Released Date: 09/23/2020
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
Zurich Insurance Company Ltd.
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Andre Bourdon
For the Respondent:
Fraser Chorley
Heard by way of written submissions
OVERVIEW
1On December 21, 2014, A.M. was being transported by the Ontario Provincial Police in the rear box of a prisoner’s transportation van. During the transport, the van struck a moose and A.M., handcuffed and shackled, was thrown towards the front of the van, suffering physical and psychological injuries. Zurich, the respondent, insures the OPP, and was obliged to respond to A.M.’s claims for accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Zurich funded various treatments for A.M. to date and denied the current treatment plans in dispute on the basis that they were not reasonable and necessary. A.M. disagreed and applied to the Tribunal.
ISSUES IN DISPUTE
2According to the Case Conference Order dated February 12, 2020, the following issues are in dispute:
i. Is the applicant entitled to receive a medical benefit in the amount of $4,229.00 for social worker treatment, recommended by Vitality Assessment Group in a treatment plan submitted February 14, 2019, and denied by the respondent on August 13, 2019?
ii. Is the applicant entitled to receive a medical benefit in the amount of $3,441.81 for psychological treatment, recommended by Katie Greenough in a treatment plan submitted March 28, 2019, and denied by the respondent on August 13, 2019?
iii. Is the applicant entitled to receive a medical benefit in the amount of $989.06 for massage therapy, recommended by Apollo Physical Therapy Centre in a treatment plan submitted March 13, 2019, and denied by the respondent on August 13, 2019?
iv. Is the applicant entitled to payments for the cost of examinations in the amount of $1,200.00 for a functional abilities evaluation (“FAE”), recommended by Apollo Physical Therapy in a treatment plan submitted May 22, 2019, and denied by the respondent on August 13, 2019?
v. Is the applicant entitled to receive a medical benefit in the amount of $3,140.20 for chiropractic treatment, recommended by Apollo Physical Therapy in a treatment plan submitted July 10, 2017, and denied by the respondent on September 7, 2017?
vi. Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,225.44 for a gym membership, recommended by Vitality Assessment Group in a treatment plan submitted March 14, 2019, and denied by the respondent on March 15, 2019?
vii. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,906.73 for home modifications and home devices, recommended by Vitality Assessment Group in a treatment plan submitted February 14, 2019, and denied by the respondent on August 13, 2019?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
result
3A.M. is not entitled to payment for any of the treatment plans in dispute as he has not met his onus to demonstrate that they are reasonable and necessary and has not complied with Zurich’s s. 33 requests.
ANALYSIS
Section 33 and A.M.’s burden
4On review of the evidence and submissions, there are several factors that handicap A.M.’s case and lead me to find that he is not entitled to any of the treatment plans in dispute.
5Section 33 of the Schedule states that an applicant shall, within 10 business days, provide any information reasonably required to assist the insurer in determining entitlement to a benefit. As Zurich submits, following the case conference in this matter, it sought certain documents be produced—the clinical notes and records of Dr. Chow, family physician, an OHIP summary, social worker records, occupational therapy records, and A.M.’s prison medical records—however, to date, these records or proof of efforts to obtain them have not been received. Where A.M. is seeking benefits for a social worker, psychological treatment, physical treatment, as well as other rehabilitative benefits, I agree with Zurich that the records requested are directly relevant and are required to assist both Zurich and the Tribunal in the determination of whether A.M. is entitled to the benefits he seeks.
6In this vein, I agree with Zurich that there is no evidence from any OHIP-funded health practitioner of the nature or severity of A.M.’s current impairments, or the reasonableness or necessity of the treatments sought. Without this objective evidence, Zurich submits that A.M. has failed to discharge his onus of proving that the treatment plans are reasonable and necessary. Furthermore, pursuant to s. 33(6), Zurich submits that A.M. is not entitled to benefits for failure to comply with the provisions of s. 33(1).
7I agree. On the evidence before the Tribunal, there is no indication that A.M. complied or attempted to comply with Zurich’s s. 33 production requests. Further, A.M. did not offer reply submissions to speak to his lack of response or to rebut Zurich’s position on same. Even if the Tribunal were able to put these deficiencies aside, more problematic for A.M. is the fact that his submissions merely restate the contents of the OCF-18s in dispute and do not provide any persuasive analysis to justify why each is reasonable and necessary as a result of the accident or how each treatment plan will specifically address his accident-related impairments.
8Without contemporaneous medical evidence to support continuing treatment—from a family doctor or objective medical professional—it is difficult for the Tribunal to find that A.M. has satisfied his burden to prove that the OCF-18s are reasonable and necessary or that the impairments he described are indeed a result of the accident on the face of the OCF-18s or reports alone. It is well-settled that when seeking entitlement to accident benefits, it is the applicant’s burden to provided persuasive analysis to prove that the benefits they are seeking are reasonable and necessary. Merely reproducing the particulars of a treatment plan without providing an analysis is insufficient. I agree with Zurich that an OCF-18 alone is not sufficient to meet the burden of proof.
Are the treatment plans reasonable and necessary?
9In any case, for completion, I do not find that A.M. has satisfied his onus to prove that any of the seven treatment plans in dispute are reasonable and necessary or incurred and follow Zurich’s submissions in their entirety.
10First, regarding the social work services, while Dr. Gerber’s Report found that A.M. would benefit from a social worker assistance, this was due to his non-accident related impairments, primarily his addiction issues, explosive personality disorder and run-ins with the law, all of which pre-date the accident. I agree that Zurich is not required to pay for treatment for impairments that did not arise as a result of the accident, and but for the accident would have existed in any event. Further, Zurich previously agreed to fund social work in good faith and in the absence of documentation evidencing that it was beneficial or why more is required as a result of the accident, I agree that it is not reasonable and necessary.
11Second, regarding the psychological counselling services for driving anxiety, according to the report of Dr. Gerber, A.M.’s only accident-related psychological impairment was driving anxiety which was so mild as to not rise to the level of a diagnosable condition. As Zurich submits, there are no OHIP records to suggest A.M. suffers from any ongoing psychological impairments and, as a result of a previous conviction for an offence, he surrendered his driver’s licence, rendering treatment for driving anxiety no longer relevant and therefore not reasonable.
12Third, where A.M. seeks payment for massage therapy, I agree with Zurich that A.M. has already undergone significant facility-based treatment where he was instructed on strengthening exercises, particularly as it relates to his right shoulder. At nearly six years post-accident, A.M. has provided no medical evidence that further conservative treatment, such as massage, will be beneficial for his accident-related impairments, which is supported by the s. 44 opinion of Dr. Khan, who found that massage therapy would not provide a solution. While I am alive to a March 9, 2020 letter from Dr. Chow (misidentified as a “report”) stating A.M. suffers from chronic pain and physiotherapy is needed, the OCF-18 in evidence recommends massage, not physiotherapy, and was prepared one year before the letter.
13Fourth, in seeking payment for the FAE, I agree with Zurich that A.M. has provided no basis in his submissions to justify a second FAE to be carried out within 12 months of the previous evaluation approved and especially so where tracking interval progress should be done through reference to the treatment records which have not been provided. Further, I agree that a FAE is not appropriate in this case as A.M. is not employed (although there is a brief notation to work as a tire salesman), nor was he employed prior to the accident and he does not qualify for income replacement benefits nor is a claim being made for same.
14Fifth, I agree with Zurich that A.M. has provided no evidence that further facility-based treatment like the chiropractic treatment sought by A.M. is warranted. In the absence of objective contemporaneous records supporting continuing treatment, I follow the opinions of Dr. Fox, Dr. Khan and A.M.’s expert, Dr. Karabatsos, that further facility-based conservative treatment will be of no benefit to A.M. for his accident-related impairments. Again, recalling the letter from Dr. Chow stating A.M. suffers from chronic pain and physiotherapy is needed, this OCF-18 in evidence recommends chiropractic treatment and was prepared two years before Dr. Chow’s letter. In any event, the report of Dr. Fox specifically questions the efficacy and relevance of chiropractic treatment as it pertains to A.M.’s accident-related impairments and in the absence of evidence and submissions to rebut his opinion, I find this OCF-18 not reasonable and necessary.
15Sixth, A.M. seeks payment for a gym membership that was denied by Zurich on the basis of the multidisciplinary assessment of Dr. Khan and Mr. Pritchett, occupational therapist, who both found the treatment plan was not reasonable and necessary because A.M. has been provided home-based exercise programs which do not require a gym to complete. I agree with Zurich that there is no evidence beyond the submitted OCF-18 that a gym membership is required, and, in any event, A.M. has not satisfied his burden to prove that it is reasonable and necessary for his accident-related impairments.
16Last, A.M. seeks payment for various home modifications and devices, including an adjustable bed and mattress, supportive pillow and ergonomic chair, plus delivery and installation. The additional notes of the OCF-18 state that the current bed does not offer adequate support, causing pain and sleep issues, but provides no greater detail. For the remainder of the items there is no evidence as to their current state. The Tribunal would have benefitted from analysis to justify how these items are reasonable and necessary for A.M.’s specific impairments or how the specific devices recommended are equipped to address same. I agree that A.M. has provided limited basis outside of the OCF-18 to justify these benefits as being reasonable and necessary as a result of the accident or how they will improve his condition or assist in his recovery, which is his burden.
CONCLUSION
17A.M. is not entitled to any of the treatment plans in dispute as he has not satisfied his burden to prove that they are reasonable and necessary or incurred as a result of his accident-related impairments.
Released: September 23, 2020
__________________________
Jesse A. Boyce
Adjudicator