May 08, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Decision Date: April 7, 2009
Jason Baker was injured in a motor vehicle accident on April 5, 2002. He applied for and received statutory accident benefits from ING Insurance Company of Canada. ING denied Mr. Baker's claim for the cost of a future care cost analysis, dated October 19, 2006. The issue of the hearing was to determine if Mr. Baker was entitled to payment of the cost of a future care cost analysis, by Ms.Y.P., dated October 19, 2006, in the amount of $986.82, with interest, pursuant to section 24 of the Schedule.
The parties proceeded on the basis that the Schedule as it stood at the time Mr. Baker applied for the disputed future care cost assessment (namely, February 10, 2006 – Ontario Regulation 403/96, amended to Ontario Regulation 281/03) was the appropriate legislative framework within which to consider the parties' respective rights and obligations. The arbitrator agreed with this approach because it conforms to one of the basic rules governing the temporal application of legislation, namely, that, subject to potential retrospective application, new legislation is presumed to have an immediate effect if it is not retroactive and does not interfere with vested rights.
Pursuant to section 24(1) of the Schedule, an insurer is required, in part, to pay reasonable fees charged by a health professional for conducting an assessment and preparing a report, if the assessment and report were reasonably required in connection with a benefit claimed or the preparation of a treatment plan, and the insured person submitted the expense for approval under a treatment plan under section 38 or submitted an application for approval of an assessment under section 38.2.
On behalf of Mr. Baker, Ms. Y.P., a certified life care planner, submitted an Application for Approval of an Assessment or Examination (an "OCF-22"), dated February 10, 2006, in respect of an "Assessment of Future Care Costs/Housekeeping/Home Maintenance" in the amount of $986.82.
Ms. Y.P. signed Part 3 of her OCF-22, entitled "Signature of Regulated Health Professional," certifying that the services contemplated were reasonable for the assessment of the applicant. In Part 5 of the OCF-22, entitled "Provisional Clinical Information," the health professional is asked to describe the details of the assessment requested and the rationale for it, in response to which Ms. Pollard wrote that the Assessment of Future Care Costs/Housekeeping/Home Maintenance was based upon medical documentation and indicated that Mr. Baker would possibly need assistance in the future, as there was potential for deterioration in his condition.
ING set out the basis of its denial in a letter dated February 13, 2006, as follows: “Please be advised that it is the position of ING Insurance that this is not a reasonable or necessary expense that is contemplated by the Statutory Accident Benefits Schedule (SABS) and as such, is not subject to an OCF 22 form (or a DAC). That is, the obligation of an accident benefit insurer is to fund reasonable and necessary present medical and rehabilitation needs on an incurred basis. As a result, we are not in a position to fund a Future Care Cost Report.We would also draw your attention to "Minassian versus Halifax" Arbitration decision which indicated that reports for the purposes of tort (i.e. for settlement or dispute resolution) are not the subject of SABS coverages and therefore, not recoverable. It is our position that a Future Care Cost report is for purposes of settlement and therefore, not SABS recoverable.”
By letter dated February 27, 2006 from his solicitor, Mr. Baker disputed ING's denial of the cost of the Future Care Cost report and requested that the matter be referred to a DAC. Counsel stated as follows: “Mr. Baker's intention before the collision was to continue working for Canada Bread as a relief driver, then buy a franchise and become an owner/operator….He would rather train now instead of investing in a bread delivery franchise which he would ultimately be unable to sustain in the future because of his injuries. As a result, vocational retraining is necessary and a labour market survey may be required as well. The purpose of Ms. Y.P.'s report is to assess these matters.”
On April 18, 2006, Mr. Baker's counsel wrote ING, indicating that he had not received a response to the February 27, 2006 correspondence and stating as follows: “Given that you have failed to provide notice to the designated assessment centre within five days of this request as required by s. 43(1) of the SABS, you are now required under s. 43(12) to pay for the cost of Ms. Y.P.'s assessment. We will be advising Ms. Y.P. to proceed and submit her invoice to you.”
On April 19, 2006, ING responded to this correspondence as follows: “We would draw your attention to our letter of February 13, 2006….Our position remains unchanged on this matter and no funding will be available for this Future Care Cost Report.”
Ms. Y.P. proceeded to conduct her assessment on August 22, 2006 and issued her report on October 19, 2006. Ms. Pollard noted that Mr. Baker's solicitors had requested that her firm complete an Occupational Therapy Assessment focusing on analysis of the client's anticipated needs should he require to undergo right knee arthroscopic surgery at a future date (as per a letter from Dr. R.G. dated September 9, 2005). Dr. R.G., an orthopaedic surgeon, had reported as follows: “The injuries Jason Baker sustained in the motor vehicle accident will lead to some permanent impairment of his right knee. Presently he is functioning fairly well with his chronic posterior cruciate ligament insufficiency and early degenerative changes involving his medial aspect of his knee. To date the osteotomy or realignment procedure has been successful in returning Jason back to his previous line of employment. His current disability or limitations in activity are not presently limiting his ability to participate in his job; however, the degenerative changes in Jason's knee likely will progress over time. This in turn may lead to greater disability in the future which may impact on his ability to continue with his current line of employment. The timing of the deterioration is somewhat unpredictable but likely would occur over 15 or 20 years. Although no further surgical procedures are currently scheduled, Mr. Baker may require a repeat arthroscopic debridement at some time in the future and possibly may require a total knee replacement in his 50's. In short, although Mr. Baker's short term prognosis appears quite good his long term prognosis remains somewhat guarded.”
The Parties' Submissions
At the hearing, ING maintained that, in order to be entitled to the cost of Ms. Y.P.'s report, Mr. Baker was required to establish under section 24(1) that the report was "reasonable" and that it was "reasonably required in connection with a benefit." ING submitted that the report was not reasonable because it pertained to various assistive devices, services and treatments Mr. Baker might require upon turning fifty years of age (roughly fifteen years after the time the report was prepared). ING also noted that the report's recommendations pertained to items to which Mr. Baker's entitlement had already expired under the Schedule, given that he was not catastrophically impaired, or would expire well before he would reach fifty years old (namely, attendant care, housekeeping and home maintenance, medical treatment and devices, transportation and medications).
ING submitted that, as in Halim, Ms. Y.P.'s OCF-22 did not meet the minimum screening requirements of section 38.2(2)(c). Mr. Baker responded that the OCF-22 was sufficiently detailed to satisfy section 38.2(2)(c), and that, in any event, any deficiency in that regard had been remedied by his counsel's February 27, 2006 letter regarding the purpose of the Future Care Cost analysis. Mr. Baker also noted that, contrary to the basis on which ING denied payment of the report (in its February 13, 2006 correspondence), there was no need that the proposed report pertain to "present medical and rehabilitation needs on an incurred basis." Finally, Mr. Baker pointed out that the report addressed medical and rehabilitation expenses that had not yet expired under his policy.
ING maintained that Ms. Y.P. did not state with sufficient clarity that the proposed assessment was reasonably required in relation to a benefit. However, the arbitrator disagreed. Ms. Y.P. signed Part 3 of the OCF-22 certifying that the services contemplated were reasonable for the assessment of Mr. Baker. Part 5 of the OCF-22 also simply asks that the health professional describe the details of the assessment requested and the rationale for it. The arbitrator found that Ms. Y.P.'s statement (concerning an assessment of Mr. Baker's future care costs, housekeeping and home maintenance based on medical information of the possibility of deterioration and the need for future assistance), while somewhat general, was sufficiently detailed to convey the nature of the assessment and its purpose. While not necessary to the arbitrator’s determination, it was found that, based on its February 13, 2006 denial letter, ING appreciated the nature and rationale for the proposed assessment.
ING suggested that Ms. Y.P.'s OCF-22 was not reasonable because it referred to benefits for which Mr. Baker's statutory entitlement had expired. While this appeared to have been true in respect of housekeeping and home maintenance benefits, it was not necessarily the case for future care costs. This could have referred to a variety of benefits, including medical and rehabilitation benefits, for which Mr. Baker's entitlement would not expire until 2012.
Ms. Y.P.'s OCF-22 referred to an "assessment of future care costs" based on medical information which suggested that Mr. Baker may require assistance arising from possible deterioration in his condition. The arbitrator did not find it was necessary for Ms. Y.P. to specify the particular benefits that might be covered by "future care costs." The arbitrator found it reasonable to infer that this referred to at least medical and rehabilitation benefits. The arbitrator noted in this regard that ING responded to the OCF-22 on this basis (denying the assessment on the premise that the medical and rehabilitation benefits were not to be incurred until well into the future).
The arbitrator further found that ING did not properly interpret Dr. R.G. 's report (upon which the OCF-22 was based) since Dr. R.G. did not state that the anticipated deterioration in Mr. Baker's condition would occur in 15 to 20 years, but rather over 15 to 20 years. Dr. R.G. also stated that Mr. Baker's long term prognosis was guarded. The OCF-22 simply referred to the medical information on the potential for deterioration in Mr. Baker's condition; it did not state that Mr. Baker would possibly have medical needs after undergoing surgery in 15 to 20 years.
The arbitrator found that ING provided a questionable basis upon which to deny the proposed assessment, but, at the very least, that it ought to have sent the matter to a DAC for an independent review of the reasonableness of the future care cost analysis.As ING failed to refer the matter to a DAC, it was deemed that ING accepted the assessment as reasonably required, and, pursuant to sections 43(1) and (12) of the Schedule, was required to pay for the cost of the assessment.