D.W. v. Heartland Farm Mutual, 2018 CanLII 13145

Licence Appeal Tribunal

Date: 2018-01-30 Tribunal File Number: 17-001508/AABS Case Name: 17-001508 v Heartland Farm Mutual

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:

D. W. Applicant

and

Heartland Farm Mutual Respondent

DECISION

Adjudicator: Rupinder Hans

Appearances: For the Applicant: Corina Anghel Bachmann, Counsel For the Respondent: Melanie Malach, Counsel

Heard in writing: July 26, 2017

OVERVIEW

1The applicant, D.W., was injured in a motor vehicle accident on February 16, 2016. The applicant applied for medical benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the "Schedule"). The respondent, Heartland Farm Mutual, denied payment for three treatment plans related to occupational therapy services, a memory foam mattress and a reclining chair. The denials were based upon the applicant's refusal to attend scheduled insurer's examinations ("IEs"). The applicant asserts that he refused to attend because the respondent failed to provide "the medical and any other reasons" for the examinations as required under the Schedule.

2The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal"), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the "Act"), seeking approval of the medical benefits, interest on the outstanding benefits, a special award, and costs. The respondent submits that under s. 55(1)2 of the Schedule, the applicant is precluded from applying to the Tribunal for resolution of this dispute because he failed to attend the scheduled IEs.

3This matter was heard in writing.

ISSUES IN DISPUTE

4The following issues are in dispute:

(1) Is the applicant entitled to receive a medical benefit in the amount of $5,910.16 for occupational therapy services, recommended by Kristen Wood, occupational therapist, of Novus Rehabilitation, in a treatment plan dated December 13, 2016, and denied by the respondent on December 21, 2016?

(2) Is the applicant entitled to receive medical benefits, recommended by Ms. Wood, for the following: i. $4,141.37 for occupational therapy services, as set forth in a treatment plan dated April 1, 2017, and denied by the respondent on April 18, 2017? ii. $797.77 for assistive devices, as set forth in a treatment plan dated April 16, 2017, and denied by the respondent on April 25, 2017?

(3) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(4) Is the applicant entitled to interest on any overdue payment of benefits?

(5) Is the applicant entitled to costs pursuant to Rule 19 of the Tribunal's Rules of Practice and Procedures?

RESULT

5Based upon a review of the evidence and submissions presented, I find that s. 55 of the Schedule precludes the applicant from applying to the Tribunal. Accordingly, I deny the application in its entirety.

THE LAW

6Under s. 38(8) of the Schedule, if an insurer decides to refuse to pay for medical goods and services recommended in a treatment plan, it must send the insured person a notice explaining "the medical and all other reasons" for the refusal. Section 38(10) provides that the insurer may notify the person that it requires the person to attend an IE under s. 44. Section 44(5)(a) of the Schedule provides that when requiring that an insured person attend an assessment, an insurer give the insured person a notice setting out "the medical and any other reasons for the examination."¹ The applicant states that the respondent failed to provide a medical reason for its denial of all three treatment plans.

7Section 44(1) provides that an insurer, for the purposes of determining whether an insured person is or continues to be entitled to a benefit, may require an insured person to be examined by one or more regulated health professionals chosen by the insurer, but not more often than is reasonably necessary.

8Finally, s. 55(1)(2) provides that an insured person shall not commence a proceeding unless the insured person has complied with s. 44 if the insurer provided the insured person with notice in accordance with the Regulation that it required an examination under that section.

9This case, therefore, turns on whether the respondent's notices issued under s. 38 refusing to pay for the treatment claimed in the treatment plans, and its notices to attend s. 44 IEs, were in compliance with those sections. If they were not, the applicant would not be precluded from bringing this application.

10In this case, I find that the respondent provided valid medical reasons when requesting the IEs, and that the failure of the applicant to attend precludes the applicant from applying to the Tribunal for resolution.

11I will discuss each treatment plan separately below.

ANALYSIS

Issues 1 & 2: The Applicant's Entitlement to the Treatment Plans

(i) The December 13, 2016 Treatment Plan for Occupational Therapy Services

12The December 13, 2016 treatment plan prepared by Ms. Wood sought, inter alia: a neuro-optometry assessment, sessions of training, motor and living skills, session of planning service, and various assistive devices. The applicant's injuries are listed as concussion, whiplash associated disorder ("WAD2") with complaint of neck pain with musculoskeletal signs, lower back pain, cervicalgia, symptoms and signs involving emotional state and headache. The goals of the plan were pain reduction, increase in strength, return to activities of normal living and return to modified work activities.

13On December 21, 2016, the respondent advised that it could not approve the treatment, and it provided four reasons, including the following:

• "The medical documentation on file does not support the need for a neuro-optometry assessment.
• Further to our correspondence dated November 17, 2016 we are not in receipt of all of the requested medical documentation, request made in accordance with Section 33 of the Statutory Accident Benefits Schedule. We do however acknowledge receipt Dr. Johnston's and Dr. A. Tzcieniecka's clinical notes and records from February 2013 to September 2016 and October 2016 respectively and the Decoded OHIP Summary had been request by your legal representative's office."

14On January 11, 2017, the respondent advised the applicant of the particulars of the IEs for an Occupational Therapist In-Home Assessment and a Neuro-Ophthalmology Assessment. The applicant advised that an application had been filed with the Tribunal, and that he would not be attending any IEs. By letter dated February 2, 2017, the respondent denied the treatment plan based upon the applicant's failure to attend the IEs.

15The applicant took the position that the denial did not provide sufficient medical reasons as required by s. 44(5) of the Schedule, and that the IEs are not reasonable and necessary. The applicant asserts that the respondent has identified the purpose of the IEs, which is to obtain a further opinion to decide whether the treatment plan is reasonable and necessary, but has failed to provide the medical reasons behind the requirement of the examinations.

16The applicant further states that the respondent has received compelling and ample medical records in support of the treatment plan from various health care providers. I note that this blanket statement is not compelling as the applicant has not provided the medical evidence that he is relying upon to the Tribunal. The applicant's submissions do not include any medical records from his treating physicians, or otherwise. Nor does the applicant point to any specific medical records from providers that he relies upon when making the assertion. Thus, I am unable to review the medical records that the applicant is relying upon, and make a finding as to whether the insurer had sufficient medical information to accept the treatment recommended without the need for its own IE. The applicant has not met his burden in this regard.

17I now turn to the applicant's argument that the respondent failed to provide medical and other reasons for the denial of the treatment plan.

18The respondent points out that it asserted four reasons for the denial. Upon review, I am persuaded that, at minimum, the last two reasons (listed above at paragraph 13 of this decision) are valid medical reasons. Specifically, the respondent states that medical documentation on file does not support the need for a neuro-optometry assessment. In addition, the respondent further states that it has not received all the medical documentation that it had requested. I find these to be sufficient medical and other reasons to explain why the insurer found the treatment plan not to be reasonable and necessary.

19In particular, the occupational therapy report is often critical because it provides important information to the respondent about the applicant's condition and possibly living situation. This assists the insurer in assessing and updating its file to ensure the applicant is receiving the medical attention needed. The insurer's request to conduct the IEs was not only to assess the extent of the injuries and prognosis for recovery, but also, whether the treatment plans are reasonable and necessary.

20In his reply, the applicant states that the respondent had approved two prior occupational therapy treatment plans, including one for neuro-optometry treatment, and therefore, the respondent implicitly agreed that occupational therapy services are reasonable and necessary. This is not compelling. The two prior treatment plans are not before the Tribunal for determination. In addition, the fact that a respondent has approved an occupational therapy plan in the past does not lead to the conclusion that it must approve all future occupational therapy plans. Each occupational therapy plan is unique, and the analysis must focus on the specifics of each plan individually.

21I have reviewed the case law submitted by the parties, and find that J.W. v. The Co-operators General Insurance Company, 2016 CanLII 96170 (ON LAT), is most persuasive. That case provides that insureds must provide valid, factual medical information from health practitioners to support their claims.² Similarly, insurers must provide reasons encompassing more than a desire to determine ongoing entitlement.³ Even if the applicant has sent the respondent a wealth of medical information, the information may not give a complete picture of the applicant's condition.⁴ It is reasonable on the part of the respondent to desire its own view of the extent of the injuries and the prognosis for recovery.⁵ An insurer has the obligation to continually adjust a file, and where medical reasons warrant, the insurer is permitted to gather evidence to respond to a position taken by the insured person.⁶ I find that the respondent was doing just that.

22The respondent has provided valid medical reasons for requiring an IE, and denying the claim.

(ii) The April 1, 2017 Treatment Plan for a Memory Foam Mattress

23The April 1, 2017 treatment plan prepared by Ms. Wood listed the same injuries as the December 13, 2016 treatment plan, and sought approval for a memory foam mattress. On April 18, 2017, the respondent sought an IE, and denied the benefit based on the following reasons:

• "Due to your failure to attend the Occupational Therapy Insurer's Examination on January 30, 2017, with Derek Smith, we were unable to evaluate your current living arrangement and the possible assistive devices you require. Derek Smith was not given the opportunity to assess you or your home nor your current mattress that Kristen Wood is claiming to be unsuitable. Without allowing the insurer the opportunity to evaluate your current mattress, we are unable to ascertain if the proposed goods will offer you any improvement in the current symptoms that you are reporting. Kristen Wood claims that you wake up in the night with pain in your back and neck and claims that this is as a result of the mattress, opposed to improper posture and sleeping positions. Without a sleep study and an examination of your current mattress we cannot agree with this conclusion."

24On April 21, 2017, the respondent advised that an Occupational Therapy In-Home Assessment was scheduled for May 23, 2017. Subsequently, the applicant's counsel advised that the applicant would not be attending the IE. No further details were provided. The applicant did not attend.

25I find that the respondent provides medical reasons, specifically, its need to assess the state of the applicant's living situation to ensure it meets his medical needs, and to assess the applicant's current mattress. The respondent further points to the need for a sleep study to determine if the cause of the pain in the applicant's back and neck is due to the current mattress as opposed to improper posture and sleeping positions. The respondent references the failure of the applicant to attend the occupational therapy examination which would, no doubt, have allowed the respondent to better assess the applicant's medical needs and provide a complete picture of his medical condition.

26The medical and other reasons are unique to each case. I find that the respondent's desire to investigate the applicant's current mattress, living situation and conduct a sleep study to determine the reasons behind the pain that the applicant is experiencing during sleep are valid medical and other reasons for requiring an IE and denying the claim.

(iii) The April 16, 2017 Treatment Plan for a Reclining Chair

27In the April 16, 2017 treatment plan prepared by Ms. Wood, the applicant sought a reclining chair. His injuries are listed as the same as in the previous two treatment plans, and the goals are similar.

28On April 25, 2017, the respondent again sought an IE. The respondent refused to pay for the chair because the applicant had purchased it before submitting a treatment plan, contrary to s. 38(2) of the Schedule, as well as, in part, for similar reasons as for the previous treatment plan:

• "Due to your failure to attend the Occupational Therapy Insurer's Examination on January 30, 2017, with Derek Smith, we were unable to evaluate your current living arrangement and the possible assistive devices your require. . . . Without allowing the Insurer the opportunity to evaluate your current living room chair, we are unable to ascertain if the proposed goods will offer you any improvement in the current symptoms that you are reporting. Kristen Wood stated that none of your current furniture permitted you to put your feet up and recline thus decreasing the vertical stress and force off of your spine. She stated that you determined that a reclining chair was essential to your rehabilitation, comfort rest and mood management, hence you went out and purchased the reclining chair request in the OCF-18 submitted by Kristen Wood. Section 38(2) of the Statutory Accident Benefits Schedule (SABS) states that An Insurer is not liable to pay for an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan..."

29The respondent advised that the scheduled May 23, 2017 Occupational Therapy In-Home Assessment would also address this treatment plan. The applicant's counsel advised that the applicant would not attend.

30The respondent asserts the need for an assessment to determine the assistive devices needed to manage the applicant's current medical symptoms. The respondent states its desire to evaluate the applicant's living arrangement, and current living room chair and furniture. The respondent also notes the applicant's failure to attend the IEs as a reason for refusing payment for the chair. Again, given the analysis above, I find that the respondent has provided valid medical reasons for requiring an IE and denying the claim.

(iv) The Applicant is Precluded from Applying to the Tribunal because He Failed to Attend the IEs

31The applicant has failed to persuade me, on a balance of probabilities, that the respondent's notices under ss. 38 and 44 failed to include medical reasons. As such, he was required to attend the IEs and is precluded by s. 55 of the Schedule from applying to this Tribunal for resolution of his dispute. Accordingly, his claims are dismissed.

Issue 3: The Applicant's Entitlement to an Award

32The applicant has not met his burden with regards to establishing that the respondent failed to provide him with proper notices refusing to pay for the treatment plans or requiring him to attend the IEs.

33Given my ruling above, I cannot find that the respondent unreasonably withheld or delayed payments to the applicant.

34I am not ordering an award.

Issue 4: The Applicant's Entitlement to Interest

35I have found that the applicant is not entitled to the medical benefits claimed, consequently, no interest is owing.

Issue 5: The Applicant's Entitlement to Costs

36The applicant is not entitled to recover costs as he did not establish that the respondent's conduct rises to the level of being unreasonable, frivolous, vexatious, or in bad faith. The applicant has not met his burden.

37Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure is a provision for the parties to request costs if they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 provides that a request for costs can be made any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

38In support of his position, the applicant asserts that the respondent: (a) in an email dated July 29, 2016 directed the care of the applicant contrary to Auto Insurance Consumer's Bill of Rights; (b) sent correspondence dated February 2, 2017 to the applicant denying a treatment plan without copying his counsel in an attempt to intimidate him; (c) failed to provide any surveillance documented in the adjuster's notes; (d) failed to provide proper notice of a subsequent IE; and (e) failed to provide a medical reason in the notices of examination for the denial of the treatment plans. I am not satisfied that any of the alleged behaviour occurred in the proceeding before the Tribunal. Nonetheless, even if it occurred in the proceeding, I find that the costs requested are not appropriate.

39Upon review of the July 29, 2016 email from the insurer to the applicant, I do not find that the respondent is directing the care of the applicant. The email simply does not rise to that level. The respondent states that it was trying to work with the applicant to get him the treatment that he needed and wanted. The respondent points out that the email states that if the applicant had any further issues or concerns, the insurer should contact the writer for resolution. There is no language in the email requiring the applicant to attend chiropractic treatments, or stating that there are no other service providers available to the applicant.

40With regards to the applicant's claim that the respondent did not send a copy of the February 2, 2017 correspondence to counsel, the respondent counters by providing a copy of the email sent to counsel. The applicant does little to refute this evidence other than to state that he did not consent to receive notices in email form. I note, however, that the applicant's counsel has sent emails to the respondent that are part of the evidence before me. I am not persuaded by the applicant's arguments in this regard.

41With regards to the alleged failure to provide surveillance, the respondent states that it has advised the applicant on multiple occasions that it will provide the same, if it intends to rely upon it for purposes of handing this claim or if it intends to release it to third parties. The respondent's position is not unreasonable. The Tribunal's Rules provide that if a party intends to rely upon surveillance, then it must provide it to the other party. The respondent is in compliance with the Rule.

42The applicant's remaining assertions regarding the respondent's alleged failure to provide proper notice of a subsequent IE, and failure to provide a medical reason in the IE notices for the denial of the treatment plans are similarly not compelling because they are not substantiated in the evidence before me. The respondent's conduct does not rise to the level of being unreasonable, frivolous, vexatious, or in bad faith.

43I am not ordering costs.

ORDER

44After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that the application is denied in its entirety.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, Section 44(5)(a)
2. 2J.W. v. The Co-operators General Insurance Company, 2016 CanLII 96170 (ON LAT) at para 12 ("J.W. v. The Co-operators General Insurance Company").
3. 3J.W. v. The Co-operators General Insurance Company at para. 12.
4. 4J.W. v. The Co-operators General Insurance Company at para. 14.
5. 5J.W. v. The Co-operators General Insurance Company at para. 19.
6. 6J.W. v. The Co-operators General Insurance Company at para. 22.