Released Date: 06/17/2020
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:
B.W.W.
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Joshua D. Fields, Counsel
Frank A. Calcagni, Counsel
For the Respondent:
Patrick M. Baker, Counsel
Erik K. Grossman, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on July 19, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant sustained injuries in the accident, including broken ribs and spleen lacerations. When some medical benefits were denied by the respondent the applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The issues in dispute to be decided at this hearing are:
i. Is the applicant entitled to a medical and benefit in the amount of $3,257.43 for occupational therapy services (attendant care assessment, occupational therapy sessions, and unspecified assistive devices) recommended by Ross Rehabilitation in a treatment plan (OCF-18) submitted on November 2, 2016 and denied on November 16, 2016?
ii. Is the applicant entitled to a medical benefit in the amount of $418.82 for psychological services (a Muse wearable headband) recommended by Psychology Health Solutions in a treatment plan (OCF-18) submitted on December 18, 2017 and denied on February 28, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
3The applicant is not entitled to the disputed treatment plans. Therefore, the applicant is also not entitled interest or an award.
ANALYSIS
4An insured person’s entitlement to accident benefits is determined in accordance with sections 14 and 15 of the Schedule. The applicant bears the onus of proving on a balance of probabilities that the goods and services listed in the treatment plans are reasonable and necessary.
a. $3,257.43 for occupational therapy services submitted November 2, 2016
5The treatment plan for occupational therapy services actually comprises an attendant care assessment, two occupational therapy sessions, $300.00 for unspecified assistive devices, travel time and mileage for the service provider, documentation and planning fees
6The occupational therapist, Ms. Prestwood, prepared a report dated October 6, 2016 in support of the need for the proposed assessment, noting that the applicant’s symptoms continue to impact her ability to complete her activities. The assessor indicates that an attendant care assessment is required because the applicant is limited with her personal care, including feeding, grooming, and that she requires assistance with tasks such as grocery shopping and community tasks. They would also assess the applicant’s need for assistive devices to improve her independence. The two in-home occupational therapy sessions were intended to focus on training her to use the devices and develop techniques to improve function.
7I find that the treatment plan is neither reasonable or necessary. The evidence before me does not support the need for the proposed treatment plan to achieve the stated goals. In fact, the evidence reveals that the applicant had largely recovered from her injuries within a few months, with few functional impairments. She returned to work as a server within a few weeks, started attending classes and resumed going to the gym. Contrary to the assertion by Ms. Prestwood, the applicant reported independence with her personal care to other assessors. I find it difficult to accept that this young woman was able to resume her full-time serving jobs, going to the gym and start attending school after the accident but requires assistance with feeding, grooming and personal care.
8The applicant was discharged from the hospital three days after the accident. She sustained fractured ribs and lacerations to her spleen. The applicant followed up with her family physician for her injuries on July 27, 2015 and August 12, 2015. On December 1, 2015, she requested a refill of her painkillers. According to the remaining entries up to July 2019, the applicant did not report any further injuries or limitations to her family physician related to the accident. The applicant attended physiotherapy from October 2015 to March 2016. The physiotherapy records note that the applicant resumed going to the gym around November 2015. She reports improvement in her symptoms throughout these records, with some ongoing complaints.
9Prior to the accident the applicant worked full time as a server at [the restaurant] and two nights per week at [the nightclub].
10A disability certificate completed by the family doctor dated August 4, 2015 indicates that the applicant had returned to work, but performed no heavy lifting.
11According to the OCF-2s, the applicant returned to work at [the restaurant] on August 10, 2015, and at [the nightclub] on August 8, 2015. Initially she worked modified hours and duties at [the restaurant]. When modified hours and duties were no longer available to her, the applicant resigned, sometime around the fall of 2015. She started a new job as a server at [the restaurant 2] in October 2015. By February 2016, the applicant was working regular hours and duties, five days per week.1
12The applicant relies on a neurological assessment report in support of her claim.2 However, I find there are several inconsistencies with this report. At page seven, the assessor notes that the applicant did not require assistance with her activities of daily living, but later states that she has significant mobility limitations affecting independent activities of daily living, preventing her from completing housekeeping and work-related activities. None of the other evidence supports that the applicant had “significant mobility limitations”. Nor is there evidence that she was prevented from completing her work-related activities; she returned to work within a few weeks, albeit on modified hours and duties initially, but by February 2016 the applicant reported working five days a week without restrictions.
13I fail to see how more than 17 months post-accident the applicant would require an attendant care assessment when she appears to have resumed going to work full time, started attending classes, and going to the gym. She has not seen her primary care physician for accident related injuries since December 2015, stopped receiving physiotherapy in March 2016, and has not completed all the psychotherapy sessions that were approved by the respondent.
14The claim for unspecified assistive devices is speculative, and therefore cannot be reasonable or necessary. No assistive devices have been recommended at this time. Likewise, the occupational therapy sessions for training on use of unspecified devices cannot be reasonable when none have even been recommended yet. The remaining fees associated with this treatment plan are also not reasonable or necessary.
b. $418.82 for a Muse wearable headband submitted December 18, 2017
15Having considered the totality of evidence, I am not persuaded that this treatment plan is reasonable or necessary. The reasonableness and necessity of treatment must meet an established standard, as follows:
i. The treatment goals as identified are reasonable;
ii. The treatment goals are being met to a reasonable degree; and,
iii. The overall costs of achieving these goals are reasonable.3
16No treatment goals are identified in the requested treatment plan. The section of the treatment plan which requires the assessor to identify the goals of treatment indicates only “to be determined”. Additional comments appended to the treatment plan describe what a Muse is, that it is “a wearable headband with EEG technology that provides neurofeedback for clients and helps them understand what it feels like to have a calm and active mind”. It also says that it “delivers information through audio feedback to help users improve their ability to maintain focus, as part of a meditation or cognitive training program”, and that Muse “promotes improvement in attention, focus, insight towards emotional experiencing and ability to maintain and regulate emotions”.
17This treatment plan was proposed by Dr. Shahrohknia, the applicant’s psychologist. A few months prior, he completed a psychological assessment report dated June 22, 2017 in which he diagnosed the applicant with PTSD, adjustment disorder with mixed anxiety and depression, chronic pain, and specific phobia. The report by Dr. Shahrohknia doesn’t mention the Muse machine as a treatment modality. The assessor recommended 18 one-hour psychotherapy sessions, which was approved by the respondent. Despite the approval, the applicant incurred only eight psychotherapy sessions. The psychotherapy notes indicate that the applicant returned to work, and then started classes to prepare for college. The time elapsed since the treatment was approved and the fact that the applicant still has nine unused fully funded therapy sessions suggest that the applicant’s psychological issues have resolved and the proposed treatment plan was not reasonable or necessary at the time of submission.
18A paper review report was prepared by Dr. Paul Derry for the respondent, dated February 20, 2018. He pointed out that there was no particular goal or clinical outcome expected from this device. However, the additional information suggested that it was intended to be used for meditation and self-awareness. Dr. Derry concluded that there was no compelling evidence to indicate why these goals could not be achieved through standard psychotherapy or counselling sessions.
19I find that the treatment plan is not reasonable or necessary given the lack of identified goals in the treatment plan, and the lack of evidence as to why this device would benefit the applicant’s condition. The applicant has not discharged her burden of proof to establish on a balance of probabilities that the goods and services listed in the treatment plans are reasonable and necessary.
CONCLUSION
20The applicant is not entitled to the disputed treatment plans because they are not reasonable or necessary. As such, the applicant is not entitled to interest on the on the treatment plans nor an award pursuant to Regulation 664.
Released: June 17, 2020
__________________________
Kate Grieves
Adjudicator
Footnotes
- Physiatry assessment dated February 22, 2016.
- Neurological assessment report by Dr. Gomez-Vargas, dated February 12, 2018.
- 17-001007/AABS v Aviva Insurance Canada 2018 CanLII 2309 (ON LAT) at para 11.