Licence Appeal Tribunal File Number: 20-004484/AABS
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:
Saoirse Minden
Applicant
and
Optimum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeffrey Shapiro
APPEARANCES:
For the Applicant:
Barbara K. Opalinski, Counsel
For the Respondent:
Amanda Lennox, Counsel
HEARD:
By way of written submissions
BACKGROUND
1S.M. was a pedestrian struck by an automobile on July 20, 2019. She sought insurance benefits from Optimum pursuant to the Schedule.1 The parties agree that S.M. suffered a right ankle fracture and concussion. Optimum denied many of S.M.’s requests for treatment as it disputes the impact those injuries had on S.M. and her medical needs, and whether S.M. has followed procedures for claiming benefits under the Schedule. S.M. appealed Optimum’s denials to this Tribunal. I find that S.M. is entitled to the neuropsychology assessment at rates permitted under the Schedule, some of the expenses, and some of the therapy subject to terms, but S.M. has not established her entitlement to the other requested benefits, for reasons listed below.
ISSUES
2The benefits at issue are: (1) attendant care (“AC”), (2) occupational and physical therapy, (3) psychological/neuropsychological services, and (4) out-of-pocket expenses. The precise issues I must decide are if S.M. is entitled to:
$709.72 per month for Attendant Care Benefits proposed by FunctionAbility submitted December 9, 2019.
$2,219.95 for Occupational Therapy services proposed by FunctionAbility in a treatment plan/OCF-18 (“plan”) submitted on December 9, 2019.2
$1,176.34 for physiotherapy proposed by Adelaide West and For Health’s Sake per invoices submitted on November 11, 2019, denied on November 13, 2019.
$730.00 for physiotherapy proposed by Adelaide West in a plan submitted on November 19, 2019, denied December 16, 2019.
$417.00 for physiotherapy proposed by Adelaide West in plan submitted on January 9, 2020, denied January 20, 2020.
$349.00 for physiotherapy proposed by Adelaide West in a plan submitted on January 24, 2020, denied February 6, 2020.
$358.99 for physiotherapy proposed by Adelaide West in a plan submitted on March 3, 2020, denied March 4, 2020.
$2,260.00 for psychological assessment proposed by All Health Medical Centre (“All Health”) in a plan submitted on November 11, 2019, denied November 13, 2019.
$4,362.65 for psychological services proposed by All Health in a plan submitted on January 31, 2020, denied March 4, 2020.
$6,010.00 for neuropsychology assessment proposed by All Health in a plan submitted on December 13, 2019, denied January 2, 2020.
$9,470.83 in expenses submitted on OCF-6s, denied on March 3, 2020, less amounts withdrawn.
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
ResULT
3S.M. is entitled to the neuropsychology assessment (Issue 10) in the amount of $2,486.00, inclusive of HST, and medication expenses of $127.87 (Issue 11).
4S.M. is not entitled to Issues 1, 2, 3, 8, 9, 12 or the remaining Issue 11 expenses.
5S.M. has not complied with s. 47(2) of the Schedule as she has not provided proof that collateral benefits have been exhausted. Thus, she is not entitled to the therapy (Issues 4-7) because of procedural issues, but otherwise appears entitled to this treatment which was approved, incurred and paid out-of-pocket. Thus, S.M. shall have 60 days from the release of this order to supply the requested information to Optimum, failing which the benefit is denied.
ANALYSIS
Issues 1 & 2: Does S.M. require attendant care or Occupational Therapy?
6No. Section 19(1) of the Schedule provides that an insurer is required to pay an “Attendant Care Benefit” (“ACB”) consisting of reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident, for services provided by an aide or attendant or a long-term care facility or a chronic pain hospital, subject to certain limitations that are not involved.
7Sections 14-16 and 25 of the Schedule generally provide that an insurer shall also pay for medical and rehabilitation benefits and assessments if the proposed treatment or assessment is reasonable and necessary.
8For all the benefits at issue, S.M. has the onus to establish her entitlement to the benefit by a preponderance of the evidence, rather than Optimum having the obligation to disprove entitlement.
9S.M.’s claim for an ACB (Issue 1) is relatively modest at $709.72 a month, only seeking assistance with some food preparation, cleaning and sleeping. S.M. describes the treatment plan in Issue 2 as seeking an assessment of S.M.’s possible ACB needs, yet the plan is actually for O.T. treatment. Nevertheless, I do not find the ACB services, an assessment, or O.T. treatment to be reasonable and necessary. 3
10While S.M. points out that she was thrown off or rolled off the hood when struck, and sustained road rashes, an open wound of the head, and a fracture of her ankle, fortunately, those injuries produced limited impairments.
11For instance, the hospital ER and fracture clinic report days after the accident describe the fracture as an “avulsion fracture” with minimal tenderness, “a bit of” mild road rash and “very little discomfort with walking.” The report concludes, “She has minimal symptoms, but we are going to put her on an Aircast boot for 2 weeks and then she can wean herself out thereafter….”, and at that, the Aircast was “just to give her ankle some rest for full healing….” In other words, this was not a full break requiring surgery or even an absence of weight bearing to heal.
12In fact, three days after the accident, S.M. returned to her full-time employment as creative director, albeit with some modifications, commuting to her office four times a week. An August 18, 2019 clinic note from East Liberty, a walk-in clinic, notes S.M. is “not really resting bc busy job.”
13Four weeks post-accident, an August 22, 2019 follow-up exam at the hospital fracture clinic records no discomfort walking with either the walking boot or shoes, and that scheduled routine follow-up was unnecessary as S.M. was doing well and “otherwise completely healthy and has no concerns.” It also notes she experienced “no other injuries from the incident.”
14Perhaps most directly on point, during a November 14, 2019 In-Home Assessment of Attendant Care Needs by occupational therapist L. Doan – the very assessment on which S.M. relies to support her ACB claim – S.M. confirmed that she was independent with her self-care with occasional housekeeping support from her sister, did not need any skilled care, and could do almost all of her cleaning, perhaps only having issues with heavier work. S.M. provided similar reports during virtually all assessments – both hers and Optimum’s.
15Given the above history, I find the November 14, 2019 Assessment to be overly generous in its statement of the medical history and current needs, and therefore give it little weight. For instance, it describes (1) the pain generated by S.M.’s “head pounding” as so significant that S.M. overlooked the pain in her ankle, (2) S.M. had no recollection of the accident, and (3) S.M. is “unsure” if she lost consciousness, yet the ER and fracture clinic records contradict those assertions. As well, the report asserts that a walking boot was prescribed for six-weeks, when the fracture clinic records two weeks, although it is possible S.M. actually remained in the boot for that long even if initially prescribed for two weeks.
16Six weeks after the In-Home Assessment, on January 1, 2020, S.M. purchased a gym membership for a high intensity interval training program. Other receipts show she made regular payments in September and October of 2019 to the gym, with one showing a missed session on September 26, 2019, implying she was there on the other days.
17Thus, while S.M.’s claims for an ACB are relatively modest, only seeking assistance with some food preparation, cleaning and sleeping, I agree with Optimum’s assertion that it is illogical to conclude that that she required AC assistance in November 2019 after a return to work, was fully independent with self-care, and reported no impairments at the fracture clinic.
18I note her more general medical records do not alter that conclusion. Records show two visits – August 18, 2019 and November 10, 2019 – at East Liberty, a local walk-in clinic, and a single January 30, 2020 visit – 6 months after the accident – with Dr. Gupta, her family doctor. While Dr. Gupta referred S.M. for investigation of concussion symptoms – and I accept that S.M. did sustain a mild concussion, the overall record does not establish that the concussion significantly interfered with activities of daily living or needed much, if any, treatment.
19Dr. Mehdiratta’s March 26, 2021 Neurology Report diagnosed a Traumatic Brain Injury (TBI), Post-Concussion Syndrome, Chronic Migraines, and Post Traumatic Vestibulopathy. However, this assessment occurred without a physical exam (it was conducted virtually) and was based on S.M.’s self-reports and history, yet the self-reports and history appear overstated compared to the earlier records. For instance, she reported loss of consciousness immediately following the injury and was “diagnosed with concussion on discharge from hospital”, and that there were “reports of loss of consciousness” – yet the hospital records state otherwise. The respondent submits this assessor based his conclusions solely on S.M. self-reports. I agree. 4
20IScope records include qEEG and SPECT Scan diagnostic testing, which supports a “likely brain injury”, but it does not appear there is any follow-up from Dr. Mehdiratta or any opinion that the concussion effects S.M.’s functional abilities in a significant way.
21S.M. also provided portions of Dr. Belyakova’s February 9, 2020 psychological report, who diagnosed Adjustment Disorder, Posttraumatic Stress Disorder and a “Class 3: moderate impair with respect to mental and behavioral disorders.” It does not appear she conducted validity testing, and p. 10 of her report describes “features of…[PTSD]” as opposed to actual PTSD. As well, the Class 3 rating for mental and behavior disorders appears inconsistent with the functional abilities S.M. displayed.
22S.M. also provided treatment records from Dr. Carmel Bachar, Chiropractor (starting October 26, 2019), Adelaide West Physiotherapy (October 21, 2019 – September 29, 2020) and Thu Physiotherapy (Devonna Truong, formerly of Adelaide West).
23Optimum relies on three IE assessments, which I give substantial weight as I found them thorough, consistent with the medical evidence and well reasoned. All generally pointed to the same conclusions that S.M sustained a fractured ankle, strains and sprains, and a concussion, but none of these (aside from using the walking boot for a few weeks) caused her any significant functional impairments or other issues.
24First, Dr. Bradbury’s February 25, 2020 Report records that S.M. was independent with own self-care (noting that her sister assisted, as needed, after the accident while S.M. was still in a cast), she can complete lighter household tasks but has help for heavier tasks. Importantly, Dr. Bradbury describes a relatively normal examination, acknowledges S.M. likely suffered a mild concussion post-accident, but the exam did not reveal any significant post-accident neurocognitive compromise or accident-related neurocognitive impairment or DSM-5 diagnosis. She notes, “Neurological consultation may be of merit; at which time I would defer to a neurologist…” but, importantly, her recommendation is only for her family physician to monitor her post-accident.
25Second, Dr. Rod Day, Psychologist, conducted a December 12, 2019 assessment and March 17, 2020 paper review. He considered the accident “traumatic” but found that S.M. did not indicate the presence of any significant accident-related psychological symptoms that required further assessment or intervention. He also noted that S.M. did not want to participate in the proposed psychological services and does not require mental health treatment. (S.M. submits that presenting at her own psychological assessment shows her desire for treatment.)
26Third, Dr. Charanjit Sandhu, an occupational medicine specialist, issued a physician assessment report dated September 3, 2020. The doctor records that S.M. advised she is independent with her activities of daily living and has no depression, nightmares, flashbacks and/or panic attacks. The doctor noted the physical exam revealed no sensory deficits and a generally normal examination but did conclude the applicant had myofascial sprains to her cervical spine left shoulder lumbar spine along with ongoing post traumatic headaches and post traumatic vertigo. The doctor opined that further facility-based treatment would not be useful, and the focus should be on active independent exercise program.
27Thus, given the above, S.M. has not established her need for ACB or Occupational Therapy treatment. Additionally, while Optimum may have already approved an assessment, and thus, would be bound by that approval, based on the history and medical records before me, S.M. has not established that an ACB assessment is reasonable and necessary.
Issues 3–7: Is S.M. entitled to the requested physiotherapy?
28As noted above, medical treatment, including physiotherapy, is generally payable if reasonable and necessary, subject to certain payment caps. Optimum disputes payment as S.M. did not follow the applicable procedures under the Schedule.5
29Regarding Issue 3 ($1,176.34), the November 13, 2019 date is not a Treatment Plan – it is an invoice date. The first treatment request from this clinic was a November 20, 2019 Treatment Confirmation Form (OCF-23) seeking $2,200 in treatment under the Minor Injury Guideline. Thus, the treatment was incurred before a treatment plan was submitted, in violation of Section 38(2) of the Schedule. Thus, Optimum is under no obligation to pay it.
30Regarding Issues 4–7 ($730, $417, $349, and $358.99), the requested amounts and dates also correspond to invoice submissions and denials. In this case, however, the underlying treatment was previously approved:
a. Issues 4–6 ($730, $417 and $349) relate to the above OCF-23, which was approved on November 20, 2019.
b. Issue 7 ($358.99) relates to a plan for $1,121 for physiotherapy (essentially a MIG extension) submitted on January 24, 2020 and approved on February 4, 2020.
31Thus, Optimum’s denial of payment is based on section 47(2) of the Schedule which provides that no payment is required for amounts reasonably available under an insurance plan – i.e. in this case, an extended benefits policy under Desjardins. Optimum submits S.M. did not provide proof that her annual benefit from her extended benefits carrier had been exhausted. Optimum also denied the $730 (Issue 4) believing that a new invoice was required showing treatment in accordance with the Treatment Confirmation Form.
32S.M. submits that she previously supplied this information. However, the parties' submissions only include (a) a Benefits Statement that I read as showing the extended benefits provide coverage of $500 for chiropractic and $500 for physiotherapy, but no cover letter from S.M. is attached showing it was ever forwarded to Optimum,6 and (b) a December 2, 2020 cover letter enclosing a one-page payment statement showing $148 paid for physiotherapy at 100% and $176 not paid, for total benefits of $148 paid.
33While S.M. established that she paid $4,752.86 out-of-pocket for physiotherapy and some chiropractic treatment directly to the clinics, the above records do not establish that her available collateral benefits have been exhausted.
34Based on the information before me, these invoiced amounts, as submitted, are not payable due to s. 47(2). However, given that the treatment itself is approved and incurred, this dispute amounts only to a billing issue. S.M. shall have 60 days from the release of this order to provide a benefit statement for 2019 and 2020 to Optimum, clearly establishing the amounts paid together with a corrected invoice for Issue 7, failing which the benefit is denied. Alternately, Optimum may assume that the full annual benefit of $500 for Physiotherapy and $500 for Chiropractic remains available under the collateral benefits policy for 2019 and for 2020, and pay the invoices after a taking a credit for those collateral benefits.
Issues 8–10: Is S.M. entitled to the psychological assessment and services, and a neuropsychology assessment?
35I do not find the psychological assessment and treatment to be reasonable and necessary, for the reasons stated above. In particular, S.M. returned to work within days of the accident and has continued with that employment, neither ER, family doctor or walk-in clinic records support psychological investigation or treatment, she has been generally functioning well, and S.M. herself reported to Dr. Day that she does not feel she needs psychological treatment.7 I find little support for these plans in Dr. Belyakova’s report for the reasons above – and particularly the inappropriate Class 3 finding, and conversely neither psychologist Dr. Day or neuropsychologist Dr. Bradbury found significant psychological or cognitive impairments, nor did Occupational Medicine specialist Dr. Sandhu endorse psychological issues.
36In contrast, I find the neurological assessment reasonable and necessary to the amount of $2,486.00 ($2,000 limit for an assessment under the Schedule, plus $200 preparation fee, and $286 tax). While S.M.’s neurological symptoms are not significantly interfering with her life – Dr. Bradbury says “not indicative of any significant post-accident compromise” – Dr. Bradbury does acknowledge her mild symptoms are consistent with a mild concussion and that a “neurological consultation may be of merit; at which time I would defer to a neurologist as to whether any neuroimaging may be of merit to rule out any more significant neurological compromise or as to whether any sleep study secondary to reports of sleep difficulty, would be of merit.” In my opinion, she is entitled to that investigation by a physician of her own choosing.
Issue 11: What are the expenses claimed and is she entitled to them?
37S.M. lists Issue 11 as $9,470.83, less amounts withdrawn, consisting as various expenses submitted across three Expense Claim Forms/OCF-6, but all denied on March 3. Optimum lists Issue 11 as the same $9,470.83 and then another issue for $3,523.10 for expenses, less amounts withdrawn. I understand the expenses to be at issue as follows:8
i. Medication – $216.27
ii. Adelaide West Physio receipts – $854.00
iii. Massage (Germany) – $69.00
iv. Expenses for Eye Exam – $145.00
v. Adelaide West Physio $271.00
vi. Eyeglasses – $215.92
vii. Ambulance – $190.00
viii. Crutches – $30.00
ix. Adelaide West – $554.00
x. For Health’s Sake – $373.74
xi. F45 Training Trinity Bellwoods – $372.90
38I find $127.87 of item i. (medication) appear accident-related and payable ($22.59 Advil, $12.99 Advil, $43.99 heating pad, Robax $14.99, Robax Platinum & Advil $33.31). The remaining receipts do not appear accident-related – or at least have not been proven to be related – and some predate the accident.
39Items vi. (eyeglass exam only, not the contacts), vii. (Ambulance), and viii. (crutches) are accident-related, but are not payable absent proof they are not covered under the collateral benefits policy. The applicant has 60 days from the release of this order to provide the collateral benefits denial to the respondent. The contacts in Item vi. do not appear to be accident-related.
40I do not approve items ii., v., and ix. due to the analysis on Issues 4–7 above.
41I do not approve items iii. and x. as these are for treatment expenses incurred prior to the submission of a treatment plan. They also may be available under the collateral benefits plan and have not been shown to be accident-related.
42I do not approve items xi (F45 Training) as it appears S.M. was attending it pre-accident, and thus it is not an accident-related request.
Issue 12: Did Optimum unreasonably withhold benefits?
43No. Section 10 of Regulation 664 provides that the Tribunal may make a special award in addition to awarding benefits and interest if the respondent has unreasonably withheld or delayed payments. In general, I find Optimum’s denials are reasonable, for the reasons above. The single issue that raises some concern is the neurological assessment. On the one hand, Dr. Bradbury’s IE comment that a neurological examination “may be of merit” is strong evidence that a neurological assessment should have been approved, yet given her equivocal language and its context among her findings of S.M.’s overall level of functioning, prevents me from concluding the denial was “unreasonable.”
Issue 13: Interest
44No interest is payable on benefits not approved. Interest is payable on approved treatment plans and/or expenses as allowed under the Schedule. To be clear, for issues 4–7, the benefits are not yet due as they have not been properly invoiced.
ORDER
45S.M. is entitled to the neuropsychology assessment (Issue 10) in the amount of $2,486.00, inclusive of HST, and medication expenses of $127.87 (Issue 11). The applicant has 60 days from the release of this order to provide the collateral benefits denial to the respondent regarding the three expenses identified in paragraph 39 above, failing which those benefits are denied.
46S.M. is not entitled to Issues 1, 2, 3, 8, 9, 12 or the remaining Issue 11 expenses.
47S.M. shall have 60 days from the release of this order to provide a benefit statement for 2019 and 2020 to Optimum, clearly establishing the amounts paid together with a corrected invoice for Issue 7, failing which the benefit is denied. Alternately, Optimum may assume that the full annual benefit of $500 for Physiotherapy and $500 for Chiropractic remains available under the collateral benefits policy for 2019 and for 2020 and pay the invoices after a taking a credit for those collateral benefits.
Released: December 3, 2021
Jeffrey Shapiro
Vice-Chair
Footnotes
- Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
- The applicant submits that this plan is for an assessment, yet as Optimum correctly submits it is for treatment. I address both below. Also, while there was some confusion about the dates for Issues 1 and 2, they were both denied on December 13, 2019. See S.M. Submissions at Tabs 6 and 7.
- Oddly, while the actual assessment is not before me, and the parties provided submissions on it, a November 25, 2019 log note of Optimum’s adjuster (see S.M. Tab 17) lists that an OCF-18 was approved for in-home assessment in the amount of $1,663.98.
- There is some confusion around Dr. Gupta’s referrals. An initial referral to the University of Toronto Concussion Clinic did not result in an assessment; S.M. asserts Covid-19 prevented the assessment, but the clinic does not treat motor vehicle injuries. There is a second referral to the ABI Clinic, which appears to have resulted in Dr. Mehdiratta’s report, through iScope Concussion & Pain Clinics.
- I note that there are errors in the way that the issues are listed, which flows in part from the case conference report only referring to the issues being as listed in the application and response, rather than fully listing them. For example, S.M. listing of issues refers to treatment plans, but many of the dates listed refer to invoice dates. That said, as the parties’ submissions show they are aware of what is actually in dispute, I will address the underlying disputes.
- S.M. Tab 31.
- Optimum also established that S.M. stated that she does not wish to participate in psychological treatment. However, I give that statement some but much lesser weight then the other factors, because her stated hesitancy to participate in treatment does not render the treatment not reasonable or necessary, but rather means that the treatment, even if necessary, may never be incurred.
- S.M.’s Submissions at paragraph 75.