October 27, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
KS v Dominion - 16-002099 v The Dominion 2017 CanLII 59510 (ON LAT)
Date of Decision: August 3, 2017
Heard Before: Adjudicator Nicole Treksler
ENTITLEMENT TO TREATMENT AND BENEFITS: adjudicator is satisfied that expenses for eligible benefits were properly incurred; applicant denied some benefits on basis of IE testimony and surveillance video; some of the proposed treatment plans approved as reasonable and necessary
KS was injured in car accident on January 21, 2014, and sought benefits under the SABs. Prior to the accident KS was self-sufficient in her daily household activities, which consisted of all home chores and personal care tasks. Since the accident, she has pain in her left shoulder, left knee and lower back, preventing her from carrying out daily household activities. KS made claims for attendant care benefits over two periods (ACBs), medical benefits and cost of examinations.
On September 10, 2014 a Registered Nurse recommended $2000 a month in attendant care benefits (ACBs). These benefits include assistance in dressing, undressing, grooming, feeding, hygiene and exercise.
Dominion indicated that KS was eligible to receive benefits from September 10, 2014 to January 6, 2015 but it would not pay these benefits because KS did properly incur the expenses. Specifically, KS has not proven the type of and amount of services she paid for and received. KS’s submits that this benefit was properly incurred. Dominion denied KS’s claim for ACBs for Period 2 based on an IE during which KS advised the assessors that she was predominantly independent with her self-care, and she has not shown that the expenses were incurred.
Dominion denied the treatment plans because at the time of its denials, it maintained the injuries were predominantly minor. Based on the psychological IE, Dominion accepts KS’s injuries fall outside the MIG and has paid $22,850.92 in medical/rehabilitation of a maximum $50,000.
Given that KS’s injuries are not minor, the test for entitlement to medical benefits and cost of examinations is to show that they are reasonable and necessary. The onus is on KS to prove her claims on a balance of probabilities.
- Attendant Care Benefits:
- Is KS entitled to payment of ACBs in the amount of $2,000 per month for the period of September 10, 2014 to December 9, 2014?
- Is KS entitled to receive ACBs in the amount of $2,000 per month, for the period of January 6, 2015 to January 21, 2016?
- Is KS entitled to receive payment for the following treatment plans for examination expenses and a medical benefit as recommended by Nor Med Assessment Services:
- $1,810.38 for an In-Home assessment on April 3, 2014;
- $1,950.00 for a Temporomandibular Joint (TMJ) assessment denied on April 16, 2014;
- $1,983.51 for a psychological assessment on April 16, 2014;
- $100 ($1,285.97 less approved) for a total body assessment partially approved on September 23, 2014;
- $659.22 ($1,657.86 less approved) for a driver desensitization assessment on October 15, 2015;
- $2,000.00 for an orthopaedic assessment denied on October 15, 2015; and
- $2,074.10 ($2,400.05 less approved) for assistive devices partially approved on November 12, 2014;
Is KS entitled to payment for the following treatment plans for medical benefits recommended by Active Life Wellness Centre:
- $223.58 ($1,323.58 less approved) for massage and chiropractic services partially approved on June 17, 2014; and
- $2,327.56 for chiropractic services denied on August 15, 2014.
- Is KS entitled to the remaining amount of $840 ($4,203.88 less approved) for a treatment plan for psychological services partially approved on October 20, 2014;
Is KS entitled to the cost of a chronic pain assessment in the amount of $2000 denied on August 18, 2016?
Is KS entitled to a medical benefit for psychological treatment in the amount of $3,491.47 in a treatment plan denied on August 18, 2016?
Is KS entitled to a pre-screen psychological assessment, DRR, orthopedic and DRB assessments in the amount of $4,434.48, submitted July 28, 2015?
Is KS entitled to interest on any overdue payment of benefits?
Is Dominion entitled to costs for this hearing?
- KS is not entitled to ACBs for the period of January 6, 2015 to January 21, 2016.
- KS is entitled to the following treatment plans:
- TMJ assessment;
- Massage and chiropractic services;
- Chiropractic services;
- Orthopaedic assessment; and
- Chronic pain assessment.
- KS is not entitled to the following treatment plans (either in part or in full):
- In-home assessment;
- Psychological assessment;
- Psychological treatment
- Total body assessment;
- Driver desensitization;
- Assistive devices; and
- Cost of examinations
- KS is entitled to interest on the treatment plans that have been found to be reasonable and necessary.
- Dominion is not entitled to costs.
The Adjudicator reviewed the medical evidence and concluded that KS is entitled to payment of ACBs for the period of September 10, 2014 to December 9, 2014. The Adjudicator was persuaded that KS has met the all of the criteria as set out in section 3(7) (e) to establish that the expense was incurred - the invoices indicated the type of activities that were performed, such as helping with personal hygiene, hanging up clothes, food preparation.
KS attended IEs in November and December 2014. As of January 6, 2015, Dominion terminated KS’s ACBs partly based on KS’s own reporting to the IE assessors. Dominion conducted surveillance on KS during two time periods: June 18-July 5, 2015 and November 21-23, 2016. On both occasions, according to Dominion, KS was observed driving a vehicle, grocery shopping, carrying various items and moving with an apparent free range of motion. KS has not provided any evidence to contradict or explain the surveillance video.
Based on the evidence, the Adjudicator determined that KS no longer requires attendant care services based on her admission to the IE assessors and the surveillance video. As KS is not entitled to ACBs from January 6, 2015 to January 21, 2016. As such, it is not necessary to determine whether those benefits were properly incurred.
Dominion submits that KS intentionally withheld information from her assessors regarding all of her pre-existing conditions. There is no evidence given that KS intentionally withheld such information. It is important to note that KS’s pre-existing injuries are extensive. It is not unreasonable that KS may have forgotten some of her injuries. Furthermore, the existence of KS’s pre-existing injuries was documented in her family physician’s notes and in referrals. As such, I do not find that Dominion was prejudiced because KS failed to list all of her pre-existing injuries. The information was readily available.
Based on the evidence the Adjudicator found some of the treatment plans to be reasonable and necessary for her recovery from her injuries.