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*Complimentary Issue* Volume. 4 Issue. 11 – March 18, 2020

“Kitty CAT Corner”

To-date the Tribunal has released 36 cases on CAT determination, with the featured case being the 10th involving a WPI consideration. The Tribunal in this case chose the middle ground between two contrasting reports in making its own WPI determination, with an outcome favouring the Applicant.

You can easily find all CAT determination cases which are indexed globally (CAT) or more specifically by CAT-WPI Determination on inHEALTH’s LAT Compendium.

Middle Ground for CAT – In 18-003334 v Guarantee, the Tribunal considered the expert opinions of both the Applicant and the Respondent in finding that the Applicant had sustained a catastrophic impairment. For this 2010 accident, the Applicant sustained both psychological and physical impairments. She has been assessed a 67% Whole Person Impairment (WPI) by her assessor and 39% by the Respondent’s assessors.

Dealing firstly with the Applicant’s mental/behavioural impairments, the Tribunal did not find the Applicant’s report either “compelling or reliable.” The Tribunal noted there to have been “significant” differences between a draft and final report, especially a deletion of numerous functional abilities that did not reconcile with the overall assessor’s ultimate opinion. The Tribunal had “difficulty with” explanations provided for the differences between the two reports and found that the evidence of the report writer in this regard was “in direct opposition to” evidence of the overall assessor.

Despite these issues, the Tribunal nonetheless relied upon other aspects of the Applicant’s report in making their own independent determination with respect to the physical impairments. Numerous aspects of the Respondent’s assessors were also incorporated. In addition to the mental/behavioural impairment, the Tribunal considered eight physical impairments, six of which were rated positive. Ultimately, it was found that the Applicant has sustained 54% WPI. “After rounding, as permitted by the Guides, the applicant meets the threshold of 55% and therefore has sustained a catastrophic impairment.”

For Doctors Only– In 18-004653 v Aviva, the Respondent argued that the Applicant’s requests for three CAT assessments were “in the nature of a rebuttals (sic) to the respondent’s assessment of the applicant’s impairment and therefore not allowable under the applicable version of the SABS.” It further submitted that the “OCF-18s cannot be considered in any event as they were not completed by a physician as is required.”

The Tribunal noted firstly that for this April 2010 accident it was the 2010 version of the Schedule that applied. Given s.24 from the 1996 Schedule that allows for rebuttal reports does not apply after August 31, 2010, the Tribunal found, “there is a clear cut-off for the use of the same.” Further, the three Treatment Plans for occupational therapy services identified as CAT assessments were found not to be payable, as they were completed by an OT instead of a physician as required by ss.45(1) and 2(1) of the Schedule.

Of note, the rebuttal aspect was addressed in last week’s LAT inFORMER. To learn more about the indexing of LAT inFORMER Archive, reach out to us on Live Chat.

“Frivolous” Recon – In 18-008089 v Unifund, the Respondent sought reconsideration of the Tribunal’s decision that the costs of a CAT assessment were not within the available medical limits. Hearing its own reconsideration, the Tribunal noted that “a request for reconsideration is not to re-weigh the evidence” and that the Respondent was essentially trying to re-litigate the decision based on the same arguments that had already been heard at the hearing.

The Tribunal, in denying the reconsideration, found that the high bar for granting costs was met. The request for reconsideration was found to be “frivolous and interferes with the Tribunal’s efficient and effective process in adjudicating disputes.” As a result, the Tribunal granted the Applicant costs in the amount of $100.

Given the significant number of reconsideration requests that are denied based upon the same or very similar circumstances, it remains to be seen whether the Tribunal has set a new standard for the awarding of costs.

Insurer Shall Pay – In 19-002329 v RSA, the Tribunal again considered the question regarding CAT assessments being within available medical limits, finding the Applicant entitled to payments in the amount of $16,272 for the disputed assessments, despite having exhausted the available limits. The Tribunal referenced s.25(1)5 of the Schedule which “states that the insurer shall pay…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.”

The Tribunal also noted that s.18(5) references assessments “in connection with any benefit or payment…(and) the wording in section 25(1)5 of the Schedule does not give rise to any ambiguity. It is quite clear that catastrophic assessments are covered by section 25(1)5. Moreover, if the legislature intended catastrophic assessments to be captured by the limits in section 18(3)(a), the wording in section 18(5) would have reflected that.”

In Trending – Does OHIP Provide the Same Level of Service?

The LAT continues to consider the role of OHIP and whether it provides the same level of service as proposed by Treatment and Assessment Plans in question.

Ortho Assessment Not Duplication – In 19-000674 v Aviva, the Tribunal considered a request for an orthopaedic assessment that the Respondent contended was not reasonable as the Applicant was at the time being followed by an orthopaedic surgeon. The Tribunal agreed however with the Applicant that the surgeon “was only assessing her ongoing knee issues and did not address her other injuries, primarily her recurring pain, through a whole-body examination or on a review of the medical documentation detailing her complaints of pain. Further, [the Respondent] has not tendered any evidence to prove that the assessment in dispute is funded by OHIP, as it alleges.”

Ortho Assessment Clear Duplication – In contrast, the Tribunal in 18-008643 v Aviva, found that a requested orthopaedic assessment was a “duplication of services”, as the Applicant was previously assessed by an orthopaedic surgeon fewer than two months prior to the submission of the disputed orthopaedic assessment plan. This previous assessment “was as a result of a referral from her family physician…and was paid for by OHIP.”

No Goals or Purpose – Continuing this theme, in 18-004576 v RSA, the Tribunal again considered an instance wherein the Applicant had been seen by an orthopaedic surgeon upon referral by her family doctor through OHIP for accident related injuries. The Tribunal found that a request for an orthopaedic assessment under s.25 was a duplication under the circumstances. The Applicant argued that the OHIP funded assessor could not “provide an assessment that addresses the applicant’s diagnosis, prognosis, and treatment recommendations.” The Tribunal though found that “his consultation report…does just that.”

The Applicant further referenced prior Tribunal decisions wherein it was “determined that there was no compelling evidence that the OHIP doctor could provide the type of assessment recommended in the treatment plan…(however) that case is distinguishable because [the s.25 assessor]’s treatment plan does not list any goal or purpose for the assessment.”

OHIP Quality in Question? – Finally, in 18-007091 v Unica, the Tribunal considered whether the Applicant was required to pursue physiotherapy treatment available through OHIP in lieu of the proposed Treatment Plan. Referencing an earlier Tribunal decision on point, it was noted that “At the very least, an insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue, whether in whole or in part, was reasonably available to the insured from a collateral provider.”

The Tribunal found, “There is no evidence of the OHIP-funded physiotherapy’s quality, quantity, treatment regimen, equipment used, or duration; these would be based upon which the Tribunal might be able to compare the two sources of physiotherapy and determine whether or not the proposed treatment is reasonably available under another plan.” Further, physiotherapy “may have significant qualitative and quantitative differences between providers, which may lead to different treatment outcomes in a patient.”

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