Licence Appeal Tribunal File Number: 22-004879/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:
Stephen Klein
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Sylvia Guirguis, Counsel
For the Respondent:
Jonathon Kahane-Rapport, Counsel
HEARD:
By written submissions
OVERVIEW
1Stephen Klein, the applicant, was involved in an automobile accident on May 31, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Co-Operators Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2,289.08 ($4,568.16 less $2,289.08 approved) for medications, submitted on a claim form (OCF-6) dated April 24, 2020?
ii. Is the applicant entitled to $17,489.70 ($34,979.40 less $17,489.70 approved) for medications, submitted on a claim form (OCF-6) dated May 1, 2020?
iii. Is the applicant entitled to $4,192.73 ($8,385.45 less $4,192.73 approved) for medication, submitted on a claim form (OCF-6) dated September 24, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The case conference order set out issue iii as follows:
Is the applicant entitled to $18,138.77 ($22,331.50 less $4,192.73 approved) for medications, submitted on a claim form (OCF-6) dated September 24, 2020?
4In submissions, the applicant withdrew the claim for $5,560.60 in non-medication expenses and restates issue iii as indicated above.
5I note that the OCF-6 for issue iii lists $13,946.05 for medication and wipes and $8,385.45 for medication. The total amount claimed is $22,331.50.
6The invoice from Whole Health Pharmacy Cooksville dated September 23, 2020 is attached to this OCF-6. It lists $5,560.60 in non-medication expenses and $8,385.45 in prescriptions totalling $13,946.05. Based on this invoice, it appears that the OCF-6 listed the $8,385.45 in prescriptions twice in error to claim the total amount of $22,331.50.
7In light of this error, issue iii is set out in the manner described by the applicant in his submissions.
RESULT
8The applicant is not entitled to the disputed amounts of the OFC-6s.
ANALYSIS
Expense claims (OCF-6)
9Under section 15(1) of the Schedule, an insurer is liable to pay for all reasonable and necessary expenses incurred by the insured person as a result of the accident. Under s. 15(1)(c), this includes medication.
10The applicant relies on 17-006850 v. Royal Sun Alliance Insurance, 2018 CanLII 132555 (ON LAT) where the Tribunal found that insurers must pay for prescription medication if the accident caused an impairment that necessitates the prescribed medication, the medication is reasonable and necessary, and a regulated health professional issued the prescription. He submits that the accident caused impairments that necessitate medication. This includes medication to treat depression, anxiety, sleep disturbance, pain, poor hygiene, and drug dependency. He also notes that all the medications in the Expense Claim Forms (OCF-6s) were prescribed by regulated health professionals.
11The OCF-6s include medications that were prescribed before the accident. The applicant concedes that he is not entitled to the medications he was already using pre-accident. Consequently, he asserts that he is entitled to certain portions of the unpaid prescription medications in the OCF-6s.
12The respondent paid 50% of the prescriptions in the OCF-6s. It submits these payments were made in good faith, despite the applicant not providing fulsome medical documentation to support the amounts claimed. According to the respondent, the applicant is not entitled to any further payment.
OCF-6 dated April 24, 2020
13This OCF-6 claims $4,568.16 for prescription medication. The attached invoice from Whole Health Pharmacy lists the following medications:
Propecia, Apo-Prazo, Neurontin, Sublinox, Pariet, Chlorthalidone, Melatonin, Lamisil Cream, Stieprox Shampoo, D-Forte, Crestor
14The applicant is not claiming Crestor, Pariet, and Propecia. The amount charged for these medications is $1,124.30. The remaining amount in dispute is $3,443.86.
15The respondent approved $2,284.08. The respondent does not identify any specific medications that it agreed were reasonable and necessary as a result of the accident. Instead, it decided to simply pay half of the original amount on the OCF-6 on the ground that this amount likely covers medication that the applicant requires as a result of the accident. The remaining amount in dispute is $1,159.78.
16The applicant submits that he is entitled to any new medication that was prescribed post-accident. This infers that any new medication prescribed post-accident must be as a result of the accident. I disagree. It is up to the applicant to cite evidence and make submissions to establish that any new medications were prescribed as a result of the accident.
17The applicant submits that Dr. Asifa Bawangoanwala, his family doctor, prescribed Neurontin to treat facial pain on July 17, 2018. He makes no further submissions on this medication.
18The respondent submits that there is no evidence Neurontin was prescribed as a result of the motor vehicle accident.
19I note that the applicant’s face was bruised as a result of the accident. Even so, the applicant has not established that this injury caused him to experience facial pain four years after the accident. For this reason, I find that he is not entitled to Neurontin.
20The applicant submits that the clinical notes Dr. Bawangoanwala from November 5, 2014 documents that he reported sleeping better with Sublinox. The only other submissions that he makes on this medication relate to increasing his use of Sublinox to 70 tablets per week. As a result, on March 26, 2018, he was admitted to the Centre for Addiction and Mental Health (“CAMH”) Medical Withdrawal Service for detoxification from Sublinox and Ativan.
21The respondent submits that this medication was used to treat the applicant’s insomnia before the accident. It is not reasonable or necessary as a result of the accident. It also submits that there is no evidence this medication was prescribed as a result of the accident.
22The applicant cites his positive report of using Sublinox in 2014 and his subsequent abuse this drug and entry into a detoxification program. He continued to use this drug in 2020, but there is not enough evidence here to establish that his use of Sublinox is linked to the accident. Consequently, I find that he is not entitled to Sublinox.
23The applicant submits that on December 19, 2019 Dr. Bawangoanwala diagnosed him with tinea cruris caused by fungal infection and was prescribed Lamisil cream for the affected areas. He makes no further submissions on this medication.
24The respondent submits that this medication is used to treat a variety of fungal skin infections and is unrelated to any injury sustained in the motor vehicle accident.
25I agree with the respondent. The applicant has not explained how the use of Lamisil cream is related to the 2014 accident. Consequently, I find that he is not entitled to Lamisil cream.
26The applicant makes no submissions for the remaining medications listed in this OCF-6. Consequently, he has provided me with no basis to find that these other medications are reasonable and necessary.
27For all these reasons, I find that the applicant is not entitled to the disputed amount on the OCF-6 dated April 24, 2020.
OCF-6 dated May 1, 2020
28The OCF-6 claims $34,979.40 for prescriptions. The attached invoices list the following medications:
Codeine, Ativan, Pariet, Atarax, Lectopam, Sublinox, Tramacet, Propecia, Teva-Clonidine, ML Xylocaine, Peridex, Crestor, Imovane, Norvasc, Rivotril, Neurontin, Sandoz-Rabeprazole, Vimovo, Prevacid, Cortifoam, Pharixia, Adalat, Hydroval Cream, Micardis, Chlorthalidone, Suboxone, Proctosedyl Ointment, Prazo, Peridex, Fucidin Cream, Acetaminophen, Senokot, Benzydamine, Hydrocodone, Sandox-Bupropion, Koffex, Teva-Prazosin, Melatonin, Lamisil Cream
29The applicant is not claiming Norvasc, Crestor, Imovane, Pariet, Propecia, Ativan, Hydroval and Fucidin cream. The amount charged for these medications is $6,213.59. The remaining amount is $28,765.81.
30The respondent approved $17,489.70, half of the original amount claimed on the OCF-6 without identifying which medications are reasonable and necessary. Similar to the previous OCF-6, the respondent estimates that this amount likely covers medication that the applicant requires as a result of the accident. The remaining amount in dispute is $11,276.11.
31The applicant submits that his family doctor prescribed Codeine and Tramacet for breakthrough pain on March 17, 2018. He makes no further submissions on this medication.
32The respondent submits that these medications were prescribed almost four years post-accident. It further submits that there is no evidence that they were prescribed as a result of injuries sustained in the accident.
33The clinical notes of Dr. Bawangoanwala from March 17, 2018 document the applicant’s breakthrough pain, but offer no opinion on what caused the pain. As such, this evidence does not establish a connection between this medication and the accident. For this reason, I find that the applicant is not entitled to Codeine and Tramacet.
34The applicant submits that on September 22, 2018, Dr. Bawangoanwala determined that he was abusing the Tramacet and Codiene. She denied him an early refill, and instead, prescribed Vimovo to fill the gap before the next scheduled refill. The applicant makes no further submissions on his post-accident use of Vimovo.
35The respondent makes no submissions on Vimovo.
36The September 22, 2018 clinical notes of Dr. Bawangoanwala confirm that the applicant had run out of Tramacet and Codiene due to overuse. It appears that she prescribed Vimovo to ensure he would continue to have access to pain medication. These clinical notes are the only evidence cited by applicant regarding Vimovo and no reference is made to the accident. As such, the applicant has not established an evidentiary connection between the prescribing of Vimovo and the accident. For this reason, I find that he is not entitled to Vimovo.
37The applicant submits that he was admitted to the Centre for Addiction and Mental Health (“CAMH”) on March 26, 2018 for detoxification from sedating medication and opioid rotation to Suboxone. He notes at that time he was using 80 Ativan and up to 70 Tylenol #3 per week, and had escalated his use of Sublinox to up to 70 tablets per week. The applicant also notes that he was diagnosed by general practitioner Dr. Di Paola with opioid use disorder and a sedative, hypnotic, or anxiolytic use disorder. In short, his drug dependency required him to rotate to Suboxone.
38The respondent submits that the applicant was addicted to pain medications prior to the accident and Suboxone was used to reduce his addiction to medications. The respondent also notes that attempts were made by his physicians to wean him from pain medications before and after the accident. The respondent argues that there is no evidence Suboxone was prescribed as a result of the accident injuries or impairments.
39I note that the applicant’s submissions reference the admission records of CAMH at Tab 17 of his brief. The report states that his post traumatic stress disorder is secondary to the murder of his mother in 1999 and that he has trauma from the accident. The substance use history for opioids, which is the reason he was prescribed Suboxone, does not provide timeframes for when his usage escalated. I also note that the respondent has not pointed to evidence that establishes abuse of pain medications before the accident.
40There is no indication in the evidence cited by the applicant that his use of opioids escalated after the accident. Even if there was a documented increased in his consumption of pain killers post-accident, this would mean that it is possible that the accident lead to escalating drug use. The mere possibility of causation is not enough to meet the required evidentiary standard of balance of probabilities. For this reason, I find that the applicant has not established that he was prescribed Suboxone as a result of the accident. Consequently, I also find that he is not entitled to Suboxone.
41The applicant is also claiming Neurontin, Sublinox, and Lamisil cream on this OCF-6. I found that the applicant is not entitled to these medications in my assessment of the OCF-6 dated April 24, 2020.
42The applicant makes no submissions on the remaining medications listed in this claim form. Consequently, there is no basis to find that these other medications are reasonable and necessary.
43For all these reasons, I find that the applicant is not entitled to the disputed amount on the OCF-6 dated May 1, 2020.
OCF-6 dated September 24, 2020
44The OCF-6 claims $8,385.45 for prescriptions. The attached invoice lists the following medications:
Suboxone, Chlorthalidone, Neurontin, Prazo, Pariet, D-Forte, Sublinox, Peridex, Jamp-Clindamycin, Propecia, Crestor, Benzydamine, Lamsil Cream, Stieprox Shampoo
45The applicant is not claiming Crestor, Pariet, and Propecia. The amount charged for these medications is $1,450.36. The remaining amount is $6,935.09.
46The respondent approved $4,192.73, half of the original amount claimed on the OCF-6 but did not identify any medications as being reasonable and necessary. As was the case in the previous two OCF-6s, the respondent estimates that this amount likely covers medication that the applicant requires as a result of the accident. The remaining amount in dispute is $2,742.36.
47The applicant is claiming Neurontin, Sublinox, Suboxone, and Lamisil cream on this OCF-6. I found that the applicant is not entitled to these medications in my assessment of the OCF-6s dated April 24, 2020 and May 1, 2020.
48The applicant makes no submissions on the remaining medications listed in this claim form. Consequently, he has provided no basis to find that these other medications are reasonable and necessary.
49For these reasons, I find that the applicant is not entitled to the disputed amount on the OCF-6 dated September 24, 2020.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, the insurer is not liable to pay interest pursuant to s. 51(2) of the Schedule.
ORDER
51The applicant is not entitled to the disputed amounts in the OCF-6s. This application is dismissed.
Released: May 21, 2024
Harry Adamidis
Adjudicator