Applicant Entitled to Reasonable and Necessary Costs Only - Applicant and 16-004501 Sovereign General Insurance Company, 2018 CanLII 13158 ON LAT 16-004501

May 02, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and 16-004501 Sovereign General Insurance Company, 2018 CanLII 13158 ON LAT 16-004501

Date of Decision: February 5, 2018
Heard Before: Adjudicator Chris Sewrattan

CAT ASSESSMENT: applicant entitled to reasonable and necessary assessment costs only

The applicant was injured a car accident on December 23, 2012. In preparation for a CAT assessment the applicant sought payment for a number of assessments under the SABs which Sovereign partially approved. Sovereign deemed the unapproved portion to not be reasonable and necessary. The applicant appeals for payment of this non-approved portion the LAT.

Issues

1. Is the applicant entitled to receive a partially denied Treatment Plan, dated December 8, 2014, for assessments in preparation for a Catastrophic Impairment Assessment? The Treatment Plan was partially approved for $7232.00 and the outstanding balance in dispute is $7627.50.
2. Is the applicant entitled to interest on overdue payments?
3. Is Sovereign entitled to costs under Rule 19?

Result:

1. The applicant is entitled to payment for a physiatry assessment and the completion of an Application for Determination of Catastrophic Impairment (OCF-19). He is also entitled to payment for HST on these expenses. Finally, the applicant is entitled to interest in accordance with s. 51 of the Schedule.
2. The applicant is not entitled to payment for a File Review or a Whole Person Impairment Assessment. The expenses are duplicitous. In particular, payment for the File Review is prohibited under s. 25(5) of the Schedule.
3. The applicant is not entitled to payment for x-rays because he has not proven that OHIP coverage is not reasonably available for this expense.
4. Sovereign is not entitled to costs under Rule 19.1.

Facts:

On December 23, 2012, the applicant was the 18-year old passenger of a vehicle that was cut-off, struck a tree and ended up in a ditch. As a result of the accident, the applicant sustained a closed head injury with a loss of consciousness. He sustained a severe right ankle fracture. His right ankle remains in a position of malunion. The applicant will require an ankle replacement. If the replacement surgery is unsuccessful the applicant is at risk of having a below-knee amputation.

On December 8, 2014, Dr. HB submitted a $14,859.50 Treatment Plan to Sovereign. The Treatment Plan recommended a Multi-Disciplinary Catastrophic Impairment Assessment in order to make a catastrophic impairment determination. Sovereign agreed to pay for some assessments but the denied expenses are the issues in dispute at this hearing.

The parties agree that the applicant is catastrophically impaired as a result of the accident. The timeline of this agreement is relevant to the reasonableness of the expenses in dispute. The applicant’s counsel funded for the denied portion of the Treatment Plan for the Catastrophic Impairment Assessment. The applicant underwent each of the recommended assessments. The applicant submitted an Application for Determination of Catastrophic Impairment (OCF-19) dated February 16, 2015. Sovereign denied that the applicant was catastrophically impaired in a letter dated March 11, 2015.

Sovereign requested that the applicant undergo assessments by its own medical experts. There were five assessments at a rate of $2,000.00 each plus HST. Notably, Sovereign did not pay for the expenses it considered not reasonable and necessary in the applicant’s Treatment Plan: File Review, WPI Analysis report, and a physiatry assessment. Rather, Sovereign paid for assessments by an orthopaedic surgeon, psychiatrist, neurologist, occupational therapist, and a psychologist, as well as an Executive Summary and report. The total cost paid by Sovereign was $11,300.00.

Sovereign submits that the physiatry assessment is not reasonable and necessary because the applicant’s injuries are orthopaedic in nature. Although the applicant’s predominant injury is orthopaedic the Adjudicator determined the physiatry assessment is reasonable and necessary. A CAT Assessment is a multifaceted inquiry in which the relationship between predominant and less dominant injuries is considered in determining whether an insured person is catastrophically impaired. Although it is obvious that the applicant’s orthopaedic difficulties will adversely affect his life, in determining whether he is catastrophically impaired it is a reasonable and necessary question to ask what other physiological injuries, if any, affect the applicant, and to what extent do these injuries aggravate the applicant’s orthopaedic difficulties.

The applicant further submits that “once a person has been accepted as being catastrophically impaired, the insured’s assessment costs must be paid in full where the insurer has relied in whole or in part on the opinions of the insured’s assessors.” The Adjudicator disagreed. When payment for an assessment is a disputed issue, an insurance company’s use of the assessment to form an opinion can be circumstantial evidence that the assessment is reasonable and necessary. However, it need not be proof and is not conclusive proof that the assessment is reasonable and necessary.  In any event, Sovereign submits that it did not rely on the physiatry assessment to conclude that the applicant is catastrophically impaired. One cannot rely on the applicant’s catastrophic impairment as proof that the physiatry assessment is reasonable and necessary.

The applicant is not entitled to payment for the Whole Person Impairment Analysis ($2,000). The expense is duplicitous.

The applicant is entitled to payment for the completion of the Application for Determination of Catastrophic Impairment (OCF-19). Sovereign denied payment because the application was premature at the time it was submitted. That may have been true; however, at the time of this hearing the application is reasonable and necessary. The applicant has been deemed catastrophically impaired.

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