Applicant and TD Insurance, 2018 CanLII 13167 ON LAT 17-003496

May 21, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and TD Insurance, 2018 CanLII 13167 ON LAT 17-003496
Date of Decision: February 5, 2018
Heard Before: Adjudicator Chris Sewrattan

CAT: CAT assessment funding to assess mental wellbeing denied by insurer; applicant has strong history of mental illness prior to accident; LAT orders reasonable and necessary funding for assessment to determine whether mental illness has worsened as a result of accident

The applicant was injured in a car accident on December 28, 2015. In preparation for a CAT assessment the applicant sought payment for a number of separate assessments under the SABs. TD denied payment for the assessments because, in its view, the applicant had not proven that his psychiatric impairment was caused by the accident and, even if it was, the assessments were not reasonable and necessary. The applicant appeals to the LAT.

Issues

1. Is the applicant entitled to receive payment for a bundle of assessments, totalling $25,425.00, for a CAT Assessment, recommended on March 13, 2017?
2. Is the applicant entitled to an award under s. 10 of O. Reg. 664, R.R.O. 1990?
3. Is the applicant entitled to interest on outstanding payment of the bundle of assessments in dispute?
4. Is the applicant entitled to costs under Rule 19?

Result:

1. The applicant is entitled to payment for six assessments for a CAT Assessment. He has a serious psychiatric impairment that may have been in part caused by the accident. It is reasonable and necessary that he be given an opportunity to explore whether he is catastrophically impaired.
2. The total cost of the CAT Assessment is not reasonable. Section 25(5)(a) of the Schedule caps payment for each assessment at $2,000. As a result, the applicant is only entitled to payment for six assessments at a rate of $2,000 each and $200 for the Treatment Plan’s preparation, for a total of $12,200 for the entire CAT Assessment. HST is also payable where applicable. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
3. The applicant is not entitled to an award under s. 10 O. Reg. 664, R.R.O. 1990. TD’s withholding of payment was incorrect but not unreasonable. There were and remain serious issues with the applicant’s CAT claim.
4. The applicant is not entitled to costs. The conduct about which he complains occurred outside of the Tribunal’s proceeding. As a result, the impugned conduct is outside of the scope of Rule 19.

Facts:

On December 28, 2012, the applicant was the 21-year old passenger of a vehicle that was rear ended. The impact caused the applicant to hit his head on the window. The applicant is presently on social assistance and relies on his family for assistance in completing his daily tasks. He was declared incompetent to represent himself in June 2017. His sister has been appointed as his litigation guardian.

In December 2015, the applicant applied to TD for funding for a bundle of assessments for a CAT Assessment. To review the claim, TD had the applicant examined by multiple medical experts. Based on the results of those examinations, TD denied the applicant funding for the CAT Assessment.  TD conducted its own CAT Assessment after its denial of funding. The Assessment used many of the same medical experts that assessed the applicant’s December 2015 claim for funding. TD’s assessment was documented in a report dated March 6, 2016. The CAT Assessment Report found the applicant’s Whole Person Impairment to be 0%. This means that the applicant is not considered catastrophically impaired under the Schedule.

The applicant applied for rebuttal CAT Assessments by submitting a Treatment and Assessment Plan (OCF-18) dated March 13, 2017. The total cost for the applicant’s assessments is $25,425.00. TD again used its medical experts - a physiatrist and psychiatrist - to conduct paper reviews. Reports generated from the respective paper reviews concluded that the $25,425.00 Treatment and Assessment Plan is not reasonable and necessary. TD denied payment as a result.

The issue in dispute in this case is entitlement to payment for the rebuttal CAT Assessments from the Treatment and Assessment Plan dated March 13, 2017.

There is a trail of evidence suggesting that the applicant’s psychiatric impairment preceded and was not caused by the December 2012 accident. In 2011, the applicant became unwell and was placed on disability. Approximately two months before the accident, in October 2012, the applicant was hospitalized after presenting with psychosis with differential diagnosis between manic episode and schizophreniform disorder. There is also evidence that the applicant was not compliant with his psychiatric medication after his discharge from the hospital. What is more, there is evidence that the applicant has been historically non-compliant with taking this medication.

TD hired two psychiatrists to examine the applicant who independently concluded that the applicant’s psychiatric condition is not accident related, however both noted that adults between the ages of 18 and 22 are vulnerable to the spontaneous presentation of schizoaffective disorder. The applicant was 21 at the time of the accident.

The applicant has not used his medical and rehabilitation benefits to create any assessment reports. TD places the blame at the feet of the applicant. TD has confined the applicant’s medical and rehabilitation benefits within the MIG. According to TD, however, the applicant has funds available to him to pay for a psychological assessment within the MIG’s payment limit. TD does not deny that the applicant is entitled to a psychological assessment generally.

The applicant places the blame at TD’s feet. According to the applicant, TD has denied many Treatment Plans to date, including every request for an assessment. The applicant has not provided evidence of applying for a psychological assessment. TD has submitted into evidence a total of 13 medical reports (including addenda). The applicant submitted 0 reports. The applicant attributes the lack of reports to payment denials from TD.

The applicant submits that payment for a CAT Assessment is a substantive right. The applicant points to s. 25(1) of the Schedule. Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a CAT, including any assessment or examination necessary for that purpose. The plain wording of s. 25(1)5 suggests that TD must pay the applicant for any reasonable fee charged for an assessment that is necessary for a CAT Assessment. Under this approach, one needs only to consider the reasonableness of an assessment’s fee.

TD’s submits that payment for CAT Assessment is a qualified right. The right is qualified to the extent that the constituent assessments must be reasonable and necessary expenses. In this sense, the analysis is the same as a consideration of a medical or rehabilitation benefit under ss. 15 and 16 of the Schedule.

The Adjudicator determined that regardless of the position taken, this case’s circumstances lead to the same answer: the applicant is entitled to payment for the CAT Assessment, with some qualifications.

The first requirement, necessity, is easily met. The assessment CAT Assessment is necessary for the purpose of the applicant meaningfully applying for a catastrophic determination.

The second requirement, reasonableness, is more debatable. TD submits that the CAT Assessment is not reasonable given the lack of evidence supporting any ongoing injuries or impairments caused by the accident. In particular, there is no evidence showing a link between the accident and the causation of the applicant’s psychiatric condition. TD points out that the applicant has not applied for a psychiatric assessment using the funding available under the MIG.

TD’s submission regarding causation is generally compelling. However, the context of this case is exceptionally unique. The applicant has been declared incompetent (following a capacity assessment) and is represented by a litigation guardian. The applicant was a young man at the time of the accident, 21-years old. He has applied for a number of medical benefits in the past and had every single one of those claims rejected. In all, TD has funded 0 assessments for the applicant to date and has funded for itself a combined 13 assessments and paper reviews.

It is clear on the evidence that the applicant does not believe that TD will fund any assessment for which he applies. The Adjudicator is prepared to make inferences about causation by considering the applicant’s present psychiatric condition and its proximity to the date of the accident.

The context of analysis is payment for a CAT Assessment. The purpose of a CAT Assessment is different from the purpose of the benefits in dispute at this hearing, which are the underlying assessments and medical reports that inform the CAT Assessment. The purpose of a CAT Assessment is to determine, among other things, the extent to which the accident caused the applicant’s psychiatric impairment. Requiring the applicant to prove causation at this hearing would unfairly force him to prove what the assessment is intended to determine. At this stage of analysis, the applicant is only required to prove on a balance of probabilities that it is reasonable and necessary for him to determine whether he is catastrophically impaired. To determine this two questions need to be answered.

The first question filters meritless claims. It is not a requirement imposed by the Schedule. The Executive Chair of the Tribunal commented in 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 59514 (ON LAT) at para. 13 that, “if there is no reasonable possibility that [the applicant in that case] has chronic pain syndrome, then an assessment to investigate the condition further is, barring exceptional circumstances, neither reasonable nor necessary.”

There is a reasonable possibility that the applicant is catastrophically impaired. He has a serious psychiatric condition such that he is required to have a litigation guardian. The biggest question against the existence of a reasonable possibility is causation. The applicant’s psychiatric issues precede the accident, and the applicant has a history of not complying with his medication requirements. As well, there is no real evidence of a physical injury caused by the accident. Notwithstanding these issues, which I acknowledge are significant, there remains a reasonable possibility that the applicant is catastrophically impaired. The threshold is low: possibilities versus probabilities. There is a possibility that the applicant is catastrophically impaired. The possible is reasonable because of the applicant’s psychiatric impairment. A different question is whether it is probable that the applicant is catastrophically impaired. And that is a question that does not require an answer when considering entitlement to payment for an assessment.

The second question is the heart of the analysis: on a balance of probabilities, is it reasonable and necessary for the applicant to explore the possibility that he is catastrophically impaired? The onus is on the applicant. The applicant has proven on a balance of probabilities that it is reasonable and necessary for him to explore the possibility that he is catastrophically impaired. The exploration is reasonable and necessary for four reasons.

First, it is reasonable and necessary for the applicant to explore the extent to which the accident caused his psychiatric condition using his own medical examiners. Second, and as a corollary to the first reason, procedural fairness suggests that the applicant be given an opportunity to provide evidence from his own assessors for a CAT Assessment. TD has paid for 13 reports and addenda to rebut the applicant’s claim. TD has paid for 0 reports and addenda for the applicant. Third, TD’s medical examiners did not factor the applicant’s psychiatric impairment into its Whole Person Impairment percentage. The examiners did not consider the applicant’s psychiatric impairment in the CAT Assessment because they relied on TD’s medical examiners’ conclusion that the psychiatric impairment was not caused by the accident. It is reasonable and necessary that the Whole Person Impairment analysis include information about the applicant’s psychiatric impairment if the applicant’s impairment is eventually deemed to have been caused in part or in whole by the accident. In order to include this information in the Whole Person Impairment analysis, the applicant must be examined by his own assessor(s). Fourth, as submitted by the applicant, TD’s medical practitioners did not fully coordinate with each other in their analysis.

In making this decision the Adjudicator is mindful that the accident does not appear to have caused the applicant a significant physical injury, and there is valid reason to challenge the causation of his psychiatric condition. These will be factors for the assessor(s) of the CAT Assessment to weigh. For now, the factors are not sufficient to prevent concluding that the applicant has proven on a balance of probabilities that it is reasonable and necessary for the applicant to explore the possibility that he is catastrophically impaired.

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