LAT has no authority to force payments beyond what is approved in treatment plan - SB State Farm LAT 17-003290

January 24, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SB v State Farm LAT 17-003290

Decision Date:   December 22, 2017
Heard Before: Adjudicator Christopher A. Ferguson

ENTITLEMENT TO OT and CAT ASSESSMENT: applicant applies for payments that exceed approved treatment plans; applicant fails to show treatment reasonable and necessary; CAT assessment is approved

SB was injured in a car accident on April 2, 2008, and sought benefits SABs and applied to the LAT when the disputed benefits were denied.  SB has been determined to be catastrophically impaired under s.40 of the Schedule.

 Issues:

1. Is SB entitled to receive a medical benefit in the amount of $197.26 in relation to a treatment plan dated April 17, 2015?
2. Is SB entitled to receive a medical benefit for occupational services in the amount of $249.38 submitted in a treatment plan dated January 24, 2016?
3. Is SB entitled to receive a medical benefit for occupational services in the amount of $199.51 submitted in relation to a treatment plan dated November 9, 2016?
4. Is SB entitled to a medical benefit for occupational services in the amount of $99.75 in a treatment plan submitted July 5, 2016?
5. Is SB entitled to receive a medical benefit for occupational services in the amount of $1,793.87 submitted in a treatment plan dated September 10, 2015?
6. Is SB entitled to receive a medical benefit for massage therapy in the amount of $2,824.92 submitted in a treatment plan dated December 21, 2015?
7. Is SB entitled to a benefit in the amount of $2,834.31 submitted in a treatment plan dated November 23, 2015
8. Is SB entitled to a medical benefit for an occupational therapy assessment of catastrophic impairment (CAT assessment) submitted as part of treatment plan on June 6, 2017 and partially approved on June 16, 2017?

Results:

1. SB is not entitled to the amounts claimed in issues 1-4.
2. SB is not entitled to the benefits claimed in issues 5-7.
3. On a balance of probabilities, SB has proven that the disputed occupational therapy CAT assessment is reasonable and necessary and payable by State Farm.
4. SB is entitled to interest on overdue payments from State Farm, for the amount owing on the denied occupational therapy CAT assessment.

Reasons

The Arbitrator reviewed the first four claims in light of the law and the evidence to determined whether State Farm is required to pay claimed amounts exceeding the amounts it approved in treatment plans?

State Farm refuses to pay the disputed amount in issue 1 as it exceeds the amount set out in and approved for in the treatment plan. SB does not dispute that the amount claimed exceeds the amounts set out in the treatment approved by State Farm.  She offers no legal explanation for why she believes State Farm should be held liable to pay any amount above the amount set out and approved for a treatment plan. SB indicates that this “small parts” of the treatment costs were, given her medical condition, reasonable and necessary. The charges are for demonstrating the use of assistive devices and other services.  It would be, SB says, “cruelly ironic” if these amounts were denied.

The Adjudicator accepted that the costs refused by State Farm were incurred in good faith for services that were needed.  However, SB’s argument is moot as the Adjudicator has no authority for to find State Farm liable to pay any costs above and beyond the amounts set out in approved treatment plans.

In issue 2-4 the amounts claimed are disputed costs associated with treatment plans approved by State Farm.  The amounts were denied on the basis that they exceed or are not covered by the Professional Service Guideline. The PSG sets maximum hourly rates for services provided by specified health services providers, and for preparing prescribed forms. State Farm refuses to pay the disputed amounts in issues 3-4 because they pertain to “preparation and planning services”, which it says are “not compensable under the PSG”.

On this basis the Adjudicator determined that SB has failed to meet the onus on her to prove her entitlement to the amounts claimed in issues 2-4.

The claimed benefit is for the cost of having an OT plan, advise on, monitor and supervise active therapy – stretching and exercise – programs delivered by a personal fitness trainer.  SB has already completed physical training sessions were approved and funded by State Farm. SB did not present any medical evidence to support her claim for this benefit, and instead submitted that State Farm’s November 23, 2015 IE report, concluding that the above treatment plan was not reasonable or necessary, was flawed.

On the basis of the evidence the Adjudicator rejected SB’s submission that the IE opinion as a physiatrist was shown to be “out of scope” because the physician deferred a number of the insurer’s questions to an occupational therapist for determination, including questions as to the appropriateness of the disputed plan. On the basis of the evidence the Adjudicator agreed with State Farm’s submission that the claimed benefit is not reasonable or necessary because it is duplicative and redundant given other benefits that State Farm has funded, and that SB has used.

About Deutschmann Law

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.