Citation: M.S. v Gore Mutual Insurance Company, 2020 ONLAT 18-006110/AABS

Released Date: 06/16/2020

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:

M.S.

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Eli Jakubovic

For the Respondent: Joy Stothers

HEARD: Via written submissions

OVERVIEW

1M.S. was involved in an automobile accident on September 24, 2016 and sought benefits from the respondent, Gore Mutual, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). M.S. initially sought various medical benefits as well as attendant care benefits and an income replacement benefit. Following a case conference, an in-person hearing was scheduled for April 2019 to address the attendant care claim, with written submissions to be filed to address the remaining benefits.

2M.S. withdrew her attendant care claim and the in-person hearing dates were vacated. However, M.S. also mistakenly submitted a notice of withdrawal for the entire claim, which resulted in the Tribunal closing the file, including vacating the written hearing on the remaining benefits. In the Fall of 2019, after a case conference and a motion seeking to revisit the remaining issues in dispute, Gore Mutual consented to the re-opening of the file. The written hearing on the various medical benefits in dispute was re-instated, with the parties settling the income replacement benefit issue listed in the original case conference order.

3For the purposes of this written hearing, M.S. was denied the medical and rehabilitation benefits in dispute because Gore Mutual determined they were not reasonable and necessary. M.S. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

4The following issues are to be decided:

i. Is the applicant entitled to receive rehabilitation benefits in the amount of $338.61 for other goods and services recommended by Hamilton Health Sciences in a treatment plan submitted October 13, 2017, and denied by the respondent on March 29, 2018?

ii. Is the applicant entitled to receive rehabilitation benefits in the amount of $4,540.12 for other goods and services recommended by Brock Chiropractic-Oliver Trochta in a treatment plan submitted/dated August 25, 2017, and denied by the respondent on September 8, 2017?

iii. Is the applicant entitled to receive rehabilitation benefits in the amount of $4,229.86 for other goods and services recommended by Innovative Occupational Therapy in a treatment plan submitted August 14, 2017, and denied by the respondent on August 24, 2017?

iv. Is the applicant entitled to receive rehabilitation benefits in the amount of $2,359.99 for other goods and services recommended by Pro-Active Chiropractor in a treatment plan submitted November 29, 2017, and denied by the respondent on December 12, 2017?

v. Is the applicant entitled to rehabilitation benefits in the amount of $7,278.41 for services recommended by Hamilton Health Sciences submitted, July 6, 2018, and denied July 19, 2018?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

result

5I find M.S. is entitled to payment for the remaining $338.61 of the treatment plan for a therapeutic pool membership and $2,359.99 for rehabilitation treatment incurred as both are reasonable and necessary. Interest applies under s. 51.

6I find M.S. is not entitled to payment for the remaining treatment plans in dispute as she has not demonstrated that they are reasonable and necessary and incurred.

ANALYSIS

Are the treatment plans in dispute reasonable and necessary?

7Under s. 14-16 of the Schedule, the insurer shall pay all reasonable and necessary medical and rehabilitation benefits incurred by or on behalf of an applicant as a result of an accident. The applicant bears the burden of proving, on a balance of probabilities, that the specific treatment they seek is reasonable and necessary to aid in their recovery from their specific impairments.

$338.61 for the warm therapy pool membership

8M.S. seeks payment for funding for part of a treatment and assessment plan recommending a six-month hot therapy pool membership with support staff at the Kiwanis Centre, which has a warm therapeutic pool. Gore Mutual initially approved the membership—which M.S. then purchased and submitted via an OCF-6 expense form—but later denied it on the basis of a s. 25 report indicating that M.S. already had a GoodLife Fitness membership with access to a pool and this was not a new expense required to treat her accident-related impairments.

9In support of her claim, M.S. relies on the Acquired Brain Injury Program’s report from July 2018 demonstrating that the use of the therapeutic pool had a positive correlation to M.S.’s symptom management, allowed her to have a weekly rehabilitation routine outside of her home and helped to reduce her anxiety. Further, M.S. submits that the therapeutic pool membership is unlike the pool at GoodLife Fitness, because she cannot obtain the same treatment and the Kiwanis Centre therapeutic pool was specifically recommended by her treatment team.

10In response, Gore Mutual asserts that M.S. had access to a swimming pool, aqua-fit classes and a hot tub through her GoodLife Fitness membership which she had prior to the accident. Gore Mutual submits that this benefit is not reasonable and necessary because it is a duplication of services and relies on the s. 25 report that states she does not require support staff.

11I agree with M.S. and find the therapeutic pool membership at Kiwanis Centre is reasonable and necessary and incurred. On review of the report, I find M.S.’s treatment providers do specifically recommend this membership because of the value it provides from a rehabilitative standpoint. I also accept that the Kiwanis Centre therapeutic pool, which offers many classes with specific rehabilitative purposes in a quiet environment, differs substantially from the offerings available at GoodLife Fitness, which are rather generic and designed more for the general population that attends that gym. I also accept that the Kiwanis Centre pool and its programs would be beneficial to M.S.’s specific knee and back rehabilitation, as there are supportive classes designed for increasing strength, mobility and balance. I also find that M.S.’s social anxiety is likely to be reduced as a result of participating in smaller, quiet focused sessions over the “open” style classes offered by GoodLife Fitness with no support. Further, I am alive to M.S.’s reporting that the warm water pool helps alleviate pain in her knee and that, given her use of canes, some support to help her into and out of the water from a slippery deck is reasonable.

12Finally, I also find that Gore Mutual initially approved the treatment plan dated October 13, 2017, which included this claim and where it already knew that M.S. had a GoodLife Fitness membership. At the time, Gore Mutual did not question whether the warm therapeutic pool component was reasonable and necessary, and M.S. relied on this approval to register for and incur the cost of the six-month membership at the Kiwanis Centre. While an insurer can change its position on entitlement to a benefit on receipt of new information, I find that this was not the case here. The s. 25 report was available when Gore Mutual approved the October 13, 2017 treatment plan and the existing GoodLife Fitness membership was never raised. In any event, I find the cost of this treatment is certainly reasonable given the reported benefit and progress M.S. receives from these sessions. Accordingly, I find the remaining $338.61 of the treatment plan is reasonable and necessary and incurred and therefore is payable.

$4,540.12 for rehabilitative treatment at Brock Chiropractic $2,359.99 for rehabilitative treatment from Pro-Active Chiropractors

13I have grouped these plans together based on M.S.’s submissions and the somewhat confusing evidence in correspondence requesting that the partially approved treatment from the Brock Chiropractic treatment plan be “ported” over to Pro-Active, which is not clarified in M.S.’s submissions.

14In any event, M.S. seeks payment for a treatment plan comprised of acupuncture, chiropractic treatment and exercise sessions at Brock Chiropractic in order to address her “worsened multiple joint derangements of the left knee and rehabilitate her left knee exacerbation and surgical outcome.” She also seeks payment for a treatment plan from Pro-Active comprised of physiotherapy for multiple body sites. Gore Mutual denied the treatment plans on the basis of its s. 44 orthopaedic report by Dr. Lexier, who determined that M.S. had made a full and complete recovery from soft tissue injuries and that no further medical treatment was required.

15M.S. asserts that Gore Mutual’s denial of the treatment plans was improper under s. 38(8) of the Schedule, as it did not provide a valid medical or other reason for the denial. She submits that Dr. Lexier’s report did not address the actual treatment plans in dispute, but rather addressed her entitlement to income replacement and non-earner benefits and the report pre-dates the treatment plans. Further, M.S. submits that there was documentation, in addition to her own reporting to Dr. Lexier, that her knee issues were exacerbated by the accident, which Dr. Lexier did not review, or at least did not list, in making his determination. M.S. incurred $2,715 worth of treatment at Pro-Active and submits that Gore Mutual must remit payment for these incurred expenses due to its improper denial under s. 38(11). Gore Mutual submits that its reasons for both denials were proper under s. 38(8) as Dr. Lexier addressed M.S.’s diagnosis, disability, impairment and treatment, that M.S. furnished no new evidence that would cause it to believe it could not rely on the s. 44 determination and that M.S. has not met her onus to prove that her knee pain and knee surgery are a result of the accident.

16I find the treatment plan is partially payable in the amount that has been incurred by M.S., being $2,715 for sessions between January 2018 and January 2019, as this treatment is reasonable and necessary and incurred. First, I agree with M.S. that Dr. Lexier’s report does not specifically address the treatment plans in dispute and only makes passing mention of her knee pain or knee function, downplaying its affect on M.S. in the context of an income replacement and non-earner benefit. Second, I find it was unfair of Gore Mutual to rely on this report to deny rehabilitative treatment involving the knee given the various medical records from Dr. Ostrowski indicating that M.S.’s knee pain had increased post-accident, as well as M.S.’s own self-reporting attesting to same. Contrary to Gore Mutual’s submission, I find there is enough evidence on a balance of probabilities to correlate the exacerbation of M.S.’s knee pain with the accident and that it would be reasonable to attend for treatment to address any lingering pain or functional limitations following the accident.

17While I agree with Gore Mutual’s submission that M.S. furnished no new evidence between the s. 44 report and the treatment plan, I find Gore Mutual’s denial via Dr. Lexier’s report—which does not comment on the actual treatment plan—does not substantively engage with M.S.’s claims, even if I find it meets the bare minimum requirements for a denial under s. 38(8). The legal tests for entitlement to income replacement and non-earner benefits clearly differ from the legal test for medical and rehabilitation benefits, but I find Gore Mutual’s reasons for denial were “medical or other reasons” as required by the Schedule. I would agree that there is cross-over in the “diagnosis, disability, impairment and treatment” as Gore Mutual submits. However, I find the absence of analysis on the specific treatment proposed by M.S. and Gore Mutual’s reliance on a s. 44 report that does not actually address the treatment or the impairments necessitating the treatment is not reasonable on the evidence. Indeed, it is difficult to reconcile Dr. Lexier’s position that M.S. did not require any more treatment and had recovered completely from her accident-related impairments with the fact that M.S. continued to incur treatment.

18So, while I find that Gore Mutual’s denials constitute the bare minimum, I do not find it was improper in order to trigger automatic payment under s. 38(11) for services incurred. However, I do agree with M.S. that some of the treatment proposed that was incurred is reasonable and necessary.

19On review of the treatment plan from Pro-Active, I find the goals of pain reduction, increasing strength and range of motion to be reasonable goals to address back pain and knee impairments that were exacerbated by the accident and required surgery. That M.S. incurred more of this treatment than the plan recommended speaks to the actual scope of treatment that was reasonable and necessary for her knee issues and continual daily pain. Accordingly, I find that this treatment plan is reasonable and necessary in the amount of $2,359.99, being the cost proposed in the OCF-18 dated November 29, 2017. While I am alive to the evidence that M.S. actually incurred $2,715 of treatment between January 2018 and January 2019, she is not entitled to payment that is greater than what is proposed in the plan submitted. In a similar vein, M.S. has not provided clarification over whether any of this incurred treatment was “ported” over from another treatment plan that was approved.

20Lastly, I found Brock Chiropractic’s initial proposal and cost of 54 sessions over a 12-week period to be quite ambitious and questioned why so many sessions were needed at such a high cost. On the evidence, it does not appear that M.S. incurred any of this treatment and instead incurred $2,715 in treatment at Pro-Active over the course of one year of sessions from a treatment plan submitted after this one. In my view, this calls into question the reasonableness and necessity of the Brock Chiropractic treatment plan as it proposed twice the amount of treatment over a shorter period of time, none of which was seemingly incurred by M.S. In submissions, M.S. did not speak to how these treatment plans were not duplicative and, in my view, it would not be reasonable or necessary to provide funding for competing rehabilitation treatment plans where only one was incurred. Accordingly, I find M.S. is not entitled to payment for the Brock Chiropractic treatment plan in the amount of $4,540.12 as it is not reasonable and necessary.

$4,229.86 for occupational therapy sessions

21Here, M.S. seeks payment for a treatment plan recommended by Innovative Occupational Therapy submitted August 14, 2017. The $4,229.86 plan proposes eight occupational therapy sessions and provides for travel for M.S.’s provider, planning, documentation and preparation. In submissions, M.S. does not provide substantive analysis on why the plan is specifically reasonable and necessary but instead submits that Gore Mutual failed to comply with s. 38(8) of the Schedule because its denial was based on a s. 44 assessment that pre-dates the treatment plan.

22I disagree. Again, while Gore Mutual’s denial was not particularly detailed, I find it meets the bare minimum requirements of the Schedule, as it stated that there was insufficient medical documentation to support the reasonableness and necessity of M.S.’s claim. Further, I find that Gore Mutual relied on the report of an occupational therapist in doing so, even if the report itself was authored before the plan and does not comment on this specific treatment plan.

23More problematic, in my view, is the fact that M.S. does not explain in submissions or on reply why this specific plan is reasonable and necessary for her specific impairments, as it is her onus to do. On review of the plan, it is alarming that only $1,835.36 of the total proposed cost of $4,229.86 is for actual treatment. The remaining costs are all vaguely attributed to transportation and preparation, for example: $798 for provider travel; $798 for “planning, service”; $498.75 for “documentation, support activity”; $99.75 for “preparation, service” and $200 for the OCF-18 fee. Without context from M.S., it is difficult to determine how so many ancillary fees are reasonable and necessary or, frankly, what exactly the differences are between the various planning, documentation and service items.

24Putting this aside, the sole goal of the plan is to return M.S. to her daily activities; yet no activities of daily living are identified, only that she has “physical, cognitive and psychoemotional injuries and has thus been unable to resume her ADLs and life roles.” It is also unclear how exactly the plan proposes to return M.S. to her daily activities where the eight “training, motor and living skills” sessions proposed are to be evaluated “through the collection of both objective and subjective data.” Again, without analysis, the Tribunal is left to guess at what this means and why it is reasonable and necessary at such a high cost per session. Further, it is unclear where the referral for this treatment came from, why it is so needed or what prompted its completion, since the injuries listed are only concussion and whiplash with neck pain. In a similar vein, M.S. has not demonstrated that the treatment plan was incurred.

25For these reasons, I find M.S. has fallen well short of meeting her burden to prove that the treatment plan in the amount of $4,229.86 is reasonable and necessary and incurred and therefore it is not payable.

$7,278.41 for treatment recommended by Hamilton Health Services

26M.S. seeks payment in the amount of $7,278.41 for a treatment plan dated July 6, 2018 recommending cognition and learning therapy sessions as well as multi-disciplinary treatment for her impairments. M.S. does not offer substantive analysis on whether the treatment is reasonable and necessary for her specific impairments, instead alleging that Gore Mutual’s denial was improper under s. 38(8) of the Schedule on the basis of Dr. Lexier’s s. 44 report. According to M.S., reliance on the report is problematic because it was completed almost one year prior to the submission of this treatment plan, Dr. Lexier did not review new medical documentation available to him and Gore Mutual did not request a paper review. In contrast, the s. 44 report of Dr. Desai, dated six days after this plan, recommended physical therapy.

27In response, Gore Mutual submits that the treatment is not reasonable and necessary on the basis of Dr. Lexier’s opinion and that it was not incurred. Further, it re-asserts its objection to the Tribunal permitting the inclusion of this plan into the issues in dispute at the case conference as being prejudicial and procedurally unfair. However, I find Gore Mutual does not provide any substantive submissions or specific argument as to why the inclusion of this plan is prejudicial or procedurally unfair.

28To be frank, Gore Mutual’s denial letter dated July 29, 2018 is a mess. While it correctly identifies the treatment plan in the first paragraph, it quickly unravels thereafter. The very next sentence briefly references a different plan for chiropractor treatment without providing particulars or, confusingly, a period to end that sentence. The next sentence then indicates that it reviewed the treatment plan, the s. 25 rehabilitation report and its own s. 44 report from Dr. Lexier that found M.S. had made a full recovery. It then states that “Therefore, funding for the following appears to not be reasonable and necessary.” It then quotes s. 38(8) verbatim and moves on to conclude with “Therefore, we will not be arranging an Insurer Examination under s. 44 of the Schedule at this time.” In my view, it does not clearly explain why it would not conduct an assessment.

29Owing to this confusing denial letter, I find there is quite a bit of correspondence in evidence from M.S. revealing requests by her counsel to have Gore Mutual revisit its denial on the basis that there is information Dr. Lexier did not review that was available in the one year between his report and Gore Mutual’s denial. The additional information includes the records of St. Catherine’s Hospital, the records of her family physician, Dr. Dobbin, the notes from Dr. Ostrowski, a sleep disorder report and recommendations from the Acquired Brain Injury clinic that show a decline in M.S. Notably, the letters sent from M.S.’s counsel to Gore Mutual following the denial in August and September 2018 onwards provide support for her argument that Gore Mutual did not substantively turn its attention to new medical documentation and relied on a dated report to deny this particular treatment plan.

30I agree with M.S. that Gore Mutual’s denial of this treatment plan falls short of an insurer’s duty to continually adjust the file of an insured in good faith and as new information becomes available. On the evidence, it does not appear that Gore Mutual ever contemplated a paper review or re-evaluated its position on entitlement despite the volume of new medical evidence that M.S. put before it. To continue to rely on a dated report that does not speak to the actual benefits in dispute while M.S.’s counsel urged it to reconsider its position based on new information was unreasonable and inflexible. Fortunately for Gore Mutual, it does not appear that M.S. incurred any of this treatment and is not seeking an award under s. 10 of O. Reg. 664.

31While I find Gore Mutual’s explanation for why the treatment is not reasonable and necessary is lacking, M.S. still bears the burden of demonstrating that the treatment she seeks in this matter is reasonable and necessary. Unfortunately, M.S.’s submissions are long on procedure and short on substantive argument as to why this specific treatment is reasonable and necessary and incurred for her specific accident-related impairments. While I am alive to various recommendations for pain management, psychological treatment, cognitive behavioural therapy and physiotherapy and M.S.’s counsel reference to same in correspondence, M.S. did not speak to why the components of this $7,278.41 treatment plan are all reasonable and necessary or whether they have been incurred. On review of the treatment plan and without context, I find it difficult to determine how all of the items identified are reasonable and necessary.

32Similar to the occupational therapy plan addressed above, I find it difficult to reconcile the combined $1,322.17 proposed for various planning, preparation, supplies and documentation items, which seem gratuitous without explanation. Indeed, “Documentation, support activity” appears twice in the OCF-18 at different rates and times but with the same code. It is also unclear why $1,396.56 in costs is reasonable and necessary for provider transportation and why $300 for transportation for M.S. is so needed, despite the notation in the additional comments section that it is “to cover the cost of community travel for M.S.”

33While I accept that the treatment itself, identified somewhat vaguely as “Therapy, cognition and learning” could be helpful for the listed impairments of concussion, mild cognitive disorder, “problems related to employment and unemployment” and “problems related to life management difficulty,” it was not explained how it would and why doing so is reasonable and necessary. Without further analysis, it is difficult to conclude that 24 three-hour sessions totalling $4,189.68 is the reasonable and necessary amount and cost to address these specific impairments and “return her to her previous level of independence including her employment” as the OCF-18 details. To conclude, while I agree with M.S. that Gore Mutual’s reason for denial was lacking, M.S. has not done her part to provide the reasons on which it should be deemed reasonable and necessary by the Tribunal or that it was incurred. In the absence of this analysis, I find that M.S. has not met her burden to prove that the treatment plan in the amount of $7,2878.41 is reasonable and necessary and incurred and therefore it is not payable.

Interest

34As M.S. is entitled to certain benefits in dispute, it follows that interest is payable on any overdue benefits incurred by M.S. pursuant to s. 51 of the Schedule.

CONCLUSION

35I find M.S. is entitled to payment for the remaining $338.61 of the treatment plan for a therapeutic pool membership and $2,359.99 for rehabilitation treatment incurred as both are reasonable and necessary. Interest applies under s. 51.

36I find M.S. is not entitled to payment for the remaining treatment plans in dispute as she has not demonstrated that they are reasonable and necessary and incurred.