Licence Appeal Tribunal File Number: 18-011703/AABS and 21-007955/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:
Robert Hawkrigg
Applicant
and
TD General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Sandra Driesel
APPEARANCES:
For the Applicant:
Maciek R. Piekosz, Counsel
For the Respondent:
William G Woodward, Counsel
Court Reporter:
Christina Johnston
HEARD: by Videoconference:
November 29, 2021
REASONS FOR DECISION AND ORDER
BACKGROUND
1Robert Hawkrigg (“the applicant”) was injured in an automobile accident on July 4, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was a driver of a motorcycle that collided with a tractor pulling a wagon. He was ejected from his motorcycle and as both parties concede, the applicant suffered a brain hemorrhage as a result.
2In November 2018 applicant submitted an Application for Catastrophic Determination (OCF-19) to TD General Insurance (“the respondent”) for a determination that his accident-related injuries resulted in an impairment that met the statutory threshold for catastrophic (“CAT”) impairment under criterion 4 – brain injury.
3The respondent declined any determination of CAT pending insurer examinations (IE’s) under sec.44 to better assess the applicant’s injuries and adjust the file. While both parties agree that assessments are required, they disagreed on the number of IE’s required to adequately adjust the file. The applicant argued that only two IE’s were necessary; the respondent argued for four.
4As a result of a motion hearing before the Tribunal on June 19, 2019, Adjudicator Ian Maedel rendered a decision1 concluding that four IE’s were reasonably necessary: “a neurological assessment, a neurocognitive assessment; a psychiatric assessment, and an occupation therapy in-home/GOS-E evaluation.”
5This matter was originally scheduled for a 10-day hearing today, with issues in dispute to a determination of catastrophic impairment, the applicant’s entitled to costs of catastrophic examinations, interest and an award. Prior to this hearing, the insurer designated the applicant as catastrophically impaired and the only outstanding issues to be decided by me are as listed below:
ISSUE IN DISPUTE
6The issues to be decided at this hearing are:
Is the applicant entitled to $14,238.00 for the cost of catastrophic examinations carried out by OMEGA Medical Assessments, in a treatment plan submitted on June 27, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s.10 of O. Reg 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
7Based on my review of the evidence before me, I find:
i. The applicant is entitled to $14,238.00 for the cost of catastrophic examinations carried out OMEGA Medical Assessments.
ii. The applicant is entitled to interest in accordance with the Schedule for any overdue payments on the cost of these examinations and document fees.
iii. The applicant is not entitled to an award under section 10 of Ontario Regulation 664.
ANALYSIS
8Section 25(1)5 of the Schedule refers to cost of examinations:
The insurer shall pay the following expenses incurred by or on behalf of an insured person: …
- Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.
9The applicant submitted an OCF-19 on November 2, 2018, completed by Dr. Cunningham-Dunlop, to the respondent for a determination of CAT impairment due to a criterion 4 – brain injury.
10On June 27, 2019, the applicant submitted a Treatment and Assessment Plan (OCF-18) in the amount of $14,238.00 for funding of CAT examinations by Omega Medical.
11The results of the CAT examinations by Omega Medical were provided to the respondent on November 4, 2019.
12The respondent denied this claim for costs of $14,238.00, with the reasons being:
i. These examinations were not reasonable or necessary because a previous OCF-19, although denied, was being assessed under section 44 of the Schedule;
ii. These examinations represent a duplication of services previously denied [the OCF-19 of November 2, 2018].
Is the applicant prohibited from seeking examinations and reimbursement of related costs before the respondent has completed IE’s in response to the OCF-19?
13The respondent argues that a determination of CAT was hindered by the applicant’s refusal to attend several section 44 assessments determined to be reasonably necessary by the insurer. The respondent takes the position that if the applicant had attended the IE’s as scheduled, it would not be necessary for the applicant to obtain any additional examinations. In fact, once the applicant finally attended requested IE’s the insurer designated the applicant as being CAT.
14Section 25 makes no requirement that examinations by either party should be done in any particular order. Although the history on this file suggests that there were multiple delays in obtaining the section 44 IE’s, I do not find the delay has any relevance to a finding of whether or not the applicant is entitled to the costs of the examinations obtained to support his CAT application.
15I find the applicant is not precluded from obtaining the examinations and submitting the cost of those examinations after the OCF-19 application was submitted to the respondent. Also, the applicant may make these submissions even if the section 44 examinations are not completed.
Is the applicant entitled to payment for each of the examinations as listed in the treatment plan?
16The applicant is seeking payment in the amount of $14,238.00 for the following cost of examinations to determine whether the applicant has sustained a catastrophic impairment:
i. Neuropsychiatry – MSK & Brain Assessment $2,000.00
ii. Neuropsychology Assessment $2,000.00
iii. OT – GOS-E=ADL/Community $2,000.00
iv. OT Situational Assessment $2,000.00
v. Clinic File Review $2,000.00
vi. CAT Analysis & Ratings $2,000.00
vii. OCF-19 Certificate $ 200.00
viii. OCF-18 Form $ 200.00
ix. GOS-E Interview Form $ 200.00
Plus applicable taxes $1,638.00
17Section 25(5)(a) of the Schedule limits the amount payable for any one examination to $2,000.00. The fee charged for each examination does not exceed this limit. Also, the respondent has not argued the fee structure within the OCF-18 in question. As mentioned above, the examinations in dispute have already been determined to be reasonable or necessary at a previous motion hearing before the Tribunal.
18I find the cost of the examinations to be reasonable as presented in the OCF-18 dated June 27, 2019 and denied by the respondent July 3, 2019.
Is the applicant entitled to interest?
19Having found the examinations and documentation fees to be reasonable and necessary, the applicant is entitled to interest on each for any overdue amount, in accordance with the Schedule.
Is the applicant entitled to an award?
20Section 10 of Ontario Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of the amount of which the applicant was entitled at the time of the award together with interest on all amounts owing if it finds that the respondent has unreasonably withheld or delayed such payments.
21The applicant suggests the actions of respondent in this matter constitutes unreasonable behaviour that is characterized as that being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The applicant opines that the following actions by the respondent support this in that:
i. The respondent unreasonably denied payment.
ii. Citing “duplication of services” is not providing a valid medical or other basis for denial of payment.
iii. They failed to consider new information and reconsider its prior determinations.
22The respondent’s act of denial, in and of itself, does not automatically constitute an award merely because the Tribunal did not find in favour with the respondent’s position.
23The reference to ‘duplication of services’, which was included with an explanation that “an OCF-19 was previously submitted and is being assessed”, in my opinion, was meant to infer that the application for a consideration of catastrophic impairment was being duplicated. Not, as the applicant implies, that the duplication of services refers to examinations being conducted under both section 25 (by the appellant) and under section 44 (by the respondent). Further to this, the respondent’s denial’s reference of ‘duplication of services’ clearly states the respondent was currently assessing the OCF-19 already submitted.
24I do not find evidence that the respondent failed to consider new information when presented. What I do see here is that following a motion hearing to determine what examinations were reasonable and necessary the applicant then exceeded the number of examinations found necessary in the Tribunal decision. The respondent reacted by obtaining additional examinations to adjust the file considering the additional medical information.
25This file contains considerable documentation of situations where the applicant and the respondent have disagreed about the scheduling of section 44 examinations, yet the respondent continued to work with the applicant until all were completed. I find this a compelling example of the respondent’s efforts to make a best effort to continually assess the file and obtain the necessary information to address the OCF-19. In fact, when the applicant completed all of the requested examinations, the respondent found the applicant met the criterion for a designation of catastrophic impairment.
26I am not convinced by any evidence before me that the applicant is entitled to an award.
CONCLUSION
27The applicant is entitled to $14,238.00 for the cost of catastrophic examinations carried out OMEGA Medical Assessments.
28The applicant is entitled to interest in accordance with the Schedule for any overdue payments on the cost of these examinations and document fees.
29The applicant is not entitled to an award under section 10 of Ontario Regulation 664.
Released: January 3, 2023
Sandra Driesel
Adjudicator