JW v. State Farm Insurance Company, 2019 CanLII 34607

Citation: JW vs. State Farm Insurance Company, 2019 ONLAT 18-001570/AABS

Date: March 26, 2019

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:

JW

Appellant

and

State Farm Insurance Company

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Reynold Kim, Counsel

For the Respondent:

Robert Jones, Counsel

HEARD:

In Writing on: October 1, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant, “JW”, was involved in accident on December 27, 2014. He was struck by a motor vehicle as a pedestrian, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2JW applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied by the respondent, State Farm.

3JW was 16 years old at the time of the accident.

ISSUES

4The issues in dispute are as follows.

1. Is JW entitled to receive a medical benefit for physiotherapy services, recommended by North York Physiotherapy in the amount of $1,295.77 (less $1,261.02 already approved) in a treatment plan (“OCF-18”) that was submitted on February 18, 2016, and partially denied by the State Farm on February 26, 2016?

2. Is JW entitled to receive a medical benefit for physiotherapy services, recommended by North York Physiotherapy in the amount of $1,030.51 (less $299.75 already approved) in an OCF-18 that was submitted on June 13, 2016 and partially denied by Sate Fram on August 26, 2016?

3. Is JW entitled to receive interest on any overdue benefit payments?

FINDINGS

5JW’s appeal is denied because he failed to meet the onus on him to prove that the treatments and assessment he seeks are reasonable and necessary. Because JW’s appeal is denied, the issue of interest is moot.

REASONS

6Sections 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

Issue 1: OCF-18 of February 2016

7JW’s medical case for this benefit is uncontested as it is largely approved, with a residual amount of $34.75 in dispute. This dispute is about whether JW’s OCF-18 exceeds the maximum amount allowed for completion of OCF-18 forms.

8The benefit payable for completing an OCF-18 form is capped at $200.00 by the Professional Services Guideline³ (“the Guideline”). The Guideline specifies at p.3 that “the $200.00 maximum fee applies only to the services of a health practitioner as referred to in subsection 25 (1) 3 of the SABS [i.e. the Schedule], namely reviewing and approving an OCF-18 under subsection 38(3)(c), including any assessment or examination necessary for the purpose of that review and approval by the heath practitioner.”

9The Guideline also sets maximum hourly rates for health care professionals and providers in an appendix at page 5. The maximum hourly rate for a physiotherapist is $99.75.

10JW’s OCF-18 includes a fee of $135.00 for “documentation, support activity” and $99.75 for “assessment (examination total body)”. The latter fee was approved, but the former fee was only approved for $100.25, because State Farm considered it part of an overall cost of completing the OCF-18

11JW argues that the $135.00 “documentation, support activity” fee is for documentation of clinical notes and records (CNRs) and progress reports to be used in discussion and assessment of ongoing treatment. JW argues that this is not included in the cap of $200.00 set by the Guideline for preparing the OCF-18. He further argues that this is a necessary part of the treatment plan – part of assessing progress.

12State Farm contends that the $135.00 for “documentation” is indeed covered by the cap of $200.00 set by the Professional Services Guideline for preparing the OCF-18. The disputed $34.75 was denied as the amount by which the claim exceeds the $200.00 cap on preparation fees.

i. The item is not explained in the OCF-18 and JW has adduced no evidence to back his claim about the purpose of the documentation fee. He has therefore failed to prove that it was reasonable. State Farm assumed the fee was related to form completion and paid most of it as such.

ii. Even if the Tribunal accepts JW’s explanation of the documentation fee, the expense should be disallowed because it would constitute an “expense” that would push the hourly rate of the service provider above the maximum hourly rate set by the Guideline.

13I find that JW has failed to prove that he is entitled to the $34.75 in dispute for the OCF-18 submitted February 18, 2016. This is because:

i. His explanation of the reason for the fee is unbacked by evidence. In fact his assertions about the purpose of the fee are unclear.

ii. I find State Farm’s assumption that the fee was related to form completion and its decision to pay most of it as such to be reasonable under the circumstances.

iii. JW failed to contest State Farm’s contention that the denied portion of the expense would push the hourly rate of the service provider above the maximum hourly rate set by the Guideline. State Farm is not liable to pay for expenses relating to medical services that exceed the maximum hourly rates.

Issue 2: OCF-18 of June 2016

14In support of his claim, JW submits:

i. Clinical notes and records (CNRs) from his treating physiotherapist, Mr. DJ Kim over a treatment period of January 23, 2015 to June 30, 2016, in which Mr. Kim reports JW’s ongoing complaints of left shoulder and right ankle pain and observes JW experiencing difficulty with walking and stair-climbing on several occasions.

ii. Mr. Kim examined JW on June 13, 2016 and noted swelling to his right ankle especially around his ATFL, left shoulder impingement with tenderness to palpation. He diagnosed JW with a possible left shoulder tear and with right ankle moderate dysfunction.

iii. Mr. Kim identified these issues to State Farm, and opined that JW would be unable to engage in strenuous activities for some time and would require continuing physiotherapy.

15State Farm relies on two insurer’s examination (IE) reports by Dr. Marvin Gans, pediatrician in denying JW’s claim:

i. Dr. Gans’s report dated September 2, 2015 noted self-reporting by JW that he has returned to such pre-accident activities as bicycling and running, observed a full range of motion in all joints, and complaints of minor ongoing pain. Dr. Gans opined that JW was near maximum medical recovery (MMR) from his injuries, recommending 3-6 weeks of additional active – not passive -- physiotherapy and then be discharged into home-based functional exercise. Dr. Gans indicated that passive modalities would no longer facilitate recovery. He also indicated that JW’s injuries fall within the Minor Injury Guideline (MIG).⁴

ii. Dr. Gans’s report dated August 19, 2016 noted self-reporting by JW that he had intermittent right ankle discomfort, and that his left shoulder pain had resolved – with “occasional” problems only arising when carrying heavy objects. JW reported a reduction in his involvement with sports which he attributed to school workload, noting that he did play badminton. Dr. Gans observed a full range of motion in all joints. Dr. Gans indicated that the proposed treatment plan was partially reasonable and necessary: he opined that JW needed a single education session with a physiotherapist to demonstrate home-based functional exercise that would work to resolve his lingering complaints, but he maintained his view that passive modalities, such as the mobilization and massage therapy included in the disputed treatment plan, would not be effective. I note that Dr. Gans did mention that the recommended session could be followed up “on an as-needed basis”.

16State Farm argues that JW has failed to provide any evidence to contradict Dr. Gans’s expert opinion. State Farm asserts that JW “has placed nothing before this Tribunal that establishes further physiotherapy is reasonable and necessary, or that [his] treating physicians disagreed with Dr. Gans' opinion on the need for additional facility-based physiotherapy.”

17At paragraph 43 of its submissions, State Farm characterizes JW, “his counsel and treatment providers” as “lined up to collect more money for unnecessary treatment” and asserts that “the government, in its infinite wisdom, has drawn a line saying these types of claims are not payable by accident benefit insurers.”

18JW questions Dr. Gans’s conclusions with the assertion that those conclusions are inconsistent with Dr. Gans’s own observations in the IE with respect to tenderness in the ankle and elements of JW’s self-reporting on his level of athletic activity. JW notes Dr. Gans’s opinion that JW had not reached MMR at the time of examination.

19I find that JW has failed to meet the onus on him to prove that the treatment plan in dispute is reasonable and necessary for the following reasons:

i. I find Dr. Gans’s reports persuasive and agree with State Farm that they are uncontradicted by any medical expert. I find no reason to believe that Dr. Gans’s recommendations for continuing home-based exercise are inconsistent with his observations about JW’s lingering pain complaints and limitations.

ii. Dr. Gans’s credibility as an IE assessor was strengthened in my view by his recommendation, in his September 2, 2015 report, that several further weeks of treatment for JW were reasonable and necessary, despite his findings that JW’s injuries are “minor” and governed by the MIG. This shows me that Dr. Gans’s opinions were guided by his medical expertise and considerations – and not by regulatory concerns.

iii. I reject JW’s implicit view that an acknowledgement by Dr. Gans that MMR has not been reached, somehow confirms that the disputed treatment plan is reasonable and necessary. JW has to show how and why the specific treatment sought is required or most effective: merely demonstrating an injury does not in itself validate any treatment plan nor does it refute Dr. Gan’s recommendations.

iv. JW simply does not make a persuasive case as to how the continuing passive modalities recommended in the OCF-18 (such as hyperthermy and mobilization) would enable JW to return more quickly to his pre-accident high level of athletic participation than the approach recommended by Dr. Gans. He does not explain why facility-based exercise should be preferred to a home-based program.

v. JW’s self-reporting indicates that his pain complaints were intermittent, relatively infrequent and mild-to-moderate in severity,⁵ and he reported to Dr. Gans that stopping physiotherapy had not made much difference. This contrast with JW’s submissions regarding his pain condition is unexplained, and JW does not show why physiotherapy is required for ongoing pain management under the conditions he self-reported to Dr. Gans.

20While I have found that JW’s claims are not proven, I reject State Farm’s characterization of his claim and the aspersions cast on his legal and health service providers. Paragraph 43 of State Farm’s submission is unsupported by any evidence, and is incomprehensible given the opinion of its own medical expert that JW’s injuries warranted further treatment. I find the paragraph to be gratuitous and frankly unprofessional.

CONCLUSIONS

21JW’s appeal is denied. The issue of interest is extinguished.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Professional Services Guideline, Superintendent’s Guideline 03/14, Financial Services Commission of Ontario.
4. 4That is, the Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act. The MIG sets a limit of $3,500.00 on medical benefits for persons whose injuries fit the definition of “minor injury” prescribed by s.3(1) of the Schedule. Consistent with Dr. Gans’s advice, State Farm has paid medical benefits in excess of the MIG limits to JW.
5. 5JW reported a weekly left shoulder ache of moderate (4-5/10) severity weekly, self-resolving in 30 minutes, and a biweekly ankle pain of moderate (4-5/10) severity which also self-resolved, according to August 19, 2016 report by Dr. Gans.