S.B. v. State Farm Insurance, 2017 CanLII 87153

S.B. v. State Farm Insurance

Date: 2017-12-22

Tribunal File Number: 17-003290/AABS

Case Name: 17-003290 v State Farm Insurance

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:

S.B.

Applicant

and

State Farm Insurance

Respondent

DECISION

Adjudicator: Christopher A. Ferguson

Appearances:

For the applicant: Roshni Sharma, Counsel

For the respondent: Renate Eschlboeck, Counsel

Written Hearing Held November 2, 2017

OVERVIEW

1S.B., (“the applicant”) was injured in an automobile accident on April 2, 2008, and sought benefits pursuant to the Statutory Accident Benefits Schedule for Accidents occurring on or after November 1, 1996¹ (the ''Schedule'').

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

3The applicant has been determined to be catastrophically impaired under s.40 of the Schedule.

DISPUTED BENEFITS

4The parties’ dispute includes a number of relatively small amounts that the respondent refuses to pay in partially approved treatment plans.

1. Is the applicant entitled to receive a medical benefit from Pro-Active Rehab and Sports Injury Centre claimed in the amount of $197.26 in relation to a treatment plan dated April 17, 2015?

2. Is the applicant entitled to receive a medical benefit for occupational services in the amount of $249.38 submitted by Sheri Ashton, occupational therapist (“OT”) in a treatment plan dated January 24, 2016?

3. Is the applicant entitled to receive a medical benefit for occupational services in the amount of $199.51 submitted by Sheri Ashton, OT in relation to a treatment plan dated November 9, 2016?

4. Is the applicant entitled to a medical benefit for occupational services in the amount of $99.75 in a treatment plan submitted July 5, 2016?

5The Tribunal must also determine the following issues:

5. Is the applicant entitled to receive a medical benefit for occupational services in the amount of $1,793.87 submitted in a treatment plan dated September 10, 2015?

6. Is the applicant entitled to receive a medical benefit for massage therapy in the amount of $2,824.92 submitted in a treatment plan dated December 21, 2015?

7. Is the applicant entitled to a benefit in the amount of $2,834.31 submitted in a treatment plan dated November 23, 2015

8. Is the applicant entitled to a medical benefit for an occupational therapy assessment of catastrophic impairment (CAT assessment) submitted as part of treatment plan from OMEGA Medical, on June 6, 2017 and partially approved on June 16, 2017?²

FINDINGS

6The applicant is not entitled to the amounts claimed in issues 1-4.

7The applicant is not entitled to the benefits claimed in issues 5-7.

8On a balance of probabilities, the applicant has proven that the disputed occupational therapy CAT assessment is reasonable and necessary and payable by the respondent.

9The applicant is entitled to interest on overdue payments from the respondent, for the amount owing on the denied occupational therapy CAT assessment.

REASONS

Issue 1 Is the Respondent required to pay claimed amounts exceeding the amounts it approved in treatment plans?

10The respondent refuses to pay the disputed amount in issue 1 as it exceeds the amount set out in and approved for in the treatment plan.

11The applicant does not dispute that the amount claimed exceeds the amounts set out in the treatment approved by the respondent. She offers no legal explanation for why she believes the respondent should be held liable to pay any amount above the amount set out and approved for a treatment plan.

12The applicant indicates that this “small parts” of the treatment costs were, given her medical condition, reasonable and necessary. The charges are for demonstrating the use of assistive devices and other services. It would be, the applicant says, “cruelly ironic” if these amounts were denied.

13I accept that the costs refused by the respondent were incurred in good faith for services that were needed. However, the applicant’s argument is moot as I am unable to identify any authority for me to find the respondent liable to pay any costs above and beyond the amounts set out in approved treatment plans.

14The claims in issues 1 is dismissed.

Issue 2-4 Is the Respondent required to pay claimed amounts not covered by the Professional Service Guideline?

15In issue 2-4 the amounts claimed are disputed costs associated with treatment plans approved by the respondent. The amounts were denied on the basis that they exceed or are not covered by the Professional Service Guideline.³ (PSG)

16The PSG sets maximum hourly rates for services provided by specified health services providers, and for preparing prescribed forms.

17The respondent states that it deducted the $249.38 in issue 2 to comply with the PSG. The applicant does not argue this point.

18The respondent refuses to pay the disputed amounts in issues 3-4 because they pertain to “preparation and planning services”, which it says are “not compensable under the PSG”.

19There is no disagreement that “preparation and planning” services are not included in the PSG.

20The applicant argues that the PSG must be “strictly construed”. She goes on to contend that if the PSG “’remains silent’ or does not provide for certain services”, then “the respondent bears the onus of establishing that the PSG bars recovery of otherwise recoverable expenses.” She offers no rationale or any legal authority to support her argument.

21My own reading of the PSG offers no support for the applicant’s contention.

22I note that the PSG expressly provides that insurers are not liable for any costs, fees, expenses, charges or surcharges that result in increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted.⁴

23The applicant does not address whether or not the claimed fee had the prohibited result of increasing effective rates, and does not explain the necessity of the incurred cost.

24I find that the applicant has failed to meet the onus on her to prove her entitlement to the amounts claimed in issues 2-4.

Issue 5 Medical Benefit -- Occupational Services

25The claimed benefit is for the cost of having an OT plan, advise on, monitor and supervise active therapy – stretching and exercise – programs delivered by a personal fitness trainer. The applicant has already completed physical training sessions were approved and funded by the respondent.

26The applicant did not present any medical evidence to support her claim for this benefit, and instead submitted that the respondent’s November 23, 2015 IE report by Dr. Raphael Chow, physiatrist, concluding that the above treatment plan was not reasonable or necessary, was flawed.

27Dr. Chow concluded that the recommended treatment was not appropriate for nor consistent with the severity of the applicant’s injury, noting her independence in self-care, Iight housekeeping and driving. I find Dr. Chow’s opinion persuasive.

28I reject the applicant’s submission that Dr. Chow’s opinion as a physiatrist was shown to be “out of scope” because the physician deferred a number of the insurer’s questions to an occupational therapist for determination, including questions as to the appropriateness of the disputed plan.

29I do not interpret Dr. Chow’s deferrals on questions 8-11 as acknowledgement of acting “out of scope”. The physician answered directly and without equivocation question 5 pertaining to maximum medical recovery, and question 7 which asks whether or not the proposed treatment plan is reasonable and necessary.

30Furthermore, I do not agree that a physiatrist is acting “out of scope” to opine, as he does, that the applicant has reached maximum medical improvement⁵, and that that the medical evidence points away from the treatments recommended in the OCF-18 as reasonable and necessary.

31I also reject the applicant’s submission that Dr. Chow noted the applicant’s complaints about chronic neck and back pain, as well as headaches, without opining as to whether they exist. In reading Dr. Chow’s report, I found that he did in fact directly describe the applicant’s complaints at several points, reviewed a wide range of issues experienced by her and reached conclusions on objective physical evidence and reports from other medical practitioners.

32I agree with the respondent’s submission that the claimed benefit is not reasonable or necessary because it is duplicative and redundant given other benefits that the respondent has funded and that the applicant has used:

i. After attending physiotherapy sessions, the applicant received a discharge report from her service provider CBI Health dated November 26, 2014. It indicates that she was provided with a comprehensive home exercise program plus education regarding progressive at-home exercise programs, postural support, “hurt vs. harm”, ergonomics during activities of daily living, and other topics. I find that the successful completion of this program is evidence that she did not require the OT services recommended in the disputed treatment plan.

ii. By September 2015, the applicant had successfully completed 48 sessions with a personal trainer at Fitt [sic] Gym knowledgeable in safe exercises and injury prevention, on the recommendation of and with advice on managing the applicant’s program from Ms. Ashton, OT. The sessions addressed mobility, conditioning and weight-loss objectives recommended by Ms. Ashton. The program was recommended in part because of a lack of progress with physiotherapy treatments.

33I also agree with the respondent that the applicant’s trainer did not require an OT’s oversight or supervision, or support with planning and preparation of an exercise program as contemplated by the disputed plan. I agree that the education provided to the applicant rendered the disputed OCF-18 even more redundant and unnecessary. And I agree that the applicant’s completion of these programs, according to the respondent, is itself evidence that the disputed OCF-18 was unnecessary.

34I conclude that the applicant’s claim for occupational services should be denied because:

i. she has not made an affirmative case and met her onus that the benefit is reasonable and necessary

ii. the respondent’s IE Report is persuasive in denying that the claimed benefit is reasonable and necessary

iii. I find that the respondent’s evidence shows that the claimed benefit is redundant and duplicative of treatment plans already approved is persuasive.

Issue 6 Medical Benefit

35The respondent bases its denial of this claim on an IE report of Dr. Chow dated January 27, 2016 which concluded that the OCF-18 was not reasonable and necessary because the applicant had reached maximum medical improvement. The IE was based on a review of documentary materials. Dr. Chow opined that the applicant’s medical documentation did not support the recommended passive treatment of massage therapy on a continuing basis.

32The respondent further relies on a note from the applicant’s family physician, Dr. Sarah MacKinnon, dated November 14, 2017, that the applicant had been discharged from physiotherapy due to lack of improvement and benefit.

34I reject the applicant’s argument that a review of medical documentation is inadequate as evidence, especially when, as in this case, the assessor has examined the applicant in the past. Nor do I accept that an IE that maintains an earlier opinion is inherently “cursory”, absent any proof of a change in the applicant’s situation or a significant difference in the treatments recommended.

35I find that the preponderance of evidence with respect to the disputed benefit is that it is not reasonable and necessary.

Issue 7: Occupational Services

36The respondent denies receiving an OCF-18 dated November 23, 2015 with a recommended benefit of $2834.31 as set out in issue 7 above.

37The applicant does not address the respondent’s assertion in her reply submission. I was unable to locate an OCF-18 dated November 23, 2015 nor could I find a denial dated December 11, 2015 in her submissions.

38The applicant’s claim for this benefit is dismissed for lack of evidence.

Issue 8: Catastrophic Impairment (“CAT”) Assessments

39Section 40 of the Schedule prescribes the process by which an insured person who has sustained an impairment as the result of an accident may apply to the insurer for a determination of whether his or her impairment is a catastrophic impairment.

40Section 24(1)7 of the Schedule requires the insurer to pay reasonable fees charged by a health practitioner for preparing an application under s.40 for a determination of whether an insured person has sustained a catastrophic impairment.

41The occupational therapy assessment denied is part of a CAT assessment plan, involving a number of assessments, the rest of which were approved by the respondent on June 16, 2017.

42The respondent has already approved orthopedic, physiatry, psychological, occupational therapy (OT) assessments, an executive report and costs associated with preparing treatment and assessment plan documents, as part of the CAT assessment process.

43The applicant’s occupational therapy CAT assessment plan involves both an in-home and a situational/community (i.e. outside her home) assessment on different dates. She contends that an OT providing assessments inside and outside her home results in two distinct and discrete assessments and reports, and that the respondent should pay for both.

44According to the applicant the two OT assessments dealt with different and distinctive sets of functional abilities and limitations -- in the home and the community. She argues that testing in both environments is essential to get the “complete picture” that is essential to a CAT assessment. She points out that the assessments were conducted on different dates and at different locations and argues that the engagement of the same medical professional to perform the assessments is irrelevant.

45The applicant claims that she is entitled to be paid a separate benefit for each assessment, and that the respondent should have paid for the second assessment.

46The respondent argues that the disputed OT assessments are actually part of a “singular assessment” for which it has already paid. It argues that this is the case regardless of the days, locations, or headings under which the OT assessor categorizes her findings.

47The respondent cites Nicole Breadner v. Cooperators General Insurance Company ⁶ in support of its position. I find the case instructive: it sets reasonable criteria for evaluating the issue of whether two reports can comprise one assessment. The reports in that case were determined to be part of one assessment because they were clearly tightly integrated:

i. The two reports in Breadner involved the same purpose statement, the same administered tests and – in my view of critical importance – the results and information in one document were incorporated by reference into the other. The reports were issued on the same day.

ii. The arbitrator in Breadner concluded that taken as a whole, the nature, content and language of the documents supported a finding that they were parts of one assessment.

48I find that the respondent did not demonstrate to me that the criteria in Breadner support its denial. Nothing in my reading of Breadner suggests that two reports by the same specialist necessarily amount to one, “singular” assessment.

49The respondent does not describe the disputed assessments as duplicative or overlapping. It does not show how, as a matter of fact, the disputed OT assessments meet the criteria set by Breadner.

50I accept the applicant’s contention that an in-home OT assessment and a situational/community OT assessment are two different things, even if they are conducted by the same practitioner.

51The applicant’s assertion that both assessments were essential to ensure a complete and comprehensive understanding of her functional abilities is uncontested by the respondent. The respondent did not question the methodology or conclusions of either assessment report or challenge their findings. Accordingly, I conclude that both OT CAT assessments were reasonable and necessary.

52I find that the applicant is entitled to the amount denied by the respondent in the OCF-18 for CAT assessments dated June 6, 2017. I note that neither party specifies the exact amount in dispute in its submissions: it is the balance between $16,837.00 and whatever amount the respondent actually approved.

Request for Interest

53Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

54The applicant is entitled to interest on overdue payments for the CAT assessment claimed in issue 8, to be calculated by the parties.

CONCLUSIONS

55The applicant’s claim for amounts denied by the insurer in partially approved treatment plans, set out in issues 1-4, is dismissed.

56The applicant’s claims for medical benefits claimed in issue 5-7 are dismissed

57The applicant’s claim for the amount denied by the respondent for an OT CAT assessment in a partially approved CAT assessment plan, set out as issue 8, is allowed.

58The respondent is liable to pay interest on overdue payments.

Released: December 22, 2017

___________________________

Christopher A. Ferguson

Footnotes

1. 1O.Reg. 403/96.
2. 2I note that neither party has indicated the exact amount in dispute. I will deal with this in my decision.
3. 3Professional Service Guideline, issued as Superintendent’s Guideline No. 03/14, pursuant to subsection 268.3 (1) of the Insurance Act RSO 1990. The PSG sets maximum hourly rates for services provided by specified health services providers, and for preparing prescribed forms.
4. 4page 4, para.5 of the PSG
5. 5Maximum medical improvement means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the accident-related injury with or without treatment.
6. 6Nicole Breadner v. Cooperators General Insurance Company, 2017, FSCO A15-005120