Applicant's OT Assessment Fails to Meet LAT Requirements - B.S. vs. The Co-operators General Insurance Company, 2019 CanLII 110078 (ON LAT)

December 06, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

B.S. vs. The Co-operators General Insurance Company, 2019 CanLII 110078 (ON LAT)

DATE OF DECISION: November 30, 2019
HEARD BEFORE: Adjudicator Brian Norris

LAT RULES: applicant's OT report fails to meet requirements set out in LAT Rules of practice 10(2); OT opines outside scope of practice; OT disparages insurer; applicant fails to make case for injuries

B.S. was injured in a car accident on April 12, 2016. When Co-operators denied to pay SABs B.S. appealed to the LAT for resolution.

B.S. was driving a vehicle that was struck on the passenger side while turning left. The ambulance came to the accident scene, but B.S. did not go to the hospital. B.S. went to a walk in clinic later in the day and was prescribed medication for pain and massage therapy. About 10 days later B.S. attended the family doctor and x-rays were ordered that showed nothing remarkable.

Physiotherapy provided treatment for some soft tissue injuries. B.S. was subsequently removed from the MIG due to psychological injuries and Co-operators funded initial treatment. Eventually treatment was denied for further physio treatments as an IE showed they were not reasonable and necessary.

Issues:

The disputed claims in this hearing are:

1. Is B.S. entitled to receive medical benefits proposed by Brampton Civic Care Centre Inc. as follows;
   1. $3,087.92 for a physiotherapy treatment plan dated September 17, 2016;
   2. $2,754.08 for a physiotherapy treatment plan dated March 20, 2017;
   3. $2,754.08 for a physiotherapy treatment plan dated July 20, 2017; and
   4. $2,153.84 for a physiotherapy treatment plan dated April 5, 2018?
2. Is B.S. entitled to receive payment for the cost of examinations in the amount of $2,295.33, less $1,995.33 approved by the respondent, for a psychological assessment recommended in a treatment plan dated September 13, 2016?
3. Is B.S. entitled to receive payment for the cost of examinations for assessments recommended by Ontario Independent Assessment Centre Inc. as follows;
   1. $1,297.26 for an in-home assessment recommended in a treatment plan dated December 17, 2016;
   2. $2,198.00 for an orthopedic assessment, recommended in a treatment plan dated January 6, 2017;
   3. $2,198.00 for a chronic pain assessment recommended in a treatment plan dated January 12, 2017?
   4. $1,300.00 for an assessment of attendant care needs recommended in a treatment plan dated February 22, 2017;
   5. $1,850.00 for a cognitive assessment recommended in a treatment plan dated June 7, 2017;
   6. $1,966.13 for a driving evaluation assessment recommended in a treatment plan dated September 15, 2017;
   7. $2,000.00 for a neurological assessment recommended in a treatment plan dated September 7, 2017?
4. Is B.S. entitled to receive interest on the overdue payments?
    

RESULT:

The applicant is not entitled to any of the benefits claimed

DISCUSSION:

B.S. claims entitlement to the disputed treatment plans due to extensive functional barriers and high pain levels. B.S. claims that they have not returned to their pre-accident lifestyle and submits they may have chronic pain syndrome.

Co-operators claim that the injuries are minor psychological ones and musculoskeletal ones resulting from the accident. Co-operators relies on the opinions in several IEs to support their position.

Upon review of the medical evidence the Adjudicator noted that B.S.’s OT report did not include a physical, or an in person assessment. On that basis it failed to comply with section 10(2) of the LAT Rules of Practice and Procedure.The expert conducting the OT was unprofessional and disparaging in their report.

The expert was not objective based on the following paragraph in the report which falls outside the assessor’s scope of practice:

It should be noted that the SABS are supposedly in place to assist clients in their recovery. Unfortunately, in this case, the adjuster appears to prefer to spend money on multiple assessments rather than on treatment and support for the client. The cost of these assessment could have covered much of her therapy and it is unfortunate that the adjuster did not choose to spend this money providing support for the client which would have assisted in (the applicant’s) recovery.

The Adjudicator indicated that: “Specifically, the assessor failed to fulfill the duty of providing opinion evidence that is within the expertise of occupational therapy, fair, objective and non-partisan.”

Considering the totality of the evidence the Adjudicator found the applicant is not entitled to any of the disputed treatment and assessment plans or interest.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.