a $2,000 executive summary and a $2,000 medical file review, which the Tribunal has determined is duplicative, as each assessment necessarily entails a medical file review, or certainly should.³

30Putting this aside, it remains unclear whether the OCF-18 was based on the applicant’s medical file review or an in-person interview, if any, as there is no indication in the volumes of medical evidence before the Tribunal that there was a material change in the applicant’s accident-related status after the s. 44 CAT assessments were conducted that would invite the CAT assessments proposed by Novo Medical. Further, I agree with Dr. Sharma that the injuries listed in the OCF-18 are either clearly minor injuries (WAD-III, dislocation, sprain and strain of shoulder, unspecified abdominal pain, low back pain, etc.) and/or are out of date: knee contusions, soft-tissue injuries and a possible concussion would no longer be clinically relevant 9.5 years later. Finally, while there is no elaboration as to what “Others specified headache syndromes” entails, on the evidence and with no specific details to support same, I am not prepared to find that it means that the applicant sustained a mild traumatic brain injury as a result of an accident in 2010 that justifies over $26,000 in assessments nearly ten years later.

31For these reasons, the applicant has not demonstrated that the OCF-18 proposing 12 CAT assessments is necessary for the purpose of her CAT application or that the proposed amount of $26,919.25 is a reasonable fee or that it was incurred. I see no reason to interfere with Coachman’s determination. As no benefits are overdue, it follows that no interest is payable under s. 51.

Award

32The applicant also sought an award under s. 10 of O. Reg. 664. Section 10 provides that the Tribunal may award up to 50 percent of the total benefits claimed if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Here, the applicant provided no specific submissions to support the award claim. Further, as no benefits are applicable, it follows that the Tribunal cannot order an award.

ORDER

33The applicant has not demonstrated that the OCF-18 proposing 12 CAT assessments is necessary for the purpose of her CAT application or that the proposed amount of $26,919.25 is a reasonable fee or that it was incurred. As no benefits are overdue, it follows that no interest is payable and an award is not appropriate.

Footnotes

1. 1See: J.A. vs. Aviva Insurance Canada, 2020 CanLII 12736 (ON LAT); and J.A. v. Aviva Insurance Company, 2020 CanLII 40335 (ON LAT Reconsideration).
2. 2See, for e.g., OA v. TD Insurance Meloche Monnex, 2020 CanLII 87965 (ON LAT) and Berisha v. Certas Home and Auto Insurance Company, 2020 CanLII 10392 (ON LAT).
3. 3See: 16-004501 v The Sovereign General Insurance Company, 2018 CanLII 13158 at para 17