Hoskins v. Co-operators General Insurance Company, 2023 CanLII 4455

Citation: Hoskins v. Co-operators General Insurance Company, 2023 ONLAT 20-010100/AABS

Licence Appeal Tribunal File Number: 20-010100/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:

Blayne Hoskins

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Anandi Naipaul, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on August 18, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“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 applicant submits she is entitled to four proposed treatment plans, an award under s.10 of Regulation 664 because the respondent unreasonably denied payment of the four plans, and interest.

3The respondent’s position is that the applicant has not established entitlement to the denied treatment plans, and that she is not entitled to an award or interest.

ISSUES

4The issues to be decided in this written hearing are:

I. Is the applicant entitled to $1,512.00 for chiropractic treatment recommended by Doctors of Chiropractic Services in a treatment plan/OCF-18 (“plan”) dated June 16, 2020?

II. Is the applicant entitled to $1,386.00 for chiropractic treatment recommended by Doctors of Chiropractic Services in a treatment plan/OCF-18 dated January 29, 2021?

III. Is the applicant entitled to $706.55 for occupational therapy recommended by Ross Rehabilitation in a treatment plan/OCF-18 dated August 24, 2018?

IV. Is the applicant entitled to $1,986.52 for assistive devices recommended by Ross Rehabilitation in a treatment plan/OCF-18 dated May 9, 2019?

V. Is the applicant entitled to an award under Regulation 664 due to unreasonably withheld or delayed payments?

VI. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant is entitled to the proposed treatment plans in issues I and II.

6The applicant is not entitled to occupational therapy in issue III.

7The applicant is not entitled to the assistive devices in issue IV.

8The applicant is not entitled to an award under s. 10 of Regulation 664.

9The applicant is entitled to interest for the unpaid benefits in issues I and II.

ANALYSIS

Reasonable and Necessary

10Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

11The applicant bears the onus of proving entitlement to the proposed treatment by establishing that a treatment plan is reasonable and necessary on a balance of probabilities.¹

Issues I and II: Is the applicant entitled to $1,512.00 for chiropractic treatment?

Is the applicant entitled to $1,386.00 for chiropractic treatment?

12I find that the applicant is entitled to two treatment plans for chiropractic services as this treatment is reasonable and necessary pursuant to the Schedule.

13The respondent denied two treatment plans for chiropractic treatment. One plan is dated June 16, 2020 in the amount of $1,512.00. The second plan is dated January 29, 2021 in the amount of $1,386.00. The treatment goals of both plans are pain reduction, increasing range of motion, and a return to the activities of daily living.

14In both instances, the respondent based the denial on an Insurer Examination by Dr. Chmiel, a physiatrist, dated October 5, 2020.

15Dr. Chmiel determined that the motor vehicle accident (“MVA”) related injuries are concussive symptoms, and chronic musculoskeletal neck and back pain.² There is a pre-existing head injury, but that injury is described as contributing to some of the neck pain. Dr. Chmiel opines that the severity of the pain is due to the MVA.³

16Dr. Chmiel considered chiropractic treatment to not be reasonable and necessary because the results are temporary and would not help the applicant with long term progress. Dr. Chmiel further notes that the applicant has achieved maximum physical recovery given the passage of time, lack of deficits during the examination, and because the applicant is a high functioning person who returned to work and is independent with the activities of daily living.⁴

17Dr. Chmiel concludes by stating that the applicant would benefit most from stretching, strengthening exercises, and a gradual introduction of athletic activity.⁵

18The applicant submits that chiropractic treatment is reasonable and necessary because it provides temporary pain relief that restores the applicant’s ability to function. The applicant further submits that pain management itself is a reasonable goal for addressing accident-related impairments.

19The respondent submits that the applicant already had chiropractic treatment without a noticeable improvement to her soft tissue injuries. Further treatment is not reasonable and necessary.

20I find that the temporary pain relief resulting from chiropractic treatment is a reasonable and necessary expense under s.15 of the Schedule.

21The applicant provided caselaw which shows that temporary pain relief is a reasonable medical and rehabilitative goal.⁶

22The applicant also provided case law which shows that pain management to maintain a level of functioning may be viewed as being reasonable and necessary treatment.⁷

23Dr. Kelly Misener, a chiropractor, provided a letter confirming that chiropractic treatment provides temporary pain relief and helps the applicant maintain a full level of functioning.⁸

24The IE assessor, Dr. Chmiel, accepted that chiropractic treatment provided temporary pain relief that increased the applicant’s functional abilities to a baseline level.⁹

25Dr. Chmiel did not view short term pain relief and a temporary increase in the level of functional abilities as a reasonable and necessary rehabilitative goal. This also is evident in the Addendum she wrote about two months after her IE report:

It appears that the intervention is temporary and is not impacting long term pain recovery or function. I am not disputing the Claimant’s opinion that the treatment is “worth it.” However, it is my medical opinion that the intervention does not appear to be moving her forward overall with regards to recovery from soft tissue injury. There is a lack of strong level I evidence published to date for the necessity of Chiropractic intervention in the long-term treatment and recovery from chronic back and neck pain. The recommendation in our field Physiatry is self directed stretches exercises and overall movement that will have best long-term effects. Facility based treatments are rarely recommended long term for soft tissue injuries. Hence my overall recommendations in the report.¹⁰

26There is no dispute among the parties that chiropractic treatment gives short term pain relief and maintains the applicant’s level of function. The cases provided by the applicant show that short term pain relief and maintaining function, on their own, are reasonable medical and rehabilitative goals.

27The respondent did not provide caselaw or submissions to dispute the reasonableness of these rehabilitative goals.

28As such, I find that the temporary pain relief resulting from chiropractic treatment is a reasonable medical and rehabilitative goal. Moreover, in my view, the cost of the two treatment plans is also reasonable.

29Accordingly, I find that the applicant has established, on a balance of probabilities, that the chiropractic treatment in these two plans is reasonable and necessary. Therefore, she is entitled to this treatment.

Issue III: Is the applicant entitled to $706.55 for occupational therapy recommended by Ross Rehabilitation in a treatment plan dated August 24, 2018?

30I find that the tribunal does not have the jurisdiction to consider this treatment plan because the plan was withdrawn by the applicant. In the alternative, I find that applicant is not entitled to $706.55 for occupational therapy.

31The applicant submitted a treatment plan dated August 24, 2018 by Celina Grande, an occupational therapist (“OT”) with Ross Rehabilitation, for $8,725.68 for assistive devices, a double mattress, planning, therapy, documentation, travel time, and milage.¹¹

32The insurer denied this treatment plan on September 13, 2018 and stated that it had arranged for an IE.¹²

33Ross Rehabilitation, on behalf of the applicant and her counsel, advised the respondent on April 15, 2019 that the OCF-18 for $8,725.68 was withdrawn.¹³

34The applicant states that the invoice for $706.55, subsequently submitted to the insurer, was for three sessions of occupational therapy that were incurred before the treatment plan was withdrawn.¹⁴

35The applicant submits that this occupational therapy is a reasonable and necessary expense that was incurred by the applicant. This is established by the insurer’s own actions as they did subsequently approve occupational therapy on a different treatment plan on 12 June 2019.¹⁵

36The respondent submits that the applicant received occupational therapy under the subsequently approved treatment plan. Additional occupational therapy is not a reasonable and necessary expense. Moreover, it is unfair to consider this issue because the respondent lost their opportunity to conduct an IE after the applicant withdrew their treatment plan.

37In my view, the processing of this treatment plan ended when the applicant withdrew the treatment plan. Any subsequent denials that flow from it are moot. Insurers have no obligation to adjust withdrawn treatment plans. This is unlike the typical circumstance where insurers continue to adjust denied treatment plans when new information is received.

38Under sections 280(1) and 280(2) of the Insurance Act, the Tribunal has jurisdiction when there is a dispute between an insured and an insurer. There can be no dispute regarding treatment without a treatment plan. For this reason, I find that I do not have jurisdiction to consider the denial of the withdrawn treatment plan.

39If I am wrong and I do have jurisdiction to consider the applicant’s entitlement to occupational, then I find that the applicant has not established, on a balance of probabilities, that the treatment plan is reasonable and necessary.

40The applicant submits that the invoice for $706.55 is for three occupational therapy sessions.¹⁶ The applicant also submits that these sessions were received sometime between the date of the treatment plan, August 24, 2018, and the date of the withdrawal, April 15, 2019.¹⁷

41The applicant provided clinical notes and records, and an invoice from Ross Rehabilitation to show that the three occupational therapy sessions under the withdrawn treatment plan were incurred.

42The clinical notes and records from Ross Rehabilitation contain four pages of notes from the applicable time period between August 2018 and April 2019.¹⁸ These notes were taken between September 4, 2018 and November 5, 2018. Some of the notes are illegible. The notes that are legible do not record any occupational therapy sessions taking place. Likewise, the invoice from Ross Rehabilitation lists various charges but none are for occupational therapy sessions.¹⁹

43The clinical notes and records, and the invoice are consistent with the information provided by the applicant at an insurer’s examination that took place on August 12, 2019. The applicant advised Mr. Nicholas Livadas, an occupational therapist, that she had not received occupational therapy treatment.²⁰

44There is no evidence to show that the applicant incurred three occupational therapy sessions under the withdrawn treatment plan. Consequently, I find that the applicant did not incur the three occupational therapy sessions and is not entitled this benefit.

Issue IV: Is the applicant entitled to $1,986.52 for assistive devices recommended by Ross Rehabilitation in a treatment plan dated May 9, 2019?

45I find that the Is the applicant is not entitled to $1,986.52 for assistive devices recommended in a treatment plan dated May 9, 2019, as these devices are not reasonable and necessary pursuant to the Schedule.

46The total cost of the treatment plan is $3,889.01. Of this amount, $1,902.49 was approved. The remaining $1,986.52 is for two assistive devices: noise cancelling headphones, and a cell phone.

47The denial was based on an IE report dated August 13, 2019 by Mr. Livadas, an occupational therapist. This report states that the applicant acquired noise cancelling headphones in November 2018.²¹ This was six months before she submitted her treatment plan.

48Under s.38(2) of the Schedule, insurers are not liable to pay benefits incurred before the insured person submits a treatment plan, subject to certain exceptions and none of which apply here. This statutory bar has not been addressed by the applicant despite it being raised in the respondent’s submissions.

49As such, I find that s.38(2) of the Schedule applies. Accordingly, the applicant is not entitled to noise cancelling headphones.

50With regard to the cell phone, the treatment plan states that the applicant requires a cell phone with a larger screen to relieve eyestrain. The applicant associates eye strain with headaches. The recommended iPhone 10 would also assist the applicant with organizational tasks that are part of the activities of daily living and would also be a “cognitive compensatory tool” for her rehabilitation.²²

51The IE report states that a cellphone with a larger screen would not have a material impact on the applicant because eyestrain can be relieved with the applicant’s current iPhone 6S by increasing the font size, using zoom features, and adjusting the distance the device is held from the eyes.²³

52The respondent raised this point in their submissions. They submit that the applicant’s current iPhone can be used without causing eyestrain. The applicant did not address this point in her submissions.

53It is up to the applicant to explain why replacing her cell phone is a reasonable and necessary expense under the Schedule. If using her current cell phone in the manner suggested by the IE assessor is not a workable solution, then the applicant needs to provide an adequate explanation to meet her onus.

54If the iPhone 10 is better able to assist her with accident-related cognitive deficits, then this too needs to be explained. Instead, the applicant has been silent on these critical points.

55Consequently, I find that the applicant has not established, on a balance of probabilities, their entitlement to $1,986.52 for the assistive devices recommended in the May 9, 2019 treatment plan are reasonable and necessary pursuant to the Schedule.

Issue V: Is the applicant entitled to an award under Reg. 664 due to unreasonably withheld or delayed payments?

56I find that the applicant is not entitled to an award under s. 10 of Regulation 664.

57Under s.10 of Regulation 664, a lump sum may be awarded to the applicant if the tribunal finds that the insurer unreasonably withheld or delayed the payment of benefits.

58The caselaw characterizes unreasonable behaviour by an insurer as being excessive, imprudent, stubborn, inflexible, unyielding or immoderate.²⁴

59The applicant submits that the respondent had medical records supporting the denied treatment plans. Instead, the insurer relied on the IE opinions. In doing so, the respondent adversely impacted the applicant’s recovery.

60The respondent submits that their denials were supported by the opinions of s.44 assessors. The evidence-based denials cannot be viewed as unreasonable. Moreover, its conduct cannot be viewed as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

61The applicant is entitled to two denied treatment plans. I considered the respondent’s actions with regard to these two denials and find that their conduct is not unreasonable.

62The insurer determined that the short-term pain relief offered by chiropractic treatment is not a reasonable and necessary expense. This determination was based on the opinion of their IE assessor who is a medical doctor and specialist in her field. In my view this was an error.

63However, this error cannot be characterized as excessive, imprudent, stubborn, inflexible, unyielding or immoderate. If the insurer’s conduct does not meet this threshold, then their conduct cannot be found to be unreasonable for the purposes of an award under Reg. 664.

64Consequently, I find that the respondent is not liable to pay an award.

Issue VI: Is the Applicant entitled to interest on any overdue payment of benefits?

65The applicant is entitled to two treatment plans for chiropractic services. Accordingly, I find that the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51 of the Schedule.

ORDER

66For the reasons stated above, the tribunal finds:

i. The applicant is entitled to entitled to $1,512.00 for chiropractic treatment in a treatment plan/OCF-18 (plan) dated June 16, 2020.

ii. The applicant is entitled to $1,386.00 for chiropractic treatment in a treatment plan dated January 29, 2021.

iii. The applicant is not entitled to $706.55 for occupational therapy in a treatment plan dated August 24, 2018.

iv. The applicant is not entitled to $1,986.52 for assistive devices in a treatment plan dated May 9, 2019.

v. The applicant is not entitled to an award under Regulation 664 due to unreasonably withheld or delayed payments.

vi. The Applicant is entitled to interest on the overdue payment of benefits.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
2. 2Applicant’s brief, p. 351.
3. 3ibid, p. 352.
4. 4ibid.
5. 5ibid.
6. 6Porter v. Aviva General Insurance, 2021 ONLAT 20-001157/AABS, and Rabino v. Aviva Insurance Company, 2021 ONLAT 20-003169/AABS.
7. 716-001418 v. Aviva Insurance Canada, 2017 ONLAT 16-001418/AABS, and Kim v. Pembridge Insurance Company, 2021 ONLAT 20-005180/AABS.
8. 8Applicant’s Brief, p.339.
9. 9Respondent’s Brief, Part 2, p. 283.
10. 10Ibid.
11. 11Applicant’s Brief, p.397.
12. 12Respondent’s Brief, Part 2, p.293.
13. 13ibid, p.298.
14. 14ibid. p.299.
15. 15Letter from the insurer dated June10, 2019, Applicant’s Brief p.441.
16. 16Applicant’s submissions, para 27-29.
17. 17Applicant’s Reply, para 9.
18. 18Applicant’s Brief, p. 96 to 99
19. 19Applicant’s Brief, p. 426-428.
20. 20Applicant’s Brief, p. 450.
21. 21Applicant’s Brief, p. 457.
22. 22Applicant’s Brief, p. 439.
23. 23Respondent’s Brief, Part 1, p. 55.
24. 24Plowright v. Wellington Insurance Company, 1993 ONICDRG 66