Licence Appeal Tribunal File Number: 22-004657/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:
Jeff Berwick
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Margaret Sims
APPEARANCES:
For the Applicant:
David J Wylupek, Counsel
For the Respondent:
Daniel Hynes, Counsel
HEARD:
In Writing
BACKGROUND
1Jeff Berwick, the applicant, was involved in an automobile accident on September 24, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2As a preliminary matter, I note that the applicant has made submissions in respect of an additional treatment plan which is described as a partially denied treatment plan under which $2,260.00 was approved and $681.57 denied. The respondent did not address this issue in its submissions. I will not be addressing this claim as this issue is noted as having been resolved in the Case Conference Report and Order of February 14, 2023.
ISSUES IN DISPUTE
3The issues to be decided in the hearing are:
Is the applicant entitled to $599.75 for injections, proposed by Sarah Ruston and Dr. S. Bisland in a treatment plan/OCF-18 (“plan”) dated March 11, 2021?
Is the applicant entitled to $5,177.26 for home modifications and devices, proposed by Sarah Ruston in a plan dated June 16, 2021?
Is the applicant entitled to $50.25 ($450.00 less $399.75 approved) for a pillow, proposed by FJD Disability Management Consulting in a plan dated June 16, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is entitled to the amounts claimed in respect of the following benefits in dispute plus interest:
$599.75 for injections, proposed by Sarah Ruston and Dr. S. Bisland in a plan dated March 11, 2021; and
$5,177.26 for home modifications and devices, proposed by Sarah Ruston in a plan dated June 16, 2021.
5I find that the applicant is not entitled to $50.25 ($450.00 less $399.75 approved) for a pillow proposed in a plan dated June 16, 2021.
ANALYSIS
6I find that the treatment plans at issue are reasonable and necessary as a result of the accident:
7To be entitled to a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. In considering whether the treatment is reasonable and necessary, I have considered whether (i) the treatment goals are reasonable, (ii) the goals are being met to a reasonable degree and (iii) the overall costs of achieving the goals is reasonable.
Injections proposed in plan dated March 11, 2021
8I find that the injections, proposed by the occupational therapist Sarah Ruston, and to be administered by the orthopaedic surgeon Dr. D.S. Bisland, are reasonable and necessary treatments as a result of the accident.
9The applicant submits that the injections are a reasonable and necessary treatment for the applicant’s medical condition. In this regard, the applicant relies on:
i. The report of Dr. Burke dated October 8, 2021, in which Dr. Burke diagnoses the following injuries and disabilities related to the accident:
cervical spine whiplash-associated disorder (WAD) type II with progression to chronic neck and upper back myofascial pain;
cervicogenic headaches.
left shoulder contusion and sprain/strain injury with progression to chronic left shoulder myofascial pain;
right shoulder sprain/strain injury with progression to chronic right shoulder myofascial pain;
lumbosacral spine sprain/strain mJury with progression to chronic low back myofascial pain;
left knee contusion and sprain/strain injury with progression to chronic left knee pain.
ii. The report of Dr. Bisland dated March 11, 2021, in which Dr. Bisland opines:
"I have prescribed Neovisc single injection HA therapy for [the applicant] for the treatment of severe osteoarthritis of his left knee. The administration of Neovisc (sodium Hyaluronate 90 mg) by injection will relieve pain, improve joint mobility, and increase range of motion";
"it is a cost-effective alternative to other drug therapies"; and
"Neovisc is considered a Class 4 medical device by Health Canada".
iii. The report of Dr. Paul Bradford dated August 22, 2022 in which Dr. Bradford recommends injections to the neck, shoulder and back.
10The respondent submits that it did not approve this treatment since it did not have a written response as to why this treatment was not covered by OHIP. The respondent says that it only received written information on why this treatment is not covered by OHIP as part of the applicant’s submissions when it received Dr. Bisland’s report. The respondent submits that, while the Tribunal would be well-positioned to uphold the respondent’s denial of this treatment plan, it concedes that it now has the necessary documentation to approve this treatment plan as Dr. Bisland’s report explains the requested visco supplementation is administered with a drug that does not have a Drug Identification Number (DIN) and by implication it is a drug that cannot be covered by OHIP.
11The respondent submits that should the treatment plan be approved, no interest ought to apply to this denied treatment plan.
12I find that the injections proposed in the plan are reasonable and necessary in respect of the injuries as a result of the accident as:
i. the treatment goals of the injections to relieve pain, improve joint mobility, and increase range of motion are reasonable;
ii. the treatment will meet the goals to a reasonable degree; and
iii. the overall cost of achieving the goals of $599.75 is reasonable.
Home modifications and devices, proposed plan dated June 16, 2021
13The applicant claims for an adjustable mattress in the amount of $5,177.26.
14The applicant submits that the adjustable mattress is reasonable and necessary for his rehabilitation. With respect to the adjustable mattress, the applicant relies on:
the June 16, 2021 treatment plan of the occupational therapist Sarah Ruston which recommends the adjustable mattress and in which Ms. Ruston notes that the applicant has injuries to his lower back including a bulging disc and annular tear at L4-5 resulting in contact against the exiting right L-4 nerve, and Mr. Berwick is currently not getting the sleep he requires due to pain and discomfort which impacts his energy level, interactions with others and ability to complete his activities of daily living;
the report of Dr. Jennifer Out, psychologist dated April 21, 2022, which notes that among the claimant's current complaints is "poor sleep".
15The respondent submits that it denied the claim for an adjustable mattress on the basis of the insurer examination by occupational therapist Matt Sutherland in which Mr. Sutherland opined that the mattress was not necessary because:
the applicant suffered physical injuries that were muscular in nature and were not orthopaedic in nature; and
the applicant’s poor sleep was caused by psychological impairments and not physical impairments.
16I find that there is significant evidence that the applicant suffers from significant chronic pain as a result of his injuries to his lower back as a result of the accident, including a bulging disc and annular tear at L4-5 resulting in contact against the exiting right L-4 nerve.
17I find that the adjustable mattress proposed in the plan is reasonable and necessary in respect of the applicant’s injuries as a result of the accident as:
i. the treatment goals of pain reduction and return to activities of daily living are reasonable;
ii. based on the report of Ms. Ruston, the applicant has suffered from difficulty sleeping as a result of the injuries sustained in the accident since she began treating him following the accident, and his current mattress does not provide the support for his back injury and an adjustable frame will improve transfer in and out of bed. Ms. Ruston’s opinion is that the mattress will improve the applicant’s comfort and the quality and quantity of his sleep, and that quality sleep is essential to the applicant’s well-being, cognitive abilities and pain perception. As such, the treatment will meet the goals to a reasonable degree;
iii. the overall cost of achieving the goals of $5,177.26 is reasonable.
Pillow, proposed in plan dated June 16, 2021
18The applicant claims for the unapproved portion of $50.25 ($450.00 less $399.75 approved) for a suitable pillow.
19The applicant submits that the pillow is both reasonable and necessary based on the report of Matt Sutherland, dated November 22, 2021, obtained by the respondent, in which Mr. Sutherland notes that "[f]rom an Occupational Therapy perspective this assessor would recommend the provision of a body pillow, knee pillow and cervical pillow (approximately $300.00) and education in sleep hygiene strategies to address ongoing pain issues related to sleeping.”
20The respondent submits that it approved the cost of the pillow, but it denied $50.25 of the claim as this amount represented the denied portion of an excessive documentation fee of $150.00.
21The respondent submits that the FSCO Professional Services Guideline is incorporated by reference into the Schedule, and, where an applicant requests funding for a medical benefit that exceeds an amount payable under the Guideline, the applicant must provide arguments or explanation for why the fee exceeds the maximum expense payable under the Schedule. The respondent takes the position that the applicant has provided no such argument or explanation, and, as a result, this portion of the claim should be denied.
22I find that the additional fee of $50.25 is not reasonable in the circumstances. The applicant has not provided any arguments or explanation as to why the fee exceeds the maximum expense payable under the Schedule. As a result, I am not persuaded that the applicant is entitled to this benefit.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
24Having found that the applicant is entitled the amounts claimed in respect of the two of the treatment plans in issue, the applicant is entitled to interest, pursuant to s. 51 of the Schedule in respect of these two plans.
ORDER
25I order that the respondent shall pay the costs of the following medical benefits:
$599.75 for injections, proposed in a plan dated March 11, 2021;
$5,177.26 for an adjustable mattress proposed in a plan dated June 16, 2021; and
interest in respect of these plans in accordance with s. 51 of the Schedule.
26I find that the applicant is not entitled to $50.25 ($450.00 less $399.75 approved) for a pillow proposed in a plan dated June 16, 2021.
Released: May 15, 2024
___________________________
Margaret Sims
Adjudicator