Released Date: 03/30/2020
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:
A. N.
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Kevan Wylie, Counsel
For the Respondent:
Caroline Meyer, Counsel
HEARD: In Writing
November 12, 2019
OVERVIEW
1The applicant, A.N., was involved in an automobile accident on May 13, 2018 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). This dispute focuses the respondent’s, Dominion, denial of A.N.’s entitlement to medical benefits.
2A.N. submits that, as a result of injuries he sustained in the accident, the treatment he seeks is reasonable and necessary.
3Dominion argues that A.N. has not established that the treatment plan is reasonable and necessary.
ISSUES
4The issues I must determine are as follows:
a. Is the medical benefit in the amount of $6,878.50 for chiropractic services recommended by Spinetec Health Care Solutions submitted in a treatment plan (OCF-18) on January 8, 2019 and denied on January 16, 2019, reasonable and necessary?
b. Is the medical benefit in the amount of $4,800.00 for hydrotherapy recommended by Spinetec Health Care Solutions submitted in an OCF-18 on February 28, 2019 and denied on March 7, 2019, reasonable and necessary?
c. Is A.N. entitled to interest on any overdue payment of benefits?
d. Is A.N. entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
FINDING
5Based on a review of the evidence, I find the following:
i. A.N. is not entitled to the treatment plans in dispute, therefore no interest is payable; and
ii. A.N. is not entitled to an award.
ANALYSIS
Is A.N. entitled to the chiropractic treatment plan?
6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.1
7I find that the chiropractic treatment plan is not reasonable and necessary. A.N. submitted as evidence an OCF-18 completed by Chiropractor, Joseph Paton2. Part 8 of the treatment plan details A.N.’s Activity Limitations. Part 9 (a) sets out the treatment goals. Part 9 also lists the possible barriers to recovery including, but not limited to "severity of symptoms at time of initial assessment…. up to 10 out of 10 and patient has been instructed by his doctor to avoid all moderate to heavy activity for the next four months”. Part 12 lists the proposed service, frequency and costs therein.
8Dr. Paton noted that A.N. had limited ability to sit, stand or walk for any more than 15-20 minutes. According to the self-report to Dr. Paton, A.N.’s participation in recreational activity was limited. In addition, A.N. was significantly limited in his ability to lift, stoop, bend, twist and squat.
9My reasons for finding the chiropractic treatment plan is not reasonable and necessary will be outlined in the “Surveillance” section below.
Is A.N. entitled to the hydrotherapy treatment plan?
10I find that the hydrotherapy treatment plan is not reasonable and necessary, and my reasons for this finding also appear in the “Surveillance” section below.
11A.N. submitted as evidence a treatment plan completed by Chiropractor, Joseph Paton3. Part 8 of the treatment plan details A.N.’s Activity Limitations. Part 9 (a) sets out the treatment goals. Part 9 also lists the possible barriers to recovery including, but not limited to " a limited ability to lift, carry, bend, twist, stoop and squat. Further, A.N. is limited with his ability to sit, stand and walk for any time greater than 20 minutes. Daily activities such as cooking, cleaning, personal hygiene/self care and recreational activities have all been negatively impacted since the accident. His sleep is disrupted nightly”. In the additional comments section of the OCF-18, Dr. Paton lists the same additional barriers to recovery as the January 8, 2019 OCF-18.
Surveillance
12My finding that the chiropractic and hydrotherapy OCF-18s are not reasonable and necessary are based on the reasons to follow.
13Dominion pointed me to surveillance evidence it relied on in support of its position that the OCF-18s were not reasonable and necessary.
14On April 6, 2019, A.N. was captured on surveillance playing basketball, babysitting a child, taking him to the park and pushing the child on a swing at the park. Dominion contends that the surveillance evidence refutes the reports of Dr. Paton, in that A.N. was seen walking and standing for more than 15-20 minutes. The surveillance appears to confirm that A.N. did not suffer from limited functionality. Specifically, in one still shot dated April 6, 2019 at 14:45:05hrs, A.N. appears to be performing a “slam dunk”.4
15Although A.N. claims that the treatment is reasonable and necessary, I find the surveillance video is a reliable source of evidence to counter A.N.’s claims. Further, A.N. provides no reply to refute the evidence shown in the surveillance video. I find that A.N.’s claim of limited function to be called in to question when weighed against the surveillance evidence. As such, I place full weight on the surveillance against the OCF-18s and reports of Dr. Paton.
16In addition, in the Disability Certificate (OCF-3) dated April 18, 2019, Dr. Paton swore under part 6, that his most recent examination of A.N. was on November 29, 2018. Thus, the January and February 2019 OCF-18s were completed without Dr. Paton having assessed A.N. I find this evidence does not support A.N.’s claim for further facility-based treatment, despite his self-reporting and medical evidence.
17A.N. offers no explanation for the substantial break in treatment from the service provider from which the disputed treatment plans came. I find that the fact that Dr. Paton completed treatment plans without having assessed A.N. calls in to question A.N.’s credibility regarding the extent of his injuries. Further, the surveillance evidence also supports that A.N.’s pain complaints may not credible. I find that A.N.’s clear ability to participate in “moderate to heavy activity” to be a strong indicator that he appears to have reached maximum medical recovery, and that he no longer suffers from limited function.
18As a result, I find A.N. has not met his onus in showing how the OCF-18s meets the test of being reasonable and necessary. Consequently, I do not find the treatment plans to be reasonable and necessary.
AWARD
19Section 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. A.N.) 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. Dominion) has “unreasonably” withheld or delayed payments.
20I have already found that A.N. is not entitled to the OCF-18s, therefore Dominion cannot be found to have unreasonably withheld payment. As such, A.N. is not entitled to an award.
CONCLUSION
21A.N. has not met the onus on him to persuade me that the OCF-18s are reasonable and necessary. He is therefore not entitled to the OCF-18s and no interest is owing as there is no overdue payment of benefits.
22A.N. is not entitled to an award.
23A.N.’s claim is dismissed.
Released: March 30, 2020
Derek Grant
Adjudicator
Footnotes
- Scarlett v. Belair, 2015 ONSC 3635.
- Respondent’s Submissions – Tab 12 – OCF-18 dated January 8, 2019 by Dr. Joseph Paton.
- Ibid – Tab 14 – OCF-18 dated February 28, 2019 by Dr. Joseph Paton
- Tab 21 – Respondent’s Submissions – Video and Surveillance Report – Whitehall Bureau of Canada Ltd. – April 4-6, 2019 – dated April 11, 2019