Arbitrator Rules That Two Assessments Performed at the Same Time, Referencing One Another, Form One Assessment In Terms of Compensation

February 03, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Breadner and Co-Operators – Payment for Assessment; Are there two assessments or one; maximum payable per assessment;

Breadner and Co-Operators

Date of Decision: January 11, 2017
Heard Before: Adjudicator Caroline King

Issues:

Nicole Breadner was injured in a car accident when she was a pedestrian crossing a road. She was struck on her right side by the mirror of a motor vehicle on February 20, 2014.  She applied for and received statutory accident benefits from Co-Operators who paid some but not all benefits claimed.  When the parties were unable to resolve their disputes through mediation Ms. Breadner applied for arbitration at the FSCO.

1. Is Ms. Breadner entitled to receive a payment for the cost of examination for the remaining balance on a treatment plan relating to a neuropsychological assessment?
2. Is Ms. Breadner entitled to interest for the overdue payment of benefits?

Result:

1. Ms. Breadner is not entitled to receive a payment for the cost of examination
2. There is no overdue payment of benefits and therefore no interest is owing.

Overview:

Mrs. Breadner submitted to The Co-Operators a treatment and assessment plan which recommended neuropsychological assessment with costs totalling $5,028.50.  The Co-Operators paid Mrs. Breadner $2,000.00 for the costs of one assessment/examination, plus $200.00 related to the completion of the OCF-18 form.  The Co-Operators also paid related taxes.

The parties agree that costs for one assessment/examination is capped by law at $2,000.00, plus any applicable taxes.  The parties disagree about whether the work done constitutes two assessments/examinations, as submitted by Mrs. Breadner, or one assessment/examination, as submitted by The Co-Operators.  The disagreement about whether the work done constitutes one or two assessments is the basis for this arbitration.

Mrs. Breadner submitted a treatment and assessment plan in an OCF-18 dated January 26, 2015 which recommended neuropsychological assessment listing a precise breakdown of costs, specifically into two assessments.

It is agreed that the Co-Operators paid for one assessment of $200 plus tax. The parties agree that the Schedule caps the amount an Insurer may pay to an insured at $2,000.00 for fees and expenses for conducting any one assessment or examination including the reports connected to it.  It is of particular relevance to this case that the word “report” is in the plural.  This indicates that the number of reports does not itself trigger entitlement for additional assessment/examination costs.

The Question before the Arbitrator remains was there one, or two assessments done. The Arbitrator reviewed the evidence and the law and determined that the OCF-18 is properly considered to be one assessment within the meaning of the Schedule for the following reasons.

• Two documents were submitted by the same company. 
• They are both dated June 18, 2015. 
• They are both under the signature of Dr. Lara Davidson.  The “Tests Administered” in both documents contains the same lists of tests. One document is called the “Independent Neuropsychological Examination Interview & Analysis.” The document, excluding appendices, is 15 pages long.  The other document is called “Independent Neuropsychological Examination Testing”.  This document, excluding the appendix, is 6 pages long.
• Both documents have the same introductory paragraphs described as:  “Purpose of Assessment:”
• The information in the second document is incorporated by reference into the first document

Based on the above the Arbitrator found that it is more likely than not the assessment work done related to the OCF-18 constitutes one assessment within the meaning of the Schedule.

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