Citation: IK vs. Allstate Canada, 2020 ONLAT 19-003783/AABS

Released Date: 05/11/2020

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:

I. K.

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Derek L. Smith, Counsel

For the Respondent:

Brittany K. Tinslay, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1The applicant, I.K., was involved in an automobile accident on October 21, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). This dispute focuses on the respondent’s, Allstate, denial of I.K.’s entitlement to medical benefits.

2I.K. submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.

3Allstate argues that I.K. has not established that the treatment plans are reasonable and necessary.

ISSUES

4The issues in dispute were identified and agreed to as follows:

i. Is the medical benefit in the amount of $2,564.00 for physiotherapy treatment recommended by Good Physiotherapy in a treatment plan (OCF-18) dated February 7, 2019, and denied on February 25, 2019, reasonable and necessary?

ii. Is the medical benefit in the amount of $1,648.71 ($3,361.42 less the partially approved amount of $1,712.71) for psychological treatment recommended by Miller Mistry Psychologists in an OCF-18 dated March 5, 2019, and denied on March 14, 2019, reasonable and necessary?

iii. Is the medical benefit in the amount of $3,080.00 for chiropractic treatment recommended by Dr. Pisani in an OCF-18 submitted on July 1, 2018, and denied on July 13, 2018, reasonable and necessary?

iv. Is the medical benefit in the amount of $4,668.06 for physiotherapy treatment recommended by Good Physiotherapy in an OCF-18 dated September 28, 2018, and denied on November 15, 2018, reasonable and necessary?

v. Is the medical benefit in the amount of $2,115.00 for physiotherapy treatment recommended by Good Physiotherapy in a Treatment Confirmation Form (OCF-23) dated October 25, 2018, and denied on October 31, 2018, reasonable and necessary?

vi. Is the payment for taxi expenses in the amount of $78.50 submitted on November 24, 2017, and denied on November 29, 2017, reasonable and necessary?

vii. Is the payment for damaged clothing in the amount of $400.00 submitted on November 24, 2017, and denied on November 29, 2017, reasonable and necessary?

viii. Is I.K. entitled to an award under Ontario Regulation 664 because Allstate unreasonably withheld or delayed the payment of benefits?

ix. Is I.K. entitled to interest on any overdue payment of benefits?

FINDING

5Based on a review of the evidence, I find that

a. I.K. is not entitled to the OCF-18s for treatment, therefore no interest is owing; and

b. I.K. is not entitled to an award.

LAW

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.²

BACKGROUND

7Approximately 2 days post-accident, I.K. attended the emergency room due to pain complaints as a result of the accident. The hospital records indicate that diagnostic imaging of the head and cervical spine revealed normal results. I.K. was found to have normal range of motion of her neck. In addition, there was no paresthesias or paralysis in her fingers. I.K. was found to have good power in her wrists, elbows and shoulders, as well as her hips, knees and ankles.

8I.K. saw Family Physician Dr. Weinberg on October 26, 2017 and presented with accident-related pain complaints. Dr. Weinberg diagnosed I.K. with neck and back musculoskeletal strain.

9On October 23, 2017, I.K. submitted a Treatment Confirmation Form (“OCF-23”) and was approved for treatment within the Minor Injury Guideline (“MIG”).

10Approximately two years post-accident, I.K. developed psychological issues as a result of the accident, which required treatment, that Allstate subsequently approved.

11Allstate maintains that I.K.’s physical injuries as a result of the accident are minor. However, because of the development of the psychological issues, Allstate removed I.K. from the MIG.

ANALYSIS

Issue 1 – OCF-18 dated February 7, 2019

Issue 4 – OCF-18 dated September 28, 2018

12For the reasons that follow, I find that I.K. has not met her onus on a balance of probabilities that the treatment plans are reasonable and necessary.

13Despite I.K.’s claims that the treatment she seeks is reasonable and necessary, I find the medical evidence and self-reporting contradict her claims.

14My finding that the OCF-18s are not reasonable and necessary, are based on the following:

c. The goals listed in the two OCF-18s were noted to be: pain reduction, increased range of motion, increase in strength, improve balance, endurance and ambulation, return to activities of normal living, and return to pre-accident work activities;

d. The OCF-18s indicate that the injuries are predominantly minor;

e. I.K. was assessed³ by Orthopaedic Surgeon Dr. Dessouki to determine if the OCF-18s were reasonable and necessary and whether I.K.’s physical injuries were predominantly ‘minor’. I.K. reported to Dr. Dessouki that she attended physiotherapy treatments twice a week, up to the time of the assessment. I.K. reported limited benefit from the treatment to date, in terms of pain level and range of motion. Dr. Dessouki opined that I.K. had functional range of motion of her cervical and lumbar spine and shoulders. Dr. Dessouki concluded that there was no objective evidence of residual musculoskeletal impairment as a result of I.K.’s accident-related injuries; and

f. The OCF-3 indicated that the anticipated duration of disability from the accident-related injuries was 9-12 weeks.

15Allstate relies on a decision of the Financial Services Commission of Ontario (“FSCO”), Jennifer Esterreicher and Non-Marine Underwriters, Mbrs. of Lloyds, FSCO A04-001750, December 18, 2008. In that case, the adjudicator set out a three-part test for determining if a treatment plan is reasonable and necessary:

g. The treatment goals, as identified, are reasonable;

h. The goals are being met to a reasonable degree; and

i. The overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment.

16I find the adjudicators articulation of a three-part test helpful in the current case. On each treatment plan, the goals are identified as “pain reduction, increase in strength, increased range of motion and return to the activities of normal living. These are clearly reasonable goals. It is on the second branch of the test that I.K. fails. Only one goal was partially met, and that is not enough to satisfy the reasonable and necessary test.

17I.K.’s report to Dr. Dessouki of the limited benefit of treatment is indicative that the goals of pain reduction and range of motion have failed to be met. Further, I.K.’s evidence and submissions imply that she has not been able to return to her activities of daily living. This does not support that the OCF-18s goal of “returning to activities of daily living” has been met to a reasonable degree. I find the medical evidence does not support that the goals indicated on the OCF-18s are being met to a reasonable degree.

18The overall cost for so many of the goals of the OCF-18s failing to be met cannot be justified and is unreasonable in the circumstances of this case.

19On a review of all the evidence, I find that I.K. has not met her burden of proof on a balance of probabilities that the two OCF-18s for further physiotherapy are reasonable and necessary. This is evidenced by their lack of effectiveness.

Issue 2 – OCF-18 dated March 5, 2019

20I.K. relies on a psychological report⁴ from Miller Minstry Psychologists. Psychologist, Dr. Miller, conducted tests during the assessment of I.K.’s accident-related psychological well-being. Dr. Miller opined that I.K.’s “self-report, presentation and responses to psychological tests consistently point to her experiencing significant levels of depression and anxiety”. Dr. Miller diagnosed I.K. with “Major Depression, Moderate, Single Episode”. Dr. Miller concluded that I.K. would require at least 20 individual psychological treatment sessions.

21Allstate relied on the report⁵ of its s. 44 assessor, Psychologist Dr. El-Haje. As a result of the assessment, Dr. El-Haje concluded that I.K. suffers from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. El-Haje agrees with Dr. Miller that I.K. would benefit from further treatment. Dr. El-Haje recommends “an initial 10, one-hour psychological treatment sessions” were reasonable and necessary.

22Allstate advised I.K. on May 14, 2018 that the psychological OCF-18 was partially approved in accordance with the recommendations made by Dr. El-Haje.

23I prefer the report of Dr. El-Hage over that of Dr. Miller. Dr. Miller’s report was largely based on I.K.’s self-reporting, and less on objective testing. In addition, I.K. has not put forth evidence, medical or objective, that supports that the balance of the OCF-18 is reasonable and necessary.

24I.K. bears the onus of establishing on a balance of probabilities that the balance of the psychological treatment is reasonable and necessary. To do so, I.K. must point to objective evidence that the balance of the OCF-18 is payable. I find that I.K. has not presented such evidence and has failed to satisfy that onus.

Issue 3 – OCF-18 dated April 26, 2018

25The OCF-18 is dated April 26, 2018 and was submitted to Allstate on July 1, 2018. Allstate submits that I.K. incurred the treatment prior to the submission of same to Allstate.

26Allstate argues, pursuant to s. 38(2) of the Schedule, it is not liable to pay for any treatment before an OCF-18 has been submitted. For the reasons that follow, I find that Allstate is not liable to pay the incurred expense of the April 26, 2018 OCF-18.

27The records from Toronto Healthcare Rehabilitation Centre contain correspondence dated July 1, 2018, from Chiropractor Nagib Pisani. The email notes that I.K.’s current outstanding account is $2,760.00 related to the April 26, 2018 OCF-18. Further, the records of Toronto Healthcare Rehabilitation Centre confirm the dates of treatment. The treatment dates being before the July 1, 2018 submission date of the OCF-18.

28I.K. did not dispute that the treatment was incurred before the submission of the OCF-18. Section 38(2) is clear; the insurer is not liable to pay for an OCF-18 for treatment that incurred before the OCF-18 was submitted. Section 38(2)(a) provides that the insurer will pay if the insurer gives notice to the insured person that payment will be made in the absence of an OCF-18. However, that section does not apply because Allstate provided I.K. with no such notice. Therefore, Allstate is not liable to pay for the April 26, 2018 OCF-18.

Issue 5 – OCF-23 dated October 25, 2018

29For the reasons that follow, I.K. is not entitled to payment for the October 25, 2018 OCF-23.

30I.K. seeks payment for an OCF-23 dated October 25, 2018. Allstate denied the OCF-23 by way of Explanation of Benefits dated October 31, 2018. The reason for the denial was that an initial OCF-23 was submitted on October 31, 2017, was approved and partially paid by Allstate.

31Allstate submits that the October 25, 2018 OCF-23 is a duplication of the disputed OCF-18 submitted on September 28, 2018 (issue iv). Allstate contends that both the OCF-23 and the September 28, 2018 OCF-18 are for the same treatment. As such, its position is that the submission of a second OCF-23 is unreasonable and improper. I agree.

32Only one claim for benefits under the MIG can be made by way of an OCF-23. I.K. submitted two OCF-23 forms. I.K. did not provide any evidence or explanation as to why a second OCF-23 was submitted. I do not find the submission of the October 25, 2018 OCF-23 to be a proper claim for benefits, as this is a second OCF-23.

33Therefore, I.K. is not entitled to the October 25, 2018 OCF-23.

Issue 6 – Taxi Receipts

34I.K. seeks payment for taxi receipts in the amount of $78.50. I.K. is not entitled to payment of the taxi receipts for the following reasons.

35I.K. offered evidence to support that the taxi receipts are payable. Allstate submits that under s. 15(2)(c) of the Schedule, an insurer is only liable to pay for authorized transportation expenses. Under s. 3(1), an authorized transportation expense relates to incurred expenses after the first 50 kilometres of a trip unless the applicant is catastrophically impaired. Allstate argues that this expense is not recoverable since I.K.’s travel “likely did not exceed 50km”.

36I agree with Allstate. I find the Schedule is quite clear on what constitutes an authorized transportation expense and agree with Allstate that I.K. does not meet any of the requirements, given that I.K. has not presented any evidence that the travel exceeded 50km and her non-catastrophic designation.

37As a result, I find the taxi receipts costs are not reasonable and necessary.

Issue 7 – Damage to Clothing

38The evidence does not support I.K.’s claim for payment for damaged clothing.

39For instance, I.K. initially reported to the Allstate adjuster that she did not have any damaged clothing, although she claimed her prescription eyeglasses were damaged.⁶ Despite the claim for $400.00, I.K. has not provided any evidence in support of the claim for damaged clothing.

40On November 29, 2017, Allstate’s adjuster advised I.K. that proof of ownership and an explanation of damage was required, since I.K. initially advised that she did not have any damaged clothing. I.K. was further advised that if there was no receipt available, the damaged clothing should be presented for inspection. Allstate submits that no further evidence or response was received by I.K.⁷

41The applicable part of s. 24 of the Schedule states that an insurer is liable to pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing clothing worn by the insured person that was damaged or lost as a result of the accident.

42I.K. has not provided any evidence to support a claim of damage to clothing. I draw an adverse inference from I.K.’s failure to produce evidence. In the complete absence of any explanation for this failure, I conclude that either such evidence and documentation does not exist, or it does not support I.K.’s position.

AWARD

43Section 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. I.K.) 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. Allstate) has “unreasonably” withheld or delayed payments.

44I have already found that I.K. is not entitled to any benefits, therefore Allstate cannot be found to have unreasonably withheld payment. As such, I.K. is not entitled to an award.

CONCLUSION

45I.K. has not satisfied her onus to persuade me that the OCF-18s, the OCF-23, her claims for taxi receipts or damage to clothing is reasonable and necessary. She is therefore not entitled to the benefits claimed and no interest is owing as there is no overdue payment of benefits.

46I.K. is not entitled to an award.

47I.K.’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.
3. 3Respondent Submissions – Orthopaedic Assessment Report dated August 27, 2018, paper review addendum reports dated October 2, 2018 and November 2, 2018.
4. 4Applicant Document Brief - Psychological Report dated March 5, 2019 – Tab 6.
5. 5Respondent’s Document Brief – Psychological Assessment Report dated May 3, 2019 – Tab 7.
6. 6Respondent’s Document Brief – Adjuster’s Log Note dated October 23, 2017 – Tab 18
7. 7Ibid – Tab 19 at pg. 187