Is Applicant Entitled to Treatment Plan? LAT 16-000760/AABS

May 10, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

D.V.   v Optimum                              LAT 16-000760/AABS

Entitlement to Treatment Plans: Injuries fall outside MIG; treatment plans are reasonable and necessary; IE is a paper review based on four-year-old information and not accurate; question of what is reasonable treatment changed when insurer agreed the injuries fall outside of the MIG.

Date of Decision: March 31, 2017
Heard Before: Adjudicator Cynthia Pay

Overview:

D.V. was involved in an automobile accident on December 5, 2011 and sought benefits pursuant to the SABS, but her claim for medical benefits for an occupational therapy in-home assessment and for assistive devices were denied by Optimum on the basis that her injuries were minor, and that the treatment plans were not reasonable and necessary. D.V. submitted an application for dispute resolution services to the LAT.

In its materials for this hearing, Optimum concedes that D.V.’s injuries are outside the Minor Injury Guideline.  As a result, the only issue to be determined is whether the two treatment plans are reasonable and necessary.

Issues:

1. Is D.V. entitled to payment for the cost of an examination in the amount of $1,840.48 for an in-home occupational therapy assessment?
2. Is D.V. entitled to receive a medical benefit in the amount of $430.21 for assistive devices?

Result:

1. D.V. is entitled to the two treatment plans in dispute:  an in-home occupational therapy assessment, less the cost of mileage as outlined below, and assistive devices.

The Schedule provides that Optimum shall pay for all “reasonable and necessary” expenses incurred as a result of the accident for medical benefits such as occupational therapy services or assistive devices. The Schedule provides that Optimum shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan, including any assessment necessary for that purpose.

On December 5, 2011, D.V. was riding in a car as a passenger when it was hit by an oncoming vehicle making a left-hand turn.  Her car in turn struck a third vehicle. She attended at a hospital after the accident.  Injuries/complaints resulting from the accident, noted in the records of York Central Hospital dated December 5, 2011, included pain in the neck, right arm, left breast and entire back.  X-rays ordered of the cervical, lumbar and thoracic spine found normal alignment and no fractures.

She visited her family doctor two days later and was prescribed medication for musculoskeletal pain.  Neck pain was also mentioned in the doctor’s clinical notes and records on December 7, 2011 and December 12, 2011, and neck and back pain was listed on January 31, 2012.  Injuries of neck stiffness, headaches and low back pain were listed on an OCF-3 Disability Certificate completed by her family doctor, dated December 12, 2012. Her Chiropractor listed the same complaints from 2012-2016 consistently.

The parties agree that D.V. obtained a number of chiropractic treatment sessions in 2012 and 2013, and psychotherapy treatment from 2013 to 2014.  According to Optimum, D.V. did not seek further treatment under the Schedule after completing psychotherapy in 2014 until the treatment plans under dispute were submitted in 2016.

D.V, requested an in-home occupational therapy assessment recommended by an occupational therapist, in an OCF-18 Treatment and Assessment Plan dated February 25, 2016.  Injuries listed were headache, low back pain and superficial injury of neck.  The in-home occupational therapy assessment was aimed at evaluating D.V.’s state of physical, psychosocial, and functional wellbeing. Among other findings, the OT determined that D.V. continued to experience back pain caused by the accident that affected her ability to work and attend to activities of daily living.

The plan for an in-home assessment was denied by Optimum on April 21, 2016 on the basis of an Insurer Examination.  In her report dated April 11, 2016, the OT provides the reasons for deeming the assessment not reasonable and necessary as there were no diagnostic tests revealing findings, a chiropractor noted minor injuries, the applicant’s OT did not provide an updated objective medical finding.

The Arbitrator did not prefer the IE report based on D.V.’s evidence. The IE was based on a paper review, rather than on an in-person examination.  It also relied heavily on a four-year-old chiropractic insurer’s examination report dating back to 2012. This report’s finding that D.V.’s injuries were predominantly minor has also now been undermined by the insurer’s concession that D.V.’s injuries are not predominantly minor.  

The Arbitrator found the recommendation of an in-home assessment to be reasonable and necessary.  It was based on complaints of headaches and neck and back pain, which as outlined above have been fairly consistent throughout D.V.’s medical history since the accident.  The goals of improving D.V.’s ability to function at work and at home are reasonable based on D.V.’s subjective complaints.  Further, the in-home assessment, which was based on both subjective and objective findings, concludes that D.V. does face limitations in her ability to function at work and with respect to her activities of daily living. 

As a result of the in-home occupational therapy assessment, D.V. submitted a further OCF-18 Treatment Plan dated June 21, 2016, accompanied by a letter dated July 4, 2016, requesting assistive devices recommended by her OT.  This plan requested funding for a water pillow, lumbar support and moist heat packs to assist D.V. in functioning at work and regarding indoor home maintenance.  The total amount requested was $430.21.  The request for assistive devices was denied by Optimum on August 10, 2016 on the basis of an Insurer Examination.  The Arbitrator preferred the applicant’s OT report again, for the same reasons mentioned above.

For the reasons set out above the Arbitrator found that D.V. is entitled to payment for the in-home occupational therapy assessment (less mileage charges) and assistive devices in dispute in this application.

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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.