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News Update – May 14, 2019

No Room for Ambiguity

In the first case, the Tribunal considered a request for a CAT assessment, with the Applicant having already exhausted the $50,000 available medical limits. Awarding all but one component of the proposed $21,500 assessment, it was noted that “Section 18(5) refers to assessments in connection with any benefit or payment to or for an insured person…and that this narrow restriction excludes assessments not directly related to a specific benefit or benefits”.

The Tribunal found, “Section 25(1)5 clearly covers catastrophic impairment assessments” and that “there is no room for ambiguity – the insurer shall pay the expenses of a CAT assessment” as established in Henderson v Wawanesa. Further, “there is no reference or requirement under either section 18 or 25 that connects [the applicant]’s disputed treatment plan to the non-catastrophic limit of $50,000 established by the Schedule for medical benefits.”

Noting that the Applicant was seeking “a fraction of the number of assessments” that the Respondent had conducted, the Tribunal concluded that each of the proposed assessments, with the exception of the fees for file and medical document review, are payable as they were within the $2000 cap.

It was also noted that “the Schedule serves as a consumer protection measure to ensure insured persons have fair access in the determination of appropriate treatment for accident-related injuries. Where an insurer is seen to be placing itself in a more advantageous position, a balance must be re-established, in order to maintain the intended consumer protection nature of the Schedule. If not, an insured will always be at a disadvantage, resulting in a lack of consumer trust in a system designed to create a fair accident benefit process.”

CAT Assessment IS a Request for a Medical Benefit

In the second case – another case involving a CAT assessment, the Applicant was awarded only three of eight proposed assessments. The Tribunal once again confirmed an Applicant’s right to securing their own assessments, in order to avoid the Respondent having an unfair advantage “keeping in mind the procedural fairness aspects and the purpose of the Schedule being consumer protection”.

While the Applicant suggested that under s.25(1)5, payment for CAT assessments was in fact mandatory, subject to reasonableness of fees, the Tribunal disagreed, finding that “each examination is a request for a medical benefit”, subject to the ‘reasonable and necessary’ test. The test is outlined in s.15 of the Schedule and falls under Part 3 of the Schedule which is for medical, rehabilitation and attendant care benefits. “The applicant, in this case, is seeking the approval of the treatment plan for cost of examinations for medical benefits.” This finding would seem to suggest that the costs of the assessments would therefore be subject to the medical limits.

The Respondent argued further that the proposed fees were not broken down into an hourly rate and as such “the entire treatment plan is deemed to be not reasonable and necessary”. Finding no support for this in the Schedule, the Tribunal did “not agree with the respondent’s position that the fee [which is in accordance with the maximum in section 25(5)(a)] is unreasonable simply because it did not state the number of hours the examination would take. The treatment plan form itself does not have a column to input the number of hours and the respondent has not directed me to anywhere else on the form where it requires this information.”

“Furthermore, the respondent has not provided any submissions or evidence of an hourly breakdown completed by its IE assessors and whether the IE assessors were able to conduct the comparable assessments for less than $2,000. In my opinion, not providing an hourly figure on the cost of examination does not render the entire examination as not reasonable and necessary…” While we have reported previously on cases where this was in fact the finding of the Tribunal, it seems, at least for CAT assessments, that this argument will likely not succeed. 

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