19-000784/AABS

Released Date: 05/27/2020

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:

L.B.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Michelle F. Jorge

For the Respondent:

Rose Bilash

Heard by way of written submissions

OVERVIEW

1L.B. was involved in an automobile accident on February 28, 2013, and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). In November 2016, Certas accepted that L.B. was catastrophically impaired as a result of the accident and a subsequent diagnosis of Systemic Scleroderma related to same. Certas has paid a significant amount of medical and rehabilitation benefits to L.B. to date, including for weekly attendant care and housekeeping. Certas denied the benefits in dispute here based on its determination that none of the psychovocational assessment, winter tires or wellness retreat in [the district] in B.C. that L.B. seeks are reasonable and necessary. L.B. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2This issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to the cost of an examination in the amount of $6,780.00 for a psych-vocational assessment recommended by Access Rehab Inc. in a treatment plan (OCF-18) submitted on March 22, 2017 and denied on May 17, 2017?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,067.97 for winter tires recommended by Ms. Borho in a treatment plan (OCF-18) submitted on November 8, 2017 and denied on November 22, 2017?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $6,980.00 for a wellness program at [the Retreat Centre] recommended by Dr. Akbari in a treatment plan (OCF-18) submitted on June 26, 2018 and denied on July 5, 2018?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

result

3I find L.B. is not entitled to any of the treatment plans in dispute as she has not demonstrated that they are reasonable and necessary. As no benefits are overdue, no interest is payable.

ANALYSIS

Are the treatment plans reasonable and necessary?

Psychovocational assessment

4L.B. seeks payment for a psychovocational evaluation recommended by Dr. S. Scherer of Access Rehab Inc., submitted in a treatment plan (“OCF-18”) dated March 22, 2017 at a total cost of $6,780. The goal of the plan is to “return L.B. to her activities of normal living through psychovocational assessment/testing and vocational assessment components in order to assess her residual potential in view of her ongoing disabilities for the purpose of vocational rehabilitation.” On review of the OCF-18, the cost is broken down into four parts: psychological testing (scoring/analysis) in the amount of $2,000; a vocational and transferable skills assessment in the amount of $2,000; a mental health assessment in the amount of $2,000; $200 for the completion of the OCF-18 and $780 in HST.

5L.B. submits that the assessment is reasonable and necessary given her psychological, emotional and behavioural impairments that she sustained as a result of the accident and diagnosis of chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. She further submits that given Dr. Scherer’s finding that one of her sources of functional limitation is her psychological strain—identified as flashbacks, sadness, tearfulness, depression, anxiety and irritability—it is reasonable and necessary to conduct assessments in order to address her mental and emotional status in addition to her future vocational function. Finally, L.B. submits that, at the very least, the psychological component of the OCF-18 should be approved, as it is reasonable and necessary.

6In response, Certas submits that the treatment plan is not payable for two reasons. First, it submits that Dr. Scherer completed the assessment on March 17, 2017, which is five days prior to the date the OCF-18 was even completed. Certas submits that the cost of the OCF-18 is therefore not recoverable pursuant to s. 38(2) of the Schedule and none of the exceptions apply. Second, it submits that, in any event, the OCF-18 is not reasonable and necessary because the report simply confirmed what was already well-documented and apparent from the medical records dating back to 2015: that L.B. suffers from a serious condition that rendered her not only unemployable, but catastrophically impaired.

7I agree with Certas that the treatment plan is not payable as the assessment was completed before the submission of the OCF-18. Section 38(2) of the Schedule states that an insurer is not liable to pay an expense in respect of an assessment that was incurred before the insured person submits the OCF-18 that satisfies the requirements of subsection (3), unless it falls within certain exceptions. I agree further that none of the exceptions in s. 38(2)(a-d) apply in this case. For instance, Certas did not give notice that it would waive this requirement and pay the expense, the expense was not incurred on an emergency basis and the expense is not for drugs, goods or services under $250.

8In any event, on review of the OCF-18 and the report prepared by Dr. Scherer, I also agree that the treatment plan is not reasonable and necessary, although I did find the report to be thorough and comprehensive. L.B. has already been determined to be catastrophically impaired. This designation necessarily entails a battery of tests over time and I find L.B.’s situation is no different. Indeed, all of the medical assessments conducted to date (and a detailed medical history) is outlined in Dr. Scherer’s report, encompassing nearly four pages. With regards to the vocational component, and with great respect, I agree with Certas that there is little more to be gleaned from another assessment that would comment on L.B.’s functional limitations due to her impairments, especially so considering the many opinions in evidence that her condition is deteriorating and the fact that she has already been forced to leave her job due to her condition. L.B. has not demonstrated why this specific plan is necessary to address her specific vocational impairment, why it is reasonable at this cost given all of the other medical opinions to date and why Dr. Scherer conducted it before seeking approval from Certas or submitting the OCF-18.

9With regards to the psychological component of the plan, it appears on the evidence that L.B. has been assessed from a psychological standpoint on at least three separate occasions—as part of her catastrophic claim and seemingly independent of it—and was accordingly diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood in 2016. Dr. Scherer’s ultimate finding from his 20-page report—quite a bit of which is L.B.’s rehashed medical history—is that L.B. had “likely reached maximum functional recovery from a vocational and functionality perspective.” On the evidence, I agree with Certas that this was not a novel opinion, as it is echoed throughout the file. The three separate assessments proposed by Dr. Scherer to ascertain his findings are not required to confirm what was already known and widely agreed upon. On this basis, I would agree that $6,780 would not be a reasonable and necessary expense to simply restate an existing opinion anew in a slightly different format. Finally, I find L.B. has not demonstrated why this specific plan is necessary at this cost to address her specific impairment given the other medical opinions to date.

10Accordingly, I find L.B. is not entitled to payment for the treatment plan as it was incurred prior to submission to Certas and, in any event, is not reasonable and necessary given the volume of medical opinions on same to date.

Winter Tires

11On November 8, 2017, a treatment plan was submitted by L.B.’s occupational therapist (“OT”), Ms. Borho, for four winter tires and balancing at a cost of $1,067.97. L.B. submits that the winter tires are reasonable and necessary for her to navigate her vehicle in the fall and winter months. She submits that because she suffers from driver’s anxiety, fear and flashbacks to the accident, the tires are reasonable and necessary to alleviate her stresses and reduce her dependence on the taxi services that Certas funds for her medical appointments. Further, L.B. states that the tires are important in order to help with her mental and emotional well-being because she tends to self-isolate and the tires will provide her with peace of mind to visit her friends and family, go grocery shopping and participate in her leisure activities in the community. L.B. relies on various opinions confirming her driving anxiety and cites ss. 16(3)(j) and 16(1) for support that winter tires are payable under the Schedule, as they fall under “vehicle modifications” that will “facilitate her reintegration into her family and society.”

12In response, Certas submits that there is no coverage for winter tires under the Schedule and therefore this treatment plan is not reasonable and necessary. It submits that winter tires are not payable as a good or service under s. 15 because they are not a medical benefit, as they serve no medical purpose and cannot be considered to have a medical nature. Additionally, Certas submits that winter tires are not payable as a rehabilitation benefit under s. 16 because they do not fall under one of the enumerated activities or measures listed under s. 16(3), which is required in order for the expense to be considered reasonable and necessary. Further, Certas argues that L.B. has access to a taxi account to attend her medical and rehabilitation appointments which accommodated her limitations with driving. It submits that because it has fully funded taxi transportation to all of L.B.’s medical treatment and therapy appointments, taxi transportation is not a financial burden for L.B.

13I find L.B.’s argument in support of winter tires to be interesting, but I ultimately disagree that tires constitute a vehicle modification under s. 16(3)(j) or that they are reasonable and necessary to facilitate reintegration into society or family. To address Certas’ first argument, I agree that winter tires are not payable as a “good or service” under s. 15 because they are plainly not a medical benefit as contemplated by that section, as they serve no medical purpose and cannot be considered to have a medical nature. I also agree that the taxi service does not constitute a financial burden for L.B., as alleged, as Certas continues to pay for all of her accident-related transportation costs. I am also not prepared to accept L.B.’s contention that providing winter tires is reasonable and necessary because there is no evidence that it will reduce or eliminate her driving anxiety in the winter months or actually help her reintegrate into society. This argument was not supported by any medical opinion, as the recommendation for the tires came from the OT, with support from L.B.’s own affidavit. In any event, in my view, anxiety over driving in winter in Ontario is not a unique concern specific to L.B.’s impairments that would obligate payment from an insurer on this ground. Further, L.B. has not demonstrated that the winter tires were so necessary to incur them and did not provide any context to explain how she has been (or if she has been) driving in the three winters that have come and gone since this OCF-18 was proposed. In my view, this information would have spoken to the necessity of her claim. In a similar vein, L.B. did not explain how far she drives in the winter, where she resides in relation to her community, whether or not the roads she travels are plowed and the effect on her driving anxiety since 2017. In my view, this information would have spoken to the reasonableness of her claim.

14Instead, the issue turns on whether winter tires are considered a “vehicle modification” under s. 16(3)(j) moving forward. Certas argues that winter tires are not an enumerated activity or measure under s. 16(3) because they are not specifically identified and do not qualify as a modification. On this, I agree. L.B. did not direct the Tribunal to any authority finding winter tires to be a modification under this section or provide guidance on how winter tires would constitute a modification. I do not accept that winter tires “modify” a vehicle once installed, as tires are necessary for a vehicle to be used for its basic intended purpose and the vehicle is not fundamentally changed as a result. I also do not accept that payment for winter tires is the type of modification contemplated by s. 16(3)(j), as it is not akin to altering the steering mechanism or raising the pedals for amputees or installing a disability access ramp for insureds with no mobility. Indeed, while winter tires are not mandatory in Ontario, considering how prevalent and routine the installation of winter tires is for the large majority of drivers in Ontario, I am hesitant to declare winter tires to be a “modification” that would “accommodate the needs of the insured” and render same payable under s. 16 moving forward. Accordingly, I find the winter tires are not reasonable and necessary under s.16.

Wellness Retreat

15On June 26, 2018 a treatment plan was submitted by L.B.’s treating psychologist, Dr. Akbari, for a wellness retreat at [the retreat center] in BC at a cost of $6,980. The proposed retreat center features a health care team who works towards improving clients' quality of life by employing evidence-based fitness and wellness practices and by teaching strategies for long-term benefits. The OCF-18 indicates that the wellness retreat is being recommended to support and enhance L.B.’s ongoing mental and physical health recovery and it is considered a necessary component of a “Mindfulness-Based-Stress Reduction” program which L.B. has been using in the course of her therapy with Dr. Akbari. The additional comments section of the plan details the cost: one week wellness retreat program in the amount of $4,850, which includes accommodations; round trip airfare from Toronto to Vancouver return for approximately $650; return transfer from Vancouver to [the district] in the approximate amount of $350; and transportation costs to and from airports in the approximate amount of $150; plus $200 for filling and submitting the OCF-18.

16L.B. submits that the retreat is reasonable and necessary to support and enhance her ongoing mental and physical health recovery because the on-site healthcare team, activities and exercises will be extremely beneficial to her mental health recovery. L.B. relies on Dr. Akbari’s opinion that this retreat is reasonable and necessary because it will allow her to take a break from her current situation in Toronto and “get out of the rut” she has been in for the past six years. L.B. submits that this particular wellness retreat will be helpful for her because it is located on the water, which she finds therapeutic, and there are no similar retreats on the water available in Ontario. Lastly, L.B. submits that the wellness retreat constitutes a “lasting rehabilitative purpose” under s. 16(3) and that retreat also falls within the scope of s. 16(3)(l) as it will allow her to more fully reintegrate into society.

17In response, Certas submits that L.B.’s medical records, submissions and affidavit all attest to the fact that the Systemic Scleroderma she suffers from is progressive, so her symptoms will only continue to increase over time. It submits that her physical abilities are very minimal now and she cannot go for walks or climb stairs due to shortness of breath. Against these facts, Certas submits that a portion of the [the retreat center] program is comprised of outdoor activities, including hiking and water activities such as paddle boarding and surfing, activities it argues L.B. clearly cannot do according to her affidavit. Further, Certas argues that L.B. also has many limitations with her activities of daily living, including bathing, toileting, dressing and feeding for which she receives 15 to 18 hours per week of assistance from a personal care worker funded by Certas. On this basis, Certas argues that it is not clear how L.B. will manage a one-week residential retreat program alone, without the assistance of her personal support worker. Certas also takes issue with the stated goal of Dr. Akbari’s treatment plan to support L.B.’s mental and physical health recovery and enhance her functioning related to activities of normal life where L.B. has a terminal condition from which physical recovery is not possible and long-term enhanced functioning related to activities of daily living is not likely.

18Certas further submits that s. 16(1) is subject to two important conditions. First, the expenses at issue must be “reasonable and necessary”. Second, the expenses must be incurred in undertaking activities and measures described in subsection (3). It argues that Tribunal decisions from both the LAT and FSCO have confirmed the “limited class rule” applies to s. 16(3)(l) and that s.16(3)(l) is not a “catch all” for any additional expenses but rather, the expense must fit within the scope of the activities and measures described in subsection 3. On this basis, Certas submits that a “luxury oceanfront retreat” does not fall within any of the categories of s.16(3) and, moreover, it does not fall within the scope of the activities and measures described in ss. 3. In addition, or alternatively, Certas submits that even if the retreat was found to constitute a rehabilitation benefit, it is not reasonable and necessary considering factors such as the luxury location, cost of transportation, duration and cost of treatment as well as the fact that L.B. cannot engage in certain aspects of the program.

19I find the [the retreat center] program is not reasonable and necessary. L.B. has not demonstrated how this specific wellness retreat in [the district], B.C. will allow her to more “fully reintegrate into society” upon return simply because of its evidence-based fitness and wellness practices and teaching strategies for long-term benefits, as alleged. Given L.B.’s impairments since the accident, I agree that a vacation and a break from reality would be beneficial to her mental and emotional state. However, I disagree that there is a geographic solution to her mental and emotional struggle that Certas should be required to fund. With great respect, finding water therapeutic (as many people do) is not a reasonable basis to obligate an insurer into flying an insured across the country and back for one week, especially so given L.B.’s attendant care needs and functional impairments that would render many of the activities identified to be unavailable to her.

20Contrary to Dr. Akbari’s contention, I also find it a bit disingenuous to state that the [the retreat center] in B.C. is the only wellness retreat that will assist L.B. and teach her coping mechanisms that will have a “lasting rehabilitative purpose”, as there are dozens of similar wellness retreats in Ontario, many of which also host their retreats on the water. On this basis, I disagree with L.B. that this proposed wellness retreat falls within the provision of s. 16. I agree with Certas that s.16(3)(l) is not a “catch all” for any additional expenses. Rather, the expense being claimed must fit within the scope of the activities and measures described in ss. 3, which this retreat does not because it remains unclear how the one-week wellness retreat would constitute a lasting rehabilitative purpose.² In any event, I ultimately agree with Certas that given the location on the other side of the country and the cost of transportation to bring L.B. there for one week, that this treatment plan is not reasonable and necessary.

CONCLUSION

21I find L.B. is not entitled to any of the treatment plans in dispute as she has not demonstrated that they are reasonable and necessary. As no benefits are overdue, it follows that interest is not payable.

Footnotes

1. 1O. Reg. 34/10.
2. 216-001811 v. Wawanesa Insurance Co. (Recon dated March 23, 2017) at para. 15.