Tribunal File Number: 18-002449/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:
K. J.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
PANEL:
Brian Norris
APPEARANCES:
For the Applicant:
Marni Miller, Counsel
For the Respondent:
Mark Vella, Counsel
HEARD:
In Writing on: December 5, 2018
OVERVIEW
1The applicant was injured in an automobile accident on February 25, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES:
2The issues in dispute in this hearing are:
- Is the applicant entitled to medical benefits for treatment recommended by Caring Rehabilitation as follows;
i. $2,369.92 for occupational therapy services submitted in a treatment plan dated March 9, 2016; and
ii. $1,165.38 for chiropractic treatment submitted in a treatment plan dated September 18, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $2,230.58 for chiropractic treatment recommended by Chiavaroli & associates in a treatment plan dated December 3, 2016?
Is the applicant entitled to interest on any overdue payments?
Is the applicant entitled to an award under regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?
RESULT
3The applicant is unsuccessful on all issues.
OVERVIEW
4The applicant was struck by a vehicle while standing beside a car which was parked on the side of the road. The applicant suffered several injuries including a nasal bone fracture and two partial ligament tears in the right knee. The injuries caused the applicant to stop working for about 5 months following the accident until the applicant was able to return to work on modified duties in August 2016.
5The applicant applied for funding for treatment following the accident. The respondent agreed to pay for some but not all of the requested treatment. The applicant disputes the respondent’s decision to deny funding for the treatment plans listed as issues in dispute.
The occupational therapy treatment plan dated March 9, 2016
6This occupational therapy treatment plan focuses on treating cognitive issues identified by Nicole Abballe, occupational therapist, during an in-home assessment which occurred on February 29, 2016. The respondent denied the treatment plan because the plan proposed case management services – a benefit the applicant is not entitled to. The respondent also notes the plan is not reasonable and necessary because duplicates attendant care services. The applicant did not reply to the respondent’s submissions.
7I find the treatment plan is not reasonable and necessary. I find the services described as “OT Therapy coordination” fall under the category of case management services. As submitted by the respondent, case management services are described in the definition of a qualified case manager set out in section 17(3) of the Schedule. The Schedule describes the services provided by a qualified case manager as “services related to the co-ordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit”. The applicant is not entitled to case management services because the applicant has not been catastrophically impaired, which is required in order to be entitled to case management services.
8The balance of the proposed treatment plan is not reasonable and necessary because it provides services to address cognitive issues and there is no evidence the applicant suffers from cognitive issues. The comments by the occupational therapist who completed the treatment plan confirm the treatment is due to cognitive issues identified in an in-home assessment. However, the applicant’s medical record shows no evidence any physician was concerned with the applicant’s cognitive health. Specifically, the applicant’s family physician, Dr. M. Obnamia, has no record of the applicant experiencing cognitive issues, nor has Dr. Obnamia referred the applicant to any specialists. Likewise, the applicant’s hospital records and all the claims forms mention no cognitive issues suffered by the applicant.
The chiropractic treatment plan dated December 3, 2016
9The applicant is not entitled to the treatment plan dated December 3, 2016 because there is no supporting evidence to substantiate the claim.
10The treatment plan proposed physiotherapy, exercise, and acupuncture treatment to assist the applicant with a return to pre-accident work activities. The applicant submits this plan is reasonable because it aims to help the applicant deal with knee pain experienced while back at work. The applicant also submits the respondent failed to provide medical reasons for the denial pursuant to section 38(8) of the Schedule.
11The respondent submits the treatment plan is not reasonable and necessary because there is no medical evidence to support it. The respondent submits the applicant returned to a physically demanding job, albeit on modified duties, in August 2016 and regular duties by the end of 2016, which is evidence the applicant does not require the treatment outlined in the plan.
12The respondent also submits an Insurer’s Examination report by Dr. I. Steinman, chiropractor, dated February 24, 2017 (the “Steinman IE”), is evidence the applicant does not require the proposed treatment. The Steinman IE found the applicant only had lingering knee pain which should be treated with an exercise and stretching program and 8 sessions of massage and chiropractic treatment.
13The medical reason for the denial of the treatment plan provided by the respondent is “you do not appear to show objective signs of improvement despite continuing treatment”. I find this is an inadequate medical reason pursuant to section 38(8) because it fails to mention where or how this medical opinion was made and because the treatment plan itself notes the applicant has partially recovered – contrary to the respondent’s position.
14The remedy for failure to comply with section 38(8) is provided in section 38(14)(b). The respondent is liable to pay for the goods and services listed in the treatment and assessment plan incurred starting on the 11th business day until the notice is cured. I find the notice was cured on March 2, 2017, when the respondent advised it would not pay for the proposed goods and services because they were not reasonable and necessary per the Steinman IE, which was included with the letter. The applicant is not entitled to any of the goods and services in the disputed treatment plan because the respondent cured the deficient notice and there is no evidence before me to suggest the applicant incurred any of the goods and services before the medical reasons were provided.
15Lastly, there is no evidence the applicant requires further physiotherapy treatment. The applicant has not provided any family physician, hospital, or treatment facility records beyond August 2016. As a result, the findings in the Steinman IE are unchallenged and the most relevant to the issue. The Steinman IE noted the applicant has mostly recovered and only needed some minor treatment. Following the Steinman IE, the applicant submitted a treatment plan for the goods and services proposed in the it and the respondent approved it.
The chiropractic treatment plan dated September 18, 2017
16The applicant claims entitlement to a treatment plan dated September 18, 2017 in the amount of $1,165.38. The applicant submits this treatment plan is reasonable and necessary because it follows the recommendations outlined in the Steinman IE report dated February 24, 2017.
17The respondent submits the applicant never submitted a treatment plan dated September 18, 2017 or in the amount of $1,165.38. Instead, the respondent submits the applicant disputes the denial of a treatment plan dated June 8, 2017 in the amount of $1,132.84. The respondent submits this treatment plan is not reasonable and necessary because the applicant has recovered from the accident-related injuries and no further treatment is required.
18The respondent also submitted into evidence an explanation of benefits dated May 4, 2017 which approved a treatment plan dated April 20, 2017, in the amount of $604.00. The respondent submits this approved treatment plan was for the massage therapy, chiropractic treatment, and goods and services outlined in the Steinman IE.
19I have reviewed the totality of the evidence and find no treatment plan dated September 18, 2017 or in the amount of $1,165.38. I will not address the treatment plan dated June 8, 2017 because it is not in the order and the applicant chose not to address them. I will address the April 20, 2017 treatment plan as I analyse the applicant’s award claim.
AWARD
20Pursuant to section 10 of Regulation 664 the applicant may be entitled to an award because the respondent unreasonably withheld payment of a benefit. The applicant claims entitlement to an award and submits the respondent acted unreasonably when it denied the applicant’s entitlement to the treatment plan which included the goods and services proposed in the Steinman IE.
21I find the applicant is not entitled to an award because no benefits were unreasonably withheld. I find the applicant’s claim that the goods and services recommended in the Steinman IE were denied is incorrect. The record shows a treatment and assessment plan for the goods and services recommended in the Steinman IE dated April 20, 2017 was submitted on April 24, 2017 and approved on May 4, 2017.
CONCLUSION AND ORDER
22Considering the evidence before me, I find the applicant requires no further facility-based treatment as a result of the accident-related injuries.
23The applicant is not entitled to the disputed medical benefits and no interest is payable because no payments went overdue.
24The applicant is not entitled to an award because no payments were unreasonably delayed.
Released: August 8, 2019
Brian Norris
Adjudicator