N.S. v. TD General Insurance Company, 2020 CanLII 80279

Citation: N.S. vs. TD General Insurance Company, 2020 ONLAT 19-002494/AABS

Released: September 17, 2020

Tribunal File Number: 19-002494/AABS

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:

N. S.

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Erin M. Murray Robert M. Durante

For the Respondent: Cody A. Moskovits

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on June 10, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical and rehabilitation benefits, and in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

a. Is the applicant entitled to a rehabilitation benefit in the amount of $4,129.25, less $1,830.57 approved by the respondent, for occupational therapy services recommended by Susan Cook in a treatment plan (OCF-18) submitted on February 24, 2017, and denied on March 9, 2017?

b. Is the applicant entitled to a rehabilitation benefit in the amount of $2,250.00 for chiropractic treatment recommended by Dr. Cheryl Watson in a treatment plan (OCF-18) submitted on June 19, 2017, and denied on December 1, 2017?

c. Is the applicant entitled to a rehabilitation benefit in the amount of $3,150.00 for optometric treatment recommended by Dr. C. Schell in a treatment plan (OCF-18) submitted on February 13, 2018, and denied on February 27, 2018?

d. Is the applicant entitled to a rehabilitation benefit in the amount of $2,593.73, less $1,995.32 approved by the respondent, for psychological treatment recommended by Dr. L. Mermigis in a treatment plan (OCF-18) submitted on October 1, 2018, and denied on October 10, 2018?

e. Is the applicant entitled to a rehabilitation benefit in the amount of $2,250.00 for chiropractic treatment recommended by Dr. Cheryl Watson in a treatment plan (OCF-18) submitted on November 30, 2017, and denied on December 1, 2017?

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

g. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3The occupational therapy treatment plan dated February 24, 2017 is partially reasonable and necessary as explained below, subject to the monetary limit provided by section 18 of the Schedule.

4The applicant failed to meet her onus to prove the chiropractic treatment plan dated June 19, 2017 is reasonable and necessary.

5The optometric treatment plan dated February 13, 2018 is not reasonable and necessary.

6The unapproved balance of the psychological treatment plan dated October 1, 2018 is reasonable and necessary, less the brokerage fees proposed, subject to the monetary limit provided by section 18 of the Schedule.

7The chiropractic treatment plan dated November 30, 2017 is reasonable and necessary, subject to the monetary limit provided by section 18 of the Schedule.

8Interest accrues on incurred goods and services pursuant to section 51 of the Schedule.

9The applicant withdrew issue (g), entitlement to an award, from my consideration and I therefore make no order on the issue.

BACKGROUND

10The applicant was the driver of a vehicle which was struck on the side by a vehicle driven by an impaired driver. The impact of the collision caused the applicant’s vehicle to roll over. Paramedics found the applicant secured by her seatbelt in her overturned vehicle. She sustained several injuries including, but not limited to, a fractured foot, hematoma over the left iliac crest, kidney damage, and a possible concussion or mild traumatic brain injury. Despite her injuries, the applicant was able to return to work as an elementary school teacher in September 2017, though not at full-time hours.

11The applicant engaged in numerous treatments as a result of her accident-related injuries, which the respondent funded. In fact, as of this hearing, the applicant consumed over $34,000.00 in medical benefits and has been approved for more than $14,000.00 in further treatment. Currently, she is subject to the funding limit of $50,000.00 as her injuries are not within the minor injury definition and she has not applied for a determination of catastrophic impairment.

12At issue is whether the disputed treatment and assessment plans are reasonable and necessary. The underlying issue is the interplay between the approved but unconsumed treatment, the disputed treatment and assessment plans, and the unallocated funding.

13First, I will analyse whether the disputed treatment and assessment plans are reasonable and necessary. Following this, I will address the funding limit.

ENTITLEMENT TO THE DISPUTED TREATMENT AND ASSESSMENT PLANS

14The applicant is entitled to payment for all reasonable and necessary medical and rehabilitation expenses incurred as a result of the accident, subject to the funding limit provided by section 18 of the Schedule. The onus is on the applicant to establish that the medical and rehabilitation benefits claimed are reasonable and necessary.

The Occupational Therapy Treatment Plan Dated February 24, 2017

15This treatment plan sought funding for $4,129.25 in goods and occupational therapy services. The respondent partially approved it, up to $1,839.57.

16The applicant claims entitlement to the balance of this occupational therapy treatment plan and submits it is reasonable and necessary for her to reintegrate into her home life and lead as normal work life as possible. She submits that she suffers from pain and fatigue while cleaning with regular items and relies on the occupational therapy reports of S. Cook (the “Cook OT Reports”) to show that the devices would help increase her efficiency to complete her tasks and suggests that they will assist her return to cleaning at her normal speed and without pain. Further, she submits that she suffers pain in sustained postures and implies that the chairs and other office equipment will reduce pain while completing her work tasks. Lastly, she submits that a gym membership would assist her in managing her pain and fatigue.

17The respondent relies on the insurer’s examination (“IE”) and report by occupational therapist, V. Cruise, dated April 17, 2017. It submits that the applicant’s range of motion throughout her body is within functional limits and that she is independent with her personal care and housekeeping tasks. It further submits that the applicant fails to identify which tasks she is unable to perform as a result of the accident. From the respondent’s perspective, the applicant’s capabilities are exhibited in her return to physically demanding leisure activities including ice skating, snowmobiling, and boating.

18Section 16 of the Schedule provides that the respondent is liable to pay for all reasonable and necessary expenses incurred by the applicant for the purpose of reducing or eliminating the effects of any disability resulting from the impairment.

19I find the occupational therapy treatment plan is partially reasonable and necessary. I find the previously unapproved cleaning devices, chairs, laptop stand, and foot riser are reasonable and necessary. The applicant has not met her onus to prove that the denied documentation and support services, travel and brokerage fees, and gym membership and key fob expenses are reasonable and necessary for her accident-related impairments.

20The applicant seeks devices to reduce the pain and fatigue experienced while completing household cleaning. The Cook OT Reports dated November 18, 2016, February 7, 2017, and May 18, 2018, confirm that she suffers from neck and shoulder pain which radiates into her back as well as fatigue and pain associated with certain activity and prolonged postures. I accept occupational therapist Cook’s recommendation that these items will help reduce the applicant’s pain and fatigue.

21I mostly prefer the Cook OT Reports over the Cruise IE report because the IE report places more weight on the applicant’s range of motion rather than whether she experiences pain and fatigue while participating in such activities. The Cook OT reports are compelling despite reports that the applicant has returned to some of her pre-accident leisure activities such as snowmobiling and boating. The reports identify her fatigue and pain issues and propose devices to reduce or eliminate the effects of it. The applicant’s occasional participation in physical leisure activities exhibits a certain level of functionality however, occasional participation in these activities fails to outweigh the applicant’s consistent reports of pain and fatigue from prolonged activity and postures. I agree with the assessment and conclusion in the February 7, 2017 Cook report which recommends the cleaning devices and office equipment to help reduce the applicant’s pain and fatigue when completing her household chores and office work at home and the workplace.

22The applicant provides no compelling reasons why the denied documentation and support services and travel and brokerage fees are reasonable and necessary. She implies that the brokerage fees are reasonable and necessary because of the amount of goods and services recommended. She has not met her onus and, as a result, I find the documentation and support services and travel fees are not reasonable and necessary. Likewise, the applicant provides little reason in favour of a gym membership and the associated key fob fee. She submits that it would assist her in managing her pain and fatigue but does not explain how a gym membership would help manage pain and fatigue. This exposes the deficiency in the Cook OT reports as they fail to explain how a gym membership will assist with pain relief and fatigue. The respondent submits that the gym membership and fees are not reasonable and necessary because the applicant displays strength, range of motion, and mobility within normal limits and she also participates in a physiotherapy program with prescribed at-home exercise.

The Optometric Treatment Plan Dated February 13, 2018

23The applicant claims that this treatment plan is reasonable and necessary because it aims to improve her visual skills and processing dysfunction and it aims to maximize her visual motor skills. She submits that the issue is her ability to process visual information, not her physical eye health. The respondent questions whether the applicant sustained a brain injury which would cause vision problems and highlights that she suffered from pre-accident tension and migraine headaches, and that no visual complaints were reported in the Dr. W. M. Easterbrook IE report dated July 4, 2018.

24I find on the evidence that the optometric treatment plan dated February 13, 2018 is not reasonable and necessary for the applicant’s accident-related injuries.

25The applicant was first referred to Dr. C. Schell following the OT assessment and report dated November 18, 2016 because she “struggled with some of the items on the visual screen as well as the R-BANS¹.” Dr. Schell assessed the applicant and wrote a report dated January 23, 2017. In that report, Dr. Schell diagnosed the applicant with moderate convergence insufficiency, moderate binocular dysfunction, moderate oculomotor dysfunction, moderate perceptual dysfunction, photophobic, and nearsighted and concluded that she has a severe visual skills dysfunction. Dr. Schell prescribed reading glasses designed to reduce stress at near, polarized sunglasses for photophobia and outdoor use, vision therapy consisting of in-office and at-home activities, and attention to occupational therapy, cognitive training or counselling.

26The applicant participated in 15 in-office vision therapy sessions. Following this, Dr. Schell conducted a second assessment and wrote a report dated January 17, 2018. It found that the applicant’s visual skills and processing have improved. In that report, Dr. Schell found that the applicant’s moderate impairments were now mild. Remarkably, the conclusion and recommendations in Dr. Schell’s 2018 report were nearly identical to those in the 2017 report, despite the applicant’s marked improvement and participation in prior treatment.

27I find that it is not reasonable to treat mild impairments with the same treatment recommendations for moderate impairments. The Schell reports show that the applicant made a remarkable recovery with her vision problems following the first course of treatment, yet the second report makes the same conclusions as in the first report and recommends the same treatment. By contrast, the Easterbrook IE report found no further ophthalmological treatment was necessary. Dr. Easterbrook conducted a clinical interview, assessed the applicant, and produced a report of the process and findings. The report states that the applicant reported no visual complaints but for tired eyes after prolonged screen time and had a normal eye exam.

The Psychological Treatment Plan Dated October 1, 2018

28The psychological treatment plan dated October 1, 2018 proposes twelve, 75-minute psychological counselling sessions. It also proposes brokerage fees of $149.61. The respondent approved twelve, 60-minute sessions and no brokerage fees.

29The applicant submits that 75-minute sessions are required for note-taking, a review of notes prior to session commencement, and occasionally reviewing reports from other healthcare professionals. The brokerage fees, according to a letter from Dr. Mermigis dated December 16, 2019, are in place in the event other professionals make contact to discuss the applicant’s file, which are not always used or billed.

30The respondent notes that by the time this treatment plan was prepared, the applicant was observed by Dr. Mermigis to have progressed well. It submits that 60-minute sessions are reasonable and necessary because the applicant, during the interview with Dr. C. Notarfonzo for the January 16, 2019 IE report, stated that her sessions with Dr. Mermigis normally lasted 50-60 minutes. According to Dr. Notarfonzo, the brokerage fees are not reasonable and necessary given the applicant’s treatment to-date, her improvement since the accident, and because the approved sessions are for support on an as needed basis.

31I agree with the applicant and find that 75-minute sessions are reasonable and necessary for her psychological care. I find Dr. Mermigis’ December 16, 2019 letter persuasive and agree that time ought to be allocated for note-taking after sessions and file review prior to any sessions – particularly when the session dates are irregular because they are on an as-needed basis. I find the respondent’s position on the session length unpersuasive because it fails to appreciate the note-taking and file review that Dr. Mermigis does before and after each session.

32I find the brokerage fees proposed in the treatment plan are not reasonable and necessary. Historically, as Dr. Mermigis noted in the December 16, 2019 letter, other professionals are seldomly in contact to discuss the applicant’s file. Considering this and the applicant’s notable improvement, I agree with Dr. Notarfonzo that brokerage fees are unnecessary.

The Chiropractic Treatment Plan Dated November 30, 2017

33The applicant submits that this treatment plan is reasonable and necessary to manage her chronic pain stemming from her orthopaedic injuries. The respondent submits that the treatment plan is not reasonable and necessary because the applicant’s condition will not deteriorate without this treatment and, according to the IE report of Dr. D. Lipson, physiatrist, dated February 13, 2018, chiropractic manipulation will not further augment the applicant’s recovery or prove substantially beneficial.

34I find this treatment plan is reasonable and necessary to relieve the applicant’s ongoing neck pain that can be exacerbated with certain activities and prolonged positions. Following the accident, the applicant consistently reported ongoing neck pain that radiates down her back. As noted in Dr. Lipson’s February 13, 2018 report, the applicant finds chiropractic adjustments help relieve her neck pain. Case law has concluded that pain relief, itself, can be a legitimate treatment goal,² and I am persuaded by such decisions. I find the respondent’s position, and the opinion of Dr. Lipson, uncompelling because it fails to appreciate the pain relief that the applicant experiences following chiropractic treatment. The applicant’s subjective complaints of neck pain, and her reports of pain relief from chiropractic treatment are consistent throughout her medical record. I find that the pain relief provided by chiropractic treatment is beneficial to the applicant.

The Chiropractic Treatment Plan Dated June 19, 2017

35The applicant made no submissions on this treatment plan, nor did she include it in her evidence. As a result, I find she has not met her onus to prove it is reasonable and necessary.

INCURRED

36The applicant claims entitlement to payment for the disputed treatment plans. She submits that she has incurred the treatment proposed or, in the alternative, the expenses should be deemed incurred because funding was unreasonably delayed in that she had to apply to the Tribunal in order to compel payment.

37The respondent submits that there is no proof the applicant incurred the expenses, that the outstanding approved but unconsumed treatment suggests the treatment is not necessary, and because she has yet to apply for a Determination of Catastrophic Impartment.

38Section 3(8) of the Schedule provides that the Tribunal may deem an expense incurred if it was not incurred because the respondent unreasonably withheld or delayed payment of the benefit.

39I find that no benefits were unreasonably withheld or delayed and thus decline the applicant’s request. There is no evidence to show that the respondent unreasonably denied any benefits. There is no evidence of anything unusual or peculiar with the respondent’s positions on the benefits sought. Instead, the evidence shows that the denials in question were based on the recommendations of healthcare professionals. The Schedule anticipates that parties will have disagreements over an insured’s entitlement to benefits and arranged for such disputes to be resolved through the Tribunal. Having to resolve a dispute or disputes through the Tribunal is not unreasonable nor is it cause to deem certain expenses as incurred.

THE FUNDING LIMIT ON TREATMENT

40The parties agree that the applicant is currently subject to the $50,000.00 funding limit on medical and rehabilitation benefits. At issue is whether the applicant can forgo the previously approved medical and rehabilitation benefits in favour of the benefits sought in this hearing. The applicant suggests that the approved but unconsumed benefit amounts should not be applied against the funding limit on treatment, which would enable her to claim entitlement to the benefits found to be reasonable and necessary in this hearing. The respondent disagrees and counts the approved but unconsumed benefits against the funding limit.

41I agree that the applicant is entitled to change her mind and forgo treatment that was previously approved. The respondent leads no authority, legislative or otherwise, that disentitles the applicant from forgoing approved treatment in favour of different treatment. Considering the consumer protection nature of the Schedule, I find it reasonable to conclude that if the legislation intended to dissuade such a practice it would say so. However, there is no evidence or submissions to indicate that the applicant has taken any action to conclusively forgo or withdraw the approved but unconsumed treatment plans.

42I acknowledge that the respondent has agreed to pay for about $14,000.00 in treatment fees that have yet to be consumed. The benefits that I found to be reasonable and necessary, plus these amounts that the insurer agreed to pay, total more than $50,000.00. But I have no authority to order the respondent to pay any amount above the funding limit. This creates an issue if or when the applicant seeks payment for the totality of the approved but unconsumed treatment, after receiving payment for the treatment I found to be reasonable and necessary.

43With the above in mind, I find that the respondent’s commitment to pay for treatment should be considered against the applicant’s funding limit on treatment when assessing whether further treatment is payable. Here, there is no evidence or submissions indicating that the applicant has withdrawn the approved but unconsumed treatment plans. At this time, and absent any evidence showing that the treatment plans were withdrawn, I can only order the respondent to pay a maximum of $1,433.32 in reasonable and necessary treatment. It is not my role to pick which reasonable and necessary benefits are payable over others. Instead, I will leave that to the parties to resolve on their own, with my opinion on the application of the funding limit on approved but unconsumed benefits, as provided above.

INTEREST

44Interest applies to the reasonable and necessary benefits incurred, pursuant to section 51 of the Schedule.

CONCLUSION

45Based on the totality of the evidence and submissions, I find the following.

46The occupational therapy treatment plan dated February 24, 2017 is partially reasonable and necessary, subject to the monetary limit provided by section 18 of the Schedule. The denied documentation and support services and travel and brokerage fees are not reasonable and necessary.

47The applicant made no submissions and failed to meet her onus to prove the chiropractic treatment plan dated June 19, 2017 is reasonable and necessary.

48The optometric treatment plan dated February 13, 2018 is not reasonable and necessary.

49The unapproved balance of the psychological treatment plan dated October 1, 2018 is reasonable and necessary, subject to the monetary limit provided by section 18 of the Schedule. However, the brokerage fee of $149.61 is not reasonable and necessary.

50The chiropractic treatment plan dated November 30, 2017 is reasonable and necessary, subject to the monetary limit provided by section 18 of the Schedule.

51Interest accrues on incurred goods and services pursuant to section 51 of the Schedule.

Footnotes

1. 1The November 18, 2016 occupational therapy report of S. Cook described the R-BANS as “a cognitive screening instrument.”
2. 217-007626 v Aviva Canada Inc., 2018 CanLII 95584 (ON LAT), 16-003921 v Certas Home and Auto Insurance Co., 2018 CanLII 141500 (ONLAT)