May 15, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
P.K. v CUMIS LAT 16-001809/AABS
ENTITLEMENT TO BENEFITS: MIG; Treatment Plan required before treatments occur; necessity of treatment; physical injuries within MIG; psychological injuries outside MIG; benefits denied due to non-compliance with SABS;
Date of Decision: March 28, 2017
Heard Before: Adjudicator Chris Sewrattan
P.K. was injured in a car accident on December 31, 2010. She applied for accident benefits SABS, however, CUMIS denied payment for some benefits and LK appealed to the LAT.
- Is P.K. entitled to $12,075.40 for out of pocket treatments with Body Poets?
- Is P.K. entitled to receive a medical benefit in the amount of $1,520.00 for a Treatment and Assessment Plan for chiropractic treatment?
- Is P.K. entitled to $1,294.00 for out of pocket treatments with Family Physiotherapy Treatment?
- Is P.K. entitled to $2,2221.75 for out of pocket treatments with Ottawa Chiropractic?
- Is P.K. entitled to a medical benefit in the amount of $14,366.59 for prescription medication?
- Is P.K. entitled to $3,271.85 for out of pocket treatments?
- Is P.K. entitled to receive medical benefits in the amount of $2,122.04 for a Treatment and Assessment Plan?
- Is P.K. entitled to $826.00 for out of pocket treatments?
- Is P.K. entitled to interest on any overdue payments?
- P.K.’s failure to submit a Treatment and Assessment Plan (OCF-18) disentitles her to payment for issues 1, 3, 4, 6, and 8. Issue 4 may be subject to the two-year limitation period in any event.
- By contrast, the operation of s. 32(2)(c)(i) entitles P.K. to $14,266.59 for prescription medication (issue 5) even though advanced notice of each expense was not provided to CUMIS.
- P.K. is not entitled to payment for physiotherapy (issue 7) because it is not a reasonable and necessary expense.
- P.K. is entitled to payment for chiropractic treatment (issue 2).
- Interest is payable on the expenses claimed under issues 5 and 2 in accordance with s. 51 of the Schedule.
P.K. is a 68-year old woman. The Accident happened on December 31, 2010. P.K. retained counsel to represent her for automobile accident benefit claims in 2012.
P.K. was initially treated within the limits of the MIG. On June 5, 2012, CUMIS provided P.K. with an explanation of the treatments that had been approved within the limit of the Minor Injury Guideline. This served, in part, to notify P.K. and her counsel that her treatment was now capped by the Guideline’s limits. P.K. was advised that she could submit compelling medical evidence to remove her from the Minor Injury Guideline.
Almost a year later, on April 7, 2013, P.K. sent a Treatment and Assessment Plan to CUMIS in request of further treatment. CUMIS arranged for P.K. to meet with two IEs. A physical examination concluded that P.K.’s physical injuries were predominantly minor and could be treated within the MIG. A psychological examination, by contrast, concluded that P.K. should be removed from the Minor Injury Guideline. CUMIS removed P.K. from the Minor Injury Guideline for psychological reasons. P.K.’s treatment was now capped by a $50,000 limit rather than a $3,500.
P.K. was advised of her removal from the Minor Injury Guideline on July 16, 2013. Between June 12, 2012 and this date, P.K. had personally paid for over $20,000 of physical treatment. CUMIS was unaware of this. Treatment and Assessment Plans were not submitted to CUMIS before the treatment and expenses were incurred. After P.K. was advised of her removal from the Minor Injury Guideline, she submitted her expenses for reimbursement by letter to CUMIS.
In 2015, P.K. sent CUMIS a claim for reimbursement for prescription medications that she paid for out of pocket, another claim for reimbursement for $2,538.86 for prescription medication and $400 for massage therapy treatments. In February 2016, P.K. sent a Treatment and Assessment Plan to CUMIS for chiropractic services. This was five years after the motor vehicle accident.
CUMIS scheduled an IE with a Sports Medicine Physician, who issued a report on April 6, 2016 which concluded deemed the treatment not reasonable or necessary. CUMIS denied the Treatment and Assessment Plan. CUMIS similarly denied a Treatment and Assessment Plan for physiotherapy services, dated June 16, 2016, on July 4, 2016. All of P.K.’s out of pocket expenses were formally denied by CUMIS on May 10, 2016.
Issues 1, 3, 4, 6, an 8: The need for a Treatment and Assessment Plan (OCF-18)
The Schedule governs the expenses claimed under issues 1, 3, 4, 6, and 8. The expenses were incurred by P.K. before a Treatment and Assessment Plan was submitted. The Schedule requires P.K. to submit a Treatment and Assessment Plan to CUMIS before treatment to receive a medical or rehabilitation benefit that is payable outside of the Minor Injury Guideline.
CUMIS submits that the claims under issues 1, 3, 4, 6, and 8 are not payable due to s. 38(2) of the Schedule. The Arbitrator noted he has no discretion to discretion to waive this requirement.
P.K. submits that it is unreasonable to expect treatment providers to continue to submit Treatment and Assessment Plans to an insurer during the period in which the insurer fails to remove a patient from the Minor Injury Guideline. P.K. also submits that CUMIS has not been prejudiced by the lack of OCF-18 forms. CUMIS’ letter to P.K. advising that she had been removed from the Minor Injury Guideline, dated July 16, 2013, advises that the higher coverage limit “would be impacted by other expenses ‘not yet submitted or processed, such as outstanding treatment expenses, prescription medication, travel expenses, etc.” In P.K.’s view, this shows that CUMIS anticipated that P.K. was receiving treatment and would seek payment for the expense once she was removed from the Minor Injury Guideline.
The Arbitrator noted that while P.K. incurred over $20,000 of expenses out of her own pocket, she must submit an OCF-18 before she incurs an expense for a medical or rehabilitation benefit. This is required by the law (s. 38 of the Schedule). On this basis P.K.’s claims under issues 1, 3, 4, 6, and 8 are dismissed because she did not submit an OCF-18 before incurring the expense.
Issue 4: Possible limitation period issue
Under issue 4, P.K. claims $2,221.75 for out of pocket treatments with Ottawa Chiropractic. P.K. submitted an OCF-18 for payment of $1,796.70 in relation to this expense. CUMIS denied payment in a letter dated July 16, 2013. The expense claimed in issue 4 is denied regardless of whether it is an out of pocket expense without an OCF-18, a claim under an OCF-18 only, or a combination of an OCF-18 and an out of pocket expense. The portion of the claim that involves an out of pocket expense with no OCF-18 is dismissed for non-compliance with the Schedule. This is an automatic function of the law.
The portion of the claim that involves the OCF-18 that was denied in CUMIS’ letter dated July 16, 2013 is dismissed because of the limitation period. P.K. has two years from the date of CUMIS’ denial – July 16, 2013 – to submit an appeal to a mediator and arbitrator: see s. 56 of the Schedule. P.K.’s appeal is outside of this two-year limitation period and, therefore, in this context, therefore this is no award payment.
Issue 5: Prescription medication
P.K. claims reimbursement for $14,266.59 for prescription medication expenses. The Arbitrator agrees that P.K. is entitled to payment for this entire amount. Section 32(1) of the Schedule relates to an insured person’s duty to initially notify their insurer of their intention to seek benefits. CUMIS does not dispute that P.K. properly provided notice of her intention to seek medical and rehabilitation benefits. CUMIS takes issue with P.K.’s failure to advise that she would seek payment for her prescription medication expenses. This issue is beyond the scope of s. 32. It falls within s. 38(2)(c)(i). That provision allows P.K. to seek repayment for prescription medication expenses without submitting a Treatment and Assessment Plan. There are three requirements for payment under s. 38(2)(c)(i):
- The motor vehicle accident caused the impairment that necessitates the prescription medication;
- The prescription medication is reasonable and necessary; and
- A regulated health professional provides the prescription.
The Arbitrator concluded that P.K. has P.K. has proven causation and therefore accepts that the motor vehicle accident caused a psychological impairment which necessitates anti-depressant medication, and the rest of the prescription medication.
With regard to the second requirement, reasonableness and necessity, CUMIS submits that there is insufficient evidence that the prescription medication is reasonable and necessary. The Arbitrator disagrees. The anti-depressants are reasonable necessary medications to treat P.K.’s psychological impairment. The remaining medications are either to treat P.K.’s physical impairment (namely migraines in this instance), or a compound to allow P.K. to take a medication to which she is allergic or physically uneasy with. In all instances, the medication is a reasonable method of effecting necessary treatment for an impairment.
Issues 2 and 7: The reasonableness and necessity of chiropractic and physiotherapy treatment
P.K. claims $1,520.00 on a Treatment and Assessment Plan dated January 22, 2016 for chiropractic services from the Perth Family Health Centre, and $2,122.04 on a Treatment and Assessment Plan dated June 16, 2016 for physiotherapy services from Perth Physiotherapy. CUMIS submits that these treatment plans are not reasonable and necessary. CUMIS points out that P.K. has failed to submit expert medical reports opining on his entitlement to the treatment plans, nor has he provided medical records past February 2014. In CUMIS’ submission, there is a severe lack of medical information indicating that the requested treatment is reasonable and necessary.
[The Arbitrator considered all of the evidence and was convinced on a balance of probabilities that the chiropractic treatment sought by P.K. is reasonable and necessary. P.K. is entitled to payment for the Treatment and Assessment Plan for chiropractic treatment, dated January 22, 2016, and not entitled to the Treatment and Assessment Plan for physiotherapy treatment, dated June 16, 2016.
Issue 9: Interest
P.K. is entitled to interest on payment for the following:
- The Treatment and Assessment Plan for chiropractic treatment, dated January 22, 2016.
- $14,266.59 for prescription medications.