Arbitrator Requires Insurer to Pay for CAT Assessment out of Fairness -Hassani and Guarantee

March 19, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Hassani and Guarantee

Date of Decision: January 5, 2018
Heard Before: Adjudicator Jessica Kowalski

NEBs and CAT ASSESSMENT: applicant fails to make case for NEBs; adjudicator rules that denying funding for a CAT assessment while proceeding with its own IEs is not fair; insurer required to fund CAT assessment beyond $2000 limit.

Lara Hassani  was injured in a car accident on July 1, 2011.  She applied for and received statutory accident benefits from Guarantee however when the parties were unable to resolve their disputes through mediation, and Ms. Hassani applied for arbitration at the FSCO.

Issues:

1. Is Ms. Hassani entitled to weekly non-earner benefits in the amount of $185.00 per week from January 1, 2012 to date and ongoing?
2. Is Ms. Hassani entitled to payment of $23,323.20 for a catastrophic assessment proposed in a plan dated July 24, 2015?

Result:

1. Ms. Hassani’s claim for non-earner benefits is dismissed.
2. Guarantee shall pay to Ms. Hassani $23,323.50 for completion of a catastrophic impairment assessment proposed in a plan dated July 24, 2015.

On July 1, 2011, Ms. Hassani was cycling with friends in Pinery Provincial Park when she was struck by a car that had lost control while stunt driving.  She was not wearing a helmet. When paramedics arrived, they found Ms. Hassani to be conscious and alert.  They found no evidence of head traumaAccording to ER records, Ms. Hassani denied twice that she had lost consciousness or that she had neck pain. Her GCS was 15 of 15. 

NEBs

Ms. Hassani claims that, as a result of the accident, she has developed impairments that have left her completely unable to carry on a normal life.  These impairments, she submits, include headaches, vision problems, pain, anxiety and post-traumatic stress.  Ms. Hassani also submits that the accident has affected her education, by delaying her studies and causing barriers that require a significant degree of support and accommodation.   She claims that accident-related impairments will require that she take at least six years to complete a four-year university program. At the time of the accident, Ms. Hassani was 20 years old and in high school.

The Adjudicator reviewed the medical evidence noting that at the hospital Ms. Hassani was advised that it was possible for a person to hit their head and not recall it, and so at discharge, she was given standard set of instructions that included instructions to return to the ER if symptoms worsened or if a patient was worried.  

On July 6, 2011, Ms. Hassani went to a walk-in clinic complaining of an intermittent pink haze or halo she says she saw around words or letters.  She was referred to an optometrist for the visual disturbances and given a concussion questionnaire that she was to complete and return at her next visit. Her next appointment was on July 12, 2011 with a family physician. According to clinical notes about the accident, Ms. Hassani told him that she fell sitting and that she had no head trauma. He noted that she had seen an optometrist regarding the intermittent pink haze, and that her eye exam was normal.  He noted normal reflexes, bruising, some stiffness and tenderness, but that Ms. Hassani was “looking well”, had a GCS of 15/15, and was not in any distress.  He also noted that he discussed whiplash injury with Ms. Hassani and told her to return to the clinic or to the ER in the case of red flags. Neither the doctor’s, nor the clinic’s, notes record any follow-up regarding the concussion questionnaire that was given to Ms. Hassani to complete in her previous visit a week prior, and nothing about a concussion protocol or head injury.

Ms. Hassani did not testify whether she completed the questionnaire or what follow-up there was, if any.  According to clinic notes, Advil or Tylenol was recommended for pain and a further follow-up visit in 7-days, on July 22, 2011.  For that follow-up appointment notes indicate that Ms. Hassani was a “No Show.”

In a statement she gave to the insurer on August 16, 2011, Ms. Hassani stated that she did not remember if she hit her head, but that she did not think she was unconscious.  She stated that she was admitted to the South Huron Hospital and that, by the time of the statement she had still “not heard as to whether there were any fractures” following x-rays she stated were taken of most of her body.

While the evidence closest to the accident suggests that Ms. Hassani did not hit her head, in the years following the accident, Ms. Hassani began to report to assessors that she did, or may have, hit her head. 

A psychologist who assessed Ms. Hassani in 2012, suspected that Ms. Hassani had a concussion, given her reported symptoms of dizziness and visual disturbances, and her memory and concentration difficulties.  He agreed with comments made by a neuropsychologist who completed an IE, that Ms. Hassani had a mild neurocognitive disorder without behavioural disturbances due to multiple etiologies.  In 2012, orthopaedic surgeon and IE assessor also opined that Ms. Hassani sustained a closed head injury in the accident.

Notably, however, Ms. Hassani’s assessors, although they had the ER records where there was no evidence of head trauma, as well as records of Ms. Hassani’s early denials of head impact, did not comment or apparently consider the inconsistency between the early medical records that disclosed no head trauma, versus Ms. Hassani’s later complaints that she struck or may have struck, her head.

The focus of the test for NEBs is not simply the injury, but the impairment to one’s function caused by the injury.  This necessitates a comparison between Ms. Hassani’s pre-accident and post-accident function, on the basis of the evidence, even if Ms. Hassani did hit her head, she has not proved that she has suffered a complete inability to carry on a normal life as a result of, and within 104 weeks of, the accident.

Funding for CAT Assessment

Ms. Hassani seeks funding in the amount of $23,323.20 for a multidisciplinary assessment in support of a catastrophic impairment designation. Section 45 of the Schedule allows an insured person who sustains an impairment as a result of an accident to apply to the insurer for a determination of whether the impairment is a catastrophic impairment.  Section 25(1) at paragraph 5 allows for the payment for reasonable fees charged for preparing an application under section 45 for a determination of whether an insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

The Arbitrator reviewed the medical evidence. Ms. Hassani’s assessors recommended a CAT assessment which based on a paper review Guarantee denied funding.

Guarantee advised Ms. Hassani by letter dated January 6, 2017 that it did not accept her impairment as catastrophic and denied a second application.  In the same letter, Guarantee notified Ms. Hassani that, in accordance with section 45(3)(b) of the Schedule, it would require her to attend IEs to “assist us in determining if [her] impairment is a catastrophic impairment.” The result is that Ms. Hassani, while unable to fund her own assessments, must attend IEs following Guarantee’s denial of her OCF-19.

Fundamental to any administrative process, is the requirement that it be fair.

Guarantee submits that ss.25(1)(5) does not apply because the fees for the CAT assessment have not yet been incurred.  Guarantee argues that it makes no sense to treat this issue as an interim expense because the question of catastrophic impairment is not in dispute in this arbitration and will never be in dispute in this arbitration because of recent changes to the Schedule that require disputes after April 1, 2016 to be resolved before the Licence Appeal Tribunal.

Ms. Hassani submits that, chronologically speaking, by the time the insurer’s CAT IEs are completed, the proposed CAT assessment will be tantamount to a rebuttal assessment. The Adjudicator agreed.

Ms. Hassani’s application for arbitration was filed in 2014, before changes to the Insurance Act required disputes to be resolved before the LAT.  The Adjudicator noted that fairness must operate as a guiding principle and that to deny Ms. Hassani funding for a CAT assessment, essentially in response to the insurer’s IEs, would be unfair and prejudicial:  it would leave her without funding for her own assessments and give the insurer the unfair advantage of benefiting from her lack of financial resources.  It may also put her in the position of having to bring this issue before the LAT as an interim expense in accordance with ss. 3(8), when the issue was properly put before this Commission at the time her application was filed.

Guarantee also argues that the expense was not incurred and so is not payable.

The Adjudicator reviewed the law and noted that The Divisional ruled that an insured person need not finance a claim in order to secure the benefits to which she is entitled.  It was not even necessary for the insured to actually receive the items or services or to become obliged to pay for anything.  It was sufficient if the reasonable necessity of the service or item and the amount required could be determined with certainty. In Monks v. ING Insurance Co. of Canada  the Court of Appeal wrote that a broad interpretation of the word “incurred” under the Schedule is consistent with the policy objective that accident victims promptly receive the accident benefits to which they are entitled and that it also prevents insurers from benefitting from an insured’s lack of financial resources and that the “legislation was designed for the protection of the insured and should be construed in the way most favourable to him.”

The Adjudicator determined that fairness must operate as a guiding principle and that, to deny Ms. Hassani reasonable fees to conduct her own assessments, when, at least chronologically, they will be required to respond to the IEs and when the constituent reports of her proposed multidisciplinary assessment do not exceed the amounts prescribed in the Schedule ($2,000.00 per report) would be unfair. Moreover, it is plain from the OCF-18 that the proposed assessments are catastrophic assessments by various healthcare providers (including orthopaedic, psychological, neurological, and chiropractic) which would be for none other than an application for catastrophic determination.

For these reasons the Adjudicator that Ms. Hassani is entitled to funding for the proposed catastrophic assessments.

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