Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-006741/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:
Dori Isakow
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Sang Ho You, Counsel
For the Respondent: Sean Cheskes, Counsel
HEARD: In Writing
OVERVIEW
1Dori Isakow, the applicant, was involved in an automobile accident on August 20, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2, 260.00 for a mental and behavioural assessment proposed by Omega Medical Associates Limited in a treatment plan/OCF-18 (“plan”) submitted on April 13, 2022, and denied on April 27, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the cost of the mental and behavioural assessment in the disputed treatment plan, plus interest.
ANALYSIS
The applicant is entitled to the mental/behavioural assessment.
4I find that the applicant has met her burden to prove entitlement to the mental/behavioural assessment, a component of the overall catastrophic (“CAT”) assessment treatment plan.
5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The OCF-18 should identify goals, how those goals would be met to a reasonable degree and demonstrate how the overall costs of achieving them are reasonable.
6The applicant submits that pursuant to s. 25(1), the insurer must pay the reasonable and necessary costs of any assessment or examination necessary for a determination of a CAT impairment. The disputed treatment plan in question lists ten separate activities for a CAT impairment determination and completion of an OCF-19. The applicant also submits that the respondent’s denial letter was not compliant with s. 38(8) due to inadequate medical reasons. The respondent’s position is that the mental/behavioural assessment was denied because it is a duplication of the psychology assessment within the overall plan. It also maintains that its denial letter was clear, precise, and provided appropriate reasons for the denial.
7The plan itself states simply that all components are reasonably necessary to evaluate the applicant under criteria six, seven, and eight with regard to CAT impairment. While I agree with the respondent that the commentary section of the OCF-18 is not extensive, I disagree that there is no distinction between the two assessments in question. There are three important areas of evaluative differentiation: the rubric, the framework, and the result contributed to the overall CAT assessment.
8The applicant submits that the respondent unfairly denied the cost of one component of the multidisciplinary assessment for a determination of CAT impairment. The Mental/Behavioural Assessment was the only portion denied, the respondent having agreed to pay for the following:
a) physiatry assessment
b) neurology assessment
c) psychology assessment
d) occupational therapy assessment (activities of daily living / community)
e) occupational therapy assessment (situational)
f) CAT Impairment Summary (analysis, and ratings).
g) OCF-19 Application and OCF-18 (document preparation)
h) comprehensive file review
9The applicant argues that every component of the CAT assessment was reasonable and necessary. She points to her many injuries as a result of the accident – as listed in the treatment plan – such as postconcussional syndrome, sprain and strain of the spine, soft tissue disorder, and headache among other issues. She also notes the findings of the various assessors involved in the CAT assessment such as:
i. a mild traumatic brain injury (“TBI”) documented by Dr. Izenberg in the neurological assessment;
ii. Major Depressive Disorder, Somatic Symptom Disorder, and Specific Phobia (situational type – vehicular) documented by Dr. Seif in the psychiatric assessment, and
iii. Generalized Anxiety Disorder with Panic Attacks, Other Specified Depressive Disorder, and Somatic Symptom Disorder with predominant pain identified by Dr. Davidson in the psychological assessment.
10The applicant states that due to these wide-ranging symptoms, both physical and mental, all elements of the overall assessment plan are reasonable and necessary for the assessment team’s investigation.
11The respondent submits that the mental/behavioural assessment was a duplicate service. It takes the position that the plan does not identify why both assessments are necessary or how it would be distinct from the psychology assessment. The respondent provided several Tribunal decisions for my consideration, wherein similar arguments about duplicate reports and/or fees were made. However, I did not find that any of the decisions cited were precisely relevant to the current case although they were helpful for general context.
12Both the psychology and the mental/behavioural assessments have the same author, date of assessment, and goal. They each seek to contribute to the CAT assessment and were conducted by Dr. Davidson on August 23-24, 2022. They both also have the same purpose which is to address the applicant’s current psychological symptoms and associated impairments in functioning. Further, they both have the same methodology which includes a review of the medical documentation, review of the reports of the co-assessors, a clinical interview with the applicant, addition of input from the applicant’s spouse, the administration of psychometric measures, and a comprehensive file review.
13Regardless of these similarities, and despite some of the same content being used in both reports, it is clear to me that each assessment has a separate focus, different assessment framework, and unique result. These are noted on both the OCF-18 in the commentary section as well as in the final reports. The psychology assessment is evaluating against criterion seven, using the American Medical Association Guides (“the AMA Guides”) 6th ed, whereas the mental/behavioural assessment is evaluating against criterion eight using the AMA Guides 4th ed. The respondent concludes that some commentary on criterion eight is the only differentiation between the two, which does not merit a separate report. I do not agree that it should necessarily have been a combined report. Each assessment uses its own evaluative lens specific to its focus. In each report, the content and the assessor’s commentary are framed differently, each leading towards a distinctive result with regard to the type of impairment analysis and rating.
14The psychology assessment results in a criterion seven whole person impairment (“WPI”) of 10-15%, whereas the mental/behavioural assessment presents the applicant’s results under criterion eight within the framework of four key areas of functioning: activities of daily living, social functioning, concentration, and adaptation. The results point to a compromised stress tolerance and Moderate to Marked (Class 3 to 4) Impairment in the Adaptation domain. Notably, the Schedule recognizes that mental/behavioural disorders assessed under criterion eight can qualify on their own for CAT impairment.
15The psychology assessment begins with a pre-accident medical, social and vocational history, followed by the details of the motor vehicle accident, the subsequent post-accident treatment history, the applicant’s current symptoms and functioning, behavioural observations, and a result of 10-15% WPI rating. In contrast, the mental/behavioural assessment begins with a report of her current symptoms and functioning, discusses the behavioural observations with a focus on the four areas of evaluation, and produces a catastrophic impairment opinion under criterion eight of “Moderate to Marked (class 3 to 4) Impairment”.
16I find that the applicant is entitled to the mental/behavioural assessment element of the overall treatment plan. The OCF-18 differentiates between the two assessments with regard to the evaluation rubric (i.e., criteria seven and eight), indicates a different evaluation framework used by the assessor for each (i.e., AMA Guides 6th ed and AMA Guides 4th ed), and the resulting reports each conclude with a unique contribution to the CAT determination (i.e., 10-15% WPI and Moderate to Marked impairment under the four evaluative rubrics).
17Given my finding that the applicant is entitled to the mental/behavioural assessment component of the plan on its merit, it is not necessary for me to address the applicant’s s. 38(8) argument about the denial letter.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
19In accordance with s. 51, the applicant is entitled to interest on overdue payment of benefits for:
i. the mental/behavioral assessment in the amount of $2,260.00.
ORDER
20The applicant is entitled to the mental/behavioral assessment, plus interest.
Released: December 18, 2023
Bonnie Oakes Charron
Adjudicator