OG v. RSA Insurance, 2018 CanLII 110943

Licence Appeal Tribunal

Date: 2018-08-03

Tribunal File Number: 17-007972/AABS

Case Name: 17-007972 v RSA 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:

OG

Applicant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

Counsel For The Applicant: Michelle Jorge

Counsel For The Respondent: Stefania C. Sdao

HEARD in Writing: July 3, 2018

REASONS FOR DECISION

Overview

1OG was involved in an automobile accident on December 16, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when RSA denied his claims.

Issues

2The issues to be decided by the Tribunal are:

1. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,942.72 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted December 22, 2015 and denied on January 5, 2016?

2. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $13,887 for a chronic pain program recommended by Dr. Yin Shu Hsu in a treatment plan (OCF-18) submitted on January 14, 2016, and denied on January 22, 2016?

3. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $80.00 for the completion of a treatment plan (OCF-18) by Dr. Yin Shu Hsu submitted on January 14, 2016, and denied on January 22, 2016?

4. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,338.30 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted on August 17, 2016, and denied on October 17, 2016?

5. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,230.58 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted on October 24, 2016, and denied on October 27, 2016?

6. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,751.02 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted on March 1, 2017, and denied on March 1, 2017?

7. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,774.10 for an Attendant Care Treatment Plan and Assessment recommended by Injury Management and Medical Assessments in a treatment plan (OCF-18) dated January 6, 2016, and denied on January 11, 2016?

8. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3OG’s appeal is denied. There are no overdue payments and therefore no interest owing to OG.

REASONS

4Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.²

5OG chose to address all of his claims collectively. His submission is that the injuries he sustained, described in references to and with excerpts from clinical notes and records (CNRs) and medical reports, provide “overwhelming evidence substantiating his significant injuries and treatment required since the collision.” There is no argument and no “targeting” of specific evidence toward any of the claims individually.

6OG states that “The Insurer has acknowledged [OG’s] need for treatment by approving $5,800 towards medical and rehabilitation [sic] as of January 15, 2018.” I infer that OG argues that this somehow supports the specific claims in this application. I reject any such argument as patently specious.

7OG makes two quite valid points about assessing the merits of OCF-18s:

(i) Pain relief is a reasonable and legitimate goal of treatment.

(ii) The type of treatment must be tailored to meet the rehabilitation goals of each individual.

8OG fails to link these points to any of his claimed treatment plans or to address how any of them meet his pain relief or rehabilitation goals.

9My review of the OCF-18s submitted in evidence did not persuade me that OG have proven that they are reasonable and necessary, without additional explanation by him. For example:

i. The OCF-18 from Dr. Hsu (issues 2-3 above) was wholly inadequate and frankly confusing, with goals – pain reduction, increased strength and range of motion – that seem unrelated to the description of the benefit sought: “assistance, personal care.”

ii. The OCF-18 for an attendant care treatment plan and assessment (issue 7 above) lists goals – return to activities pain reduction, return to work -- that seem unrelated to the description of the benefit sought.

10The CNRs, medical reports and OCF-18s submitted by OG are insufficient to persuade me that he has met the onus on him to prove his entitlement to the benefits he claims, because:

(iii) Proof of injury and need for treatment does not automatically validate any specific treatment or rehabilitation plan.

(iv) OG fails in his analysis and arguments to link the treatment plans to any specific goals or to describe how and why the meet any test of “reasonable and necessary” with respect to cost, frequency and duration, a clear link to goals and efficacy.

(v) While some of the OCF-18s have stated goals and assessment methodology, there is insufficient evidence to help me reach a conclusion on the other measures of “reasonable and necessary.” It is unclear to me, for example, why exercise programs as recommended in one of his plans need be facility-based.

11OG submitted his affidavit dated May 15, 2018. I acknowledge that an applicant’s own testimony about the effectiveness of treatment can be persuasive. In this case, while I do not doubt OG’s credibility, this evidence is unpersuasive because:

(vi) The bulk of it consists of enumerating the injuries with which he has been diagnosed, with some statements about his functional impairments, which as noted simply do not in themselves prove entitlement to claimed benefits.

(vii) OG says nothing whatsoever about whether and how treatments to date have helped him to function better or reduce his pain – which would help to explain why and how he believes the proposed treatments will help him.

12In reading RSA’s submissions, it is apparent that it took OG’s claims seriously. Several insurer’s examinations (IE) were conducted. RSA’s IE assessors all opined that OG’s treatment plans were not reasonable and necessary, or that he did not need facility-based treatment. Dr. L.E. Koepfler, psychologist, raised concerns about the accuracy of OG’s self-reports about his pain, in an IE report dated June 10, 2016. OG is silent on these findings.

13The tactical burden of proof may shift in the course of argument, but such a shift depends on the strength of evidence.³ In this case, I find that OG’s failure to make any kind of persuasive case for his entitlement to any of the benefits he claims makes it unnecessary for me to provide any more detailed analysis of RSA’s response to it. I agree with RSA’s overall argument that OG has not met the onus on him to prove his entitlement.

CONCLUSION

14OG’s appeal is denied.

15There are no overdue benefit payments and therefore no interest is owing to OG.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3El Saikali v. Co-operators General Insurance Company, 2003 FSCO Appeal P01-00059 – submitted by RSA.