Tribunal File Number: 16-003313/AABS
Case Name: 16-003313 v Travelers Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
Applicant
and
Travelers Insurance
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
For the Applicant: Patrick D’Aloisio, Counsel
For the Respondent: Lawrence Conmigo, Counsel
HEARD: Written Hearing: May 9, 2017
Overview
1The applicant was injured in a motor vehicle accident on June 30, 2016. She was the front-seated passenger in a vehicle that rear-ended the car ahead of her while travelling on the highway. The windshield shattered and fragments of glass penetrated the left side of her face, wrist and arm. She was transported to Sunnybrook Hospital. The applicant sustained the following injuries as a result of the motor vehicle accident: left wrist and thumb fracture; bilateral corneal abrasions; pain in her neck, back, abdomen, left shoulder, and right leg.
2The applicant sought benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 20101 (the “Schedule”). In doing so, she submitted a Treatment and Assessment Plan dated August 5, 2016, in the amount of $3,811.27 for occupational therapy and assistive devices and a Treatment and Assessment Plan dated September 7, 2016, in the amount of $3,296.02 for assistive devices, which included an orthopaedic memory foam mattress. Both treatment plans were recommended by Karen Forsee, occupational therapist.
3On November 8, 2016, the respondent conducted an in-home occupational therapy assessment in order to determine if the treatment plans were reasonable and necessary. The respondent partially approved the August 5, 2016 Treatment Plan in the amount of $1,856.19. The partial denial was based on the lack of evidence relating the proposed goods and services to the subject accident. The September 7, 2016 Treatment Plan was denied in its entirety for the same reason.
Issue
4The applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act,2 dated October 13, 2016. The applicant seeks a determination from the Licence Appeal Tribunal (the Tribunal”) that the treatment plans in dispute are reasonable and necessary pursuant to s. 14 and s. 15 of the Schedule.
Result
5The applicant has met her onus of establishing on a balance of probabilities that she is entitled to the unapproved portion of the Treatment and Assessment Plan dated August 5, 2017, and the Treatment and Assessment Plan dated September 7, 2016, as I find them to be reasonable and necessary.
Discussion
6Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary. The applicant bears the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary.
7The treatment plan lists the applicant’s injuries as fractures at wrist and hand level, pain in her lower and upper limb, low back pain, nervousness, malaise and fatigue, pain localized to other parts of her lower abdomen, headaches, other visual disturbances and mild cognitive disorder. The treatment plan proposes funding for therapy, motor and living skills (10 sessions), brokerage services (10 sessions), travel time (10 sessions), mileage (10 sessions), parking fees (10 sessions), a mat for outside the bathtub, a long handled shoe horn, a reacher, a bath sponge, a toilet scrubber, a bath scrubber and duster, TheraPutty for hand therapy, delivery fee and documentation support activity. The Treatment Plan notes that the goals of treatment are to reduce pain and to complete funding for equipment through ODSP; arrange delivery of equipment pending approval and provide education on use; asses need for an orthopaedic bed, obtain quotes and submit for funding; obtain quotes for a moving company to move items in her home into her storage unit to reduce clutter; development a return to ADL/IADL program; to develop a hand therapy program and to provide education on pain/stress management.
8Based on the respondent’s in-home occupational therapy assessment, which was conducted by Ms. Saunders, the mat for outside the tub, the long handled shoe horn, the reacher, bath sponge, toilet scrubber, bath scrubber and duster, TheraPutty for hand therapy, delivery fee and documentation support activity were all approved. These goods and services were deemed reasonable and necessary, as the applicant demonstrated moderate limitations to her left wrist and left shoulder.
9Five of the ten recommended occupational therapy sessions, as well as the accompanying travel time, mileage and parking fees were considered to be reasonable and necessary. Ms. Saunders concluded that the applicant was overwhelmed and unable to manage her accident-related medical needs. Occupational therapy was deemed reasonable and necessary in order to assist the applicant in establishing a daily routine and to resume independent management of her medical care. The remaining 5 occupational therapy sessions, as well as the accompanying travel time, mileage and parking fees were denied by the respondent due to a lack of evidence relating some of the goals of the treatment plan as well as some of the proposed goods and services to the subject motor vehicle accident.
10The applicant has persuaded me that the remaining five occupational therapy sessions as well as the accompanying travel time, mileage and parking fees are reasonable and necessary. The respondent acknowledges the need for occupational therapy sessions. As noted in Ms. Saunders report, this acknowledgment was partly based on the applicant’s significant emotional issues. Ms. Le’s Occupational Therapy Rebuttal Report dated March 6, 2017, builds on this and explains that the applicant’s emotional disturbances are such that it would take her longer to engage in the therapeutic process and return to her activities of daily living. I find Ms. Le’s explanation to be persuasive and consistent with the medical evidence before me. Given this, I agree with the Ms. Forsee’s recommendation that 10 occupational therapy sessions are reasonable and necessary.
11The treatment plan lists the applicant’s injuries as fractures at wrist and hand level, pain in her lower and upper limb, low back pain, nervousness, malaise and fatigue, pain localized to other parts of her lower abdomen, headaches, other visual disturbances and mild cognitive disorder. The Treatment Plan proposes funding for an orthopaedic memory foam mattress, mattress protector, basic metal bedframe, memory foam pillow and documentation support activity. The treatment plan notes that the goals of treatment are to reduce pain, promote proper spinal alignment, improve the quality and duration of sleep thereby increasing energy and mood during the day and to have the applicant return to activities of normal living.
12Ms. Saunders’ report acknowledges that the applicant would benefit from the orthopaedic memory foam mattress and accompanying accessories but claimed that the need is not associated with the subject motor vehicle accident. The respondent’s denial of this treatment plan was based on this rationale.
13The applicant has persuaded me that the treatment plan has reasonable and necessary goals and methods for treating the applicant’s injuries. Prior to the accident, the applicant was sleeping on a mat on the floor. She would have to place the mattress on the floor each and every night. The applicant could no longer sleep on this mattress due to her accident-related wrist and back injuries. She is now forced to sleep on the sofa, which has resulted in a lack of sleep. As a result, Ms. Forsee recommended the orthopaedic memory foam mattress and accompanying accessories in order to reduce pain and increase sleep quality. Ms. Le’s Rebuttal Report also recommends the proposed goods from a physical perspective due to her history of osteoporosis and exacerbated pain symptoms, to the changes in her mood and her inability to sleep through the night. As a result, I find this treatment plan to be reasonable and necessary.
Conclusion
14The applicant is entitled to the unapproved portion of the Treatment and Assessment Plan dated August 5, 2016 in the amount of 1,955.08 for occupational therapy and assistive devices as it is reasonable and necessary. The applicant is also not entitled to the Treatment and Assessment Plan dated September 7, 2016, in the amount of $3,296.02 for assistive devices as it is reasonable and necessary.
Released: December 8, 2017
Paul Gosio, Adjudicator