Licence Appeal Tribunal File Number: 24-007343/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:
Van Pham
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Maciek Piekosz, Counsel
Victoria Edwards, Counsel
For the Respondent:
Greg Abogado, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Van Pham, the applicant, was involved in an automobile accident on March 29, 2022, 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, Certas Direct 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 $21,357.00 for Catastrophic (“CAT”) Impairment assessments, proposed by OMEGA Medical Assessments in a treatment plan dated March 19, 2024?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order, lists issue 1 as, “Is the applicant entitled to attendant care benefits in the amount of $1,780.77 per month from April 18, 2023 to date and ongoing”. I find upon review of the applicant’s reply submissions that he has withdrawn this issue. Therefore, I have not included it in the issues in dispute.
RESULT
4I find that the applicant is partially entitled to the treatment plan for CAT Impairment assessments, dated March 19, 2024, in the amount of $12,400.00, plus tax, and interest.
5I find that the respondent is not liable to pay an award.
ANALYSIS
The reasonable and necessary test for a CAT Impairment Assessment
6Pursuant to s. 25(1)(5) of the Schedule, the insurer shall pay for reasonable fees charged for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.
7This is to be read in conjunction with s. 25(5)(a) of the Schedule which provides that the insurer shall not pay more than $2,000.00 plus applicable taxes for fees and expenses for conducting any one assessment or examination and the preparation of the related report.
8To determine entitlement, the insured must prove on a balance of probabilities, with supporting evidence, that there is a reasonable basis to investigate whether the insured person is catastrophically impaired. There must be some suggestion that the specific condition exists, arose from the accident, and that further investigation is reasonable and necessary. The insured is also required to prove that each constituent assessment is reasonable and necessary and that the fees charged for each assessment are reasonable.
9The applicant claims entitlement to $21,357.00 for CAT Impairment assessments, proposed by OMEGA Medical Assessments, in a treatment plan dated March 19, 2024.
10By letter dated April 3, 2024, the respondent advised the applicant that the treatment plan was not approved and provided the reason for the denial as follows:
The CT scan confirmed no intracranial injury, ambulance call report confirmed no LOC and GCS 15, review of the s. 25 OT/ATC report and the following section 44 report by physiatrist, there was much improvement and you are independent with your personal care tasks and housekeeping.
11By letter dated April 24, 2024, the respondent informed the applicant that the assessments were not approved because they were not reasonable in comparison to the medical information on file. The respondent states,
The Physiatry Assessment report dated September 12, 2023, completed by Dr. Dessouki states you report you are independent with respect to your personal care routine, and you note no limitations with this. You do help with light chores. According to the medical records in our possession, after the accident you did not seek a neurology consult, you were not referred to a psychiatrist and you did not seek psychological counselling. If this is inaccurate, please provide us with the records.
12On June 13, 2024, OMEGA Medical Assessments sent a letter outlining additional context and information as to why the proposed CAT assessments are reasonable and necessary. Dr. Lisa Becker specified that in review of the medical records, they have identified that the applicant continues to struggle with chronic pain related to his spinal fractures and other soft tissue injuries, persistent symptoms that were previously attributed to a concussion (visual disturbance, headache, poor sleep, fatigue) as well as psychological distress. Despite the passage of time and involvement with rehabilitation professionals, the applicant did not return to his baseline level of function and has been relying on the assistance of his daughter for many daily activities. Taken together, there is potential for the applicant to meet the CAT threshold under one or more criteria listed under s. 3.1 of the Schedule.
13The applicant submits that over two-years post-accident, he continues to suffer from chronic pain, reduced mobility, impaired daily functioning and psychological distress. He argues that he has been left with residual pain and functional limitations as a result of his injuries, including the T12 burst fracture, fractured ribs, pain in his shoulders, feet and ankles. As a result, he submits that based on his current level of impairment and functioning, he requires an assessment to determine whether he suffers a CAT impairment. The applicant submits that based on the medical evidence available, specifically the hospital records, occupational therapy, physiotherapy, physiatry and the clinical notes and records (“CNRs”) of the walk-in clinic, most recently from February 24, 2024, there is indicia of ongoing physical and psychological issues which warrant exploration of the CAT issues.
14The applicant relies upon the hospital records from Hamilton General Hospital which support that he underwent two surgeries and remained in the hospital until April 13, 2022. His discharge diagnoses included a grade 4 liver laceration, rib fractures, T12 burst fracture, L1 spinous process fracture, and left and right hemopneumothoraces with bilateral pleural effusion. He followed up with Dr. Aleksa Cenic, on May 11, 2022 and reported that he is walking with a walker and still has some pain in his lower back. He continues to take pain medications.
15The applicant also relies upon the occupational therapy assessment reports prepared on his behalf. The report of Kaitlyn Ollson, occupational therapist, dated May 11, 2022, recommended 24-hour attendant care, occupational therapy sessions, physiotherapy, transportation assistance for medical appointments, social work and involvement of a Vietnamese-speaking caregiver. A year later, the applicant underwent a re-assessment of his attendant care needs with Amy McWhirter, occupational therapist who prepared a report dated May 1, 2023. The applicant reported ongoing persistent burning pain in both feet, ongoing low and mid back pain, shoulder pain, dizziness, headaches, blurry vision, persistent low energy and fatigue, sleep disruption, and ongoing anxiety and depression symptoms. Ms. McWhirter recommended 4.02 hours per day of support in addition to occupational therapy, physiotherapy, social work, a vision assessment and transportation assistance.
16The applicant further relies upon CNR of Huron Medical Centre walk-in clinic, dated February 17, 2024, where he was seen with concerns about the accident two years ago. The applicant reported pain in both feet, multiple spinal surgeries, knee pain and paresthesia in his legs. He was diagnosed with mechanical back pain and neuropathic pain.
17The applicant further submits that as he was a visitor to Canada when the accident occurred, he does not have OHIP or any other coverage for medical care beyond some travel insurance that expired a couple of months after the accident. He submits that due to financial constraints he exhausted his accident benefits on hospital care, attendant care services and physiotherapy, leaving him with limited access to ongoing medical treatment. He submits that he does not have money to pay for healthcare expenses and rebuttal reports against the respondent. He also does not have a family physician to make recommendations and referrals. He is not capable of identifying which specialists he ought to see, and he is not capable of independently navigating the Ontario medical system to ask for and arrange referrals to specialists like neurologists and psychiatrists.
18The respondent submits that the applicant has not discharged his onus of establishing that the proposed CAT assessments are reasonable and necessary. It argues that the applicant has failed to establish that he suffers from ongoing impairments that warrant a CAT assessment. It relies upon the IE reports of Dr. Shariff Dessouki, physiatrist, and Matt Sutherland, occupational therapist, dated September 12, 2023, that were prepared six months prior to the submission of the treatment plan.
19The respondent submits that Dr. Dessouki noted that the applicant indicated that he had improved “significantly” since the accident. No mood or cognitive complaints were reported, and he was no longer taking any medications. From a functional perspective, the applicant was independent in his personal care tasks and he was able to complete lighter household chores. Noting that the applicant’s physical examination was unremarkable, Dr. Dessouki concluded that he did not suffer from an objective accident-related impairment, and he could return to all of his activities of daily living without limitation.
20The respondent submits that Mr. Sutherland in his report, noted that the applicant’s complaints consisted solely of pain in his legs and ankles as well as pain and occasional numbness in his feet. He denied pain in any other parts of his body, and he did not report any mood or cognitive complaints. Noting that testing of his physical capabilities fell within normal limits, Mr. Sutherland concluded that the applicant did not require any attendant care assistance.
21I find that the onus on the applicant is to prove that there is a reasonable basis to investigate whether he is catastrophically impaired.
22I accept the applicant’s evidence that he was a visitor in Canada at the time of the accident and that he does not have access to OHIP. Therefore, following the accident, he experienced challenges in accessing medical treatment and various referrals for follow up with medical professionals due to financial constraints.
23I give weight to the report of Ms. McWhirter, occupational therapist, dated May 1, 2023, because it is the most recent report prepared on the applicant’s behalf by his own assessor. I find that Ms. McWhirter noted upon physical assessment that, “Mr. Pham demonstrated reduced range of motion for right shoulder flexion and rotation, and forward bending due to pain. Activity tolerance for standing and walking was impaired as he tended to use furnishing/walls for support. Increased pain behaviours were noted with prolonged standing and sitting. Mr. Pham’s main pain concerns is the burning sensation in his feet.” In terms of his psychological presentation, “Mr. Pham displayed a heightened emotional state when triggered by discussion of the collision and hospital stay, and by losses experienced since the MVC. He reported worsening symptoms of anxiety, depression and panic when thinking about his lifestyle prior to the MVC, and his lack of confidence to return to this former level of functioning and thus back to his extended family in Vietnam”.
24I find that Ms. McWhirter notes the applicant has made “some progress in terms of his overall recovery. He has, with the exception of some aspects of Attendant Care made gains and resumed modified independence”. She concludes however that he continues to be significantly challenged in resuming his normal life however by a combination of physical symptoms, reduced activity tolerances and psychological impacts from the collision and recommends ongoing occupational therapy intervention. She confirms that due to his visitor status in Canada he is at a significant disadvantage in accessing primary care which is necessary for various referrals and follow up with medical professions.
25Based on the report of Ms. McWhirter, I find that there is a reasonable possibility that the applicant is catastrophically impaired. He suffered serious physical injuries in the accident that are supported by the medical evidence, and he continues to make ongoing physical complaints at the time of her assessment. While he has made some progress in terms of his overall recovery, I accept Ms. McWhirter’s opinion that he continues to be significantly challenged in resuming his normal life. I find that the evidence supports that there is a reasonable basis to support that he continues to suffer ongoing physical and psychological impairments warranting an investigatory assessment as reasonable and necessary.
26I further find that the CNR from Huron Medical, dated February 17, 2024, documents his ongoing pain and his statement that he is not getting better. He is diagnosed with mechanical back pain and neuropathic pain. The CNR dated August 20, 2024, further supports his foot pain and numbness and a diagnosis of possible neuropathy.
27I find that the IE report of Dr. Dessouki relied upon by the respondent provides no analysis in the summary and conclusion portion of the report except to state that the applicant suffers no objective musculoskeletal impairment. While the report of Ms. McWhirter is summarized by Dr. Dessouki, there are no comments about the findings in her report or the fact that the applicant still continues to report ongoing pain. Dr. Dessouki’s comment that the applicant has sustained significant improvement is contradictory to the report of Ms. McWhirter that sets out the applicant’s ongoing pain and functional limitations. I find that there is no discussion of the applicant’s functional limitations except to state that he is independent with his personal care activities and can complete light house chores. Ms. McWhirter’s report in contrast provides a complete analysis of his ongoing limitations.
28I further give little weight to the report of Mr. Sutherland. In answer to the majority of the questions posed, Mr. Sutherland states that the question is beyond the scope of this occupational therapist. He does note that the applicant functionally demonstrated pain impairments into his feet and ankles impacting his weight bearing tolerances but notes that it is beyond the scope of his expertise as an occupational therapist to relate these impairments directly to the accident. His only conclusion is that the applicant does not require assistance with his personal care tasks which the applicant does not dispute.
29I further agree with the applicant that the respondent’s emphasis on his failure to receive proper medical care is not an appropriate reason to deny him entitlement to this treatment plan. As set out by Ms. McWhirter, the applicant was a visitor in Canada at the time of the accident and therefore did not have access to OHIP. I accept that he therefore did not have the financial resources to pay money for healthcare expenses and rebuttal reports after his accident benefits were exhausted. In addition, he does not have a family physician to make recommendations and referrals. Therefore, I do not give weight to the respondent’s argument that the applicant does not suffer a psychological or neurological impairment because he does not have specialist reports diagnosing him with impairments. I find that the report of Ms. McWhirter and the CNR from Huron Medical support both psychological and neurological complaints. I further find that one of the purposes of the treatment plan in dispute is to assess the applicant’s neurological and psychological impairments.
30For the reasons outlined above, I find that the applicant has proved on a balance of probabilities that CAT assessments are reasonable and necessary, subject to my findings below.
Are the assessments proposed in the treatment plan all reasonable and necessary?
31I will now turn to whether each assessment and cost proposed in the treatment plan is reasonable and necessary.
32The treatment plan recommends the following assessments:
Clinical Coordinator Assessment and Review $2,000.00
Physiatry Assessment – Criteria 6 $2,000.00
Neurology Assessment – Criteria 6 $2,000.00
Psychiatry Assessment – Criteria 7 $3,250.00
Psychiatry Assessment – Criteria 8 $3,250.00
OT ADL/Community Assessment – Criteria 8 $2,000.00
OT Situational Assessment – Criteria 8 $2,000.00
CAT Analysis & Summary $2,000.00
OCF-19 Application form completion $200.00
OCF-18 – for funding via the Insurer – s. 25(1)(5) $200.00
Tax $2,457.00
33In terms of the individual assessments recommended and the costs of the assessments proposed, the applicant relies upon the letter from Dr. Becker of OMEGA, dated June 13, 2024, which provides a detailed explanation as to why the proposed assessments are reasonable and necessary. The letter refers to each component of the treatment plan and the rationale as to why the assessment is required. With respect to the file review, the applicant relies upon the Tribunal decision in Han v. Aviva General Insurance, 2023 CanLII 9225 (ON LAT), that it is reasonable in the context of a CAT assessment considering the request is for a CAT assessment and the medicals on file are voluminous.
34The respondent submits that the applicant has not proven he is entitled to a physiatry assessment, psychiatric, occupational therapy, and neurological assessment. It submits that the funding for two separate psychiatric CAT assessments is clearly excessive and is being requested in an amount above the $2,000.00 limit set out in s. 25(5)(a) of the Schedule. It further submits that the applicant has failed to establish that he is entitled to a Clinical Coordinator Assessment and Review or to a CAT Analysis and Summary. It argues that it is trite law that a separate file review is not reasonable and necessary since it is duplicative of the review that must be conducted by each individual assessor. With regard to the CAT Analysis and Summary, the respondent submits that it cannot be reasonable and necessary since none of the underlying assessments are reasonable and necessary.
35I find that for the reasons outlined above, that the applicant has proven entitlement to the Physiatry assessment, Neurology assessment, the OT ADL/Community assessment and the OT Situational assessment, each in the amount of $2,000.00 plus tax, based on his ongoing physical and neurological impairments. I find that the Physiatry and Neurology assessments will assess his current physical injuries and limitations, and the OT assessments will assess his ongoing functional limitations and impairments. I find that the medical documentation relied upon by the applicant as referred to above, supports that these assessments are reasonable and necessary.
36With respect to the two Psychiatry Assessments, one proposed for Criterion 7 and one for Criterion 8, I find that the applicant has not proven that two Psychiatry assessments are reasonable and necessary. Dr. Becker states that two separate opinions are requested as each criterion requires specific analysis to provide impairment ratings. I find that while two different criterion are being assessed, the applicant has not provided any evidence that these cannot be dealt with in a single assessment. I find that no explanation has been provided as to why each of these criterions require multiple assessments. In addition, I find that the applicant has not directed me to any evidence or argument to support that these assessments are exempt from s. 25(5)(a) of the Schedule and that he would therefore be entitled to a cost above the $2,000.00 limit. I therefore find that it is reasonable for the applicant to undergo one Psychiatry assessment at the cost of $2,000.00 plus tax.
37I agree with the respondent that the applicant has not directed me to any evidence that he is entitled to a Clinical Coordinator Assessment and Review. I agree with the respondent that a separate file review is not reasonable since it is duplicative of the review that must be conducted by each individual assessor. I find that the applicant has not provided any explanation as to why a separate file review is warranted when each assessor conducts their own file review. I find that a clinic review comes within the purview of “fees and expenses” as set out in s. 25(5)(a) for conducting any one assessment or examination and for preparing reports in connection with them. The Tribunal has consistently held that a file review necessarily forms part of the role of an assessor conducting an assessment and does not attract a separate $2,000.00 payment. I therefore find that the applicant is not entitled to the Clinical Coordinator Assessment and Review in the amount of $2,000.00 plus tax.
38I find that the applicant is entitled to the CAT analysis and summary in the amount of $2,000.00 plus tax. I agree with the applicant that it is reasonable for a summary report to be prepared following the completion of the expert assessments. I further find that the respondent has not provided any submissions with respect to this assessment except to state that it is not reasonable since none of the underlying assessments are reasonable and necessary. I find that this assessment is separate and distinct from the other assessments and is necessary to review the multi-disciplinary CAT assessments in order to reach a conclusion as to whether the applicant sustained a CAT impairment as a result of the accident. I therefore find that the applicant is entitled to the CAT Analysis and Summary report in the amount of $2,000.00 plus tax.
39Finally, with respect to the fee for completion of the treatment plan, I agree that this is reasonable and necessary for the submitted form. In addition, I find that the OCF-19 application fee is reasonable and necessary. As noted by Dr. Becker, the OCF-19 application fee will only be billed in the event the applicant is found to meet the catastrophic threshold.
40For the reasons outlined above, I find that the applicant is partially entitled to the treatment plan for a CAT assessment, dated March 19, 2024, in the amount of $12,400.00 plus tax, as I find that these items are reasonable and necessary.
Interest
41I find that interest is applicable on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
42The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
43The applicant submits that the respondent has unreasonably withheld or delayed payment of the treatment plan for the CAT assessments, to the applicant’s detriment. He argues that the respondent has refused to fund the assessments in dispute, despite the availability of medical and other evidence supporting the reasonableness and necessity of those benefits. He further argues that the delay has been lengthy, with the treatment plan in dispute being submitted in the Spring of 2024.
44The respondent submits that the applicant has not provided any evidence supporting that its conduct rises to the level of being “excessive, imprudent, stubborn, unyielding or immoderate.” The respondent argues that an insured person who advances broad and unsubstantiated assertions of misconduct, without more, does not discharge their duty to establish that this reaches the “high” threshold required for an award.
45While I have determined that the applicant is partially entitled to the treatment plan for the CAT assessments, I find that the applicant has not met his burden in proving on a balance of probabilities that the respondent’s conduct was unreasonable such that it would attract an award. An insured person is not entitled to an award simply because the insurer made an incorrect decision. I find that the applicant has not provided persuasive evidence to support that the respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate
46For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to an award.
ORDER
47For the reasons outlined above, I find:
i. The applicant is partially entitled to the treatment plan for a CAT assessment, dated March 19, 2024, in the amount of $12,400.00 plus tax, and interest; and
ii. The respondent is not liable to pay an award.
Released: January 6, 2026
Melanie Malach
Adjudicator