A.W.A. v Certas Home and Auto Insurance (18-007207)

The claimant sought reconsideration of a LAT decision denying the $24,000 cost of catastrophic impairment assessments. Adjudicator Gosio dismissed the claimant’s request for reconsideration. Adjudicator Gosio agreed with the claimant that the hearing adjudicator failed to consider that the OCF-18 for CAT assessments concerned both Criterion 7 and 8. Adjudicator Gosio held that irrespective of this error, he would have arrived at the same finding. Adjudicator Gosio held that the claimant failed to establish a link between his chronic pain and entitlement to pre-104 week IRBs and the need for the CAT assessments. Adjudicator Gosio held that the proposed CAT assessments were not reasonable or necessary.

Walcott v. Aviva General Insurance (19-007910)

The claimant sought entitlement to three treatment plans for chiropractic services, one treatment plan for psychological services, and a catastrophic impairment assessment. Adjudicator Grieves noted that given the time elapsed before the claimant reported any accident-related complaints, and that there were only three entries relating to the accident despite seeing her family physician very frequently, the lack of objective evidence of ongoing injuries, and no recommendation from the neurologist, the claimant had not met her burden of proof. Therefore, the claimant was not entitled to the chiropractic services. With regards to the psychological services, the claimant’s family physician made referrals for psychotherapy, she was engaging in treatment which had been helpful, and the insurer’s assessors concluded that she met the criteria for an adjustment disorder with depressed mood and anxiety. Adjudicator Grieves concluded that the proposed treatment and associated cost were reasonable and necessary. Further, a treatment plan was submitted proposing various catastrophic assessments. The claimant relied on a report stating that the claimant’s psychosocial sequelae were causing challenges and disruptions to her life and normal activities such as being an effective spouse, mother and preventing her from returning to work. The claimant also submitted that there was a reasonable possibility that she was catastrophically impaired because her serious psychiatric conditions prevented her from returning to work or care for her children. Adjudicator Grieves found that the catastrophic assessments were partially reasonable and necessary. Adjudicator Grieves agreed that the claimant sustained serious psychological issues as a result of the accident, however, she had not established why each component of the multidisciplinary assessment was reasonable and necessary. A total of $8,400 of the claimed $16,272 was approved.

Berisha v. Certas Home and Auto Insurance Company (19-012869)

The claimant sought entitlement to medical benefits and interest. The claimant had earlier been accepted as catastrophically impaired. The insurer disputed the overall costs of assessments, which it had partially approved. Vice Chair Boyce concluded the claimant was not entitled to any of the partially denied assessments. The claimant claimed entitlement to the assessor’s denied travel expenses for an in-home assessment. The insurer argued that pursuant to s.25(4) it was not liable to pay more than $2,000 for fees and expenses on any one assessment and the claimant bore the burden to prove the cost was reasonable and necessary. The claimant argued that she lived in a rural area, which justified the travel cost. Vice Chair Boyce agreed that the insurer was not obligated to pay for the provider’s travel expenses in addition to the $2,000 cap under s.25(5)(a), which was already included in the capped fee amount. No evidence was provided to show the provider was unwilling to travel if her travel expenses were not paid. The claimant also claimed entitlement to full payment for a neuropsychological CAT assessment. The insurer denied payment of the clinical file review claim in the amount of $2,000 based on s.25(5)(a) limit that includes a file review. The claimant submitted that the assessment had two components: psychological and neurological. The neurological assessment proposed was two separate assessments conducted by one assessor. Vice Chair Boyce agreed that the individual assessments were capped at $2,000 and the cost of the neuropsychological assessment at $5,500 more than the other assessments was not reasonable or necessary. The Tribunal had consistently found file reviews necessarily formed part of conducting an assessment and was not separate from the $2,000 payment. The claimant further claimed a remaining $2,000 for a neuropsychological assessment. The insurer again denied payment on the basis of s.25(5)(a) and argued that the claimant had attempted to skirt the s.25(5)(a) fee limit for assessments by intentionally separating the assessments into psychological and neuro-cognitive assessments to get two separate $2,000 payments. The OCF-18 provided the same descriptions and codes on the OCF-18 for both assessments. Vice Chair Boyce found the claimant had not demonstrated the reasonableness of the unapproved portion of the OCF-18.

Z.K. v. Allstate Insurance Company Canada (17-006929)

The claimant sought entitlement to a catastrophic impairment designation, further chiropractic treatment, and the cost of denied neuropsychological and triage CAT assessments. Adjudicator Johal accepted that the claimant suffered three Class 4 marked impairments in each of activities of daily living; concentration, persistence, and pace; and adaptation in work or work-like settings. Prior to the accident the claimant ran a business for about twelve years, and became a licenced mortgage agent two years before the accident. He was very outgoing and social, hosted parties, and visited friends. He was healthy both physically and mentally and had no pre-accident conditions. After the accident, which was relatively minor, the claimant developed back and neck pain, and headaches. His mental functioning declined. He lost over 30 pounds, had no appetite, had poor short term memory, and needed assistance with basic personal care tasks. The claimant’s family believed he was depressed, and he reported being in frequent pain. He no longer entertained or visited friends. He did not return to work, and he rarely drove. The claimant’s neuropsychological assessor diagnosed the claimant with a severe pain disorder and moderate depressive disorder. She concluded that the claimant suffered Class 4 marked impairments in the above-noted spheres. The claimant’s psychological assessor made similar conclusions and conducted various testing to rule out malingering and feigning. Adjudicator Johal preferred the evidence of the claimant’s assessors over the IE assessors, who approached their role as a “detective” rather than neuropsychologist. The IE assessor also used testing methods that were not well peer-reviewed or had no validity measures. Adjudicator Johal denied the disputed chiropractic treatment because it was completed by a chiropractor, but largely proposed counselling and educational services, which were outside of the chiropractor’s scope of practice. The neuropsychological CAT assessment was approved, despite no evidence of head injury. Adjudicator Johal wrote that the request for an assessment was to show that there is a reasonable possibility that the claimant has the condition that is being investigated. The claimant did not need to show or prove that he had the condition in order for an assessment to be deemed reasonable and necessary. Finally, the triage CAT assessment was denied as there was no evidence presented why it would be required and what assessment of the claimant it would provide.

Z.J. v. Aviva Insurance Company of Canada (18-012030)

The insurer requested reconsideration of a decision in which the Tribunal found the claimant was entitled to partial payment of the cost of multidisciplinary CAT assessments and fees for the completion of the OCF-18 and OCF-19. Adjudicator Braun denied the request for reconsideration. The insurer argued that a chiropractor was not authorized to provide an opinion to a number of the conditions listed in Part 6 of the treatment plan, and in particular, mental and cognitive impairments, and that doing so invalidated the chiropractor’s certification in Part 4 that the assessments were reasonable and necessary. Adjudicator Braun found that the OCF-18 complied with s.38(3)(c). Adjudicator Braun agreed that it would be beyond a chiropractor’s scope of practice to opine on cognitive functioning. However, it was Adjudicator Braun’s view that recommending that a person with an impairment or a suspected impairment be assessed by a relevant specialist was different than offering an opinion regarding that impairment and or recommending treatment. In this case, the chiropractor only stated that it was reasonable and necessary to have a CAT assessment conducted by a team of qualified physicians and health professionals and did not offer any opinion on the claimant’s functional abilities in any of the areas listed in Part 6. The insurer’s position that some of the conditions listed in Part 6 were outside of the chiropractor’s scope, was an overly technical view , which failed to consider the OCF-18 as a whole. In this case, the OCF-18 represented an effort of a chiropractor and a neurologist from the same assessment facility who jointly made the recommendation for an assessment to determine CAT threshold. Adjudicator Braun further found that it was within the chiropractor’s scope of practice to make the statement in Part 4 although she was not authorized to treat some of the injuries listed in Part 6. In this case, the chiropractor did not offer a medical opinion or any treatment recommendations, but stated that it was reasonable and necessary for the claimant to pursue and assessment related to the injuries listed in Part 6. The insurer also argued that the certification of the chiropractor to provide an executive summary and WPI rating did not expand the scope of her practice beyond what is stated in the Chiropractor Act and the executive summary and WPI report constituted an assessment of CAT for the purposes of s.45 of the SABS that did not allow a chiropractor to perform such an assessment. Adjudicator Braun noted that executive summaries and WPI reports compiled by chiropractors was not new in cases before the Tribunal and in her view, the executive summary and WPI rating was simply a written summarization of opinions already provided and did not provide any fresh opinion. The insurer further argued the OCF-18 was a rebuttal to the insurer’s CAT IEs. The claimant OCF-18 indicated the treatment plan was to rebuttal IE multidisciplinary CAT impairment report. Adjudicator Braun found that the words “to rebut” in the OCF-18 was semantic, and even though the IE reports were conducted first, it did not render the assessments claim in this case true rebuttals. The assessments were clearly the claimant’s first and only set of assessments that applied for a CAT determination under s. 45.

M.I.A. v. Aviva General Insurance (19-000993)

The claimant disputed entitlement to eleven different treatment plans for various therapies, assessments and CAT assessments, interest and a special award. The claimant had a notable history of chronic pain in the lower back, a failed back surgery, migraines, and used a cane. The claimant argued that the treatments and assessments were reasonable and necessary as a result of the accident. The insurer argued that the claimant had failed to comply with a LAT Order to provide evidence that the disputed treatments were required as a result of the accident as opposed to his pre-existing conditions. Adjudicator Grant noted that a review of the evidence showed a long history of the claimant reporting pain to his practitioners, however, there was no mention of the subject accident and the claimant’s complaints appeared to be a continuation of his pre-accident chronic pain condition. Furthermore, Dr. Wilderman, the claimant’s chronic pain medicolegal expert, did not review pre-accident medical documentation detailing the claimant’s long history of chronic pain and a failed back surgery, but based his conclusions on the claimant’s self-reporting. Adjudicator Grant gave Dr. Wilderman’s report little weight compared to the IE assessors’ reports, who reviewed both pre-accident and post-accident records. Adjudicator Grant concluded that there was no evidence provided that would show any of the disputed benefits were reasonable and necessary as a result of the accident. The claimant’s dispute was dismissed in its entirety.

Y.D. v. Certas Home and Auto Insurance Company (18-003066)

The claimant requested reconsideration of a previous Tribunal decision denying the cost of CAT assessments in the amount of $24,400. The claimant argued that the Tribunal violated the rules of procedural fairness by failing to properly address the initial submissions and failed to assess crucial evidence. The claimant was represented by two lawyers who both worked from the same law office. The claimant noted that the Tribunal only named the main counsel on file and not the second lawyer who filed the original pleadings with the Tribunal, and thus did not consider those submissions. Vice Chair McQuaid dismissed the argument, noting that a minor error such as the one pointed out by the claimant was “a minor or inconsequential mistake.” She further noted that the previous decision denying the benefits quoted the initial submissions, and thus they were in fact taken into consideration; furthermore the claimant’s reconsideration pleadings noted evidence regarding causation, a fact that had already been considered by the Tribunal in the initial decision. Vice Chair McQuaid concluded that the Tribunal had weighed the evidence properly in the previous decision and that the claimant was attempting to re-argue her case. The request for reconsideration was denied.

Y.D. v. Certas Home and Auto Insurance Company (18-003066)

The claimant requested reconsideration of a previous Tribunal decision denying the cost of CAT assessments in the amount of $24,400. The claimant argued that the Tribunal violated the rules of procedural fairness by failing to properly address the initial submissions and failed to assess crucial evidence. The claimant was represented by two lawyers who both worked from the same law office. The claimant noted that the Tribunal only named the main counsel on file and not the second lawyer who filed the original pleadings with the Tribunal, and thus did not consider those submissions. Vice Chair McQuaid dismissed the argument, noting that a minor error such as the one pointed out by the claimant was “a minor or inconsequential mistake.” She further noted that the previous decision denying the benefits quoted the initial submissions, and thus they were in fact taken into consideration; furthermore the claimant’s reconsideration pleadings noted evidence regarding causation, a fact that had already been considered by the Tribunal in the initial decision. Vice Chair McQuaid concluded that the Tribunal had weighed the evidence properly in the previous decision and that the claimant was attempting to re-argue her case. The request for reconsideration was denied.

S.K. v. Aviva Insurance Canada (19-001127)

The claimant sought entitlement to ACBs, the balance of a partially approved social work assessment (seeking a higher hourly rate), and the cost of catastrophic impairment assessments. The insurer had denied ACBs on the basis that the claimant had not received the claims services and that insufficient information was provided regarding the services allegedly provided. The insurer denied the catastrophic impairment assessments because the claimant proposed them only one year after the accident. Adjudicator Grieves concluded that the claimant was entitled to ACBs of $3,000 per month, subject to the claimant proving that the services had been incurred. She accepted that the claimant required personal care services due to post-accident ankle surgery and knee surgery. She rejected the insurer’s position that surveillance suggested that the claimant was not receiving the services claimed, as the claimant and her family members were able to explain why the claimant and personal care workers were not seen at her house on certain days. Adjudicator Grieves also rejected the insurer’s argument that the payable ACB was calculated based on the specific service provided multiplied by the hourly rate for that service set out in the Professional Services Guideline. She held that the purpose of the hourly rates was to calculate the maximum ACB payable, and that the amount payable by the insurer was based on the rate charged by the service provider (provided that it was reasonable and not excessive) for whichever services were provided, subject to the statutory maximum and/or the Form 1 total. The denied portion of the social work assessment was also awarded. Adjudicator Grieves held that $135 per hour was a reasonable rate for a social worker, rather than the $100 approved by the insurer. Finally, the catastrophic impairment assessments were denied as being not reasonable. Although the claimant was approaching her combined medical and ACBs limit, she could not apply for a catastrophic impairment until the two year mark unless her condition was unlikely to improve. The medical evidence suggested that the claimant continued to show medical improvement. Additionally, the assessors proposing the catastrophic assessments did not explain why each of the proposed assessments was reasonable or necessary.

O.A. v. TD Insurance Meloche-Monnex

The claimant disputed entitlement to additional funding for catastrophic impairment assessments. The insurer had approved $12,000 for an executive summary, psychological assessment, neurocognitive assessment, orthopaedic assessment, and occupational therapy assessments. The claimant sought a further $11,533.24. Adjudicator Boyce concluded that the denied assessments were not reasonable and necessary. The denied items were psychometric testing, scoring, and interpretation; neurocognitive testing, scoring and interpretation; a musculoskeletal examination; an occupational therapy situational evaluation; an occupational therapy collateral interview; and a WHODAS 2.0 assessment. Adjudicator Boyce found that the claimant’s proposed assessments were needless bifurcations or duplications of assessments, which was done to garner additional funding. He noted that the insurer was able to complete its catastrophic impairment assessments with funding of $12,000 and the claimant failed to prove why his assessors could not also do so. The claimant’s arguments that he suffered unique complex injuries warranting additional funding was rejected. The claimant’s argument that his assessors required twice as long because of his poor English skills was also rejected. Adjudicator Boyce did award a total of $400, being the cost of completing the OCF-18 and the OCF-19.