Tribunal File Number: 16-000760/AABS
Case Name: 16-000760 v Optimum Insurance Company
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:
D. V.
Applicant
and
Optimum Insurance Company
Respondent
DECISION
Adjudicator: Cynthia Pay
Representatives:
For the Applicant: Jamie Elsasser, counsel
For the Respondent: Joan C. Takahashi, counsel
Held in writing: February 8, 2017
Overview:
The applicant was involved in an automobile accident on December 5, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). She applied for medical benefits for an occupational therapy in-home assessment and for assistive devices, but these benefits were initially denied by the insurer on the basis that her injuries were minor, and that the treatment plans were not reasonable and necessary.
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) regarding her entitlement to these benefits.
In its materials for this hearing, the respondent concedes that the applicant’s injuries are outside the Minor Injury Guideline. As a result, the only issue to be determined is whether or not the two treatment plans are reasonable and necessary.
For the reasons set out below, I find that the two treatment plans are reasonable and necessary.
Issues:
a) Is the applicant entitled to payment for the cost of an examination in the amount of $1,840.48 for an in-home occupational therapy assessment as recommended by L. Waintraub of FunctionAbility Rehabilitation Services in a treatment plan (OCF-18) dated February 25, 2016?1
b) Is the applicant entitled to receive a medical benefit in the amount of $430.21 for assistive devices recommended by L. Waintraub of FunctionAbility Rehabilitation Services in a treatment plan (OCF-18) dated June 21, 2016?
Result:
The applicant is entitled to the two treatment plans in dispute: an in-home occupational therapy assessment, less the cost of mileage as outlined below, and assistive devices.
Law:
Section 15(1) of the Schedule provides that the insurer shall pay for all “reasonable and necessary” expenses incurred as a result of the accident for medical benefits such as occupational therapy services or assistive devices.
Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan, including any assessment necessary for that purpose.
Facts and Analysis:
On December 5, 2011, the applicant was riding in a car as a passenger when it was hit by an oncoming vehicle making a left-hand turn. Her car in turn struck a third vehicle.
She attended at a hospital after the accident. Injuries/complaints resulting from the accident, noted in the records of York Central Hospital dated December 5, 2011, included pain in the neck, right arm, left breast and entire back. X-rays ordered of the cervical, lumbar and thoracic spine found normal alignment and no fractures.
Issues of pain in her neck, shoulder and low back were reported to her family doctor, Dr. Takhar, in a visit two days after the accident. Dr. Takhar prescribed medication for musculoskeletal pain. Neck pain was also mentioned in Dr. Takhar’s clinical notes and records on December 7, 2011 and December 12, 2011, and neck and back pain was listed on January 31, 2012. Injuries of neck stiffness, headaches and low back pain were listed on an OCF-3 Disability Certificate completed by Dr. Takhar dated December 12, 2012.
Similar issues of neck and back pain and headaches were also documented in an OCF-18 Treatment Plan completed by Dr. Mohsini, chiropractor, in 2012, as well as in multiple entries in Dr. Mohsini’s notes from 2012, 2013 and again in 2016.
The parties agree that the applicant obtained a number of chiropractic treatment sessions in 2012 and 2013, and psychotherapy treatment from 2013 to 2014. According to the respondent, the applicant did not seek further treatment under the Schedule after completing psychotherapy in 2014 until the treatment plans under dispute were submitted in 2016.
a) In-home occupational therapy assessment plan
- The applicant requested an in-home occupational therapy assessment recommended by L. Waintraub, occupational therapist, in an OCF-18 Treatment and Assessment Plan dated February 25, 2016. Injuries listed were headache, low back pain and superficial injury of neck. The in-home occupational therapy assessment was aimed at evaluating the applicant’s:
… physical, psychosocial, functional and safety requirements in order to initiate an OT program to address goals and increase the client’s participation in the community.
This was based on a telephone screening where Ms. Waintraub recorded that the applicant suffered from headaches, neck pain and “pain in back that hasn’t gone away” since the accident, as well as difficulty with household chores as a result. The assessment plan included time for assessment, travel and mileage, documentation time and planning for a total of $1840.48.
Ms. Waintraub carried out the in-home assessment and provided a report dated March 14, 2016. This assessment was based on observation in the applicant’s home, completion of a number of health questionnaires/indexes, consultation with the applicant’s husband and a review of available medical documentation. In the assessment, the applicant reported, among other concerns, chronic back pain. She reported that she had returned to full-time work as a team lead at a customer service call centre, but that prolonged sitting was an issue that affected her ability to work. Ms. Waintraub observed the applicant performing a wide range of physical functions.
During the assessment, the applicant was able to perform most of the physical functions being assessed, but Ms. Waintraub noted that when sitting, the applicant “changed position regularly, including to stand and walk around”. As a result, Ms. Waintraub recommended use of lumbar support for office chair and in the car. Among other findings, Ms. Waintraub determined that the applicant continued to experience back pain caused by the accident that affected her ability to work and attend to activities of daily living.
The plan for an in-home assessment was denied by the insurer on April 21, 2016 on the basis of an Insurer Examination by N. Kazim, Occupational Therapist. In her report dated April 11, 2016, Ms. Kazim provides the following reasons for deeming the assessment not reasonable and necessary:
Diagnostic testing did not reveal findings in cervical, lumbar or thoracic spine [this appears to refer to the x-rays taken in 2011 as outlined above].
Dr. Herman, chiropractor, reported on October 9, 2012 that the applicant’s injuries were predominantly minor.
Ms. Waintraub did not provide any updated, objective medical findings to support the need for the proposed goods and services.
I do not find Ms. Kazim’s report to be persuasive in light of the applicant’s evidence. It was based on a paper review, rather than on an in-person examination. It also relied heavily on a four year old chiropractic insurer’s examination report dating back to 2012. This chiropractic insurer’s examination focused on the assessment of a chiropractic treatment plan, which is not in dispute in this application. This report’s finding that the applicant’s injuries were predominantly minor has also now been undermined by the insurer’s concession that the applicant’s injuries are not predominantly minor. Notwithstanding the dated nature of the 2012 report, it confirms and is consistent with the complaints of back pain observed by Ms. Waintraub, whose report is in itself an “updated” assessment based on objective findings such as physical assessments. Ms. Kazim’s report, on the other hand, is incorrectly founded on the belief that the applicant’s injuries were predominantly minor. Finally, while diagnostic findings may be relevant to a determination of whether the treatment plans were reasonable or necessary, they are not mandatory.
I find Ms. Waintraub’s recommendation of an in-home assessment to be reasonable and necessary. It was based on complaints of headaches and neck and back pain, which as outlined above have been fairly consistent throughout the applicant’s medical history since the accident. The goals of improving the applicant’s ability to function at work and at home are reasonable based on the applicant’s subjective complaints. Further, Ms. Waintraub’s in-home assessment, which was based on both subjective and objective findings, concludes that the applicant does face limitations in her ability to function at work and with respect to her activities of daily living. The cost of $1,840.48, which includes 1.5 hours for assessment, 1.37 hours travel time, 8 hours for documentation support activity, 2 hours for planning/service, and $200 for documentation support activity for the claim form, also seems reasonable, except for the mileage amount of $70.40, which is not provided under the Schedule.
The respondent raised a number of other arguments regarding the assessment that I did not find persuasive. They argued that the length of time since the accident and gap in treatment under the Schedule between 2014 and 2016 indicated that the plan was not reasonable and necessary. While over four years had passed since the date of the accident and the request for an in-home assessment, I find that there was a consistent pattern of symptoms stemming from the accident, including neck and back pain and headaches, which suggests that the applicant’s accident-related injuries were ongoing. I do not find the gap in treatment to be significant. The fact that the respondent conceded that the applicant’s injuries are not in the minor category as late as 2016 also suggests that her accident-related injuries are ongoing and that an assessment would be reasonable.
The respondent also pointed to a lack of accident-related notations in her family doctor’s records and in a journal kept by the applicant from 2013 to 2014 on the instruction of her psychologist as further evidence that the treatment plan was not reasonable and necessary. Such evidence could be relevant, but in this case, I find that there were sufficient notations in the family doctor’s and other health service providers records, as outlined above, of the symptoms of headaches and neck and back pain to convince me on the balance of probabilities that these conditions were accident-related and ongoing. Further, the focus of the journal entries were in relation to psychological counselling, not in relation to her physical complaints, so I do not find the lack of documentation of the physical symptoms in the counselling journal to be determinative.
The respondent submits that the applicant’s positive work performance evaluations are further evidence that she did not suffer any impact in her work performance and therefore did not require an assessment or assistance in this area. Although the applicant’s performance evaluations were generally positive, she provided excerpts from the evaluations that demonstrated that her attendance had declined from before the accident, and a copy of an email reprimanding her for absenteeism and lateness in 2015. It appears on the balance of probabilities that the applicant is performing fairly well at work, but that her accident-related injuries and/or treatment may also be contributing to a decline in attendance. I note that the applicant does not assert that she is unable to work or performing poorly at work, but that she faces some difficulty and pain in carrying out her duties. The in-home assessment found that the applicant is able to participate in her work duties, but that prolonged sitting was challenging for her.
b) Assistive devices
As a result of the in-home occupational therapy assessment, the applicant submitted a further OCF-18 Treatment Plan dated June 21, 2016, accompanied by a letter dated July 4, 2016, requesting assistive devices recommended by Ms. Waintraub. This plan requested funding for a water pillow, lumbar support and moist heat packs to assist the applicant in functioning at work and regarding indoor home maintenance. The total amount requested was $430.21.
The request for assistive devices was denied by the insurer on August 10, 2016 on the basis of an Insurer Examination by N. Kazim, Occupational Therapist. In her report dated August 3, 2016, Ms. Kazim provides reasons for deeming the assessment not reasonable and necessary. The reasons were largely identical to those provided in her earlier report:
Dr. Herman, chiropractor, reported on October 9, 2012 that the applicant’s injuries were predominantly minor and recommended that she carry on with her normal activities without restriction.
Ms. Waintraub did not provide any updated, objective medical findings to support the need for the proposed goods and services.
I again do not find Ms. Kazim’s report to be strongly persuasive for the reasons outlined above with respect to her first report. It is based on a paper review, in contrast to Ms. Waintraub’s in-person in-home assessment; it relies heavily on a 2012 chiropractic insurer’s exam evaluating a different treatment plan; and it relies heavily on the assumption that the applicant’s injuries are minor, which is no longer the case.
I find that the plan recommending assistive devices is reasonable and necessary. The devices are aimed at reducing the applicant’s well-documented neck and back pain to enable her to function better at work and at home, which appears to be a reasonable goal based on the result of Ms. Waintraub’s assessment. According to Ms. Waintraub, the back rest and seat cushion will be helpful in addressing the applicant’s ability to sit comfortably during prolonged periods of sitting at work, and the moist heat packs will help to decrease muscle tension and pain during rest breaks at work and at home. The total cost of $430.21 is fairly low and the individual prices for the items seem reasonable.
Respondent’s Objection to Applicant’s Reply Submissions
The respondent raised an objection to portions of the applicant’s Reply submissions. In those submissions, the applicant raised a concern with respect to an alleged failure of the respondent to comply with the Tribunal’s Order to produce all telephone records and/or emails from their assessors. The respondent submits that this is new argument and improper because it is not in response to the respondent’s submissions, and further, that the applicant did not provide documentation to substantiate her concern regarding production issues. The respondent requested that these paragraphs be struck from the record or that they be provided with an opportunity to respond to these allegations.
The respondent also objected to the applicant’s accusation that the respondent has made “numerous errors, misinterpretations and/or misleading facts” in her Reply submissions, and requests an opportunity to respond.
Because these submissions of the applicant were not relevant to the determination of the dispute, I did not consider them. The issues in dispute focused on whether or not the two treatment plans were reasonable and necessary. In determining these issues, I considered the medical evidence. I did not consider telephone records or emails by the assessors. I also disregarded the allegation regarding production issues and the accusation of errors, misinterpretation and misleading facts. As a result, I do not need to consider the request to strike these portions of the applicant’s submissions, or to provide an opportunity to respond.
Applicant’s counsel is reminded that the purpose of reply is to respond to the other party’s submissions and not to raise new issues. Abiding by this rule helps to focus the hearing, and to avoid unnecessary motions and other complications and delays in the process.
Conclusion:
- For the reasons set out above, I find that the applicant is entitled to payment for the in-home occupational therapy assessment (less mileage charges) and assistive devices in dispute in this application.
Released: March 31, 2017
_____________________________
Cynthia Pay,
Adjudicator