Release date: 04/15/2021
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:
Rebecca Booth
Applicant
and
CUMIS General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Frank Calcagni, Counsel
For the Respondent:
Peter Durant, Counsel
HEARD:
Via written submissions
OVERVIEW
1Rebecca Booth was injured in an automobile accident on November 26, 2014 and sought benefits from the respondent, CUMIS, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).1
2Rebecca Booth sustained injuries to her head, neck, shoulder, pelvis/hip and left hand. Rebecca Booth also sustained a mild concussion and suffers from headaches. Rebecca Booth submitted three separate treatment plans consisting of chiropractic treatment and psychological services. A treatment plan for chiropractic treatment was denied on the basis that the balance of the treatment plan (the amount for form completion) was above the amount set out in the Professional Services Fees Guideline. A second treatment plan for chiropractic treatment was denied by CUMIS on the basis that it was not reasonable and necessary. The balance of the psychological treatment plan was denied on the basis that the amount was not reasonable and necessary for documentation of progress and discharge reports. Rebecca Booth disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
3The following are the issues to be decided:
a) Is the medical benefit in the amount of $85.12 ($3,337.15, less $3,252.03 approved) for chiropractic treatment, recommended by Health Plus Rehab in a treatment plan (OCF-18) dated December 7, 2017, reasonable and necessary?
b) Is the medical benefit in the amount of $598.44 ($4,314.22, less $3,715.78 approved) for psychological services, recommended by Storrie Velkonja and Associates in an OCF-18 dated December 22, 2017, reasonable and necessary?
c) Is the medical benefit in the amount of $4,355.20 for chiropractic treatment, recommended by Health Plus Rehab in an OCF-18 dated April 2, 2018, reasonable and necessary?
d) Is Rebecca Booth entitled to interest on any overdue payment of benefits?
FINDINGS
4I find that Rebecca Booth is entitled to partial payment for the OCF-18 identified in issue c) as it is reasonable and necessary.
5I find that Rebecca Booth is not entitled to payment for the balance of the OCF-18 identified in issue a) as it is not reasonable and necessary. I find that Rebecca Booth is not entitled to payment for the balance of the OCF-18 identified in issue b) as it is not reasonable and necessary.
ANALYSIS
6As a result of the accident, Rebecca Booth submits she suffers from chronic pain, Adjustment Disorder with mixed anxiety and depressed mood and Somatic Symptom Disorder. Her physical injuries are identified consistently in the various OCF-18s as trochanteric bursitis, iliotibial band syndrome, other bursitis of knee, sprain and strain of ribs and sternum, pain in thoracic spine, disorders of vestibular function, headache, and post-concussion syndrome. The Disability Certificate (“OCF-3”) dated December 29, 2014 confirms these injuries. To date, Rebecca Booth continues to report pain in her right shoulder, neck, back and right hip, as well as vehicle anxiety.
7Under sections 14-17 of the Schedule, an insurer shall pay for all reasonable and necessary medical and rehabilitation benefits incurred by an applicant as a result of an accident. The onus to prove entitlement on a balance of probabilities remains with the applicant. In submissions, Rebecca Booth states that her accident-related injuries require ongoing physical and psychological treatment making the proposed treatment reasonable and necessary.
Medical benefit in the amount of $85.12
8I find the balance of the OCF-18 is not reasonable and necessary.
9CUMIS submits that the balance of the OCF-18 represents the amount above the $200 maximum for form completion and is therefore not payable. Rebecca Booth made no submissions on the issue and did not offer a reply to rebut CUMIS’ claim.
10Section 15(2)(b) 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.
11Under the Superintendent’s Guideline No. 3/14, it reads:
The $200 maximum fee referred to in this Guideline and in Superintendent’s Guideline No. 06/10 (July 2010 Professional Services Guideline) for a Treatment and Assessment Plan (OCF-18) applies only to the services of a health practitioner as referred to in subsection 25 (1) 3 of the SABS, namely reviewing and approving an OCF-18 under subsection 38 (3) (c), including any assessment or examination necessary for the purpose of that review and approval by the health practitioner. The $200 maximum fee does not apply to assessments or examinations that are proposed in an OCF-18 and that an insurer agrees to pay for under subsection 38 (8) of the SABS.
12I am not directed to any evidence by the parties that CUMIS agree to pay for any amount above the $200 maximum pursuant to the exception noted in the Professional Services Guideline.
13I find that Rebecca Booth has not provided any evidence that the balance of the OCF-18 is payable. Consequently, Rebecca Booth is not entitled to the balance of the OCF-18.
Medical benefit in the amount of $598.44
14I find that the balance of the OCF-18 is not reasonable and necessary.
15CUMIS partially approved the OCF-18, with the balance representing a partial denial of the fee for documentation of progress and discharge reports. The total amount indicated in the OCF-18 for progress documentation and discharge reports was $897.66 (6 hours at $149.61 per hour). CUMIS approved $299.22 which represents two hours for documentation.
16Rebecca Booth submits that “given the period of time over which the sessions would be conducted, it is reasonable to expect that a progress report would be in order.” Despite her position that at the conclusion of the OCF-18, a further discharge report would follow, there is no evidence to support that the balance of the OCF-18 is reasonable and necessary. On reply, Rebecca Booth is silent on the issue.
17CUMIS submits that Rebecca Booth has failed to establish that the balance of the OCF-18 is reasonable and necessary. I agree. Rebecca Booth has not provided any argument or analysis as to why six hours of report writing for the proposed 16 sessions of psychological counselling is reasonable and necessary. There is no evidence in support of the OCF-18 that the fee is reasonable and necessary. Lastly, there is no evidence that the balance of the OCF-18, which does not include funding for treatment, is reasonable and necessary from a rehabilitative standpoint.
18Rebecca Booth has failed to satisfy her burden on a balance of probabilities to establish that the balance of the OCF-18 is reasonable and necessary.
Medical benefit in the amount of $4,355.20
19I find that Rebecca Booth is entitled to partial payment for the OCF-18 as it is reasonable and necessary.
20Rebecca Booth relies on the report of physiatrist Dr. Kumbhare, dated April 9, 2019, in support of her claim of entitlement to the OCF-18. In his report, Dr. Kumbhare attributes Rebecca Booth’s pain complaints to the subject accident, and identifies her impairments as physical and functional limitations, chronic pain, psychological distress and deconditioning. Rebecca Booth received chiropractic treatment from Health Plus Rehabilitation in August 2017 and found the treatment helpful. At the time of the report, Rebecca Booth noted to receive chiropractic care on an “as needed basis”, approximately once per month.
21Regarding her pain complaints, Rebecca Booth reported the following to Dr. Kumbhare, all of which were post-accident symptomatology: right scapular pain, right sacroiliac joint region pain and right hip pain. Although Rebecca Booth did report emotional, cognitive and psychological impairments, for the purposes of addressing the disputed OCF-18, I will focus on her physical pain complaints.
22On examination, Dr. Kumbhare noted that Rebecca Booth had full range of motion of the shoulders bilaterally. She also had full range of motion of the lumbar spine and hips bilaterally. Dr. Kumbhare did note tenderness in the areas of examination. As a result of his examination, Dr. Kumbhare diagnosed Rebecca Booth with post-traumatic headaches (these have subsided with time), cervical strain WAD II, healed left hand laceration, healed bilateral knee contusion, right hip contusion, right shoulder strain, lumbar strain and improved moderate uncompensated left peripheral vestibulopathy. Dr. Kumbhare opined that Rebecca Booth continues to experience pain in the areas (right scapular region, right sacroiliac joint and right hip) injured in the accident. Dr. Kumbhare recommended physiotherapy, a gym program and pool exercise.
23CUMIS relied on the August 15, 2019 report of its s. 44 assessor, physiatrist Dr. Stacey. At the time of the assessment, Rebecca Booth reported to Dr. Stacey that she presently attends physiotherapy and reports a 50% improvement. Rebecca Booth noted the same areas of pain to Dr. Stacey, being her neck, right shoulder and right hip. Dr. Stacey opined that as a result of the accident, Rebecca Booth suffered a cervical spine sprain/strain WAD II with continued symptoms, right hip sprain/strain with continued symptoms, thoracic spine sprain/strain with intermittent symptoms and right side sacroiliac joint pain. I note that Dr. Stacey identifies similar pain complaints to those noted by Dr. Kumbhare. Despite this, CUMIS posits that Rebecca Booth has not established that the OCF-18 is reasonable and necessary.
24CUMIS points to the recommendation for orthotics, noting that besides the OCF-18, there is no evidence to support funding for orthotics. I agree. There is no such recommendation from either family physician that Rebecca Booth sought post-accident treatment from. Further, aside from the OCF-18, I am not directed to any other evidence that supports the claim for orthotics. A treatment plan without any other objective medical evidence will not establish that the recommended treatment is reasonable and necessary. Contemporaneous evidence, self-reporting by an insured, is helpful in the consideration of whether treatment should be considered reasonable and necessary. Rebecca Booth fails to point me to any such evidence, therefore, she has not met her burden to establish that the recommendation for orthotics is reasonable and necessary. Despite this, I must still consider the remainder of the treatment recommended in the OCF-18.
25Rebecca Booth has reported ongoing pain symptoms to her treating family physicians, her s. 25 assessor, Dr. Kumbhare and Dr. Stacey. The evidence supports the consistency of the pain symptomatology noted by the treatment providers and medical experts which indicates that she continues to experience post-accident pain. I note she reports a 50% improvement as a result of similar treatment received to date.
26It is well-settled that pain relief is a legitimate goal of treatment, and in many cases will satisfy the test that the treatment sought is reasonable and necessary. Rebecca Booth reported to Dr. Kumbhare and Dr. Stacey that her treatment has provided her with pain relief. She also noted that the pain is intermittent on occasion, that she has been able to return to some of her pre-accident activities and employment (as a part-time massage therapist), which is an indication that the treatment is achieving the goals indicated in the OCF-18: of pain reduction, increased range of motion and a return to activities of normal living.
27On the evidence, I agree with Rebecca Booth’s claim that the following portions of the OCF-18 are reasonable and necessary:
a) Form completion in the amount of $200;
b) Chiropractic treatment in the amount of $1,805.12;
c) Massage therapy in the amount of $931.04;
d) Physiotherapy in the amount of $798.00; and
e) Vestibular Rehab Exercises and Education.
28I find, on a balance of probabilities, that Rebecca Booth is entitled to payment for the portions of the OCF-18 indicated above as it is reasonable and necessary.
Interest
29Having determined that a portion of the benefits claimed are payable, it follows that Rebecca Booth is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
CONCLUSION
30Rebecca Booth is entitled to partial payment of the OCF-18 identified in issue c), being: a) Form completion in the amount of $200; b) Chiropractic treatment in the amount of $1,805.12; c) Massage therapy in the amount of $931.04; d) Physiotherapy in the amount of $798.00; and e) Vestibular Rehab Exercises and Education, as it is reasonable and necessary. Interest applies on the overdue payment of benefits, pursuant to s. 51.
31Rebecca Booth is not entitled to the remaining OCF-18s in dispute as they are not reasonable and necessary.
Released: April 15, 2021
Derek Grant, Adjudicator