HTN v. Certas Home and Auto Insurance Company
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:
HTN
Appellant(s)
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
Appearances:
For the Appellant: Tanis Bolt, Counsel
For the Respondent: W. Rosalind Eastmond, Counsel
Heard: In Writing Hearing: September 10, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant, HTN, was injured in an automobile accident on October 6, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for benefits from the respondent, “Certas”, and then appealed to the Licence Appeal Tribunal (the “Tribunal”) when Certas denied the disputed benefits.
DISPUTED BENEFITS
3The issues before me are:
Is HTN entitled to costs for prescription medications submitted on the following dates for the following amounts:
a. November 24, 2016: $93.11; $35.27; $58.09; $7.69; $12.90?
b. January 18, 2017: $15.66; $23.91; $13.84?
c. July 28, 2017: $12.90; $15.66; $16.59; $6.91; $22.58; $15.66; $12.90; $15.66; $12.90; $11.18; $15.61; $12.90; $11.18; $22.58;$15.66?
d. September 12, 2017: $9.67; $16.59?
e. November 1, 2017: $11.18; $16.59; $18.78; $12.90; $8.24; $8.21; $11.18; $11.18; $16.58; $255.97; $15.61; $6.91; $9.67; $8.44?
f. February 28, 2018: $8.64; $23.83; $15.61; $8.63; $11.52; $12.90; $23.83; $8.58; $9.77; $11.23; $12.90?
Is HTN entitled to medical and rehabilitation benefits in the following amounts:
a. $1,553.72 for chiropractic treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on March 23, 2017, and denied on April 1, 2017?
b. $989.06 for massage therapy treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on March 23, 2017, and denied on April 1, 2017?
c. $1,620.00 for other goods and services of a medical nature recommended by Dr. Nhan Tong in a treatment plan (OCF-18) submitted on March 23, 2017, and denied on April 1, 2017?
d. $989.06 for other goods and services of a medical nature recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on April 21, 2017, and denied on April 27, 2017?
e. $1,553.72 for chiropractic treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on June 29, 2017, and denied on July 7, 2017?
f. $2,071.62 for Botox injections recommended by Dr. Nhan Tong in a treatment plan (OCF-18) submitted on June 15, 2017, and denied on June 28, 2017?
g. $1,553.72 for chiropractic treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on September 29, 2017, and denied on October 6, 2017?
h. $989.06 for massage therapy treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on October 27, 2017, and denied on November 10, 2017?
i. $1,541.60 for physiotherapy treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on November 10, 2017, and denied on November 22, 2017?
j. $1,620.00 for acupuncture treatment recommended by Dr. Nhan Tong in a treatment plan (OCF-18) submitted on November 16, 2017, and denied on November 22, 2017?
k. $2,071.62 for Botox injections recommended by Dr. Nhan Tong in a treatment plan (OCF-18) submitted on November 6, 2017, and denied on November 10, 2017?
l. $1,553.72 for chiropractic treatment recommended by Yorkstar Rehabilitation Center in a treatment plan (OCF-18) submitted on February 23, 2018, and denied on March 9, 2018?
Is the applicant entitled to payments for the cost of examinations in the amount of $2,176.25 for a Worksite Assessment, recommended by Access Rehab in a treatment plan submitted March 13, 2017, and denied on March 18, 2017?
Is the applicant entitled to interest for the overdue payment of benefits?
Is the respondent liable to pay an award under Regulation 6642 because it unreasonably withheld or delayed payments to the Applicant?
FINDINGS
4HTN is not entitled to payment of any of the benefits she claims. Her appeal is dismissed in its entirety.
5The issue of overdue payments is moot.
6Certas is not liable to pay an award under Regulation 664.
REASONS
7Sections 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.3
Issue 1: Prescription Medication
8The parties agree on the following facts:
i. HTN was injured in a workplace accident in May 2016 and visited her family doctor to get treatment on May 10, 2016.
ii. Before the accident, she was being treated and was on a course of prescribed medication for continuing pain.
iii. The accident caused injuries and exacerbated her pre-existing injuries and pain, leading her medical practitioners to prescribe additional pain medications.
9Certas responds to HTN’s claim with the following information:
i. It acknowledges HTN’s pain and has, in fact, approved her claims for Duloxetine (Cymbalta) and Trintellix.
ii. It denies HTN’s claims for Vimovo, Pregabalin (Lyrica), Diclofenac and Naproxen because, according to her medical records, these medications were prescribed for the pain caused by her pre-accident condition, with no change in frequency or daily dosage after the accident, leading Certas to conclude that these are not accident-related expenses.
iii. HTN has provided no evidence that her pain medications were stopped pre-accident, nor has she shown that, but for the accident, they would have been stopped.
10I find that HTN has not met the onus on her to prove entitlement to the claimed medication expenses because:
i. Her submissions do not analyse the issue of whether the medications she claims are necessary because of the accident, or are in fact associated with her pre-accident condition.
ii. HTN does not argue and there is no evidence that her pre-accident course of pain medication was changed or likely to change before the accident. Nothing before me suggests that the accident changed the course of HTN’s pre-accident medication regimen. As a result, there is no evidence to suggest that Certas should be responsible to cover the cost of continuing those pre-accident medications.
iii. HTN’s submission that her pain was worsened by the accident is uncontested; however, she does not show how this relates to her claim. Certas has in fact paid for “new” medications prescribed post-accident to deal with the accident-related exacerbation of pain. It does not follow automatically that it must assume the costs of medications already prescribed for a pre-accident condition, absent any change in dosage and frequency and without any indication that HTN would have discontinued her pre-accident pain medications but for the accident.
iv. HTN’s submission does not provide me with clear information that rebuts Certas’ assertion that all of the medications denied were prescribed to deal with a pre-accident condition.
11HTN’s claim for the medication expenses listed in her appeal is dismissed.
Issue 2: Treatment and Rehabilitation Plans
12HTN’s submissions consolidate her arguments on the treatment plans set out as issue 2 above, without addressing each plan distinctly. She uses identical language to assert her entitlement to the various types of treatment comprising her claims.
13I find HTN’s arguments unpersuasive because they do not, in my opinion, establish a case for the disputed treatment plans. For example:
i. HTN refers to Certas’ approval of income replacement benefits (IRBs) and psychological treatment plans with no explanation of how this is relevant to whether the treatments sought (issue 2 above) are reasonable and necessary;
ii. HTN states that Certas refuses to pay the disputed medical benefits, despite her removal from the Minor Injury Guideline and the “availability” of funds within the monetary limits prescribed by the Schedule. She fails to explain how this supports her claim for the disputed medical benefits.4
iii. HTN describes her physical injuries, pain and psychological problems in detail and links them to the accident. She does not provide any analysis of how or why they support the specific treatment plans claimed – there is simply no discussion of the efficacy of the proposed treatments.
14To rebut HTN’s claim, Certas relies on an Insurer’s Examination (IE) report dated June 1, 2017, by Dr. R.A. Williams, physiatrist, who found, from “a strictly physical medicine and rehabilitation perspective”:
i. no objective evidence of significant change in HTN’s pre- and post-accident clinical status, with the exception of headaches and associated tinnitus and dizziness, based on review of her medical documentation;
ii. HTN had reached maximal medical recovery (MMR) with respect to all of her injuries, and was unlikely to benefit from continuing treatments of the type proposed;
iii. most of HTN’s injury-related pain, except the headaches, were pre-accident in origin;
iv. no evidence of significant functional impairment (HTN was ready to return to work on a graduated basis); and,
v. no further diagnostic tests or investigation were required “at this time”.
15Certas further argues that HTN’s claims are not reasonable and necessary because she has achieved only minimal improvement despite receiving 61 sessions of massage and chiropractic treatment by April 25, 2017, which it funded.
16I find that none of the treatment plans listed in issue 2 above are reasonable and necessary because:
i. HTN has failed to meet the onus on her to show that the proposed treatment plans are reasonable and necessary. A simple, flat statement of injuries and pain are insufficient to establish entitlement if an insurer has raised legitimate objections to funding the treatment sought.
ii. HTN has failed to address the reasons provided by Certas for denying her claims, such as MMR and the relationship between pre- and post-accident injuries. As a result, I find those reasons to be effectively uncontested and I accept them.
17As a result of the foregoing findings, I conclude that both chiropractic treatment plans are not reasonable and necessary.
Issues 3: Workplace Assessment
18HTN is unclear as to why a workplace assessment is necessary. Her argument is that the benefit was not properly denied, as required by the Schedule.
19Certas submits that HTN’s pre-accident job is no longer available and that HTN has failed to provide the details relating to the place of employment and other particulars required by s. 57 of the Schedule. This assertion is not denied by HTN.
20I find that the claimed workplace assessment was in fact properly refused in an explanation of benefits (“OCF-9”) dated March 18, 2017. In addition to the reasons noted in paragraph 26 above, Certas gave a medical reason – the opinion of Dr. Tong, HTN’s pain specialist that she required more time off work5 – for its refusal. In my view, Certas’ note that it had no received a medical note from HTN’s employer since November 2016 to be an additional medical reason for refusal.
21I conclude that HTN is not entitled to the claimed workplace assessment. Her claim was properly denied and she fails to address the reasons given by Certas for denial.
Interest
22Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
23There being no benefit payments due, the claim of interest is dismissed as moot.
Award
24Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.
25HTN has not established that the respondent acted unreasonably within the meaning prescribed in the regulation. She provides no particulars to support her claim, arguing simply that Certas’ denial of the disputed claims was inherently unreasonable given her purported medical condition.
26It is apparent to me after reviewing the evidence that Certas relied on its IE report to deny both medication and treatment plans. It is also clear that Certas was adjusting HTN’s overall file in good faith, paying for IRBs, psychological treatment, some medication and some physical treatment plans and doing so, in the words of HTN, “readily”.
27HTN’s request for an award is denied.
CONCLUSIONS
28HTN’s appeal is dismissed.
29HTN’s request for an award is denied.
Released: January 25, 2019
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10.
- i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635
- There is nothing in the evidence to tell me that Certas ever denied any claim by HTN on the basis that her injuries were minor – in fact HTN does not assert this.
- Expressed in the updated Disability Certificate dated March 3, 2017 by Dr. Tong.```