July 25, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: July 9, 2015
Heard Before: Adjudicator Patrick Bowles
Ms. Lee-Anne Henderson, was injured in a car accident on September 18, 2011. Her injuries are very numerous, wide ranging and disabling. She applied for and received statutory accident benefits from Wawanesa who denied funding for a Catastrophic Assessment. The parties were unable to resolve their disputes through mediation and Ms. Henderson, applied for arbitration at the FSCO.
Is Ms. Henderson entitled to examination expenses for the funding of a Catastrophic Impairment Assessment (“CAT Assessment”)?
Is Ms. Henderson entitled to interest on all overdue payments?
Is Ms. Henderson entitled to her expenses of this Preliminary Issue Hearing?
Is Wawanesa entitled to its expenses of this Preliminary Issue Hearing?
Ms. Henderson is entitled to examination expenses for the funding of a Catastrophic Impairment Assessment.
Ms. Henderson is not entitled to interest on all overdue payments.
Ms. Henderson is entitled to her expenses of this Preliminary Issue Hearing.
Wawanesa is not entitled to its expenses of this Preliminary Issue Hearing.
During the course of the two years after the car accident, Ms. Henderson was in receipt of Medical and Rehabilitation Benefits. Wawanesa provided periodic updates as to what was paid on her behalf, and the declining balance available to Ms. Henderson from the policy limit of $50,000.
By September, 2013, two years post-accident, Ms. Henderson had exhausted her Medical and Rehabilitation Benefit entitlement. In order to claim more benefits for her medical and rehabilitation treatments under the SABS, Ms. Henderson has to be medically assessed through a defined assessment process, as catastrophically impaired to qualify for the next upper tier of benefits.
Ms. Henderson’s ongoing medical symptoms required continued access to Medical and Rehabilitation Benefits. Her current complaints and symptoms remain numerous and very disabling and are detailed in the medical assessments. She also reports panic attacks, suicidal ideation and nightmares.
On October 26, 2013, Ms. Henderson submitted to Wawanesa a treatment plan. The expense of the CAT Assessment was set at $9,492, including tax.
Wawanesa rejected Ms. Henderson’s application for the expense of the CAT Assessment on November 4, 2013, stating that no funds were available to carry out the assessment. Any assessment expenses were to be deducted from the $50,000 limit, and as Ms. Henderson had exhausted her entitlement limit for Medical and Rehabilitation Benefits, there were no remaining funds available to carry out the CAT Assessment. Ms. Henderson has brought Arbitration proceedings in respect to the funding of the expenses for the CAT Assessment. If the assessment determined Ms. Henderson as being catastrophically impaired, the statutory limits of her Med/Rehab Benefits would thereby be increased to $1 million.
The dispute lies in whether the expenses for the CAT Assessment are a Med/Rehab “benefit” pursuant to section 18 of the SABS and therefore subject to the policy limit of $50,000; or an “adjusting expense” pursuant to section 25 of the SABS and outside the limit.
It is Ms. Henderson’s position that the CAT Assessment expense is covered by section 25 of the SABS which provides that the Insurer “shall pay” all fees and expenses for conducting assessments and examinations and preparing reports relating to an application for a CAT Determination.
It is Ms. Henderson’s submission that the CAT Assessment is not a Med/Rehab Benefit. Additionally, the expense of carrying out the assessment is an adjusting expense. The Form completion is not a Med/Rehab Benefit. This expense is covered by section 25 of the SABS. Should Ms. Henderson be expected to set aside a portion of the Med/Rehab Benefits from the available funds of $50,000 that she had access to in 2012 and 2013; she would have to forego or curtail her treatment. It is unreasonable to set aside a significant portion of the $50,000 so funding could be made available for the CAT Assessment at a later date.
Ms. Henderson points to the provision of section 57 of the SABS which requires her to try and mitigate her injuries by participating in any recommended treatment plans. Ms. Henderson would run the risk of failing to meet these obligations pursuant to this section if funds were diverted from her Med/Rehab Benefits to cover the expense of the CAT Assessment.
TD’s position is there is no basis on which the award can be made. The applicable section of the SABS in Ms. Henderson’s case is section 18. Nothing is payable to Ms. Henderson as she has exhausted her Medical and Rehabilitation Benefits. TD takes the position that the cost of the CAT Assessment is to be included in the Medical and Rehabilitation limits. The intent of subsection 18(5) of the SABS is quite clear – all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person is to be included in the benefit limit, which is not to exceed $50,00 and that there is a clear legislative intent to limit the benefits payable, inclusive of the cost and expenses of assessments, to $50,000.
The Arbitrator reviewed the evidence and the law. To qualify for the third level of funding of $1 million, Ms. Henderson must undergo a comprehensive evaluation by a multidisciplinary clinical team to determine if her impairment meets the criteria of a catastrophic impairment. The Arbitrator believes she has a reasonable chance of success in meeting the definition of impairment.
Wawanesa has relied on the wording of subsection 18(3)(a) of the SABS which establishes the limit of the second tier to $50,000 as the total sum of the Medical and Rehabilitation Benefits. Ms. Henderson was precluded from accessing any further funds to conduct a CAT Assessment.
There have been a number of FSCO decisions relating to CAT Assessments, and from a reading of these decisions, it can be inferred that any assessment expenses in relation to a CAT Assessment are not considered an expense pursuant to section 18 of the SABS. It appears that a Catastrophic Impairment Determination is not a benefit and by extension, the provisions in section 18 of the SABS do not apply to a CAT Assessment funding request. Thus the CAT Assessment is not in relation to a “benefit” and the provisions of section 18 of the SABS do not apply.
The question remains – does Ms. Henderson’s policy respond to the funding costs of the Assessment?
To answer this question the Arbitrator referred to subsection 25(1) of the SABS which reads:
The insurer shall pay (my emphasis) the following expenses incurred by or on behalf of an insured person… Reasonable fees charged for preparing an application under Section 45 for a determination of whether the insured person has sustained a catastrophic impairment including any assessment or examination necessary for that purpose.
In the Arbitrator’s view the statute cannot be any clearer as to its intent and application. There is no room for ambiguity – the insurer shall pay the expenses of a CAT Assessment.