Until recently the insured has had to use funds from their medical/rehab limits to fund the cost of assessments to determine whether they qualified for the CAT level of accident benefits. The insured would have a Treatment and Assessment Plan (OCF-18) prepared and submitted which would outline the types of assessments they required and the costs of each one for the funding of a catastrophic impairment assessment. Usually, at the same time they would have the Application for Determination of Catastrophic Impairment (OCF-19) prepared. The insurer has been paying for the total of the OCF-18 and the cost of preparing the OCF-19 from the $50,000 medical/rehab limits. Not only would this use up a huge portion of the available medical/rehab funds, but if the insurer denied CAT benefits, the insured then had anywhere from $2,000 to $10,000 less in med/rehab funds available under their non-CAT level of benefits.
On July 9, 2015, Arbitrator Bowles rendered his decision in the case of Lee-Anne Henderson and Wawanesa Mutual Insurance Company, FSCO A14-001758, and ordered that the insurer was to pay for these costs. Ms. Henderson submitted an OCF-18 setting out the expense of the CAT assessment at $9,492.00 which included a psychological assessment – $2,000, physiatrist assessment – $2,000, functional assessment – $2,000, overall assessment summary – $2,000, OCF-18 – $200 and OCF-19 – $200. Wawanesa rejected the application stating that any assessment expenses were to be deducted from the $50,000 med/rehab limit and Ms. Henderson had exhausted her entitlement limit for medical/rehab and there were no funds available to carry out the CAT assessment.
The dispute lies in whether the expenses for the CAT assessment are a med/rehab “benefit” pursuant to S.18 of the SABS and therefore subject to the policy limit of $50,000 or an “adjusting expense” pursuant to S.25 of the SABS. Under S.45 of the SABS the insured may apply to the insurer for a determination of whether the impairment is a catastrophic impairment. S.57 of the SABS requires an insured to try and mitigate the injuries by participating in any recommended treatment. If the CAT assessment was paid from the med/rehab limits, Ms. Henderson would run the risk of failing to meet these obligations pursuant to the section if funds were diverted from her med/rehab limits to cover the expense of the CAT assessment.
Arbitrator Bowles was of the view that S.45 of the SABS, along with referral to previous cases, make it clear that S.18 does not apply to a request for the funding of a CAT assessment. Subsection 25(1) says the insurer shall pay the expenses and subsection (4) refers to the reasonable fees charged for preparing an application under S.45. Subsection (5)(a) sets the limit at no more than $2,000 for each assessment set out on the OCF-18. On Ms. Henderson’s OCF-18, there were four assessors identified and each one can charge up to $2,000. Arbitrator Bowles ordered that Wawanesa pay the expense of the CAT assessment in the amount of $9,492.00 as an adjusting expense!
Nicholson Gluckstein Lawyers