Citation: R.F. vs. Unifund Assurance Company, 2019 ONLAT 18-009385/AABS
Tribunal File Number: 18-009385/AABS
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:
R.F. Applicant
and
Unifund Assurance Company Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Anthony A. Paslat For the Respondent: Katherine E. Kolnhofer
Written Hearing: June 10, 2019
OVERVIEW
1The applicant, R.F., was injured in an automobile accident on December 1, 2014, suffering a lumbar compression fracture and a concussion. R.F. sought various benefits from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2R.F. submitted a treatment plan that was partially denied by Unifund on the basis that the assistive devices were not reasonable and necessary. R.F. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. A case conference was held but the parties were unable to settle the issues and dispute and, thus, proceeded to this written hearing.
ISSUES
3The issues in dispute as outlined in the Case Conference Order dated March 1, 2019, are as follows:
i. Is the applicant entitled to a rehabilitation benefit in the amount of $5,893.15 for a mattress recommended by Function Ability in a treatment plan (OCF-18) submitted on January 19, 2018, and denied don April 20, 2018?
ii. Is the applicant entitled to a rehabilitation benefit in the amount of $658.00 for a filing cabinet recommended by Function Ability in a treatment plan (OCF-18) submitted on January 19, 2018, and denied on April 20, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find R.F. is entitled to the mattress but not the filing cabinet. As a benefit is overdue, she is entitled to interest, pursuant to s. 51.
ANALYSIS
R.F.’s impairments
5As a result of the accident and her impairments, R.F. is unable to return to her work as a registered nurse and continues to collect long-term disability payments and an income replacement benefit from Unifund. In submissions, R.F. explains that she has developed chronic back pain and post-concussion syndrome. Additionally, she submits that she has developed a serious psychiatric illness, including post-traumatic stress disorder and major depression. She is currently receiving physical therapy, psychological counselling and occupational therapy services.
6In a psychological report dated August 22, 2017, Dr. Suddaby concluded that R.F. meets the definition of catastrophic impairment as a direct result of the accident. On October 5, 2017, Unifund deemed R.K. to be catastrophically impaired, as defined by the Schedule. Both the OT report from Mr. MacMillan and the Psychology Report from Dr. Boisvert indicate that R.F. is severely limited by her sleep issues, which are contributing to her psychological distress and functional impairment.
7The treatment plans in dispute were part of a larger OCF-18 submitted on January 19, 2018 by Blaire MacMillan, OT, totalling $8,208.95. Unifund partially approved the plan for the toilet seat raiser and installation, long-handled scrubber and handrails. R.K. disputes the remaining denials and issues in dispute outlined in this hearing
Are the treatment plans in dispute reasonable and necessary?
i. Treatment Plan in the amount of $5,893.15 for the adjustable mattress
8I find the medical benefit for an orthopaedic mattress (including mattress protector, base and pillow) to be reasonable and necessary. I find it clear on the evidence that R.F. suffers from severely disturbed sleep and pain as a result of the accident. Her complaints are consistent and continuous in the medical documentation before the Tribunal and are confirmed via diagnoses in the reports and notes of several of her medical practitioners.
9It is well settled that pain reduction is a legitimate goal for an assistive device like a mattress. The functional goal of the adjustable mattress is to allow R.K. to lay in a supine position in order to relieve her pain and achieve some level of comfortable sleep so that she can improve her daily function, avoid fatigue and limit her depressed mood. These goals, in my view, are eminently reasonable given her physical and psychological impairments. Indeed, I find the base goal of achieving restorative sleep to be rather humble, achievable and certainly proportional to the injuries, symptoms and complaints that recur throughout the file. In my view, ensuring restorative sleep is necessary in order to help R.K. wake with energy each day so that she may focus on her pain management strategies and treatment and, hopefully, return to a more useful level of function.
10Dr. Nahas recommended an adjustable bed to address R.K.’s spinal deformity and chronic pain, a recommendation echoed by Ms. Gillanders, physiotherapist, in order to allow R.K. to lie in the supine position. While the cost of the mattress was initially a surprise, I find the particular adjustable, hospital-style mattress in the treatment plan is a mid-range model. The mattress will allow R.K. to sleep in a semi-reclined position, which will afford her the greatest amount of comfort and relief from her back pain. A standard— presumably cheaper—mattress would not allow R.K. to achieve this supine position to sleep comfortably. Due to the unique capabilities of the adjustable mattress and R.K.’s requirements for comfort, I find the cost of the mattress to be reasonable to achieve the stated goals.
11While Unifund argues the mattress is unnecessary and unreasonably costly because R.K.’s impairments are mental/behavioural and that her sleep issues pre-date the accident, I agree with R.K. and the findings of Dr. Suddaby and Dr. Green that the accident exacerbated her sleep issues and pain. Further, I find Unifund’s suggestion that R.K. “spend more time out of bed” to be rather uncouth, given R.K.’s struggle with mental health and addiction. As R.K. submits, a proper, supportive mattress is more likely to allow R.K. to gain meaningful rest and thus, “spend more time out of bed.” In my view, the potential for restorative sleep and less time in bed can only have a positive impact on her mental health and potential recovery.
12For these reasons, I find R.K. is entitled to the cost of the adjustable mattress recommended by Function Ability, as it is reasonable and necessary.
ii. Treatment plan in the amount of $658.00 for a filing cabinet
13I find that the medical benefit for the filing cabinet is not reasonable and necessary.
14While the reason for R.K.’s catastrophic impairment is due to a mental/behavioural impairment that may affect her ability to feel or stay organized at home, the evidence and submissions provided do not, in my view, speak to the necessity of an additional filing cabinet or just why one is required at all. Indeed, the evidence suggests—and the basis for Unifund’s denial was—that R.K. already has a filing cabinet in her office that is allegedly not organized efficiently and there is no necessity for another. R.K.’s submissions argue that another is needed because the current cabinet is full but do not otherwise provide a compelling reason why the filing cabinet will assist her function. In the absence of more compelling evidence of necessity, I see no reason to depart from Unifund’s denial. Accordingly, I find the treatment plan is not reasonable and necessary.
iii. Interest and Costs
15As R.K. is entitled to the mattress, she is entitled to interest on the overdue benefit, pursuant to s. 51 of the Schedule.
16In submissions, R.K. sought costs of the written hearing on a substantial indemnity basis. Pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith. In this matter, other than this request, R.K. provided no substantive submissions on Unifund’s behaviour to justify a costs award. Accordingly, I decline to award costs.
CONCLUSION
17I find R.K. is entitled to the medical benefit in the amount of $5,893.15 for a mattress recommended by Function Ability as it is reasonable and necessary.
18I find R.K. is not entitled to the medical benefit in the amount of $658.00 for a filing cabinet recommended by Function Ability as it is not reasonable and necessary.
19R.K. is entitled to interest pursuant to s. 51 of the Schedule, as benefits are overdue.
Released: September 11, 2019
Jesse A. Boyce Adjudicator