Released Date: 04/09/2020
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:
O.M.
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Kennedy Nolan, Counsel
For the Respondent:
Nora Refai, Counsel
HEARD: In Writing
August 5, 2019
OVERVIEW
1O.M. (the “applicant”) was involved in an automobile accident on January 7, 2016. She sought benefits from Allstate Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The respondent denied her entitlement to some treatment plans for medical benefits and cost of examination expenses. As a result, she applied to the Licence Appeal Tribunal for dispute resolution.
2The parties attended a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES
3I have been asked to decide the following issues:
i. Is the applicant entitled to a medical benefit in the amount of $2,672.25 for an orthopedic mattress and cervical pillows recommended by Ross Rehabilitation in a treatment plan (OCF-18) submitted on December 13, 2016, and denied on January 19, 2017?
ii. Is the applicant entitled to a medical benefit in the amount of $2,135.20 for the balance of a treatment plan for a gym membership and kinesiologist services recommended by Ross Rehabilitation submitted on March 21, 2017 for a total of $3,335.20, and which was partially approved for $1,200.00 for a gym membership and personal trainer?
iii. Is the applicant entitled to the cost of examination in the amount of $2,400.00 for a psychological assessment, recommended by Dr. Cherisse McKay in a treatment plan submitted on October 22, 2018, and denied on November 6, 2018?1
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant entitled to an award under Regulation 664 with respect to the psychological assessment in dispute because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4I find that the applicant is entitled to the following:
i. A medical benefit in the amount of $2,672.25 for an orthopedic mattress and cervical pillows recommended by Ross Rehabilitation in a treatment plan (OCF-18) submitted on December 13, 2016, and denied on January 19, 2017.
ii. The applicant is entitled to interest payable pursuant to the Schedule.
ii. The applicant is entitled to an award in the amount of 50% for the respondent’s unreasonable denial of the cost of examination for a psychological assessment.
5The applicant is not entitled to:
i. A medical benefit in the amount of $2,135.20 for the balance of a treatment plan for a gym membership and kinesiologist services recommended by Ross Rehabilitation submitted on March 21, 2017 for a total of $3,335.20, and which was partially approved for $1,200.00 for a gym membership and personal trainer.
BACKGROUND
6On January 7, 2016, the applicant’s vehicle was rear-ended while stopped at a stop light. There is a difference of opinion between the parties regarding the impact of the accident. However, my determination does not rest on resolving that difference. Suffice it to say that the accident caused the applicant immediate pain in her neck, shoulder, and back, along with headaches. An ambulance was not called to the scene, and the applicant drove her vehicle home. The applicant was later diagnosed as having soft tissue whiplash type injuries. She remained off work for one month, and returned on modified duties until March 14, 2016, when she returned to her full duties.
ANALYSIS
Is the applicant entitled to a medical benefit in the amount of $2,672.25 for an orthopedic mattress recommended by Ross Rehabilitation in a treatment plan (OCF-18) submitted on December 13, 2016, and denied on January 19, 2017?
7I find the applicant is entitled to the treatment plan for the orthopedic mattress and cervical and body pillows for the following reasons.
8Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
9The applicant asserts that she did not have any issues with sleep or problems with her bed or mattress prior to the accident. Since the accident, the applicant has consistently complained about the impact her accident-related impairments have had on her sleep. She has made these complaints to her family doctor, as well as to both the applicant and respondent’s occupational therapists (OTs), who completed in-home attendant care assessments.
10The applicant relied on the OT in-home attendant care report of Ross Rehabilitation dated October 26, 2016. This report reflects that the applicant made the following complaints: right upper-extremity pain and weakness, neck pain, headaches, right hip and knee pain, low back pain, left lower extremity pain, disturbed sleep, and cognitive and emotional symptoms. The report also highlights that the applicant has difficulty attaining and maintaining restorative sleep as she wakes up frequently due to back and right knee pain. As a result, she suffers from fatigue throughout the day, interfering with her ability to efficiently complete her daily activities. Both the applicant and the respondent’s OT reports agree that the applicant’s sleep has been impacted by her accident-related impairments. The difference in opinion rests on the OT’s respective recommendations concerning assistive devices.
11Ross Rehabilitation submitted a treatment plan on December 13, 2016, recommending funding for a queen size mattress and box spring, cervical and body pillows, along with OT time for equipment coordination and review of the applicant’s sleep hygiene, in the amount of $2,672.25. The goal of the treatment plan is to reduce pain and promote proper spine alignment and optimal positioning while sleeping. I find that the cost and goals of the treatment plan are reasonable and necessary given the applicant’s accident-related impairments. In the additional comments section of the treatment plan, the following barriers were identified as being responsible for the applicant’s sleep disturbances:
i. Her current mattress is too small to accommodate the applicant, her husband and the pillows required for positioning herself for proper sleep;
ii. Her current mattress is significantly worn and sagging in the middle (dipped in the centre);
iii. Her current mattress is too soft, which causes additional pain.
12In my view, the above barriers are valid and the goals of the treatment plan to alleviate the applicant’s pain and quality of sleep are reasonable.
13The respondent relied on the insurer examination (“IE”) in-home attendant care assessment report of Assessment Rehabilitation Services Inc. (“ARS”) dated February 22, 2017, which denied the treatment plan on the basis that the applicant’s bed was old and likely needed to be replaced anyway. Despite this, the OT did feel that a mattress-topper, at a cheaper price, would be “reasonable” and would "allow for proper body positioning, alleviate pain/discomfort, relax muscles and increase sleep quality/experiences."
14I agree with the applicant that the respondent’s reason for denying the treatment plan was not reasonable. Whether or not the applicant’s mattress was old and needed to be replaced is irrelevant to the present analysis. The issue to be addressed is whether a new mattress is reasonable and necessary as a result of the applicant’s accident related impairments. I find that, based upon the facts before me, that it is. In addition, I agree with the applicant that the mattress topper is not going to address the fact that her current mattress is dipped in the middle, lacks firmness, and is not big enough to accommodate her, her husband, and the pillows required for proper positioning.
15In its submissions, the respondent criticized the updated report of Ross Rehabilitation dated July 5, 2019 on the basis that the author did not assess the applicant and that the initial report did not address the size of the applicant’s mattress as an issue. I agree that the size of the mattress was not highlighted in the initial report. However, as noted above, it was addressed in the treatment plan itself. Finally, I agree with the applicant that the respondent’s IE OT report was incomplete in that it did not address whether the cervical or body pillows were reasonable and necessary at all. For these reasons, I assign the respondent’s IE OT report less weight.
16The applicant argued that I should deem this treatment plan as incurred pursuant to s. 3(8) of the Schedule. That section provides that, if an adjudicator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, he or she may deem the expense to have been incurred. Further, the applicant maintains that interest should be awarded on the treatment plan starting 10 days from when it was submitted in accordance with s. 51 of the Schedule.
17I agree with the applicant that the respondent unreasonably withheld and delayed payment of this benefit as I find the reason it denied the treatment plan was not reasonable. As already mentioned, its own OT determined that the applicant’s sleep had been impacted as a result of her accident-related impairments. Moreover, the main reason why the treatment plan was denied was because the OT determined the applicant’s existing mattress was old. I find that the respondent did not fulfill its responsibility to review both OT assessments with a critical eye to ensure that its assessor’s reason for not finding the treatment plan reasonable or necessary was valid and consistent with the other medical evidence. In this case, both the applicants’ and respondent’s OT assessors agreed that the applicant’s sleep had been impacted as a result of the accident. In addition, the respondent did not fully address the recommendations in the treatment plan as its assessor’s report was silent on the request for cervical body pillows. The respondent has a duty to provide fulsome medical reasons for denying a benefit. In this case, I find that it fell short of this obligation. Further, the applicant did not incur the cost of the treatment plan as a result of the respondent’s denial of the benefit. Consequently, her sleep has been disrupted which has impacted her daily functioning. Therefore, I deem the treatment plan incurred and interest payable in accordance with the Schedule.
18I find the applicant has met her onus on a balance of probabilities in establishing that the treatment plan for the orthopedic mattress and cervical and body pillows is reasonable and necessary as a result of her accident related impairments.
Is the applicant entitled to a medical benefit in the amount of $2,135.20 for the balance of a treatment plan for a gym membership and kinesiologist services recommended by Ross Rehabilitation submitted on March 21, 2017 for a total of $3,335.20, and which was partially approved for $1,200.00 for a gym membership and personal trainer?
19The applicant is not entitled to the balance of this treatment plan for the following reasons.
20The OT in-home attendant care assessment also recommended a supervised exercise/gym program. Thus, Ross Rehabilitation submitted a treatment plan for a gym membership and kinesiologist services dated March 21, 2017 in the total amount of $3,335.20. The purpose of this treatment plan was to provide support from a certified professional to promote engagement in an exercise routine in a safe and progressive manner to reduce risk of re-injury and further disability, reduce social isolation and improve mood. The treatment plan highlighted that the applicant lived a very active pre-accident life and that she has not been able to resume the same activities post-accident. The treatment plan recommended the following services:
i. One-year membership at LA Fitness = $750.00
ii. Exercise multiple, sites (8 kinesiologist sessions) = $1,398.55
iii. Provider (kinesiologist) travel time, provider to treatment = $311.84
iv. Provider (kinesiologist) mileage to treatment = $180.00
v. Planning service = $399.00
vi. Documentation to support activity = $199.50
21On March 21, 2017, the respondent denied the treatment plan based on the IE of Dr. Jaroszynski, orthopaedic surgeon, that had been completed a week prior in response to a treatment plan for physiotherapy. Dr. Jaroszynski opined that the applicant had no ongoing accident-related injuries and that there is no need for further facility-based treatment. In addition, the doctor determined that the applicant’s ongoing complaints are not related to sequalae of her accident-related injuries, as her accident-related injuries have healed and her symptoms cannot be explained.
22The respondent has now partially approved this treatment plan in the amount of $1,200.00 for the gym membership and the services of a kinesiologist. Neither party addressed in their submissions what portion of the above treatment plan was approved and what is still in dispute and why. For example, did the respondent take issue with the travel and mileage and how many kinesiologist sessions were approved? The applicant argues that, because the respondent agreed to fund three additional treatment plans for physiotherapy (when its IE assessor determined that further facility-based treatment is not reasonable and necessary), the balance of this treatment plan should automatically be paid in full. Further, the applicant’s OT and Dr. Mulstock, physiatrist, support that the applicant needs a supervised gym program to compliment regular physiotherapy sessions.
23Without further explanation, I find the treatment plan excessive and, based on the evidence before me, find what the respondent has already approved reasonable. I did not find the applicant’s reasoning in support of the balance of this treatment plan persuasive.
24The applicant has not met her onus in proving on a balance of probabilities that the remainder of this treatment plan is reasonable and necessary.
Is the applicant entitled to an award under Regulation 664 with respect to the psychological assessment in dispute because the respondent unreasonably withheld or delayed the payment of benefits?
25I find the applicant is entitled to an award in the amount of 50% of the cost of the psychological assessment in the amount of $2,400.00 as I find the respondent unreasonably withheld the benefit.
26Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664) states that, if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.
27The applicant submitted the psychological assessment on October 22, 2018. The respondent denied the treatment plan on November 6, 2018 on the basis that it was submitted three years post-accident and that the respondent did not have any previous information about any psychological complaints.
28In November 2018, counsel for the applicant emailed the adjuster, highlighting all the relevant medical documents in its possession and attaching a copy of the applicant’s medical brief asking the respondent to reconsider its denial. I find that the records referenced in the email support that the psychological assessment is reasonable and necessary. For example, there were several accident-related references to the applicant’s mood, depression and psychological status in the family doctor’s clinical notes and records, as well as in both the applicant and respondent’s OT in-home attendant care assessment reports. In response, the adjuster indicated that the documents referenced by counsel in this email “was not compelling as per recent LAT decisions”. The adjuster did not provide further justification or reference the case law he was referring to in his response.
29In my view, the adjuster not only misinterpreted the test to determine whether the cost of examination was reasonable and necessary, but I find compelling evidence had been submitted. An insured’s obligation to provide compelling medical evidence arises in relation to whether an insured should be removed from the Minor Injury Guideline (“MIG”). That legal test does not apply to determine whether a cost of examination is reasonable or necessary if the MIG is not an issue. In my view, the adjuster misinterpreted the Schedule and case law.
30In addition, I find that the respondent’s denial of the psychological assessment was, in the circumstances, unreasonable. The respondent denied the treatment plan because it was submitted three years post-accident and the respondent did not have any previous information about any psychological complaints. In fact, as indicated above, the respondent had in its possession multiple documents referencing the applicant’s psychological complaints. I also find the timing of when the treatment plan was submitted irrelevant, as one could develop a psychological impairment at any time following an accident.
31I agree with the applicant that the respondent’s refusal to reconsider its denial of the benefit when it had ample medical documentation was very unreasonable. I also find the adjuster’s response to counsel’s email in November 2018 asking for reconsideration inappropriate as he failed to give proper consideration to the materials submitted or provide an explanation in maintaining the denial. Despite the fact that the respondent approved this treatment plan during the course of the hearing, I award 50% as the applicant had to spend time and legal costs arguing an issue which the respondent only approved after the fact. I have taken the timing of the respondent’s approval of the treatment plan into consideration in awarding the highest percentage as it did not approve the treatment plan until after the applicant had filed her written submissions for this hearing. No explanation was provided by the respondent for the delay in approving this treatment plan or for why it suddenly changed its position on the issue. Further, the respondent’s unreasonable conduct has resulted in delaying the applicant’s ability to access much-needed treatment which has impacted her health and well-being.
32The respondent argued that the applicant’s social worker’s records should not be considered in adjudicating the applicant’s claim for an award as they were not disclosed to the respondent until the applicant filed her submissions. I agree with the respondent and have not considered these records in finding an award is warranted in this case.
33The applicant is entitled to an award in amount of 50% of $2,400.00 plus interest in accordance with the regulation.
CONCLUSION
34I find that the applicant is entitled to the following:
i. A medical benefit in the amount of $2,672.25 for an orthopedic mattress and cervical pillows recommended by Ross Rehabilitation in a treatment plan (OCF-18) submitted on December 13, 2016, and denied on January 19, 2017.
ii. The applicant is entitled to interest payable pursuant to the Schedule.
ii. The applicant is entitled to an award in the amount of 50% for the respondent’s unreasonable denial of the cost of examination for a psychological assessment.
35The applicant is not entitled to:
i. A medical benefit in the amount of $2,135.20 for the balance of a treatment plan for a gym membership and kinesiologist services recommended by Ross Rehabilitation submitted on March 21, 2017 for a total of $3,335.20, and which was partially approved for $1,200.00 for a gym membership and personal trainer.
Released: April 9, 2020
Rebecca Hines
Adjudicator
Footnotes
- In its submissions, the respondent confirmed that it approved the psychological assessment prior to filing its submissions, so this issue is no longer in dispute. In his reply, the applicant requested that a determination be made on this issue anyway. The respondent submitted an explanation of benefits approving the treatment plan. Therefore, the issue is moot and I will not address it.