Licence Appeal Tribunal File Number: 20-007598/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. C. (on behalf of his Litigation Guardian M.C.)
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Greg Neinstein, Counsel
For the Respondent:
Riley McIntyre, Counsel
HEARD
by way of written submissions
BACKGROUND
1The applicant was catastrophically impaired (“CAT”) in an automobile accident on November 18, 2014 and remains in a persistent vegetative state. He continues to receive benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant sought funding for occupational therapy (“OT”) and a speech-language therapy assessment but was denied the treatments proposed on the basis that they are not reasonable and necessary. The applicant applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Is the applicant entitled to the balance of a medical benefit in the amount of $4,089.83 ($5,137.58 less the partially approved amount of $1,047.75) for OT services, recommended by FunctionAbility in a treatment plan (OCF-18) dated June 19, 2018?
b. Is the applicant entitled to payment for the cost of an examination in the amount of $2,200.00 for an audiometric speech language assessment, recommended by Therapy Spot in an OCF-18 dated August 27, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the balance of the OT services, as he has demonstrated that the treatment is reasonable and necessary. Interest applies on overdue incurred amounts pursuant to s. 51.
4Via correspondence dated May 28, 2021, Economical acknowledged the addendum report of Dr. Verity John dated May 13, 2021 and confirmed that it agreed to pay $2,200.00 for the audiometric speech language assessment. Accordingly, this issue is considered resolved.
ANALYSIS
Are the treatment and assessment plans reasonable and necessary?
5There is no dispute that the applicant continues to require 24-hour care and has been provided with case management services, OT, rehab support worker assistance and physiotherapy for over seven years post-accident. Despite being CAT, to receive payment for a treatment plan under the Schedule, the applicant still bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.
$4,089.83 balance for OT services
6The OCF-18 initially proposed $5,137.58 in treatment, comprised of 16 weeks of 1.5-hour sessions to address cognition, exercises and sensory stimulation, as well as travel time for providers, documentation and liaising with the team and staff at Brampton Civic Hospital.
7On September 14, 2018, Economical notified the applicant that it partially approved the OCF-18 up to the amount of $1,047.75, relying on the report of Ms. Szilvasy, OT, who proposed that it was reasonable to approve three visits over the course of 12 weeks to allow for the transitioning of services and to provide training instruction using the Hoyer lift for bed to wheelchair transfers. Economical denied the balance based on Ms. Szilvasy’s opinion that it was not reasonable to continue with coma stimulation as the applicant had not demonstrated a significant change in his responsiveness over 3.5 years post-accident and because personal support workers can carry out the maintenance program required. The partial approval left a balance of $4,089.83.
8The applicant submits that the suggestion that OT care could be transferred to the Complex Care Unit is unrealistic. He submits he would not receive the same level of care and attention he requires which would hinder his recovery. The applicant points to his involvement in the Brain and Mind Institute study that began in February 2018 that showed “evidence of activation in regions similar to healthy volunteers” and, more recently in a letter from February 2021, that he demonstrated “a level of residual awareness that is greater than his behaviour would suggest” as evidence of the possibility for greater improvement. The applicant also points to Dr. John’s opinion—which resulted in Economical’s approval of the speech language OCF-18 previously in dispute—that it appears he had made significant recovery progress over the course of 2020.
9Further, the applicant submits that he continues to require assistance with dangling at the edge of his bed, transfers to his wheelchair, coma stimulation, family education and safety supervision but that previous treatment and support has led to tangible improvement. The applicant relies on various observations and progress reports from his providers to support that since moving to long-term care in 2019, his level of awareness has increased, he has more consistent yes/no responses, increased interaction in social activities, eye tracking, puckering of lips, a reduction in drooling, can tolerate longer sessions in his wheelchair and sometimes support himself through his upper extremities with propping. He submits that the restrictions imposed on the community care team during the pandemic slowed his progress, but that his previous improvement from OT care, combined with the observations of improvement by his providers, make the goals of the treatment plan reasonable and necessary to aid in his ongoing recovery.
10I agree with the applicant that it is clear based on the numerous reports and records in evidence that he requires ongoing rehabilitation that could potentially assist in his recovery. As the Schedule is consumer-protection legislation, I agree that it is reasonable to provide the applicant and his family with every chance possible at a better recovery. The Brain and Mind Institute’s findings that his responses are similar to a healthy subject and that his presentation may not be reflective of his actual abilities is, in my view, compelling evidence that the treatment recommended, at the relatively minor cost proposed given his CAT status, is reasonable to try to achieve the stated goals. If the applicant is to get back on track with his recovery, I agree that maximizing ongoing OT sessions with his treatment team to ameliorate his quality of life will be integral and therefore necessary.
11In my view, I agree with Economical that the goals of the OCF-18 are laudable but I also find the goals to be rather humble given the circumstances: to improve awareness, maintain range of motion to prevent development of contracture, improve tolerance for sitting at the edge of bed and in the wheelchair, to monitor pressure sores and skin conditions on the applicant’s buttocks and monitor equipment needs, establish a yes/no system through eye movements and work on swallowing. I find these goals are clearly tailored to the applicant’s specific circumstances and are eminently reasonable. On this basis, I afford more weight to the observations and recommendations of the applicant’s treatment team, who have the benefit of six years of treatment and observations, over the suggestions of Ms. Szilvasy in her report, which were based on a one-day visit and file review.
12While I am alive to Economical’s submission that the applicant has achieved little if any improvement from six years of therapy and that, given his very young age and CAT status, that maximizing the available funding to him is imperative, I disagree that the treatment proposed is speculative or ineffective. In my view, given the applicant’s youth and the observations that treatment and support was leading to improvement, it is not unreasonable to fund treatment that may lead to more improvements, however minor. While it is easy to be cynical in these circumstances, I find this is especially so where the proposed balance of $4,089.83 to achieve these potential improvements is relatively insignificant in the grand scheme of a CAT file.
13For these reasons, I find the applicant is entitled to the balance of the OT services, as he has demonstrated that the treatment is reasonable and necessary. Interest applies on overdue incurred amounts pursuant to s. 51.
ORDER
14The applicant is entitled to the balance of the OT services, as he has demonstrated that the treatment plan is reasonable and necessary. Interest applies on overdue incurred amounts pursuant to s. 51.
Released: November 16, 2021
Jesse A. Boyce
Vice-Chair