C.A. v. Aviva Insurance Canada, 2019 CanLII 119767

Citation: C.A. vs. Aviva Insurance Company, 2019 ONLAT 18-005878/AABS

Tribunal File Number: 18-005878/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:

C.A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Applicant: Daniel Hynes, Counsel

For the Respondent: Natasha Vujovic, Claims Adjuster Annemarie White, Counsel

Court Reporter: Anna Doss

Heard: In Person on March 21 and 22, 2019 and in Writing

OVERVIEW

1The applicant, C.A., was injured in an automobile accident on December 12, 2015 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva Insurance Canada (“Aviva”), the respondent.

2Aviva terminated C.A.’s weekly income replacement benefits and denied several treatment plans. As a result, C.A. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve the issues in dispute at the case conference and a combination hearing was scheduled in this matter. The in-person portion of the hearing was heard on March 21 and 22, 2019 to address C.A.’s entitlement to income replacement benefits which was preceded by a written portion of the hearing addressing the treatment plans in dispute.

ISSUES IN DISPUTE

4In her written submissions, C.A. limited the issues in dispute significantly from those listed in the Tribunal’s October 31, 2018 Order. C.A. withdrew further issues by way of a Notice of Motion dated September 9, 2019. As a result, the following are the remaining issues to be decided:

(i) Is C.A. entitled to a weekly income replacement benefit in the amount of $9.98 for the period of September 15, 2016 to December 11, 2017?

(ii) Is C.A. entitled to a weekly income replacement benefit in the amount of $185.00 for the period of December 12, 2017 to date and ongoing?

(iii) Is C.A. entitled to a medical benefit in the amount of $4,910.05 for in-home occupational therapy treatment recommended by Mary-Jo MacDonald in a treatment plan submitted on August 1, 2017 and denied by Aviva on September 13, 2017?

(iv) Is C.A. entitled to a medical benefit in the amount of $6,248.39 for occupational and rehabilitative therapy recommended by Agnes Agnelli treatment in a treatment plan submitted on March 28, 2018 and denied by Aviva on June 29, 2018?

(v) Is C.A. entitled to payment for the cost of an examination in the amount of $226.00 for a massage therapy assessment recommended by St. Mary’s Physio & Rehab and Lymphatic Moves in a treatment plan submitted on March 31, 2017, and denied by Aviva on April 24, 2017?

(vi) Is C.A. entitled to interest on any overdue payment of benefits?

PRELIMINARY ISSUE: Adding the Issue of Costs

5In her written submissions, C.A. requests costs against Aviva.

6I order that the issues of costs be added to the issues in dispute in this matter for the following reasons:

(i) Aviva made no reply submissions regarding C.A.’s added claim for costs;

(ii) Aviva failed to show that it would be prejudiced by the addition of the issue; and

(iii) C.A. is not out of time to request costs as the request may be made at any time before a decision is released pursuant to Rule 19.2 the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”).

RESULT

7I find that:

(i) C.A. is entitled to IRBs in the amount of $9.98 per week for the period of September 15, 2016 to December 11, 2017 with interest in accordance with s. 51 of the Schedule;

(ii) C.A. is not entitled to IRBs for the period of December 12, 2017 to date and ongoing;

(iii) C.A. is entitled to the assistive devices as set out on lines 9 to 16 of the August 1, 2017 treatment plan with interest in accordance with s. 51 of the Schedule. C.A. is not entitled to the remainder of this treatment plan;

(iv) C.A. is not entitled to the March 28, 2018 treatment plan for occupational and rehabilitative therapy or to the March 31, 2017 treatment plan for a massage therapy assessment; and

(v) C.A. is not entitled to costs.

ANALYSIS

Income Replacement Benefits (IRBs)

8C.A. is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.

9I find that C.A. is entitled to IRBs for the period of September 15, 2016 to December 11, 2017 in the amount of $9.98 per week plus interest in accordance with s. 51 of the Schedule. I also find that C.A. is not entitled to IRBs for the period of December 12, 2017 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (September 15, 2016 to December 11, 2017)

10The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident.

11C.A. bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from September 15, 2016 to December 11, 2017.

Essential tasks of C.A.’s pre-accident employment

12I accept that at the time of the accident, C.A. was employed part-time as a personal support worker (PSW).¹ As a PSW, C.A. testified that she completed the following tasks at a long-term care facility where she had been working prior to the accident:

(i) personal care tasks for elderly patients, including showering and bathing them, and assisting patients with dressing, including putting on shoes and socks;

(ii) patient transfers, both with assistance and without, from wheelchairs to standing and from standing to sitting with some patients weighing approximately 250 pounds. On cross-examination C.A. described these patient transfers as “quick”;

(iii) pushing patients in wheelchairs;

(iv) washing wheelchairs and walkers in showers which required her to move the equipment in and out of the shower on wet surfaces;

(v) reminding patients to take medication; and

(vi) memorizing patient medical information for up to 66 people including do not resuscitate instructions.

13C.A. also testified that her work as a PSW required prolonged standing, often for more than 15 minutes.

14Having received no submissions from Aviva disputing C.A.’s tasks of her pre-accident employment, I accept the evidence provided by C.A. as the essential tasks of her pre-accident employment as a PSW.

Substantial inability to perform the essential tasks of her pre-accident employment

15On a balance of probabilities, I find that C.A. was substantially unable to perform the essential tasks of her pre-accident employment as a PSW as a result of impairments that she sustained from the accident for the period of September 15, 2016 to December 11, 2017.

16C.A. supported her entitlement to IRBs with several documents including numerous treatment plans (OCF-18s) from the period in dispute that indicated that C.A.’s impairments affected her ability to carry out her tasks of employment as a result of her ongoing symptoms of lower back pain, neck pain, left shoulder issues and pain of her pelvis. These symptoms caused difficulty with bending, lifting, carrying and standing.

17C.A. also relied upon an April 5, 2017 Psycholegal Report by Dr. Catherine Bart, psychologist.² Dr. Bart diagnosed C.A. with major depressive disorder, single episode and post-concussion syndrome.³ Dr. Bart opined that the severity of C.A.’s cognitive and emotional symptoms prevented her from working as a PSW.⁴ I place significant weight on Dr. Bart’s report and opinion for two reasons. First, Dr. Bart was C.A.’s treating psychologist. Second, Dr. Giorgio Ilacqua, a psychologist who completed several insurer’s examination (IE) psychologist assessments of C.A., agreed in his cross-examination that Dr. Bart is very well-respected in the community.

18Aviva terminated C.A.’s weekly IRBs on September 15, 2016. Aviva relied upon the September 14, 2016 IE Executive Summary by Dr. Mohamed Khaled,⁵ general practitioner, in which Dr. Khaled opined that C.A. did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a direct result of the accident. I, however, place little weight on Dr. Khaled’s opinion for the following reasons.

19Dr. Khaled’s Executive Summary relied upon eight s. 44 IE assessments including a Work Demands Analysis by Therese Oldfield, occupational therapist, dated August 10, 2016 and a Functional Abilities Evaluation by Steve Brown, physiotherapist, and Ms. Oldfield dated July 26, 2016. In her Work Demands Analysis, Ms. Oldfield identified C.A.’s pre-accident employment as a “Home Support Worker/Personal Caregiver” which was classified as “medium work.” Dr. Khaled explained that “medium work” is identified as exerting up to 50 pounds of force occasionally and/or 20 pounds of force frequently, and/or 10 pounds of force constantly to push, pull or otherwise move objects.⁶

20Despite reporting that C.A. provided inconsistent efforts during the Functional Abilities Evaluation, Mr. Brown and Ms. Oldfield noted in their Functional Abilities Evaluation that C.A.’s demonstrated abilities were consistent with a “light physical demand level.” “Light physical demand level” is defined as exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects.⁷ Mr. Brown and Ms. Oldfield opined that the outcomes of their evaluation may not be an accurate reflection of C.A.’s current functional abilities because C.A.’s fear of pain limited her performance.⁸

21Despite the Work Demands Analysis identifying C.A.’s pre-accident employment as “medium work,” and C.A.’s abilities only been found to be consistent with a “light physical demand level,” Dr. Khaled still opined that C.A. did not suffer a complete inability to perform the essential tasks of her pre-accident employment as a direct result of the accident. When Dr. Khaled was given the opportunity to explain his position in cross-examination, Dr. Khaled failed to address this inconsistent finding and agreed that if someone is only capable of doing light work, that they could not perform medium work.

22Dr. Khaled’s opinion was also based upon the July 12, 2016 Psychologist Assessment by Dr. Ilacqua in which Dr. Ilacqua diagnosed C.A. with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Despite this diagnosis, Dr. Ilacqua opined that from a psychological perspective, C.A. did not suffer a complete inability to perform the essential tasks of her employment as a direct result of the accident.

23Dr. Ilacqua also attended the in-person portion of the hearing for cross-examination and confirmed the following:

(i) even though he urged caution in his IE Psychologist Assessment Report regarding C.A.’s self-reporting, his response of “no” to the question, “does the claimant suffer a substantial inability to perform the essential tasks of her employment,” was based upon C.A.’s own self-report that her limitations were primarily non-psychological in nature;⁹

(ii) an adjustment disorder is a temporary condition that usually resolves on its own;

(iii) if an adjustment disorder exists after a certain amount of time that this condition “morphs” into a different condition called Somatic Symptom Disorder, instead of resolving;

(iv) he was not surprised to learn that subsequent to his report C.A. had been diagnosed with chronic pain and fibromyalgia;

(v) individuals with somatic symptom disorder or chronic pain may demonstrate with inconsistent effort in functional abilities evaluations;

(vi) that he was not retained for an upcoming IE assessment of C.A.; and

(vii) as C.A.’s condition was ongoing, C.A.’s condition was more serious that he initially believed.

24I give little weight to Dr. Ilacqua’s Psychologist Report, which also formed part of the basis for Dr. Khaled’s opinion, and his findings that C.A. did not suffer a complete inability to perform the essential tasks of her pre-accident employment because Dr. Ilacqua’s reliance upon C.A.’s self-reporting is inconsistent. Additionally, Dr. Ilacqua’s recommendation for further treatment for C.A. of cognitive behavioural therapy contradicts his diagnosis of an adjustment disorder and his testimony that an adjustment disorder usually resolves on its own. Further, Dr. Ilacqua did not dispute later findings of other assessors and treatment providers and conceded that C.A.’s condition was more serious that he initially believed.

25I also do not place weight on C.A.’s attempt to return to work as a PSW on a full-time basis during the period in dispute as evidence of her ability to perform the essential tasks of her pre-accident employment as argued by Aviva. In fact, C.A. was terminated from this position which further supports her inability to perform the essential tasks of a PSW.

26I do not agree with Aviva’s position that C.A.’s memory issues and anxiety were not caused by the accident. While C.A. had pre-existing health issues, a review of the clinical notes and records (CNRs) of Dr. Kim Gilmour, C.A.’s family doctor, for the year preceding the accident show no cognitive or mental health complaints. Further, I place weight on Dr. Gilmour’s opinion that C.A.’s psychological dysfunction is casually related to the accident, as Dr. Gilmour was C.A.’s treating physician and would be in the best position to know C.A.’s medical history. C.A. also testified that she had mood issues before the accident but that she was doing well, was able to work and raise her children and did not have any memory issues prior to the accident.

27I also place little weight on surveillance evidence submitted by Aviva in determining whether or not C.A. was substantially able to complete the essential tasks of a PSW. Counsel for Aviva failed to confirm that C.A. was the person depicted in the videos and I agree with C.A. that the video of the person lightly jogging for a few seconds and throwing a snow ball were in no way athletic. Even if I were to accept that the person in the surveillance videos was C.A., C.A. did not dispute her ability to jog in her testimony and gave evidence that she walks on a daily basis. Aviva, however, failed to prove how C.A.’s ability to jog and walk would be evidence that she can complete the essential tasks of a PSW.

28For all of the reasons set out above, I find that C.A. has proven on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment as a PSW as a result of impairments that she sustained as a result of the accident for the period of September 15, 2016 to December 11, 2017. As a result, C.A. is entitled to payment of IRBs in the amount of $9.98 per week for this period plus interest in accordance with s. 51 of the Schedule.

Entitlement to IRBs beyond 104 weeks of the accident (December 12, 2017 to date and ongoing)

29To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience.¹⁰

30C.A. bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from December 12, 2017 to date and ongoing.

31I accept that C.A. received training as a PSW and worked in this capacity for at least 10 years prior to the accident. I also accept that C.A. was trained and certified as a Doula in 2014. C.A. also completed a Medical Office Administration course in 2016.

32C.A. testified that the duties of a medical office administrator are transcribing, answering telephone calls and booking appointments. During cross-examination, C.A. was asked if she could complete these tasks and she answered “no.” C.A. explained that these tasks involved patient care and multitasking, and that she could not complete the mental component of this role of remembering patients’ information. C.A. did confirm, however, that she would not be required to lift heavy items or stand for long periods of time as a medical office administrator.

33Aviva’s position is that C.A. is not entitled to IRBs beyond 104 weeks of the accident as she failed to establish that she had a complete inability to engage in any employment for which she was trained. Aviva argued that a medical office administrator would be suitable employment for C.A. but failed to submit any IE assessment reports addressing C.A.’s entitlement to IRBs post-104 weeks after the accident. The only IEs submitted during this period were to determine the reasonableness and necessity of disputed treatment plans.

34I find that C.A. has failed to prove on a balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Specifically, I am unable to find that she is completely unable to engage in employment as a medical office administrator. While I acknowledge C.A.’s testimony that she believes that she would not be able to complete the mental component of this role, she only indicates that this is as a result of remembering patients’ information. It is unclear why she would be required to memorize patient information as she did as a PSW, as this was not explained during her testimony.

35Furthermore, while Dr. Michael Harnadek, psychologist, diagnosed C.A. with an unspecified mild neurocognitive disorder in his May 10, 2018 Neuropsychological Assessment Report, Dr. Harnadek did not provide any explanation or analysis regarding his diagnosis of C.A. and her ability to work and, more specifically, to work as a medical office administrator. C.A. failed to submit any medical evidence regarding the level of her impairments and functionality in terms of her employment for the period of 104 weeks post-accident. Similarly, to the Tribunal’s decision in 17-004072 v. The Commonwell Mutual Insurance Group,¹¹ relied upon by Aviva, I find that C.A.’s self-reports are not sufficient enough to persuade me that she meets the eligibility test for IRBs post-104 weeks after the accident.

36C.A. relied upon the decision of 16-000874 v Certas Home and Auto Insurance Company,¹² for the position that it is well established in the jurisprudence that “reasonably suitable employment” means employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity. The Tribunal also held that the work should be comparable in terms of status and wages. C.A. relied upon this decision to argue that she was not capable of pursuing employment as a PSW in a competitive, real world setting. However, C.A. failed to lead any evidence regarding employer demands for reasonable hours and productivity or wages and status of a medical office administrator.

37Based on all of the reasons set out above, C.A. is not entitled to IRBs for the period of December 12, 2017 to date and ongoing.

38Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

39C.A. bears the onus of proving that the claimed treatment plans are reasonable and necessary on a balance of probabilities.¹³

In-home occupational therapy and assistive devices – OCF-18 dated August 1, 2017

40I find that C.A. has proven on a balance of probabilities that the assistive devices set out in lines 9 to 16 of the August 1, 2017 treatment plan are both reasonable and necessary. As a result, she is entitled to these devices but not to the remainder of this OCF-18.

41This OCF-18 was completed by Mary Jo MacDonald, occupational therapist, and sought funding for the completion of the treatment plan, 10 sessions of in-home occupational therapy, travel time, mileage to C.A.’s home, in-direct occupational therapy services including communications with other service providers and the adjuster, completion of a progress report and various assistive devices. The goals of this treatment plan were pain reduction, return to activities of normal living, to provide assistive devices and education to manage symptoms, to assist C.A with functional issues that are stressors in order to help her psychological status and to facilitate a gradual functional restoration program based on progressive goal attainment program principles.

42On September 13, 2017, Aviva denied this treatment plan in full following an IE completed by Therese Oldfield, occupational therapist, who opined that the treatment recommended in the OCF-18 was not reasonable and necessary. Aviva also takes the position that this treatment plan is duplicative of a June 7, 2017 treatment plan submitted by Ms. MacDonald for occupational therapy services and assistive devices.

43An OCF-18 dated June 7, 2017 was submitted for Aviva and was partially approved on August 25, 2017. The treatment plan sought funding for completion of the OCF-18, an in-home occupational therapy assessment, 5 in-home occupational therapy treatment sessions, provider travel time and mileage, a reassessment report and a progress report, various assistive devices and in-direct occupational therapy services. The estimated duration of the June 7, 2017 treatment plan was 20 weeks. This treatment plan was partially approved by Aviva on August 25, 2017.

44I agree with Aviva that several of the proposed goods and services on the August 1, 2017 treatment plan are duplicative of the June 7, 2017 treatment plan or simply requested additional sessions for the same type of treatment and with additional corresponding provider travel time and mileage. As a result, I find that the following proposed goods and services as requested in the August 1, 2017 treatment plan are not reasonable and necessary:

(i) Funding for completion of the OCF-18 in the amount of $200.00 (line 1) as this treatment plan sought funding for substantially similar treatment and assistive devices to the June 7, 2017 treatment plan and was submitted prior to the final denial of the June 7, 2017 treatment plan on August 25, 2017;

(ii) Heat pad in the amount of $50.00 (line 7) and Pillow, cervical in the amount of $86.00 (line 8) as these items were approved by Aviva in the same amount on the June 7, 2017 treatment plan;

(iii) Provider mileage to treatment in the amount of $330.00 (line 4) as there is no provision in the Schedule for payment of mileage expenses for service providers;¹⁴

(iv) 10 sessions of in-home occupational therapy (line 2) in the amount of $1,995.00 with corresponding provider travel time (line 3) in the amount of $997.50. Although Ms. MacDonald had the benefit of completing her in-home occupational therapy assessment of C.A. between the submission of the June 7, 2017 and the August 1, 2017 treatment plans, there is no explanation as to the requirement for the additional 5 sessions of occupational therapy sought over and above the 5 sessions that were requested, and partially approved at a reduced time of 1.5 hours per session as opposed to 2 hour sessions, in the June 7, 2017 treatment plan. Furthermore, no explanation was provided as to the requirement of 2-hour sessions as opposed to the approved 1.5-hour sessions by Ms. MacDonald, and there is no evidence that any of the occupational therapy treatment sessions requested on the June 7, 2017 treatment plan occurred prior to the request for additional sessions;

(v) Documentation, support activity for a progress report in the amount of $399.00 (line 6). $299.25 for a progress report was approved in the June 7, 2017 treatment plan and there is no explanation why the cost of the progress report increased since the June 7, 2017 treatment plan; and

(vi) Training, motor and living skills (line 5) in the amount of $498.80 which was further explained as funding for in-direct occupational therapy services which included communication with other health providers and the adjuster, and to procure recommended assistive devices. Aviva approved such in-direct occupational therapy services in the June 7, 2017 treatment plan in the amount of $249.38 and there is no explanation regarding the reasonableness or the necessity of the additional funds sought for the same services in the August 1, 2017 OCF-18.

45The remaining items in dispute on this treatment plan are for assistive devices as follows: a step stool with handle; an anti-fatigue mat; a long-handled bath scrubber; a long-handled dusting device; a rolling garbage bin; a long-handled reacher; a white board and supplies; and a yearly subscription to a Q-card Ipad app for memory, organization skills and time management. All of these items were requested on the June 7, 2017 treatment plan, and denied by Aviva except, for the long-handled reacher, the white board and supplies and the Ipad app subscription.

46I find that the step stool with handle, an anti-fatigue mat, a long-handled bath scrubber, a long-handled dusting device and a rolling garbage bin are all reasonable and necessary. Ms. MacDonald recommended all of these devices on the previous June 7, 2017 treatment plan without the benefit of assessing C.A. Following her assessment of C.A., Ms. MacDonald continued to recommend a step stool to allow C.A. to safety access cupboards, a large anti-fatigue mat to increase C.A.’s standing tolerance while performing kitchen tasks, a long-handled tub scrubber to reduce C.A.’s bending, a long-handled duster to allow C.A. to access high and low dusting and a wheeled garbage can to reduce the demands of C.A.’s lifting/carrying.¹⁵

47I place more weight on Ms. MacDonald’s recommendations as they followed an in-home assessment with C.A. rather than an IE paper review conducted by Therese Oldfield, occupational therapist, which formed the basis of Aviva’s denial of this treatment plan. I acknowledge that Ms. Oldfield’s paper review relied upon her findings in a recently completed IE Occupational Therapist Assessment of C.A. on July 21, 2017. In this report, Ms. Oldfield determined that C.A. demonstrated functional range of motion, strength and mobility that’s required to perform her pre-accident activities of daily living¹⁶ and, therefore, Ms. Oldfield determined the requested devices were not reasonable and necessary. Ms. Oldfield, however, reported C.A.’s standing tolerance to be 10 minutes and opined that such standing tolerance was “sufficient” to perform her housekeeping tasks including meal preparation. I do not agree with Ms. Oldfield that 10 minutes of standing is sufficient to prepare a meal for a 4-person family with young children.

48Furthermore, Ms. Oldfield made no comments about the state of C.A.’s home and the need for assistance. In contrast, Ms. MacDonald described C.A.’s home environment in her report as “chaotic and filthy” and opined that C.A. required crisis intervention. Therefore, I find that the assistive devices recommended by Ms. MacDonald are reasonable and necessary to assist C.A. with her daily activities within her home.

49I also find that a long-handled reacher is also reasonable and necessary. Ms. MacDonald noted that C.A. demonstrated the ability to pick up a small object from the floor by partially squatting and bending forward at the waist, but that C.A. would not be able to perform this movement on a sustained or repetitive. I place more weight on Ms. MacDonald’s opinion regarding the long-handled reacher as Ms. Oldfield failed to address any repetitive or sustained bending or squatting when opining that the reacher was not reasonable and necessary.

50Ms. MacDonald recommended a large white board and markers to assist C.A. with organization and completion of tasks for her children. Ms. MacDonald reported that C.A. was struggling with providing care to her two young children and lacked daily structure and routine. Ms. MacDonald also recommended a yearly subscription to a Q-card iPad app for memory, organization skills and time management purposes. Ms. MacDonald noted that C.A. reported poor short-term memory and that she often forgets appointments or things to do and that she relies on her iPad to remember information.

51Ms. Oldfield opined that the whiteboard and iPad app were not reasonable or necessary based on a July 21, 2016 IE Neurology Assessment by Dr. Ian Derby, neurologist, that C.A. did not have any significant neurological impairment diagnosis related to the accident.

52I place more weight on Ms. MacDonald’s recommendations for the whiteboard (and related supplies) and the iPad app subscription as Ms. Oldfield’s opinion was based on an assessment that took place one year before the recommendations for devices to address C.A.’s organization challenges were made. In my opinion, Ms. MacDonald made reasonable recommendations for cost-effective strategies to assist C.A. in working towards greater organization in her home.

53Based on all of the reasons set out above, I find that C.A. is entitled to the assistive devices set out on the August 1, 2017 treatment plan at lines 9 through 16 in the amount of $297.41 plus interest in accordance with s. 51 of the Schedule. C.A. is not entitled to the remainder of the August 1, 2017 treatment plan.

Occupational and rehabilitative therapy – OCF-18 dated March 28, 2018

54I find that C.A. has failed to prove the reasonableness and necessity of this treatment plan on a balance of probabilities.

55This OCF-18 was completed by Agnes Agnelli, occupational therapist, and sought funding for his time to complete the treatment plan. The remainder of the treatment plan was for services provided by Sandra Wozniak, rehabilitation counselor/therapist, and included 24 2-hour sessions of one-on-one rehabilitation therapy, travel time, mileage expenses that may be needed for community outings with C.A., planning services, completion of weekly written summaries of therapy sessions and organization supplies. The goals of the treatment plan were to support C.A. with routines of daily function, organization and planning. The OCF-18 states, “initially the supported daily routines will focus on home with a goal to initiate routines for physical activity using her gym membership.” The additional functional goals of the OCF-18 were listed as return to activities of normal living, return to modified work activities, to provide opportunities for the achievement of small, task specific goals, to provide direction, support planning and to provide strategies to allow C.A. to build her tolerance for activity.

56Aviva denied this treatment plan in its entirety based on Dr. Yuri Marchuk’s Physiatry Assessment dated June 14, 2018¹⁷ in which Dr. Marchuk opined that the treatment plan in dispute was not reasonable and necessary.¹⁸

57C.A. argues that this treatment plan was reasonable and necessary by relying on previous submissions made for the need for occupational therapy given her cognitive and physical limitations. All but the amount for completing the OCF-18, however, was for rehabilitative therapy/counselling and not for occupational therapy.

58C.A. did not direct me to any evidence in which it is recommended she receive rehabilitation therapy/counseling in her submissions. However, I note that Ms. MacDonald made a recommendation for rehabilitation therapy in her July 10, 2017 Occupational Therapy Assessment. Ms. MacDonald recommended the involvement of a rehabilitation therapist to address the following goals:

(i) implementation of occupational therapy recommendations including developing structure/routine in the home and assisting the client to organize her cluttered environment;

(ii) ensure follow through on a home exercise program as prescribed by the physiotherapist; and

(iii) assist with a gradual transition to a community gym program as directed by the physiotherapist.¹⁹

59I am unable to place weight on Ms. MacDonald’s recommendations for rehabilitation therapy in determining the reasonableness and necessity of the treatment plan in dispute. C.A. provided no explanation as to why she waited 7 months before seeking funding from Aviva to follow-through on Ms. MacDonald’s recommendations when Ms. MacDonald herself submitted an OCF-18 within less than a month of her report seeking funding for the remainder of her recommendations.

60For all of the reasons set out above, I find that C.A. has failed to prove on a balance of probabilities that this treatment plan was reasonable and necessary. C.A. is not entitled to this treatment plan.

Massage therapy assessment – OCF-18 dated March 31, 2017

61This treatment plan was completed by Julia Armstrong, physiotherapist, as the health practitioner and Olivia Meta, massage therapist, as the regulated health professional. The OCF-18 sought funding for a total body assessment by Ms. Meta in the amount of $226.00. The goals of the treatment plan stated, “assess only – determine best treatment plan.”

62On April 24, 2017, Aviva denied this treatment plan on the basis that it was not reasonable and necessary. To support its denial, Aviva relied upon Dr. Khaled’s IE Physician Assessment Addendum Report dated November 18, 2016 and the IE Chiropractic Assessment Report by Dr. Jaclyn Witt, chiropractor, dated December 30, 2016.

63C.A. argued that this treatment plan is reasonable and necessary based on her own self-reports to her assessors that massage therapy provides her with pain relief. C.A. further argues that pain relief is a presumptive treatment goal of massage therapy and that pain relief can be a reasonable and necessary treatment goal unto itself.

64I disagree with C.A. that pain relief is a “presumptive treatment goal” of massage therapy and C.A. did not provide any supportive evidence for this argument. The goal as set out on this treatment plan was to determine the best treatment plan; however, it is unclear if this meant the best massage treatment plan or the best treatment plan generally. Furthermore, when C.A. was asked in her testimony what other treatment was working for her, she only responded with lidocaine injections – she did not mention massage therapy. Even if massage therapy had been providing C.A. pain relief at the time the OCF-18 was submitted for consideration to Aviva, this plan is for an assessment, not for treatment.

65For all of the reasons set out above, I find that C.A. has failed to prove on a balance of probabilities the reasonableness and necessity of the proposed massage therapy assessment and, therefore, she is not entitled to this treatment plan.

Interest

66C.A. is entitled to interest for the amount outstanding for IRBs for the period from September 15, 2016 to December 11, 2017 and for the assistive devices as set out at lines 9 through 16 in the August 1, 2017 OCF-18 in accordance with s. 51 of the Schedule.

Costs

67I find that C.A. has failed to prove on a balance of probabilities that Aviva acted unreasonably, vexatiously, frivolously or in bad faith in these proceedings and, therefore, C.A. is not entitled to costs of the proceedings.

68Rule 19.1 of the Rules provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. C.A. only made a request for costs and failed to provide any further supporting submissions or evidence. Furthermore, C.A. failed to provide the amount of costs she was requesting. As a result, C.A. is not entitled to costs.

CONCLUSION

69For the reasons outlined above, I find:

(i) C.A. is entitled to IRBs in the amount of $9.98 per week for the period of September 15, 2016 to December 11, 2017 with interest in accordance with s. 51 of the Schedule, as she proved on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of his or her pre-accident employment as a PSW within 104 weeks after the accident;

(ii) C.A. is not entitled to IRBs for the period of December 12, 2017 to date and ongoing as she failed to prove on a balance of probabilities that she suffered a complete inability to engage in any employment for which she is reasonably suited by education, training or experience;

(iii) C.A. is entitled to the assistive devices as set out in lines 9 through 16 of the August 1, 2017 treatment plan with interest in accordance with s. 51 of the Schedule as she proved that these devices were reasonable and necessary on a balance of probabilities. C.A. is not entitled to the remainder of this treatment plan;

(iv) C.A. is not entitled to the treatment plan for occupational and rehabilitative therapy dated March 28, 2018 or to the treatment plan for a massage therapy assessment dated March 31, 2017 as C.A. failed to prove that these treatment plans were reasonable and necessary on a balance of probabilities; and

(v) C.A. is not entitled to costs as she failed to prove on a balance of probabilities that Aviva acted unreasonably, frivolously, vexatiously or in bad faith during the proceeding.

Footnotes

1. 1C.A. also testified that she was a Doula pre-accident, but that she held this position in a volunteer capacity.
2. 2Joint Document Brief, tab 78.
3. 3Ibid. at page 10.
4. 4Ibid.
5. 5Joint Document Brief, tab 97.
6. 6Ibid. at pages 2-3.
7. 7Joint Document Brief, tab 87 at page 5.
8. 8Ibid.
9. 9Joint Document Brief, tab 101 at page 15.
10. 10Schedule, s. 6(2)(b).
11. 112019 CanLII 18337 (ON LAT).
12. 122017 CanLII 69444 (ON LAT).
13. 13Scarlett v. Belair Insurance, 2015 ONSC 3635, paras. 20-24.
14. 14See 17-006293 v Certas Home & Auto Company, 2018 CanLII 98286 (ON LAT) at para. 20.
15. 15Occupational Therapy Reassessment dated July 10, 2017, Joint Document Brief, tab 79 at page 16.
16. 16Submissions of the Respondent, page 9, para. 22.
17. 17Joint Document Brief, tab 104.
18. 18Ibid. at page 32.
19. 19Supra note 15 at page 6.