LAT Hearing and PsycIME — December 17, 2021
Tribunals Ontario
Licence Appeal Tribunal
Tribunaux décisionnels Ontario
Tribunal d’appel en matière de permis
Citation: G.P. v. Wawanesa Mutual Insurance Company, 2022 ONLAT 18- 010583/AABS
Licence Appeal Tribunal File Number: 18-010583/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Glenda Primo
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION AND ORDER
VICE-CHAIR: Chloe Lester
APPEARANCES:
For the Applicant: Glenda Primo, Applicant
Mohamed Elbassiouni, Counsel
For the Respondent: Alex Amigud, Representative
Jason H Goodman, Counsel
Nicole Dowling, Counsel
Court Reporter: Guido Riccioni
Heard by videoconference on: November 29–December 3, 13 and 17, 2021 with written submissions following the hearing
REASONS FOR DECISION AND ORDER
BACKGROUND
[1] The applicant, Ms. Glenda Primo, was involved in an automobile accident on September 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). Ms. Primo was denied certain benefits by the respondent, Wawanesa Insurance Company (“Wawanesa”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
PRELIMINARY ISSUES
[2] Ms. Primo requested that her additional psychological medical records from Barton Medical be admitted into evidence. The medical records cover a missing time period from the already disclosed records. The documents were disclosed to Wawanesa one business day prior to the hearing. Wawanesa opposes the introduction of the new documents because it did not have enough time to review them.
[3] I denied Ms. Primo’s request. The original hearing was scheduled for November 2020, and this information would not have been available had the hearing proceeded at that time. Already in evidence are the Barton Medical records from before and after the missing time period. There is enough information contained in the records to demonstrate Ms. Primo’s mental state.
ISSUES IN DISPUTE
[4] Did Ms. Primo sustain a catastrophic impairment as defined under the Schedule?
[5] Is Ms. Primo entitled to an income replacement benefit (IRB) in the amount of $400.00 per week from January 9, 2017 onward?
[6] Is Ms. Primo entitled to $26,971.50 (less amounts approved) for catastrophic determination assessments recommended by Novo Medical Services submitted on April 15, 2019?
[7] Is Ms. Primo entitled to 7 treatment plans for various assessments?
[8] Is Ms. Primo entitled to 5 treatment plans for various physical and psychological medical benefits?
[9] Is Wawanesa liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Ms. Primo?
[10] Is Ms. Primo entitled to interest on any overdue payment of benefits?
RESULTS
[11] Ms. Primo is catastrophically impaired.
[12] Ms. Primo is entitled to a pre-104 IRB and a post-104 IRB in the amount of $400.001 from January 9, 2017, ongoing, less any post-accident income/deductions, if applicable.
[13] The following treatment plans are payable in accordance with s. 38 (11) of the Schedule because Wawanesa failed to provide proper notice under s. 38 (8):
- $26,971.50 (less amounts approved) for a catastrophic assessment, b. $13,566.81 for a chronic pain treatment program,
- $2,260.00 for a chronic pain assessment, and
- $1,808.00 for a functional abilities evaluation.
[14] Ms. Primo has not met her onus regarding the following treatment plans and are not considered reasonable and necessary:
- $3,341.87 (less amounts approved) for psychological treatment, b. $2,200.00 for an occupational therapy in-home assessment,
- $2,200.00 for an occupational therapy situational assessment, and d. $1,808.00 for a worksite assessment.
[15] Ms. Primo is entitled to an award and interest.
CATASTROPHIC IMPAIRMENT
[16] Ms. Primo argues that she meets the definition of being catastrophically impaired. She states that most of the assessors agreed she had a somatic symptom disorder, predominant pain, some agreed she had major depression and others an adjustment disorder. Ms. Primo argues that according to the AMA
1 Joint Brief Part 2 Tab 156
Guides2 the severity of the psychological diagnosis is not determinative of the degree of impairment in any of the four spheres. So, even if there is a finding that Ms. Primo has adjustment disorder or major depression, there still can be a finding that she has a marked impairment. Ms. Primo relies on her psychiatrist, Dr. Patel’s report to support her belief that she meets a marked impairment in the areas of concentration, persistence and pace, and adaptation.
[17] Wawanesa argues that Ms. Primo does not meet this high bar of being catastrophically impaired. It relies on its reports conducted by a psychiatrist, Dr. Kirsch, and occupational therapist, Ronald Findlay. Wawanesa asserts that the reports and testimony of Ms. Primo were inconsistent, as her reports of panic attacks have not been witnessed, she continues to drive, she failed to report her pre-accident medical history consistently to assessors, and there are concerns regarding symptom magnification and overreporting.
[18] At the time of the accident and in accordance with the Schedule, Ms. Primo must demonstrate that she meets one (1) class 4 impairment (marked impairment) or one (1) class 5 impairment (extreme impairment) in one or more areas of function due to a mental or behavioural disorder and in accordance with the AMA Guides 4th Edition.3
[19] More specifically, Ms. Primo argues that she has a marked impairment in adaptation and concentration, persistence, and pace and therefore meets the definition of being catastrophically impaired.
[20] Adaptation refers to a “Deterioration or decompensation in work or work-like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers…”.
[21] Concentration, persistence, and pace refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings.4
2 American Medical Association Guides to the Evaluation of Permanent Impairment 4th edition (“AMA Guides”)
3 Section 3(1) (2) (f) of the Schedule
4 AMA Guides Page 294
[22] In weighing the evidence, I prefer the reports of Ms. Primo’s assessors, Dr. Patel and Mr. Amchislavsky, over Wawanesa’s reports. I find the reports by Wawanesa’s assessors support Dr. Patel’s conclusions.
[23] I find Dr. Patel’s assessment extremely thorough. He had built a rapport with Ms. Primo and it appeared she was more open with him during the assessment. His assessment diagnosed her with a somatic disorder with predominant pain, persistent, and major depressive disorder. Dr. Patel’s assessment found Ms. Primo to be catastrophically impaired in the areas of concentration, persistence and pace, and adaptation.
[24] I also find Dr. Patel’s conclusions in line with Ms. Primo’s treating practitioners’ records and testimony. Ms. Primo’s family doctor, Dr. Soto De Machat, referred Ms. Primo to a psychiatrist at Oakville Hospital, and his conclusions were that she suffered from major depressive disorder with anxious distress secondary to chronic pain.5 Her psychiatrist, Dr. El-Saidi, diagnosed Ms. Primo with depressive disorder due to chronic pain. At that time Ms. Primo was experiencing 1-2 panic attacks per week.6 Dr. Harris, psychologist (a s. 25 assessor), diagnosed Ms. Primo with somatic symptom disorder with predominant pain persistent, severe; major depressive disorder severe, and post-traumatic stress disorder chronic.7
[25] I also find Dr. Patel’s conclusions in line with the testimony of Ms. Primo and her son. Ms. Primo testified that when she attempted to return to work as a Personal Support Worker (“PSW”) in 2018, her thoughts were preoccupied with whether she had turned off the client’s stove, whether she cleaned the dishes or left the TV on. She expressed that she felt so overwhelmed to the point where she yelled at one of her clients who was suffering from dementia. Ms. Primo son testified and explained how he accompanies her to the grocery store and sometimes she just looks confused. She will be looking for an item but then pass it ten times. Mr. Primo recalled a time when they went to the store and the worker asked Ms. Primo for her email address and she couldn’t figure out how to enter it on the screen. Mr. Primo testified that he had to do it for her. He told us how Ms. Primo got so frustrated that she wanted to walk out of the store and Mr. Primo reminder her that they could not leave yet because they had not paid for the items. All of these are examples of how Ms. Primo failed to adapt, she attempted to withdraw from the situation or experienced an exacerbation in her symptoms. A clear indication of how she deteriorates or decompensates when faced with a stressful circumstance. She also exhibited an inability to sustain focused attention long
5 Joint Brief page 272- consultation report of Dr. Shah September 21, 2017
6 Joint Brief page 783 – report of Dr. El-Saidi December 19, 2018.
7 Joint Brief page 808-809 report of Dr. Harris February 5, 2016
enough to permit the timely completion of tasks, an indication of a failure to maintain concentration, persistence and pace.
[26] I find the s.44 reports of Dr. Kirsch, psychiatrist, and Ronald Findlay, occupational therapist supportive of Dr. Patel’s conclusions. Throughout the report, it is clear that Ms. Primo was decompensating, failed to adapt to the stress of the assessment, and experienced an exacerbation of her psychological symptoms. It was noted in Dr. Kirsch’s report that Ms. Primo looked uncomfortable, was breathing heavily, had feelings of being overwhelmed, and hyperventilating. Dr. Kirsch had concerns about whether she would pass out. Dr. Kirsch observed a restricted range of emotional expression and at times, she was in tears. Her exacerbated symptoms were so intrusive that Dr. Kirsch ceased the assessment and rescheduled it for another day.
[27] During Mr. Findlay’s assessment, she got quite emotional and cried various times throughout the assessment. He testified that from an emotional perspective she did quite well in the beginning, but halfway through she began to get emotional, and he gave her time to calm down. During the last task, Ms. Primo forgot the stove on, she openly began to sob and was very emotional. At this point, Mr. Findlay terminated the assessment, and it resume the next day. On the second day, Mr. Findlay testified that Ms. Primo presented more agitated, needed more breaks, and began sobbing. During the assessment, Ms. Primo expressed that she wanted to be left alone and sought less interaction.
[28] Again, in both assessments, Ms. Primo showed a failure to adapt to various stressful circumstances, which resulted in an exacerbation of her symptoms, an inability to complete tasks and a reaction to withdraw from the scenarios.
[29] According to Dr. Kirsch, there were 3 main areas of concern which resulted in the diagnosis and impairment rating that he gave her. He found there were issues with her validity scores and evidence of potential malingering. He found Ms. Primo’s clinical presentation unusual and assumed it must have been a part of her normal characteristics, and lastly, he felt that her psychological symptoms did not coincide with what he believed as a “simple motor vehicle accident”. Dr. Kirsch did not conduct a collateral interview to confirm his conclusions. Had Dr. Kirsch conducted a collateral interview he would have found that both Ms. Primo’s son, Nathaniel Primo, and her family doctor, Dr. Soto De Machat, would have confirmed that her unusual presentation was not present prior to the accident. Dr. Soto De Machat testified that Ms. Primo’s slowness in her speech had begun after the accident and had been ongoing for the last few years. Umair Malik, Ms. Primo’s psychotherapist, testified that when Ms. Primo gets a
headache, she responds slowly and her mood begins to appear sad. He testified that when she gets anxious, she begins to hyperventilate. He stated that during an anxiety attack she either quits or freezes in the moment. Umair Malik testified that being slow is one of the symptoms of severe depression, along with decreased concentration, diminished interest in activities of daily life, and/or loss of appetite and overeating. These are all symptoms that Ms. Primo has complained of to various assessors over the years. Also, I find there was no explanation of why Ms. Primo could not have the psychological reactions she did in the face of what Dr. Kirsch viewed as “a simple accident”. From the medical records, it is clear that her emotional state did not begin that way. The physical injuries turned into chronic pain, the psychiatric injuries began to appear, then the symptoms began to amplify as time went on and the claim progressed. The records show a lot of distress after the IRBs were terminated and her financial problems increased.
[30] During the s. 44 assessments there were continuous examples of where Ms. Primo failed to adapt to the scenarios she was presented with, yet Dr. Kirsch provided no reasonable explanation for how her clinical reactions rendered her moderately impaired. I also find that Dr. Kirsch failed to conduct a thorough examination in consideration of the perceived discrepancies in her clinical presentation.
[31] I find Ms. Primo has shown repeated examples of a marked impairment concerning adaptation, and concentration, persistence, and pace. Ms. Primo is catastrophically impaired.
INCOME REPLACEMENT BENEFIT
[32] As a result of the accident, Ms. Primo suffered from impairments that prevented her from returning to work. Based on its initial assessment, Wawanesa paid IRB’s until it re-assessed the benefits in January 2017. Based on a series of s. 44 assessments, Wawanesa terminated the benefit on January 9, 2017.
[33] Ms. Primo argues that her physical and psychological impairments prevent her from completing her work tasks and are supported by her family doctor.
[34] Based on Wawanesa’s s. 44 assessments, it determined that Ms. Primo had no limitations or restrictions that prevented her from returning to work. Wawanesa argues that Ms. Primo had several inconsistencies between the assessments and throughout the functional testing, that she either refused to take part in the testing or applied sub-maximal effort.
[35] In order to be entitled to an IRB within the first 104 weeks of the accident, Ms. Primo must prove that based on the accident-related impairments, she has a substantial inability to perform the essential tasks of her employment.8 This test is consistently referred to as the pre-104 IRB test.
[36] At the time of the accident, Ms. Primo worked as a Support Service Attendant for two different companies. Her duties involved similar tasks of a personal support worker. Ms. Primo would assist clients with their activities of daily living in their personal homes. This would include feeding, bathing, dressing, changing diapers, grooming, laundry, washing dishes, preparing meals, using a Hoyer Lift, and helping with medications. Ms. Primo would have anywhere from 1 to 8 clients per day and would drive to their homes. Ms. Primo’s jobs were classified in the medium strength category.9
[37] When assessed by Wawanesa, the functional abilities evaluation report dated December 19, 2016, revealed that Ms. Primo did not meet the essential physical demands of her pre-accident occupation.10 The neuropsychologist, Dr. Watson, concluded that despite some mildly elevated concerns from the validity testing, the results would be regarded as somewhat reliable as a confirmatory source of information with respect to her current psychological state. Dr. Watson diagnosed Ms. Primo with an adjustment disorder with mixed anxiety and depressed mood; and a somatic symptom disorder with predominant pain persistent and moderate. Dr. Watson felt Ms. Primo’s depressive and somatic symptomology impair her ability to perform her activities of normal living but not at a level of a disability. At that time, Ms. Primo had not yet started to attend therapy for her psychological impairments. Dr. Watson felt that from a psychological perspective Ms. Primo could return to work.11 Lastly, a physiatry assessment was conducted by Dr. Newell. He opined that Ms. Primo suffered from cervical, shoulder, and upper thoracic strains and sprains. He reported that Ms. Primo’s complaints of lumbar pain and leg symptoms are unrelated to the accident as there were no reports of injuries to this area by her family doctor after the accident.12 Based on his assessment, Dr. Newell indicated Ms. Primo could return to work with no functional limitations.
8 Section 5(1)1 i of the Schedule
9 Joint Brief Page 1557 Angela Bertolo, OT, s. 44 assessment Physical Demands Analysis Report dated December 12, 2016
10 Joint Brief page 1570 Angela Bertolo, OT, s. 44 assessment Functional Abilities Evaluation dated December 19 , 2016
11 Joint Brief page 1586 Dr. Watson s. 44 psychological assessment report dated December 19, 2016 12 Joint Brief page 1603 Dr. Newell s. 44 Physiatry assessment report dated December 23, 2016
[38] In a review of the evidence, I find that Ms. Primo has a substantial inability to perform the essential tasks of her employment and is entitled to a pre-104 IRB. Ms. Primo was not in a good state. She was constantly suffering from, not only pain, but also psychological impairments. The records indicate that she was regularly seeing her family doctor and complaining of the same impairments resulting from the accident. Her family doctor was constantly counselling her for long periods of time during these appointments because of the impact it was having on her life.13
[39] I find Dr. Watson’s report confusing as he opined that “symptomology impairs her ability to perform her activities of normal living” but then finds Ms. Primo could go back to work to perform activities of normal living for disabled or sickly individuals. At that time, Dr. Watson wanted to confirm Ms. Primo’s reports with a collateral interview, yet he never reached out to anyone to conduct it. Ms. Primo, in Dr. Watson’s report, complains of pain issues but also, irritability, slowed cognition, feelings of frustration and being overwhelmed, feelings of hopelessness and helplessness and worthlessness. She confirmed that she is also having nightmares. At that point, since Ms. Primo had not had any meaningful counselling, I find that she would not have been able to return to work considering her symptoms and lack of treatment.
[40] Although the s. 44 assessors were concerned about the possibility of symptom exaggeration or the lack of effort put forth during the assessments, I find that Ms. Primo’s reports are consistent and mimic the same complaints that were proffered to her family doctor. I also give the reports less weight since the s. 44 assessment did not have the complete records of Ms. Primo’s family doctor and did not conduct collateral interviews. If they had, it may have impacted their assessment of her and their impressions of the validity testing.
[41] I also find there are no issues regarding Ms. Primo’s credibility. Wawanesa’s main concern is whether she fully participated in the functional assessment. In the report, I note that the reason for Ms. Primo not continuing with the majority of the tests was because of the pain she was feeling. I find her reports credible, considering the assessor noted and observed: “frequent and numerous signs of discomfort”.14 The records of Ms. Primo’s family doctor indicate that her lumbar spine was affected as a result of the accident.15 Ms. Primo had been seeing a chronic pain specialist16 for injections to various areas, which appeared to only
13 Joint Brief page 416-417 records from Dr. Soto De Machat
14 Joint Brief Part 2 Functional Ability Evaluation page 1569
15 Joint Brief page 1031 physiotherapy referral of Dr. Soto De Machat September 8, 2015 16 Joint Brief Part 2 Page 1429-1431 – MRI report and Chronic pain clinic initial report
provide temporary relief and she was experiencing a substantial amount of pain.17 Dr. Soto De Machat was supportive of Ms. Primo remaining off work because of her physical and psychological problems.18
[42] After the first 104 weeks after the accident, the IRB test changes. In order to be entitled to continued IRBs, Ms. Primo must prove that she now suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.19 This test is referred to as the post 104 IRB test.
[43] I find that Ms. Primo’s previous experience, training or education, makes her reasonably suited for PSW work and office manager work. She had held previous office manager jobs when she lived in Guyana, and since moving to Canada, she has held PSW jobs.20
[44] Ms. Primo argues that she meets the test for post-104 IRB because she had worsening physical and psychological impairments that prevented her from working, including chronic pain, panic attacks, decompensation in stress-like scenarios, depression and avoidance.
[45] Because Wawanesa felt Ms. Primo had not met the pre-104 IRB test, it had not conducted any assessments to determine her post-104 entitlement. Wawanesa argues that Ms. Primo does not meet the post-104 IRB test and her assessor’s opinions should not be relied upon because they did not understand the full scope of her pre-accident work history and education.
[46] I agree with Wawanesa that it is not up to an assessor to determine whether someone meets a legal test. It is the medical assessor’s job to render an opinion on, to name a few, diagnosis’, impairments, whether the mechanism of injury supports the impairments, and/or limitations and restrictions. It is Wawanesa’s job to determine policy eligibility and entitlement to a benefit. Wawanesa must look at the totality of the medical documentation on the file, and information regarding pre-accident employment or education, to determine eligibility for the benefit and adjust the policy accordingly. When there is a dispute, the onus is on the applicant to prove entitlement to the benefit.
[47] Ms. Primo reached the post-104 time period in September 2017. This is when it ought to have been determined whether she met a post-104 entitlement. It was at
17 Joint Brief Part 2 page 1563 and 1564
18 Joint Brief page 464-471 records from Dr. Soto De Machat
19 Section 6(1)(2)(b) of the Schedule
20 Joint Brief page 2374-2375 Glenda Primo’s Resume
this time, that Ms. Primo was referred by her family doctor to a psychiatrist for a consultation at Oakville Memorial Hospital. He diagnosed her with major depressive disorder with anxious distress secondary to chronic pain and struggles with her insurance claim. He recommended learning ongoing coping strategies, psychotherapy, and possible future pharmacological intervention. Ms. Primo was still suffering from her chronic pain issues.21 Also, within the year of the IRB’s being terminated, Ms. Primo had been prescribed anxiety medication and an antidepressant.22
[48] I find that Ms. Primo meets the post-104 test for IRBs. It is abundantly clear Ms. Primo cannot work in any capacity, at any job, considering she was still receiving ongoing pain injections, she had a referral to a new pain clinic, was diagnosed with major depressive disorder, and suffering from physical and psychological symptoms that required pharmacological interventions.23
[49] It was not long thereafter that Ms. Primo and Wawanesa conducted their catastrophic assessments. All reports support an inability to return to work in any capacity. Ms. Primo was found to have a marked impairment in adaptation, and concentration, persistence, and pace. Adaptation has a direct correlation to one’s ability to function in the workplace. Although Wawanesa disagrees with the findings of Ms. Primo’s catastrophic assessors, Wawanesa’s catastrophic reports alone would preclude Ms. Primo from working. The s. 44 reports found that she had a moderate impairment in social functioning, which determines one’s capacity to interact appropriately, communicate effectively, as well as one’s ability to get along with others. Ms. Primo was found to have a moderate impairment in concentration, persistence and pace, which assesses the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in a work setting or activities of daily living. She was also found to have a moderate impairment in adaptation, which determines one’s ability to adapt to challenges, to be able to manage attendance, schedule activities, make decisions, complete tasks and interact with supervisors and peers. All of these combined would inhibit Ms. Primo to work effectively in a PSW and an office manager role.
[50] For the reasons set out above, Ms. Primo meets both a pre-104 and a post-104 IRB test.
21 Joint Brief part 1 page 271-273- consultation report of Dr. Shah
22 Joint Brief part 1 page 471 and 481 clinical records of Dr. Soto De Machat
23 Joint Brief part 1 page 471 to 481 clinical records of Dr. Soto De Machat
TREATMENT PLANS
[51] Since Ms. Primo is found to be catastrophically impaired, Wawanesa agrees to pay for the following treatment plans:
- a) $2,200.00 for a psycho-vocational assessment24
- b) $2,200.00 for a chronic pain assessment25
- c) $2,593.75 (less amounts approved) for psychological treatment.26
[52] I also do not need to decide on the issues of an invoice for $402.21 for physiotherapy, and a treatment plan for $3,042.59 (partially approved for $1,696.10) because Ms. Primo and Wawanesa have come to an agreement on them.
[53] Ms. Primo argues that for the following treatment plans Wawanesa failed to provide a notice that complies with s. 38(8) of the Schedule, and therefore s. 38(11)2 applies:
- $26,971.50 (less amounts approved) for catastrophic assessments.27 Ms. Primo argues that the notice does not indicate the assessments Wawanesa would pay for, the assessments it would not pay for, or the medical and other reasons why it did not agree to pay for them.
Wawanesa did not give me any submissions on whether its notice complied with the Schedule. I agree with Ms. Primo and find the notice regarding the catastrophic assessments deficient and it did not comply with s. 38(8) of the Schedule. The Schedule is clear that a notice
approving or denying a treatment plan must contain a certain amount of information; what the insurance company agrees to pay for; what it does not agree to pay for; and the medical and other reasons for why it
considers the treatment plan not reasonable and necessary. In this case, the treatment plan proposed 12 assessments and a file review to determine whether Ms. Primo is catastrophically impaired. The notice indicated that Wawanesa would pay for $12,000 worth of assessments but did not indicate which ones would be approved and which ones it denied. The notice generically indicated that it would pay for 1 physiatry or orthopaedic surgeon assessment, an executive summary, a file
24 Treatment Plan dated May 30, 2019
25 Treatment Plan dated June 3, 2019
26 Treatment Plan dated April 11, 2018
27 Joint Brief Part 1 Tab 80- Treatment plan dated April 8, 2019
review, 1 psychological or psychiatry assessment, 1 in-home
assessment and 1 situational assessment. The medical and other
reasons for why it did not agree to pay for the remaining assessments was because the assessor “found the number of assessments proposed on the Treatment and Assessment Plan (OCF-18) to be excessive.” The notice then asks Ms. Primo to review the report in its entirety for the complete results.28 In no way did this notice provide Ms. Primo with a proper indication of what assessments it specifically agreed to pay for, which ones it did not agree to pay for or the reasons why. Finding
something excessive is not a medical reason (and other reason) for a denial. Also, by simply quoting the results of the assessment,
Wawanesa did not actually determine eligibility for the treatment plan, which also should involve a complete review of the documents it had on file. The results of a s.44 assessment could be one of the reasons for a denial, but not the only one. There was no explanation as to why the assessments were found to be excessive. Asking Ms. Primo to read the assessment on her own as the reasons for the denial is also
inappropriate. The notice should have had a complete and detailed account of why the other assessments were not approved in a clear format so that it would be easily understood by Ms. Primo. I find the notice deficient and payable under s.38(11)2.
- $13,566.81 for a chronic pain treatment program.29 Ms. Primo argues the notice is deficient because it did not outline the goods and services Wawanesa did not agree to pay for. Wawanesa provided no arguments regarding how the notice complied with s.38(8). I find that the notice did not specify which goods and services Wawanesa did not agree to pay for. It noted that Wawanesa would not pay for the entire treatment plan that was proposed on June 6, 2017. The notice should detail the amount of the treatment plan, the goods, services or assessments being
proposed and any other information to assist Ms. Primo in
understanding what was being requested and what was being denied. Also, the notice did not provide the medical and other reasons for
denying it. Again, Wawanesa refers Ms. Primo to a s.44 assessment report that had been completed 7 months earlier that indicated no further facility-based treatment was required.30 There was no explanation of why the assessment conducted by Dr. Newell on another benefit applied to this treatment plan that requested a chronic pain treatment program.
28 Joint Brief Part 2 Tab 177
29 Joint Brief Part 1 – Tab 50- Treatment Plan dated June 18, 2017
30 Joint Brief Part 2 – Tab 119 Dr. Newell S. 44 assessment
Again, the notice should have had a complete and detailed account of why the treatment plan was not approved in simple terms so that it would be easily understood by Ms. Primo. I find the notice deficient and payable under s.38(11)2.
- $2,260.00 for a chronic pain assessment.31 Ms. Primo argues that the notice did not indicate the goods and services Wawanesa did not agree to pay for. Wawanesa did not provide any submissions regarding
whether its notice complied with s.38(8). I find the notice deficient. It did not detail the goods and services Wawanesa did not agree to pay for. The treatment plan was for a chronic pain assessment, yet the letter indicated that Wawanesa would not pay for an orthopedic assessment. The notice also failed to provide the medical reasons for why Wawanesa did not agree to pay for it. The notice stated that Wawanesa would not pay for it because it had already conducted a s.44 physiatry
assessment, a request for a s. 25 orthopedic assessment would be considered a duplicate of services. This is not a medical reason. Under the Schedule, Ms. Primo is entitled to conduct her own assessment, even if Wawanesa had conducted its own. I find the notice deficient and payable under s.38(11)2.
- $1,808.00 for a Functional Abilities Evaluation.32 Ms. Primo argues that the notice did not indicate the goods and services Wawanesa did not agree to pay for and failed to comply with s.38(8) of the Schedule.
Wawanesa did not submit arguments regarding how its notice complied with the Schedule. I agree with Ms. Primo. I find the notice for this
treatment plan deficient. The notice does not detail the amount and assessment Wawanesa does not agree to pay for. The notice indicates that Wawanesa would not approve a second functional abilities
evaluation, since Wawanesa had conducted its own. Again, this is not a medical reason. Under the Schedule, Ms. Primo would be entitled to conduct her own assessment, even if Wawanesa had conducted its own. I find the notice deficient and payable under s.38(11)2.
[54] In accordance with s.38(11)2 of the Schedule, Wawanesa is obligated to pay for the treatment and assessments described in the treatment plan beginning on the 11th day until proper notice is given. Since the proper notice was never given
31 Joint Brief Part 1- Tab 55 Treatment Plan dated November 2, 2016
32 Joint Brief Part 1 -Tab 59 Treatment Plan dated April 20, 2017
and the treatment period described has elapsed, Wawanesa shall pay for the entirety of the treatment plans.33
[55] Ms. Primo failed to provide submissions on why the following treatment plans should be considered reasonable and necessary and therefore I find she has not met her onus for entitlement to them:
- $3,341.87 (less amounts approved) for psychological treatment; b. $$2,200.00 for an occupational therapy in-home assessment;
- $2,200.00 for an occupational therapy situational assessment; and d. $1,808.00 for a worksite assessment.
AWARD
[56] An award may be granted where an insurance company unreasonably withholds or delays benefits that are owed to an insured.34
[57] Ms. Primo argues an award is warranted because Wawanesa unreasonably withheld the IRB’s. She claims that Wawanesa failed its duty to provide its assessors with the necessary information relevant to Ms. Primo’s medical condition and entitlement to IRB’s. Ms. Primo also argues that Wawanesa failed to reconsider its position or seek addendum reports once it received new medical records. She also argues that Wawanesa failed to decide on the post-104 IRBs despite numerous s. 25 assessments that determined she was eligible for it.
[58] Ms. Primo also argues that Wawanesa failed to determine her entitlement for a psychovocational assessment and neuropsychological assessment. Lastly, she claims that the adjuster’s log notes demonstrate that Wawanesa requested that its assessor “alter” his report.
[59] Wawanesa submits that Ms. Primo failed to meet her burden that an award is warranted and that it did not unreasonably deny any of the submitted treatment plans submitted on behalf of Ms. Primo but rather relied on the opinions of its qualified medical assessors as it is entitled to do. It relies on the decision 17- 001627 and Certas Direct Insurance Company35, where Adjudicator Sapin held that the denial of benefits in accordance with the conclusions of the s.44 assessors does not warrant an award. Wawanesa argues that an award is not
33 N P vs Wawanesa Mutual Insurance Company 2020 CanLII 19563 (ON LAT), 18-010628/AABS 34 Section 10 of Regulation 664
35 17-001627 v Certas Direct Insurance Company, 2017 CanLII 99139 (ON LAT)
akin to punitive damages but should only be considered in cases where an insurer’s actions are extreme, excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, which has not been proven here.
[60] In this case, it is clear that Wawanesa blindly followed the conclusions of its assessors without adjusting the claim and taking into account the totality of the medical records.
[61] The s. 44 assessments for the IRB did not consider the full clinical records from the treating practitioners. Once Wawanesa received the records it did not submit them to its assessors for an addendum or review them itself to determine potential entitlement for any of the benefits. It is clear Ms. Primo’s condition continued to deteriorate to the point where she was being assessed for catastrophic impairment and again no consideration was given to whether she could possibly meet the test for IRBs.
[62] In the adjuster’s testimony, she stated that an adjuster must consider all medical records, yet the letter from Wawanesa deciding the IRB or various treatment plans clearly did not. The notices simply quote the s.44 assessments and denied the benefits. Adjusting the file would ensure taking into consideration all the medical records in assessing entitlement for a benefit. Further, I find the adjuster did not objectively look at the s.44 assessor’s reports and determine whether the conclusions were in line with the complaints and medical information in the file. Also, the adjuster must look at the contrary opinions and determine how they may affect the accuracy of the s. 44 reports. The adjuster testified that she is not a medical doctor and therefore cannot opine for herself. The adjuster was questioned about the preponderance of the evidence that supported an inability to work and what Wawanesa did with it once it was received. The adjuster testified that either she was not the adjuster on the file at that time, she is not a medical doctor, or it would not have been fair to send medical records to an assessor who conducted the pre-104 test 4 years earlier.
[63] I find that none of the adjusters took into account the medical records from the treating practitioners or the opinions of the s.25 assessors. I agree that the adjuster is not a doctor and cannot render a medical opinion. The adjuster’s role is to adjust the file. To fairly decide whether someone is entitled to a benefit is a contractual obligation between Wawanesa and its client, in this case, Ms. Primo. The notices from Wawanesa should be clear on why it denied the benefit, why it agrees with the conclusion in a report, and if there are contradicting opinions, why it prefers one over the other. Continuously adjusting the file would mean as new medical records are submitted, it is the adjuster’s responsibility to look at
them or refer them for an addendum to determine whether it changes any previously denied benefits. It is evident that this was not done. Not only did the family doctor’s records support an inability to return to work, but so did Ms. Primo’s assessments. It is clear that none of the adjusters gave consideration to the records for the previously denied benefits.
[64] In accordance with s. 10 of Regulation 664:36 an adjudicator “may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.”
[65] Ms. Primo has not submitted any arguments regarding the quantum I should award. I elect to award a value of 30% of the owed IRB’s, treatment plans, and interest for the mishandling of this file, blindly following the results of the s.44 assessors without considering the totality of the evidence and Wawanesa’s failure to continuously adjust the file. I find the 30% reasonable considering Ms. Primo suffered financial hardships as a result of benefits being terminated, including a need to apply to Ontario Works, borrowing money from family and having to “cut back on her diet and spending”37, and the lack of treatment. She was also deemed catastrophically impaired, which puts her in a vulnerable class of society.
[66] I deny giving an award for the denial of the neuropsychological and psychovocational assessments. I do not have any submissions that explain how Wawanesa unreasonably withheld or delayed the benefits, other than it did not approve the assessments. Because Wawanesa failed to issue a proper denial notice, does not mean that it unreasonably withheld or delayed benefits. Wawanesa is entitled to make mistakes and it should not be held to a standard of perfection. I also deny giving an award for the “alleged” attempt to alter the assessment of Dr. Marino.38 I find that the adjuster was simply clarifying something with the doctor and the doctor responded that it did not change his opinion.
36 R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE
37 Testimony of Ms. Primo
38 Joint Brief Part 2 log notes May 23, 2018 page 2326
CONCLUSION AND ORDER
[67] Ms. Primo is found to be catastrophically impaired. She is entitled to a pre-104 and post-104 IRB and interest.
[68] The following treatment plans are payable in accordance with s.38(11)2 of the Schedule because Wawanesa failed to provide proper notice under s.38(8):
- $26,971.50 (less amounts approved) for a catastrophic assessment, b. $13,566.81 for a chronic pain treatment program,
- $2,260.00 for a chronic pain assessment, and
- $1,808.00 for a functional abilities evaluation.
[69] Ms. Primo is entitled to interest on the benefits that have been incurred and are considered overdue.
[70] Ms. Primo is entitled to an award of 30% of the amount of the IRB’s, treatments plans that violated s. 38(8), and interest, at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Released: May 31, 2022
Chloe Lester
Vice-Chair
