February 11, 2019

ACCIDENT BENEFITS UPDATE: INSURERS STILL REFUSE TO FUND CAT ASSESSMENTS

An ongoing source of frustration for seriously injured car accident victims concerns the refusal by their accident benefits insurers to fund assessments for a determination of Catastrophic Impairment (CAT).  The Statutory Accident Benefits Schedule (SABS) sets out the obligations on insurers to pay for assessments. Typically, assessments that relate to a benefit or payment are funded out of the rehabilitation and treatment limits under the policy- either $50,000 (or $3,500 if a claimant has been categorized under the Minor Injury Guideline (MIG)).  This is set out in s. 14, 15 and 18 of the SABS. However, s. 25 of the SABS specifically requires an insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under s.45, including any assessment or examination necessary for that purpose.

This issue has been litigated before the Licence Appeal Tribunal (LAT).  In N.S. and Scottish and York (2018 CanLII 81950), Scottish and York had approved a Treatment Plan for a series of assessments to determine CAT.  It indicated at that time that the funding would be taken from the Applicant’s $50,000 allotment for rehabilitation. After requests that the insurer reconsider its decision failed, this dispute was commenced. In the interim, the $18,000 for the assessments exhausted the Applicant’s rehabilitation limits, and further treatment was denied.

Member Ferguson wasted little time finding in favour of the Applicant.  The language of the SABS was clear. Funding for assessments related to a benefit are deducted from the monetary limits under the SABS allocated for rehabilitation.  However, a determination of catastrophic Impairment was not a benefit, therefore s. 18 was not relevant.  He explained:

The effect of deducting CAT assessment costs from the $50K available to “not-yet-CAT” consumers would be to force seriously injured people to plan to hold a significant percentage of entitlement – in this case 37% — in reserve, just in case they need a CAT assessment. This would represent a serious deterrent to seeking needed treatment, or alternatively act as a major barrier to seeking CAT determination. I find it simply unbelievable that such obvious effects are intended or supported by any reasonable interpretation of the Schedule.

Despite the clear obligation to fund, insurers usually refuse to pay for an Applicant’s CAT assessments, and only agree when the evidence already suggests that the Applicant is likely going to be deemed CAT at the end of the day.  In cases like N.S.where funding is approved, they will typically insist on deducting the assessment amounts from the non-CAT rehabilitation limits.

When funding is denied, and an Applicant disputes the denial, insurers will schedule a series of assessments by their own doctors.  The purpose of these assessments is to evaluate whether the Applicants’ proposed CAT assessments are reasonable and necessary. This does not save money versus funding the proposed assessments, but it allows them to substitute the Applicant’s preferred assessors for a group more aligned to their own perspective.

Most often, the insurer’s assessors will deliver the opinion that the proposed CAT assessments are not reasonable and necessary.  When this is the result, the Applicant must start a dispute before the Licence Appeal Tribunal. In Applicant and TD Insurance (2018 CanLII 13167), the Applicant sought assessments for a determination of CAT for psychiatric impairments he claimed were related to a collision in December 2015.  TD denied the assessments, claiming that the Applicant had not suffered significant physical injuries, and that his psychiatric impairment predated the collision.

Member Sewrattan acknowledged that there was a real causation challenge and that, by his own admission, the Applicant had not suffered serious physical injuries. However, the Applicant was not required at this stage to prove that the collision caused his psychiatric impairment.  Instead, he had to show that it was reasonable to explore the possibility that he was catastrophically impaired and that the collision caused, in whole or in part, his psychiatric injuries.

Originally, the Applicant was placed under the MIG, based on the seemingly minor nature of his initial injuries.  Therefore, when he applied for CAT assessments, TD denied the request and scheduled a battery of assessments to demonstrate that the request was not reasonable and necessary.  Subsequently, the Applicant submitted for a series of rebuttal Assessments, which were also denied. In total, TD conducted 13 assessments of the Applicant without approving any of his own Assessments.

Member Sewrattan held, on the facts of the case, and specifically given that the Applicant was deemed Incompetent to represent himself in the hearing, that procedural fairness dictated that he be allowed to present evidence from his own preferred assessors on the issues of causation and impairment.  As in N.S. and Scottish and York, these Assessments were funded under s. 25, and did not impact the rehabilitation limits under the policy.

Why do insurance companies act this way, when the law and their duty of care to their customers is clear? It is a strategy to prevent deserving claimants from accessing their benefits in order to save money.  Faced with denials like this, and the significant expenses associated with fighting back by funding their own Assessments and proceeding to a LAT hearing, many injury victims simply give up without receiving a fair determination of the extent of their impairment, CAT or otherwise.

If you have been seriously injured in a car accident, you need a law firm that will stand by you, with the resources and expertise to challenge the unfair treatment you will receive.  At Campisi LLP, we are proud to practice by our “Clients First, excellence Always” philosophy.  We will fight for you, and help you get the compensation and benefits you deserve.  Put us to work for you. 

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