Tribunal File Number: 16-002742/AABS
Case Name: 16-002742 v The Dominion of Canada General Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
F. B.
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances
Applicant: F.B.
Representative for the Applicant: Rania Hafez
Counsel for the Respondent: Dania R. Spadafina
Written Hearing: February 21, 2017
I. Overview:
1The applicant, F.D., was injured in an automobile accident on June 22, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant made claims for attendant care benefits (ACBs), non-earner benefits (NEBs), medical benefits and cost of examinations.
3The respondent denied the applicant ACBs based on insurer’s examination reports.1 The respondent also submitted that the applicant never submitted a Disability Certificate dated July 10, 2014 until the time of the hearing, and as such, the applicant is not entitled to the benefit.
4Regarding the medical benefits and costs for examinations, the respondent’s position is that these benefits and examinations are not reasonable and necessary because the applicant’s physical injuries are not severe enough to require further treatments and assessments.
5In order for his claim for NEBs to be successful, the applicant must show both that he submitted the Disability Certificate dated July 10, 2014 and that he is completely unable to carry on a normal life.
6The onus is on the applicant to prove his claims on a balance of probabilities.
7I find that the applicant did not meet his evidentiary burden. He did not provide any sufficient evidence to demonstrate his entitlement to ACBs nor the other medical benefits and costs for examinations. Regarding the NEBs, I find that the applicant is not entitled to these benefits for the period of January 22, 2015 to June 22, 2016.
II. Issues in dispute:
a) Issues raised in the appeal and confirmed in the Case Conference report and order dated December 5, 2016
- Is the applicant barred from claiming ACBs due to a failure to attend one or more scheduled section 44 examinations?
- If the answer to the above question is no, is the applicant entitled to ACBs in the amount of $1,635.27 per month for the period September 21, 2014 to June 22, 2016?
- Is the applicant entitled to receive a medical benefit in the amount of $2,685.06 for assistive devices, recommended by Nor Med Assessment Services, denied by the Respondent on October 10, 2014?
- Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period January 22, 2015 to June 22, 2016?
- Is the applicant entitled to receive a medical benefit in the amount of $1,050.56 for self-directed exercises, recommended by Nor Med Assessment Services, denied by the Respondent on January 27, 2015?
- Is the applicant entitled to the cost of an assessment in the amount of $1,950.00 for a Temporomandibular Joint (“TMJ”) assessment, recommended by Nor Med Assessment Services, denied by the Respondent on September 26, 2014?
- Is the applicant entitled to receive the cost of an in-home assessment in the amount of $539.80, recommended by Nor Med Assessment Services, denied by the Respondent on September 10, 2014?
- Is the applicant entitled to receive the cost for a functional abilities examination in the amount of $1,293.80, recommended by Nor Med Assessment Services, denied by the Respondent on January 14, 2015?
- Is the applicant entitled to receive the cost for an orthopaedic assessment in the amount of $2000.00, recommended by Nor Med Assessment Services, denied by the Respondent on March 18, 2015?
- Is the applicant entitled to payment for the cost of an examination in the amount of $2,698.82 for a pre-screen, psychological, pre-screen orthopedic and initial report, denied by the Respondent on June 5, 2015?
- Is the applicant entitled to interest on any overdue payment of benefits?
b) Issues raised in the respondent’s submissions
- Is the respondent entitled to costs for this hearing?
III. Result:
I find on all evidence that:2
- The applicant is not entitled to ACBs;
- The applicant is not entitled to NEBs;
- The applicant is not entitled the medical benefits and cost of examinations claimed as they are not reasonable and necessary; and
- The respondent is not entitled to costs.
IV. Analysis:
Attendant Care Benefits
a) Is the applicant entitled to ACBs in the amount of $1,635.27 per month for the period September 21, 2014 to June 22, 2016?
8Section 19 of the Schedule indicates that the respondent shall pay for attendant care benefits that are reasonable and necessary. The onus is on the applicant to show that his entitlement to ACBs is reasonable and necessary.
9The applicant’s position is that he has pre-existing conditions, gout and arthritis, which would prevent him from taking care of himself and therefore he requires attendant care benefits.
10To support his claim, the applicant submitted a Form 1 Assessment of Attendant Care Needs and report dated September 21, 2014 from Ms. Beverley Neal, Registered Nurse and Occupational Therapist, which recommended 21 hours a week of attendant care assistant in the amount of $1,635.27 in following areas:
a. dressing and undressing; b. toenail care and feeding; c. preparing and serving meals; d. cleaning the bathroom area after use; e. changing bedding and clothing; and f. exercising and stretching program.
11In contrast, the respondent’s position is that the ACBs are not reasonable and necessary based on reports dated July 23, 2015 from Drs. Corrin, Neurologist and Bhanghu, Physiatrist and Mr. Hanes, Occupational Therapist.
12In Dr. Corrin’s report, the applicant indicated that he is able to bathe, dress and feed himself independently. He also reported to Dr. Bhangu that he is independent with completing all of his personal care tasks, but with pain. As well, the Applicant informed Mr. Hanes that he “has returned to all of his pre-MVA personal care tasks.”
13In addition, in the applicant’s personal statement on September 25, 2014 to the Respondent, 4 days after Ms. Neal’s Form 1 assessment, he indicated that he is independent with his personal care since the accident with a lot of struggle.
14Lastly, according to Dr. Bhangu, the applicant’s injuries, strain/sprain injuries to his neck, shoulders, lower back and possibly a resolving S1 radiculopathy, would not prevent the Applicant from taking care of himself.
15The applicant has not demonstrated that the ACBs are reasonable and necessary. Firstly, the evidence shows that the applicant is able to take of himself, even though with some reported difficulties. Secondly, the applicant argues that he has pre-existing injuries, but he failed to show how these pre-existing conditions would prevent him from taking care of himself or whether they were in some way exacerbated by the accident. Thirdly, there is surveillance footage showing the applicant driving, getting in and out of a car, and carrying his daughter without difficulty. This video does not support the applicant’s position that he requires attendant care benefits to deal with his personal care needs.
16As I have found that the applicant is not entitled to ACBs, it is not necessary to determine whether the benefits were properly incurred.
b) Is the applicant entitled to receive a medical benefit in the amount of $2,685.06 for assistive devices related to his ACB claim?
17Under section 15 of the Schedule, the test for this benefit is whether it is reasonable and necessary.
18Ms. Neal recommended the following assistive devices to optimize the client’s level of functional independence regarding home duties:
- Bath stool, cervical pillow (memory foam), electric shaver, electric toothbrush, electro applicator machine, foot rest, heating pad, hot and cold pack for pain management, long-handed shoehorn, long-handled sponge, long-handed toe nail clipper, long-handled bathroom cleaner, long-handled tub scrub, orthopaedic support for hands/fingers, lumbosacral belt support, lumbosacral back support for car, orthopaedic back and neck support for hand/fingers, tub grab bar and whole body pillow.
19The applicant submitted that the assistive devices were reasonable and necessary to manage his attendant care needs. In contrast, the respondent relied on Drs. Corrin and Bhangu and Mr. Hanes reports, which indicated that the assistive devices were not reasonable and necessary.
20Given that the assistive devices are for the applicant’s attendant care needs and I have determined that applicant is not entitled to ACBs, I find the associated assistive devices are not reasonable and necessary.
Non-Earner Benefits
a) Is the applicant entitled to NEBs for the period January 22, 2015 to June 22, 2016?
21The applicant has requested that the Tribunal decide whether he is entitled to NEBs. Before I address the applicant’s entitlement to the benefits, the respondent asserts that the applicant did not provide it with a Disability Certificate for NEBs for the time period in question. As such, the applicant is not entitled to the benefit.
22Section 36 of the Schedule states that an applicant who fails to submit a completed Disability Certificate is not entitled to a specified benefit for any period until a completed disability certificate is submitted.
23The respondent indicated that it never received a Disability Certificate, despite its numerous attempts requesting the document over a sixteen month period from June 27, 2014 to October 31, 2015.
24The respondent claimed that it first received the signed Disability Certificate, dated July 10, 2014, through the applicant’s submissions for this written hearing. The respondent’s position is that the applicant did not submit a valid disability certificate nor was it submitted at the time it was signed.
25The applicant did not establish that he submitted the Disability Certificate in July or at any time prior to the exchange of written submissions for this hearing
26I examined the Disability Certificate and it is dated July 10, 2014. Other than the respondent’s submissions, there is no other information before me to determine whether the Disability Certificate was actually signed in July or at a later date. However, it is clear that the respondent did not receive the Disability Certificate on or around July 10, 2014. As such, the respondent was not able to assess the applicant’s entitlement to NEBs at that time.
27There is no evidence before me that the applicant is entitled to NEBs from January 22, 2015 to June 22, 2016. The applicant’s potential entitlement for NEBs will commence on the day the respondent receives the Disability Certificate, on or around the date of the hearing.
28In light of my finding, I do not have to consider whether the applicant meets the test for NEBs. However, I do note that the applicant did not provide sufficient evidence to support his entitlement to NEBs.
29The applicant relied mainly on the Disability Certificate to support his claim for NEBs. I am of the view that this evidence is not sufficient to demonstrate the applicant’s entitlement to NEBs. The purpose of the Disability Certificate is to provide a starting point for the respondent to investigate whether the applicant is entitled to the claimed benefit. The information contained in a Disability Certificate is not a diagnosis, but rather a preliminary impression of the applicant’s physical presentation based on what information the applicant provides and the assessor’s cursory examination.
30Normally, applicants provide such evidence as sworn affidavits outlining their lives before and after the accident, physician reports, clinical notes and records from various medical practitioners to demonstrate their entitlement to the benefits.
31The applicant has not met his burden of proof and I find that the Applicant is not entitled to NEBs for the time period in question.
Medical Benefits
a) Are the medical benefits reasonable and necessary?
32The respondent’s position is that the treatment plans are not reasonable and necessary because the applicant’s physical injuries are not severe enough to require further treatment. However, the respondent accepts that the applicant’s injuries fall outside of the Minor Injury Guideline due to a psychological impairment. Under section 15(1) of the Schedule, the test is not whether the applicant’s injuries are minor, but whether the treatment plans are reasonable and necessary.
33The applicant has relied on Dr. Wilderman, a pain management specialist, to demonstrate that the treatment plans are reasonable and necessary, given that he continues to have lower back ache after the accident and weakness in the legs, as documented in Dr. Kangee’s CNRs dated March 9, 2015.
34On or around August 25, 2016, the applicant attended Dr. Wilderman’s office. In a letter dated August 25, 2016, Dr. Wilderman recommended S1 joint injections to the applicant, which the applicant has been receiving. He also recommended lifestyle guidance; local heating; chiropractic; physiotherapy; avoid strenuous physical activity, aquatherapy program; psychotherapy; biofeedback; lumbar support; orthotics, and/or acupuncture.
35None of the treatment plans before the Tribunal are supported by Dr. Wilderman’s recommendations in his letter dated August 25, 2016. Dr. Wilderman did not recommend any further assessments. The applicant has not provided any evidence to show why further assessments and examinations are reasonable and necessary.
36In the absence of sufficient evidence from the applicant, I find that the treatment plans are not reasonable and necessary, as they do not provide any guidance and/or treatment to resolve the applicant’s pain related to the accident.
b) Is the applicant entitled to receive the cost of an assessor to come and create an exercise program in the amount of $1,050.56 for self-directed exercises?
37The respondent submitted that the treatment plan was partially approved for $759.61. The balance of the treatment plan refers to the cost of the assessor’s travel time for $290.95
38The assessor’s travel time is not reasonable and necessary as travel expenses under subsection 15(2) b of the Schedule are not payable if they exceed the maximum rate or amount of expenses established under the Guidelines.
39I find that the respondent is not required to pay for the assessor’s travel time.
Cost of Examinations
a) Are the treatment plans for a TMJ assessment, in home-assessment, functional abilities examination, and orthopaedic assessment reasonable and necessary?
TMJ Assessment
40Regarding the TMJ assessment, there is no entry in Dr. Kangee’s CNRs or from any other medical practitioner that the applicant sustained dental injuries. In the absence of such information, I find that the treatment plan is not reasonable and necessary.
In-Home-assessment and Functional Ability Examination
41The onus is on the applicant to show that the treatments plans are reasonable and necessary. Dr. Wilderman in his letter dated August 25, 2016 did not make any further recommendations regarding further examinations and assessments for the applicant. Further, the applicant has not directed me to any persuasive evidence and has not made any arguments to support his entitlement to this assessment and examination. In absence of such information, I find that the treatment plans are not reasonable and necessary.
Orthopaedic Assessment
42Regarding the orthopaedic assessment, the respondent indicated that it was not reasonable and necessary to have a further physical assessment given that one had already been completed. The applicant requested an orthopaedic assessment based on the following:
- Persistent weakness in his legs as documented in Dr. Kangee’s CNRs dated March 9, 2015; and
- The results of the May 12, 2015, MRI which shows L4-5 herniation with degenerative changes, causing pain down his lower back.
43Given that applicant is receiving injections from Dr. Wilderman regarding pain from his legs and back and, according to the respondent, he recently had an orthopaedic assessment (date of assessment not indicated in submissions), I find that it is not reasonable and necessary to have another assessment.
b) Is the applicant entitled to payment for the cost of an examination in the amount of $2,698.82 for a pre-screen, psychological, pre-screen orthopedic and initial report?
44The respondent submitted that it was not clear what was being requested for $2,698.82. The respondent indicated that it would appear that the applicant is asking for the cost of a pre-screen assessment and report and the preparation for the treatment plans for the requested assessments. Subsection 25(1)3 of the Schedule indicates that the respondent shall pay for all reasonable expenses that have been approved by the insurer. The respondent submits that it denied these assessments, including the expenses.
45The applicant has not provided sufficient evidence regarding his entitlement to these expenses. Further, the applicant has failed to show how these assessments and its accompanying reports will address his physical and psychological impairments.
46In the absence of such evidence, I find that the respondent is not required to pay for the expenses for these assessments.
Interest and Costs
a) Is the applicant entitled to interest on any overdue payment of benefits?
47The applicant is not entitled to any interest on any of the claimed benefits.
b) Is the respondent entitled to costs?
48The respondent requests that the Tribunal order the applicant to pay for costs in this matter. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, an award of costs is an exceptional remedy requiring an evidentiary record. There must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. There is no evidence of such conduct in this case.
V. Order:
I order the following:
- The applicant is not entitled to ACBs in the amount of $1,635.27 per month for the period September 21, 2014 to June 22, 2016?
- The applicant is not entitled to receive a medical benefit in the amount of $2,685.06 for assistive devices.
- The applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period January 22, 2015 to June 22, 2016?
- The applicant is not entitled to receive the cost of an assessor to come and create an exercise program in the remaining amount of $290.95 from a treatment plan for $1,272.00 for self-directed exercises.
- The applicant is not entitled to receive a medical in the amount of $1,950.00 for a TMJ assessment.
- The applicant is not entitled to the cost of an in-home assessment in the amount of $539.80.
- The applicant is not entitled to receive the cost of a functional abilities examination in the amount of $1,293.80.
- The applicant is not entitled to receive the cost for an orthopedic assessment in the amount of $2000.00.
- The applicant is not entitled to payment for the cost of an examination in the amount of $2,698.82 for a pre-screen, psychological, pre-screen orthopedic and initial report.
- The applicant is not entitled to interest on any of the claimed benefits.
- The respondent is not entitled to costs for this hearing.
Released: May 2, 2016
Nicole Treksler, Adjudicator