Entitlement to Benefits - Applicant and Allstate LAT 17-001523 2018 CanLII 8084

March 28, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Allstate LAT 17-001523 2018 CanLII 8084

Date of Decision: January 26, 2018
Heard Before: Adjudicator Billeh Hamud

ENTITLEMENT TO BENEFITS: does a PSW need to be employed as a PSW at the time of hire to be considered a qualified PSW; no, training as a PSW qualifies a person as a PSW; applicant must show treatments are reasonable and necessary; applicant must comply with Schedule criteria when requesting benefits;

The applicant was injured in a car accident on February 28, 2016 and sought benefits from Allstate pursuant to the Schedule. When disputes arose, the applicant applied to the LAT for arbitration.

Issues:

1. Is the applicant entitled to receive a medical benefit for services recommended:
   1. $772.00 for assistive devices, as detailed in a treatment plan dated March 29, 2016?
   2. $5,717.04 for chiropractic services, as detailed in a treatment plan dated May 11, 2016?
   3. $2,030.43 for assistive devices, as detailed in a treatment plan dated June 4, 2016?
   4. $3,817.72 for audiometric/speech language services, as detailed in a treatment plan dated July 13, 2016?
   5. $3,239.08 for chiropractic services, as detailed in a treatment plan dated October 5, 2016?
2. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month for the period March 9, 2016 to May 30, 2017, submitted on April 26, 2016?
3. Is the applicant entitled to receive a medical benefit for services recommended for the following:
   1. $3,253.04 for psychological services, as detailed in a treatment plan dated December 27, 2016?
   2. $3,253.04 for psychological services, as detailed in a treatment plan dated August 29, 2016?
4. Is the applicant entitled to payment for prescriptions and parking in the amount of $113.12 submitted on March 15, 2016?
5. Is the applicant entitled to an allowance for expenses, in the amount of $418.08 for gas and parking, which were incurred by the applicant’s husband in visiting the applicant during her treatment or recovery submitted on April 8, 2016?
6. Is the applicant entitled to interest for the overdue payment of benefits?

RESULT:

1. The applicant is entitled to outstanding attendant care benefits in the amount of $297.00 in total.
2. The applicant is entitled to a medical benefit in the outstanding amount of $200.00 for a treatment and assessment plan dated March 29, 2016.
3. The applicant is entitled to a medical benefit in the outstanding amount of $360.00 for a treatment and assessment plan dated August 29, 2016.
4. The applicant is entitled to interest on the outstanding amounts noted above in accordance with the Schedule.

An applicant is entitled to reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant or by a long term care facility. A prerequisite to entitlement is that the expense is “incurred”.

On April 26, 2016, the applicant submitted an Attendant Care Assessment Form 1 submitting that attendant care services were incurred by personal support workers. The applicant claimed that invoices were submitted to Allstate on a monthly basis. The applicant’s monthly attendant care benefit amount as $3,968.85.  The applicant also submits that Allstate did not respond within 10 days of receiving the Form 1 in accordance with the Schedule. The applicant claims Allstate responded on June 24, 2016 and also failed to specify which expenses “the insurer agrees to pay…refuses to pay” and failed to set out the “medical and any other reasons for the insurer’s decision”.

The Adjudicator disagreed and noted that Allstate responded to the applicant in the form of an explanation of benefits within the 10 day time period and that the EOB clearly explained that the maximum amount of attendant care benefits payable for non-catastrophic injuries is $3000.00 per month. Allstate further stated that it disagreed with the level of care reported on the Form 1 which claimed that the applicant sustained a fractured lower jaw but the operative report from Scarborough Grace Hospital noted that the applicant did not sustain any facial fractures. Allstate also stated that there was no medical evidence to support the assessment that the applicant does not have the ability to respond in an emergency and that the applicant requires custodial care due to changes in their behaviour. Allstate requested proof that the attendant care services were incurred. Lastly, Allstate advised the applicant that it would require an insurer examination to determine if the level of care as reported was as a result of the accident.

The Adjudicator found Allstate’s reasons to be in accordance with the Schedule since the insurer provided reasons, including medical reasons, why it disputed the Form 1 and also provided notice to the applicant that it would require the applicant to undergo a s.44 examination.

On October 3, 2016, Allstate sent an EOB to the applicant enclosing a report Allstate’s occupational therapist which found that the level of care claimed was excessive given the nature of the applicant’s injuries. It concluded that attendant care services were needed, albeit at a rate of $951.66 per month. Allstate stated that this rate would take effect as of October 10, 2016. The applicant did not contest this revised rate.

On April 3, 2017 an in-home assessment of the applicant concluded that no attendant care payments would be made beyond June 27, 2017. The applicant does not dispute any attendant care benefits beyond June 27, 2017 and there are no invoices to support any care beyond June 27, 2017. Allstate claims that the applicant failed to prove that PSWs were qualified to work and were working at the time of the accident. Allstate subsequently paid attendant care benefits once the applicant provided the required information, but denied payment for some PSWs that were not, according to Allstate, qualified to work as PSWs and working at the time of the accident.

Allstate paid the applicant $20,002.20 in outstanding attendant care benefits from March 9, 2016 to May 30, 2017. The parties disagree on whether certain PSWs were qualified to provide attendant care services in accordance with the Schedule.

The Adjudicator reviewed the qualifications of the PSWs and concluded that only one of the applicant’s PSWs were acting within the course of their employment, occupation or profession in which they would ordinarily have been engaged for remuneration but for the accident, when they provided attendant care services to the applicant. The Adjudicator also reviewed the invoices for care that were submitted by the applicant.

The Adjudicator agreed with the applicant that the Schedule does not require a service provider to be employed at the time of the accident as long as they are normally engaged in the profession through occupation, training and/or professional certification.

On the basis of the review the adjudicator found the applicant is entitled to $297.00 for the denied payment for the services of one PSW.

On a review of the evidence and the law the adjudicator determined that the applicant is entitled to the $200.00 for the completion of the OCF-18.

Treatment Plan dated May 11, 2016

In their initial submissions, the applicant did not provide any arguments with respect to this treatment plan. Nevertheless, the applicant sent a treatment plan dated May 11, 2016 to Allstate claiming various treatments and items in the amount of $5,717.04. Allstate partially approved the treatment plan in the amount of $4,204.88. Allstate denied $56.41 for travel time because the treatment claimed was received at the clinic. Allstate also denied $576.80 for transportation since the applicant did not comply with s. 3(1) of the Schedule which requires a roundtrip to the clinic to be greater than 50 kilometres to be compensable. Allstate maintains that the actual distance is less than 15 kilometres. Allstate also denied $300.00 for eyeglasses since there was no explanation given why they were required. A cervical collar was denied because it was allegedly already provided to the applicant. A hand massager was approved at $99.13 instead of $250.00 since a lower amount was available.

The applicant’s reply, for the first time, addresses his entitlement to the benefits listed in the OCF-18 and claims that Allstate failed to comply with s. 38(8) of the Schedule because a response was not provided within the 10-day period. This is troublesome since Allstate did not have an opportunity to directly respond to the applicant’s initial submissions because the applicant failed to address this issue in their initial submissions. A party cannot split its case. As a result, I have disregarded this argument since the applicant failed to address it in their initial submissions and I find Allstate is prejudiced because they were denied the right to respond to this argument.

Accordingly, the applicant has failed to establish entitlement to any of the denied benefits, since no argument was provided in their initial submissions.

The balance of the treatment plans was either not shown to be reasonable and necessary, or they were not in compliance with the Schedule. On that basis the Adjudicator denied them.

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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.