Released Date: May 19, 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:
L.M.
Applicant
and
Portage La Prairie Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Joshua D. Shields
Frank Calcagni
For the Respondent:
Cara Boddy
HEARD:
By way of written submissions
OVERVIEW
1On March 30, 2017, L.M. was hit by a vehicle when crossing the street as a pedestrian. He sought various medical and attendant care benefits from the respondent, Portage La Prairie Mutual Insurance Company (“Portage”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2As a result of the collision, L.M. sustained physical and psychological injuries, identified as chronic pain in his shoulders, left foot and leg, back and neck, headaches and an infection to his left foot that required constant bandaging. His psychological impairments were diagnosed as depression, PTSD, anxiety and insomnia. Following the accident, L.M. received treatment and in-home assistance from CCAC to change his wounds. L.M. then applied for attendant care benefits (“ACBs”) and the medical benefits in dispute. Portage denied ACBs on the basis that they were not reasonable and necessary, were duplicative and were not incurred. Portage denied the medical benefits on the basis that that they were not reasonable and necessary. L.M. disagreed and applied to the Tribunal for dispute resolution.
ISSUES
3The following are the issues in dispute:
(i) Is the applicant entitled to attendant care benefits in the amount of $3,527.80 per month for the period March 30, 2017 to present and ongoing?
(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,120.00 for other assistive devices recommended in a treatment plan (OCF-18) by Physio Art Rehabilitation submitted on February 3, 2018, and denied on March 27, 2018?
(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,990.19 for psychological recommended in a treatment plan (OCF-18) by Physio Art Rehabilitation submitted on December 13, 2018, and denied on December 24, 2018?
(iv) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,462.50 for physiological services recommended in a treatment plan (OCF-18) by Physio Art Rehabilitation submitted on May 23, 2018, and denied on June 21, 2018?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
(vi) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4I find that L.M. is entitled to the psychological treatment in the amount of $3,990.19 as it is reasonable and necessary and payable once incurred. Interest applies on any overdue benefits incurred pursuant to s. 51.
5I find that L.M. is not entitled to the remaining benefits in dispute, being the ACBs, the assistive devices and physiological services, as they are not reasonable and necessary and not incurred. I decline to order an award under s.10.
ANALYSIS
Attendant Care Benefits
6I find that L.M. is not entitled to ACBs for the period in dispute as they are not reasonable and necessary and L.M. has not provided evidence that the services were incurred.
7Section 42(1) of the Schedule states that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant.
8Section 3(7)(e) provides guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.
9In a Form-1 prepared by Ms. Ross and dated February 3, 2018, it is recommended that L.M. receive 17.5 hours of attendant care per week totalling $3,527.80. The recommendation for housekeeping, personal care and assistive devices came as a result of an in-home assessment where L.M. was complaining of ongoing neck pain, back pain, “shooting” into his legs and feet, headaches and driving anxiety. The ACBs were proposed in addition to the weekly care from CCAC that L.M. was receiving for his foot infection from October 2017 to August 2018. L.M.’s submissions are light on why ACBs are reasonable and necessary and incurred but submit instead that Portage’s denial of same on the basis of L.M.’s impairments being subject to the Minor Injury Guideline (“MIG”) was improper under s. 38(8). On this basis, L.M. argues that the denial cannot stand because Portage failed to schedule a s. 44 assessment to determine L.M.’s standing in the MIG.
10In response, Portage submits that ACBs are not payable for a variety of reasons. First, it submits that an applicant cannot seek ACBs at a quantum exceeding $3,000 per month unless they are seeking a catastrophic determination. Second, it submits that under s. 42(5), an insurer is not required to pay ACBs incurred prior to the submission of a Form-1 and that L.M.’s Form-1 was not completed and received by Portage until February 3, 2018, nearly one-year post-accident. Third, Portage submits that its denial was proper and that L.M. has not cited a section of the Schedule that would support the alleged deficits. Fourth, it submits that L.M. has not demonstrated substantive entitlement to ACBs and in that vein, it relies on the s. 44 report of Ms. Korman, OT, from March 2018, who determined that ACBs were not reasonable and necessary. Fifth, Portage submits that if ACBs were required, they were only required relating to the foot infection. Assistive care for the foot infection was provided by CCAC and therefore, Portage submits that permitting more ACBs would be duplicative. Finally, Portage submits that under s. 19, L.M.’s failure to incur the ACBs and provide proof that same were received act as a complete bar to his claim.
11On the evidence, I agree with Portage. I find the Form-1 was not completed until February 3, 2018, which automatically narrows the period in dispute from that date forward. Aside from the foot complications and the psychological issues that were likely affecting L.M. at this time, I find that L.M. has provided limited supporting or corroborating evidence that the physical impairments he sustained as a result of the accident—described generally as pain in his neck, back, legs and head—were severe enough to require attendant care nearly one-year post-accident. While I accept that as a diabetic his foot infection/ulcers and resulting complications would require frequent bandaging and care from a professional, respectfully, I find that L.M. was receiving this care from CCAC in the months prior to the Form-1 and for several months thereafter and to award ACBs on this basis would be a duplication.
12Further, I find the recommendations for care made by Ms. Ross are not proportional to the injuries sustained. For example, I struggle to reconcile how L.M.’s impairments and pain make him “unable” to brush his teeth, use utensils, dress himself and cause him to require help with mobility but, at the same time, his impairments and pain still allow him to drive and use the stairs and toilet “with difficulty.” In my view, the ACBs recommended are supportive of an applicant that has sustained severe, debilitating injuries as opposed to the injuries from which L.M. suffers as described in the summary provided in the report. That summary states that L.M.’s lower back muscles are tight and tender and that he has pain in his neck, back, foot and shoulders. Put another way: I find the ACBs recommended in the Form-1 are not supported by the medical evidence in the rest of the file and L.M.’s submissions do not explain why so much attendant care is reasonable and necessary for his specific physical impairments, which, other than pain and his foot infection, remain somewhat unclear.
13On this basis, I prefer the report of Ms. Korman, as I find that the results of her in-home assessment were more proportional to the evidence. In her report, which is dated only one month after Ms. Ross’, L.M. is observed to climb stairs independently, with and without his walking boot on, was able to transfer in and out of his own bed and declined the need for a walker. The report notes that L.M. was able to stand independently, bend over and was able to reach above and below without issue. Ms. Korman determined that L.M. had sufficient range of motion, mobility and strength and that ACBs were not required. I find on this report that L.M. was capable of doing most, if not all of the activities that Ms. Ross indicated he is incapable of doing or required assistance to do only one month before.
14Ultimately, I agree with Portage that L.M.’s claim for ACBs is frustrated most by s. 19, which states that ACBs expenses must be incurred by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant. As noted, L.M. has offered no evidence or substantive submissions on whether the ACBs he claims were incurred under any of the prongs of s. 3(7)(e). There are no invoices, no promissory notes, no affidavits speaking to services provided, the level of care, the rate of care, etc. Accordingly, as it is L.M.’s burden, the Tribunal has no basis on which to find that L.M. received the goods or services to which the ACB expenses relate at any point after February 3, 2018, that he has paid the ACB expenses, has promised to pay the expenses or is otherwise legally obligated to pay the expenses, or that any person provided the goods or services in the course of their employment or, in the case of his wife who assisted him, sustained an economic loss as a result of providing the goods or services to L.M. Further, L.M. has not offered analysis on why s. 3(8) may apply to deem the expenses incurred.
15Finally, for completion, L.M. refutes Portage’s suggestions that he has not applied for a catastrophic determination, submitting an OCF-19. It appears that this is the case although the status of this determination was not provided to the Tribunal. In any event, the OCF-19 was submitted in October 2019, well after the ACB claim. Until there is a catastrophic determination, L.M. is limited to $3,000 in ACBs per month under s. 19(3)(1)(i) and his claim would still fail under s. 19(3)(4) and (5) due to his failure to provide evidence that care was incurred.
16In a similar vein, I find L.M.’s argument that Portage improperly denied ACBs on the basis of no s. 44 report commenting on the MIG fails for the same reason. On the evidence, Portage responded within 10 business days citing that it needed to conduct assessments to determine ACB eligibility under the MIG while also questioning the need and amount for same. Following the report, Portage wrote to L.M. to confirm its denial under s. 38(14). Even if Portage’s denial was improper under s. 38—which I do not find here—L.M. did not incur the ACBs to make them payable during the alleged breach and did not provide evidence of same. Again, L.M. does not identify why Portage’s alleged unreasonable withholding prevented him from incurring ACBs in order to deem them incurred under s. 3(8).
17For these reasons, I find that L.M. is not entitled to payment for attendant care as I find he has not demonstrated substantive entitlement and has not demonstrated that services were incurred.
Are the benefits reasonable and necessary?
$4,120.00 for assistive devices
4D.M. seeks payment for various assistive devices in the amount of $4,120, as recommended by Ms. Ross in an OCF-18 dated February 3, 2018, submitted along with the Form-1 for ACBs. The devices include: custom orthotics and shoes, an orthopaedic mattress, a reclining chair, a walker, a massager, a TENS machine, body pillow and hot/cold packs. Again, L.M. does not provide substantive submissions on why these devices are reasonable and necessary. Instead, L.M. submits that Portage improperly denied the devices based on the MIG and then failed to provide a position or obtain an opinion regarding the applicability of the MIG.
18In response, Portage submits that it is not relying on the MIG in denying this treatment but instead relies on the s. 44 report of Ms. Korman, who determined that the devices were not reasonable and necessary. Portage submits that L.M. has not demonstrated why the devices are reasonable and necessary and again, has not provided evidence that the devices were incurred or that he was prevented from incurring them. It further relies on s. 38(14) to argue that its denial was proper.
19I agree with Portage. Contrary to L.M.’s argument, as I understand it, there is no section in the Schedule that requires an insurer to maintain its initial MIG defence as a reason for denial following a s. 44 assessment that finds a different reason, such as that the benefits are not reasonable and necessary. I agree that after a s. 44 assessment, s. 38(14) allows the insurer to notify the insured of the services it is willing and unwilling to pay and its reasons for same or maintain that the injuries sustained are within the MIG. An insurer is not required to do both. On the evidence, I find no basis to find Portage’s denial was improper.
20Problematically, L.M. provided no substantive analysis on why the specific devices recommended by Ms. Ross are reasonable and necessary to address his specific impairments. It is unclear whether L.M. ever obtained any of the devices under s. 3(7) either, which undermines his argument that they are reasonable and necessary or that they should be payable under s. 3(8) due to his allegation that Portage’s denial was improper. Further, L.M.’s comments to Ms. Korman that he does not feel a walker would be of use to him suggests, in my view, that Ms. Ross’ other recommendations may not be necessary. In Ms. Ross’ report, I do see a recommendation for a waist belt to support L.M.’s spine, orthopaedic shoes for his spine and an orthopaedic pillow and mattress top for sleeping in the functional analysis section. However, none of these recommendations provide an analysis as to why the devices are reasonable and necessary to fill in the gaps that L.M.’s submissions do not address. In a similar vein, the report concludes with the list of devices L.M. needs without providing context or reasons why they are necessary for his specific issues, given they are not addressed in the body of the report.
21For these reasons, I again prefer the report of Ms. Korman, who determined that the devices were not reasonable and necessary due to her observations that L.M. had physical and functional tolerance that allowed him to move independently only one month after Ms. Ross’ recommendations were made. Given Ms. Korman’s observations of L.M.’s function and the cost of the items in dispute—$600 for orthotics, $450 for a TENS unit, $2,500 for a reclining chair—and without analysis from L.M. explaining why the devices are reasonable and necessary at these price points or that they were incurred, I cannot find that L.M. has satisfied his burden to prove that the devices are reasonable and necessary.
$3,990.19 for psychological treatment
22L.M. seeks payment for psychological services in the amount of $3,990.19 recommended by Baxter Antoniazzi & Associates in an OCF-18 dated December 13, 2018. The recommendation for 16 sessions was based on a psychological report finding that L.M. suffered from chronic pain symptoms due to his foot infection, depression, PTSD, anxiety and insomnia as a result of the accident. L.M. submits that Portage’s denial was improper as it was based on its position that his psychological impairments were pre-existing and that he could not have suffered any sort of psychological or mental trauma as a result of the accident. L.M. relies on the opinion of Dr. Tippin, who determined that he suffered a significant psychological impairment as a result of the accident.
23In response, Portage acknowledges that L.M. suffers from psychological impairments but submits that same were not caused by the accident. It relies on Dr. Friesen’s report from June 2019 that L.M. has long-standing issues with addiction, paranoia and delusions and since L.M. failed the cognitive and psychological validity measures tests, it prevented a reliable determination. Dr. Friesen was therefore unable to conclude that the assessment revealed reliable evidence of accident-related psychological problems.
24Here, I agree with L.M. I prefer Dr. Tippin’s report over Portage’s ultimate reason for denial that Dr. Friesen was unable to conclude that there was reliable evidence of accident-related psychological impairments. On the contrary, I find ample evidence in the file that L.M. is clearly struggling with psychological symptoms that were exacerbated by the accident. Most glaring is in Portage’s initial reason for denial where it references the part of the psychological report where L.M. believed his infection was caused by toxins from a manufacturing facility near the accident that entered his body as he was lying in water post-accident. L.M.’s statements that he would contemplate suicide if his foot needed to be amputated are concerning as are his concerns about post-accident finances. Given the lack of definitive diagnoses about what exactly L.M.’s physical impairments are, I agree with Dr. Tippin that L.M.’s constant pain complaints and concerns that he might die from his impairments likely have a significant psychological component that is, in my view, worth exploring with a professional. On the evidence, I would agree with Dr. Tippin that L.M. “possesses several beliefs about pain and coping that require modification to develop more adaptive cognitions regarding pain management.”
25While I am alive to Portage’s submissions that L.M.’s psychological issues pre-date the accident and that he has a history of substance abuse, paranoia and delusions, I find enough evidence on a balance of probabilities that these psychological impairments were exacerbated by the accident and have likely resulted in new, accident-related psychological issues that warrant treatment. Indeed, the only goal identified in the OCF-18 in dispute is to have L.M. “return as closely as possible to pre-accident level of psychological functioning,” suggesting, in my view, that the accident resulted in a new, marked departure even from L.M.’s previous psychiatric struggles. That Dr. Tippin only relied on his interview with L.M. and the s. 44 paper report of Dr. Prendergast (who found psychological treatment reasonable and necessary based on “potentially significant psychological difficulties”) in forming his opinion does not affect the weight I assign to his recommendation, especially so given the unreliable of the validity measures expressed by all assessors in their testing of L.M. On the evidence, I find it likely that the accident resulted in L.M. suffering further psychological trauma.
26Portage’s submissions do not take issue with the cost of the plan or the number of sessions proposed in the OCF-18. While the denial letter states that “16 sessions at 1.25 hours duration appears to be excessive” this position is not echoed in submissions or again in correspondence. Accordingly, I find 16 sessions over 28 weeks is a reasonable timeline for treatment given L.M.’s impairments and the cost proposed does not fall outside of Guideline rates. For these reasons, I find this treatment plan is reasonable and necessary and payable once incurred.
$3,462.50 for physiological services
27L.M. initially sought payment for a treatment plan for physiological services in the amount of $3,462.50. However, in submissions, L.M. withdrew this claim without objection from Portage. Accordingly, I find this treatment plan is not reasonable and necessary.
Interest
28Having determined that the psychological treatment is reasonable and necessary, interest is payable on any overdue benefits incurred under s. 51 of the Schedule.
Award
29Finally, L.M. seeks an award under s. 10 of O. Reg. 664 due to Portage’s improper denial of benefits, because Portage failed to schedule a s. 44 assessment to address the MIG and due to its belief that there was no connection between the accident and his psychological impairments and foot infection. Under s. 10, the Tribunal may award a lump sum payment up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed payment of benefits.
30On the evidence, I find an award is not appropriate. For the reasons identified in this decision, I find no indication that Portage improperly denied any of L.M.’s benefit claims, that it was required to specifically address the MIG in a s. 44 assessment, that it was required to maintain the same reason for a denial following a s. 44 report under s. 38 or that it was unreasonable to question causation on the facts and given L.M.’s medical history. Accordingly, I decline to order an award under s. 10.
CONCLUSION
31I find L.M. is entitled to the psychological treatment in the amount of $3,990.19 as it is reasonable and necessary and payable once incurred. Interest applies on any overdue benefits incurred pursuant to s. 51.
32I find L.M. is not entitled to the remaining benefits in dispute, being the ACBs, the assistive devices and physiological services, as they are not reasonable and necessary and not incurred. I decline to order an award.
Released: May 19, 2020
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.