Released Date: 08/11/2020
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:
A. M.
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
ADJUDICATOR:
Robert Watt
APPEARANCES:
For the Applicant:
Kevan Wylie, Counsel
For the Respondent:
Richard Campbell, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on March 17, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. This matter will proceed to a hearing.
ISSUES IN DISPUTE
3The issues in dispute were identified and agreed to as follows:
i. Is the applicant entitled to a medical benefit in the amount of $2,189.35 ($9,162.05 less approved $4,572.70) for physiotherapy treatment recommended by Meditecs Independent Medical Examinations in a treatment plan (OCF18) submitted on March 27, 2017 and denied on April 7, 2017?
ii. Is the applicant entitled to a cost of examination in the amount of $2,486 for In-Home assessment recommended by Meditecs Independent Medical Examinations in a treatment and assessment plan (OCF18) submitted March 27, 2017 and denied on April 7, 2017?
iii. Is the applicant entitled to a cost of examination in the amount of $3,152.70 for Ear Test recommended by Meditecs Independent Medical Examinations in a treatment and assessment plan (OCF18) submitted March 28, 2017 and denied on April 7, 2017?
iv. Is the applicant entitled to a cost of examination in the amount of $3,243.10 for neurological assessment recommended by Meditecs Independent Medical Examinations in a treatment and assessment plan (OCF18) submitted March 27, 2017 and denied on April 7, 2017?
v. Is the applicant entitled to the attendant care benefit in the amount of $6,142.59 per month from November 29, 2018 to date and ongoing?
vi. Is the applicant entitled to a medical benefit in the amount of $3,913.25 for rehab counselling recommended by Spinetec Health Care Solutions in a treatment plan (OCF18) submitted on May 6, 2018 and denied on May 18, 2019?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULTS
4The applicant is not entitled to any medical benefits as claimed.
5The applicant is not entitled to an attendant care benefit in the amount of $142.59 per month from November 29, 2018 to date and ongoing
6The applicant is not entitled to any interest.
BACKGROUND
7The applicant was a passenger in a motor vehicle on March 17, 2017 and was taken to [The hospital] by ambulance. The applicant has Parkinson’s disease with dementia, which was diagnosed in 2016.He complained of headaches and left ear pain pre-accident.
8A CT of the head was taken on March 9, 2017 which only showed “chronic small vessel ischema. A second CT of the brain was taken on March 18, 2017. No Acute intracranial abnormality was seen. An x-ray of chest and ribs was taken on March 18, 2017 The was no indication of fracture of the ribs.
9The applicant had no head injuries from the accident and was diagnosed with soft tissue injury with no neurological problems.1
10A medical brief filed by the applicant shows from 2014-2017 pre-accident the applicant was treated medically for cognitive impairment, psychiatric impairment dementia history, left arm and face numbness, ear problems, shaking of the left hand, general weakness, mood swings, paranoia etc,
11A Psychological assessment was conducted by Dr. Pilowsky, psychologist, on May 25, 2017.That report diagnosed the applicant with: major depressive disorder, single episode, moderate; complex post-traumatic stress disorder with phobic avoidance of travelling as a passenger in motor vehicles; somatic symptom disorder with predominant pain, severe (pre-existing and reinforced)
12Dr. Pilowsky found that the applicant’s post-accident functioning had declined.
13A psychiatric evaluation was completed by Dr. Parekh psychiatrist on April 27, 2018. Dr. Parekh noted that the applicant has a significant pre-accident medical history which included Parkinson’s disease, tremors, cognitive difficulties mood instability, features associated with Lewy body disease.
ANALYSIS
14Section 15 of the Schedule requires all expenses claimed to be reasonable and necessary
Is the applicant entitled to a medical benefit in the amount of $2,189.35 ($9,162.05 less approved $4,572.70) for physiotherapy treatment recommended by Meditecs Independent Medical Examinations in a treatment plan (OCF18) submitted on March 27, 2017 and denied on April 7, 2017?
15I find therefore that the medical benefit claimed is not reasonable and necessary for the reasons set out below.
16The respondent has approved $4,572.70 of the claim leaving a total of $4,589.35 that was not approved. Of that amount, $2,400.00 is claimed for transportation. No supporting documentation was provided for the $2,400.00. It is up to the applicant to prove all costs for benefits claimed. The applicant has made no submissions on the issue of transportation costs.
17The remaining $2,189.35 is the amount that exceeds the Professional Service Guidelines and therefore these costs are not payable.2 Section 15(2)(b) also of the Schedule states:“ that an insurer is not required to pay for expenses relating to goods and services rendered to an insured person that exceed the maximum rate or amount established under the Guidelines”. There are certain exceptions which don’t apply here. The applicant has provided no details about the treatment.
18The applicant’s position is that the respondent failed to provide medical reasons for the denied amounts, and therefore is non compliant with the Schedule. However Section 38(8) of the Schedule permits the respondent to give medical reasons” and all of the other reasons….”. The insurer has provided other reasons why it isn’t paying for the balance, of the benefits claimed
Is the applicant entitled to a cost of examination in the amount of $2,486 for In-Home assessment recommended by Meditecs Independent Medical Examinations in a treatment and assessment plan (OCF18) submitted March 27, 2017 and denied on April 7, 2017?
19I find therefore that the medical benefit claimed is not reasonable and necessary for the reasons set out below.
20The applicant’s position is that the applicant is not under the MIG and that the applicant is entitled under section 25 of the Schedule for payment for an in-home assessment carried out on November 9, 2018 by Sandra Fraser, a registered nurse. The assessment was for the applicant’s attendant care needs.
21The respondent’s position is that it has already approved an in-home occupational therapy assessment in 2019 with a report already generated.3 A further assessment would be duplicating the first assessment.
22The respondent’s position also is that the current medical conditions of the applicant relate to pre-existing conditions and were not caused by the accident. The applicant only suffered soft tissue injuries because of the accident.
23There is no medical evidence before the Tribunal that the applicant’s attendant care needs were accident related. It is clear from the medical brief that the applicant’s medical history from March 2013 and forward, show extensive serious medical problems with the applicant deteriorating medically.
24The applicant suffered soft tissue injury from the accident with no medical evidence showing that his medical problems were increased because of the accident. The attendant care needs related to his previous medical issues and not to the accident.
25In his report dated June 17 20174 Dr. Ghouse, physiatrist, indicates that the applicant reported to him as being independent in the usual aspects of his personal care. The wife and children do all other chores in the house. Dr. Ghouse later in his report indicates that the applicant has difficulty in personal care and needs assistive devices to assist him. Dr. Ghouse does relate the medical issues to the accident but doesn’t really compare pre-accident injuries to post- accident injuries. The report is also contradictory in its findings as to personal care needs, making it difficult, in giving it any evidentiary weight.
26I agree with the respondent’s position that there would be duplication and therefore the benefit is not reasonable and necessary. I also agree that there is no evidence relating the attendant care needs to the accident.
Is the applicant entitled to a cost of examination in the amount of $3,152.70 for Ear Test recommended by Meditecs Independent Medical Examinations in a treatment and assessment plan (OCF18) submitted March 28, 2017 and denied on April 7, 2017?
27I find that the medical benefit claimed is not reasonable and necessary for the reasons set out below.
28The applicant had pre-accident ear problems.5 There is no evidence before the Tribunal hat the accident caused any ear problems or exacerbated pre-accident ear problems.
29The applicant also has an obligation to apply under the OHIP system which would cover the examination. Section 47 of the Schedule requires an insured to apply for a benefit if the benefit can be obtained under any other plan. The insured has the burden of proving that the service is not reasonably available elsewhere.6
30The applicant’s position is that the respondent failed to provide medical reasons for the denied amounts, and therefore is non compliant with the Schedule. However Section 38(8) of the Schedule permits the respondent to give medical reasons” and all of the other reasons….”. The insurer has provided other reasons why it isn’t paying for the balance, of the benefits claimed
Is the applicant entitled to a cost of examination in the amount of $3,243.10 for neurological assessment recommended by Meditecs Independent Medical Examinations in a treatment and assessment plan (OCF18) submitted March 27, 2017 and denied on April 7, 2017?
31I find that the medical benefit claimed is not reasonable and necessary for the reasons set out below.
32The Tribunal has no evidence before it that the accident caused neurological problems or that pre-accident neurological issues were exacerbated by the accident. The evidence is clear that the applicant did not hit his head in the accident.
33The applicant has also been seen by Dr. Kaleel neurologist, on August 28, 2017 and no stroke was indicated. There has been no suggestions by the applicant why a further assessment needs to be completed other than the general statement by Dr. Mensah “to investigate his current brain function and cognitive performance.”
34Again as stated above, the applicant also has an obligation to apply under the OHIP system which would cover the examination. Section 47 of the Schedule requires an insured to apply for a benefit if the benefit can be obtained under any other plan. The insured has the burden of proving that the service is not reasonably available elsewhere.7
35The applicant’s position is that the respondent failed to provide medical reasons for the denied amounts, and therefore is non compliant with the Schedule. However Section 38(8) of the Schedule permits the respondent to give medical reasons ” and all of the other reasons….”. The insurer has provided other reasons why it isn’t paying for the balance, of the benefits claimed
Is the applicant entitled to the attendant care benefit in the amount of $6,142.59 per month from November 29, 2018 to date and ongoing?
36I find that the medical benefit claimed is not reasonable and necessary for the reasons set out below.
37There is no evidence before the Tribunal that the applicant’s attendant care needs were caused by the accident. In fact, the pre-accident medical history of the applicant indicate that the attendant care needs relate to the pre-accident medical issues.
38Dr. Pilowsky, Dr. Ghouse, physiatrist. and Dr. Mensah all acknowledge that the applicant has attendant care needs but do not discuss and analyze in their reports whether the needs were created by the accident or were pre-existing needs exacerbated by the accident. Their reports don’t discuss the issue of causation in detail, so I can’t attribute much weight to their reports.
39In an IE report dated January 25, 2019, Ms. Slapinski indicated that the applicant did not require attendant care as a result of the accident. She indicated that the applicant’s current medical issues relate to his pre-accident medical issues of Parkinson’s and Dementia.8
40The applicant also reported to Dr. Ghouse, that he was independent in the usual aspects of his personal care.
41There is also no evidence before the Tribunal of proof of economic loss or proof of incurred expensed as required by sections 3(7)(e) and sections19 of the Schedule.
Is the applicant entitled to a medical benefit in the amount of $3,913.25 for rehab counselling recommended by Spinetec Health Care Solutions in a treatment plan (OCF18) submitted on May 6, 2018 and denied on May 18, 2019?
42I find that the medical benefit claimed is not reasonable and necessary for the reasons set out below.
43The IE report of Dr. Feloiu9 dated September 14, 2018 found that the insured had reached maximum medical recovery from his soft tissue injuries and that therefore no further facility- based treatment was reasonable or necessary.
44Dr. Ghouse makes recommendations in a Physaitry Assessment report on June 7, 2017 for rehabilitation therapy, but again there is no discussion by this doctor of the causation issue and also whether the rehabilitation therapy is directed to the pre-accident medical issues, or post accident medical issues.
45The applicant’s position is that the respondent failed to provide medical reasons for the denied amounts, and therefore is non compliant with the Schedule. However Section 38(8) of the Schedule permits the respondent to give medical reasons” and all of the other reasons….”. The insurer has provided other reasons why it isn’t paying for the balance, of the benefits claimed
INTEREST/AWARD
46As there are no benefits owing there is no interest owing. There is no evidence before the Tribunal that the insured has unreasonably withheld or delayed payments.
47I therefore find that no award is owed by the insured.
CONCLUSION
48For the reasons set out above, the applicant’ claims are dismissed.
Released August 11, 2020
Robert Watt
Adjudicator
Footnotes
- Medical brief Tabs 1, 2
- JH v Intact Tab 3 BOA
- Document Brief Tab 22
- Document Brief Tab 7, p 7-8
- Medical Brief Tabs 12, 16 29, 20
- Brief of Authorities Tab 6 -S.H.S.K. v Allstate Canada 2019 CanLII 101476 (ON LAT) para 21-28
- Brief of Authorities Tab 6 -S.H.S.K. v Allstate Canada 2019 CanLII 101476 (ON LAT) para 21-28
- Medical Brief report of Ms. Slapinski dated January 24, 2019 Tab 37