Citation: C.S. v. Co-Operators General Insurance Company, 2020 ONLAT 19-007872/AABS

Released Date: 07/23/2020

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:

C.S.

Applicant

and

Co-Operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Peter Cho, Counsel

For the Respondent:

Bruce Keay, Counsel

HEARD:

Via written submissions

OVERVIEW

1As a result of impairments sustained in an accident that occurred on December 27, 2013, the applicant, C.S., was deemed to be catastrophically impaired by the respondent, Co-Operators. C.S. sought various rehabilitation benefits and assistive devices pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'') on the basis of a 2017 report from her occupational therapist.

2Co-Operators partially approved many of C.S.’s claims but denied the remaining benefits in dispute on the basis that they were not reasonable and necessary for her accident-related impairments or were claimed at an unapproved rate under the Superintendent’s Guideline. C.S. disagreed and applied to the Tribunal for resolution of the dispute, arguing that all of the treatment plans and expenses in dispute are reasonable and necessary, which is her burden of proof to meet under ss. 14-17 of the Schedule.

ISSUES IN DISPUTE

3The following issues are in dispute:

i. Is the applicant entitled to receive a medical benefit in the amount of $4,431.96 for other goods and services recommended by K. Murphy in a treatment plan submitted June 13, 2017 and denied by the respondent on June 28, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $73.45 for other goods and services (repair of a smartphone screen) in a treatment plan submitted August 29, 2017 and denied by the respondent on September 18, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $101.69 for other goods and services recommended by Peach Physiotherapy in a treatment plan submitted December 18, 2017 and denied by the respondent on January 3, 2018?

iv. Is the applicant entitled to receive a medical benefit in the amount of $2,079.91 for other goods and services recommended by K. Murphy in a treatment plan submitted July 13, 2018 and denied by the respondent on July 23, 2018?

v. Is the applicant entitled to receive a medical benefit in the amount of $1,203.54 for other goods and services recommended by Chatham-Kent Chinese Medicine in a treatment plan submitted December 24, 2018 and denied by the respondent on March 21, 2019?

vi. Is the applicant entitled to receive a medical benefit in the amount of $2,688.55 for case manager services recommended by K. Murphy in a treatment plan submitted December 20, 2017 and denied by the respondent on January 8, 2018?

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

viii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

result

4I find C.S. is entitled to payment for the following items as they are reasonable and necessary: a cell phone protective case in the amount of $34.99; an ergonomic lawn chair not to exceed $150; a mattress and box spring not to exceed $1,500; and $2,688.55, representing the difference in the Guideline rate for services provided by her registered nurse that were not approved. Interest applies to all overdue benefits incurred pursuant to s. 51.

5I find C.S. is not entitled to payment for the following items as they are not reasonable and necessary: an iPhone 7 Plus; two-year Apple Care Warranty; a FitBit; a riding lawnmower; $73.45 for cellphone screen repair; $101.69 for a protective cell phone case; or $1,203.54 for the difference in the Guideline rate for services provided by her acupuncturist that were not approved. I find a s. 10 award and costs are not appropriate.

ANALYSIS

$4,431.96 for other goods and services ($2,870.77 remaining in dispute)

6The actual total of items remaining from this treatment plan recommended by Ms. Murphy, occupational therapist, is $2,870.77. That amount represents various devices that were not approved by Co-Operators as being reasonable and necessary for C.S.’s accident-related impairments. The remaining unapproved items are as follows: an iPhone 7 Plus ($879.99, incurred), an iPhone case cover ($34.99, incurred), a two-year Apple Care Warranty ($164.00), an ergonomic lawn chair ($150.00), a FitBit ($141.79, incurred) and a mattress and box spring ($1,500).

7C.S. submits that the iPhone 7 Plus, case and warranty are reasonable and necessary expenses. First, she requires the larger screen of the iPhone 7 Plus to accommodate her accident-related vision challenges and because it allows her to take photos of where she parks so she can locate her vehicle and contact her family. Second, she requires the case for the iPhone because the case is needed to prevent damage when she frequently drops her phone due to hand tremors. Third, C.S. submits the warranty is needed for extended care protection as she has had to repair her phone on two occasions due to dropping it. C.S. submits that the cell phone is a “communication aid” benefit under s. 16(3)(i) of the Schedule. In response, Co-Operators submits that a cell phone is a discretionary expense regardless of any motor vehicle accident and is, therefore, not compensable under the Schedule. It argues that a mobile phone, or any costs associated with its service or repair, is not a reasonable and necessary expense required to eliminate the effects of any disability resulting from an impairment. Further, it submits that there is no evidence that M.S.’s existing phone, an iPhone 5, was insufficient for her needs and that there is no medical evidence documenting her hand tremors.

8I agree with Co-Operators. Section 16(3)(i) provides that home modifications and devices, including “communication aids” to accommodate the insured, are included within this definition. The underlying purpose of this section is to return the insured to their pre-accident level of functioning to the extent that is reasonably possible. I do not accept that a new iPhone 7 Plus constitutes a “home device” that would help C.S. return to her pre-accident level of function or that it is a “communication aid” as contemplated by s. 16(3)(i). Communication aids are assistive devices that allow those who are unable to communicate to do so, such as voice prosthesis, voice amplifiers, communication display boards, writing aids, speech-generating devices or mounting devices for wheelchairs or beds, etc. There is no indication in the medical evidence that C.S. is unable to communicate or that her accident-related impairments require home modification devices in order to do so or that the iPhone she claims will be a substitute for these features. Rather, I find the request for a new iPhone is merely an upgrade from an older device to a newer one, a transaction that all cell phone users go through too regularly. Indeed, at the time the device was proposed by Ms. Murphy in 2017, C.S.’s iPhone 5 was already four to five years old which, in my view, suggests that C.S. needed a cell phone upgrade regardless of any accident-related impairments. Given C.S.’s function—that she is able to use an iPhone, is able to drive, is able to communicate—I find it somewhat disingenuous to characterize a brand-new iPhone as a communication aid under s. 16(3).

9Further, I agree with Co-Operators that C.S. has not demonstrated why her older iPhone 5 was not capable of taking photographs or making phone calls, which were two of the three reasons stated. While I am alive to C.S.’s vision issues, I am not persuaded that $879.99 is a reasonable and necessary expense that should be borne by the insurer to achieve a 1.5-inch difference in screen size or that this larger screen will even assist C.S. in returning to her pre-accident level of functioning. In this vein, having found that the iPhone 7 Plus is not a reasonable and necessary expense or even a true home communication aid, it follows that I find the Apple Care warranty for same that was not incurred to also not be a reasonable and necessary expenses and are therefore not payable.

10However, I do find a protective case in the incurred amount of $34.99 to be a reasonable and relatively cost-effective expense where there is evidence of C.S. dropping other items, and specifically her cell phone, due to hand tremors and/or cognitive strain. That there have been recommendations for a protective case from both Ms. Murphy and C.S.’s treating physiotherapist suggests, in my view, that it is a necessary expense and reasonably tethered to her accident-related impairments. As C.S. provided proof that the protective case was incurred, I therefore find it payable.

11With regards to the ergonomic lawn chair, C.S. submits that it is reasonable and necessary because she has a desire to sit outside “but the furniture she has is hard to get in and out of as a result of her impairments.” C.S. submits that an ergonomic lawn chair is compensable under the Schedule similar to an ergonomic chair for indoor use. Prior to the accident, C.S. did not have, and did not require, an ergonomic lawn chair and this item was specifically recommended by Ms. Murphy only after suffering injuries in the accident. C.S. submits that her previous lawn chair is no longer suitable for her as a result of her accident-related injuries. Co-Operators argues that C.S. had chronic pain in her spine for many years pre-accident and her current need for an ergonomic lawn chair has no relation to the accident whatsoever.

12I agree with C.S. and find it reasonable that she has an outdoor chair that provides comfort and pain relief in order for her to spend more time outside of the home. I find Co-Operators’ reason for the denial—that a proper chair is a “requirement” regardless of an accident and that C.S. did not provide evidence of “trials of other types of chairs”—to be rather obtuse. While a proper chair is a “requirement” for human beings, yes, it does not follow that catastrophically-impaired insureds should be required to move their one ergonomic chair that prevents pain and discomfort between rooms or inside and outside of their homes on a seasonal basis. I suspect this would provide the opposite of a rehabilitative effect. Further, I was not directed to any requirement under the Schedule that states that insureds are required to conduct a “trial” for every item they claim and especially so where the recommendation was that C.S. attend with her therapist to find a suitable outdoor chair and the cost was an estimate. I find a trial is not a necessary exercise for me to find that an ergonomic lawn chair, so long as it does not exceed the $150 total proposed by Ms. Murphy, is a reasonable and necessary expense for C.S.’s accident-related injuries.

13In relation to the FitBit, C.S. submits that it will “encourage and monitor steps and notice of any texts or calls when her cell phone is not on her body.” She also submits that it would be helpful to give some feedback on sleep patterns and heart rate changes. In response, Co-Operators asserts that C.S. had sleep issues pre-accident, that her cell phone is also capable of performing tracking services and that there is insufficient documentation to support C.S. needing this particular device for accident-related impairments.

14I agree with Co-Operators. I find C.S.’s reasons to support why a FitBit is reasonable and necessary are speculative at best and I find there is limited indication that it will actually assist in her rehabilitation from accident-related impairments. Further, C.S. has not demonstrated why her iPhone is incapable of tracking her steps, monitoring her sleep patterns or encouraging her to move. In my view, a FitBit is a truly discretionary expense and an insurer should not be forced to bear the cost just so an insured can get notifications when they are not near their cell phone. Accordingly, I find C.S. has not met her burden to prove that a FitBit is reasonable and necessary for her specific impairments and it is therefore not payable.

15Finally, C.S. submits that her current mattress is a “coil-base with several blankets and heating pads to try and promote better sleep” and that the mattress is over 15 years old. C.S. argues that she did not have sleep issues prior to the accident and that it was not until after the accident that she began to suffer from disturbed sleep which impacts her throughout the day. C.S. submits that sleep disturbance is a significant impediment to her recovery and wellbeing, and as such, a treatment plan to restore her sleep, which in turn will improve her quality of life and function, is reasonable and necessary. In response, Co-Operators points to C.S.’s pre-existing sleep issues and also submits that the fact that the mattress is 15 years old is the real justification for requiring a new one and not as a result of the impairments from the accident.

16I agree with C.S. While the age of her mattress is concerning, it is well-settled that pain reduction is a legitimate goal for an assistive device like a proper sleep set. I accept that where sleep issues and pain exist, a lack of restorative sleep can affect function and rehabilitation. Currently, C.S. sleeps on an old single mattress with heat pads and an electric blanket to achieve this and when she cannot, she resorts to sleeping on the sofa or on the floor. At minimum, the functional goal of a mattress is to achieve some level of comfortable sleep so that C.S. can improve her daily function and avoid fatigue. These goals, in my view, are reasonable given her physical, cognitive and psychosocial impairments. Indeed, I find the base goal of achieving restorative sleep to be rather humble, achievable and certainly proportional to the impairments in the medical file. In my view, ensuring restorative sleep is necessary in order to help C.S. wake with energy each day so that she may focus on her pain management strategies and daily goals. While I find the $1,500 proposed cost to be on the high end for a single mattress and box spring, I find the items payable once incurred.

$73.45 for repair of a smartphone screen

17This item was submitted via an OCF-6. C.S. submits that she suffers from lapses in her memory and forgets what she is doing and drops her smartphone due to forgetting what she was doing, severely damaging the screen. C.S. submits that it was a reasonable and necessary expense to repair instead of replacing the phone. Co-Operators took the position that the expense for repairing the glass for a mobile phone is not considered to be a reasonable and necessary medical or rehabilitation expense under the Schedule required to reduce or eliminate the effects of any disability resulting from an impairment.

18I agree with Co-Operators. Dropping a cell phone (or really, anything that is fragile) is an everyday occurrence. Co-Operators should not be responsible for reimbursing C.S. every time she drops her cell phone, which appears to happen with some regularity. In any event, I do not accept that the repair of a screen is a rehabilitation expense or that C.S. has satisfied her burden to demonstrate that it is “required to reduce or eliminate the effects of an accident-related impairment.” Rather, I consider the protective case, which I found to be a reasonable and necessary incurred expense, above, is the type of benefit “required to reduce or eliminate the effects of an accident-related impairment.” Accordingly, I do not find this expense to be reasonable and necessary and it is therefore not payable.

$101.69 for a smartphone case

19In submissions, C.S. argues that because the initial cell phone cover was denied, her cell phone was damaged when she dropped it. Accordingly, her treating physiotherapist recommended a better one. C.S. also submits that it is significant to note that Co-Operators now had a recommendation of a cell phone case from two of C.S.’s treatment providers: her occupational therapist and her physiotherapist. In response, Co-Operators submits that there is no medical evidence to support the need for a cell phone case as a reasonable and necessary expense for C.S.’s accident-related impairments. It submits that a cell phone case is a discretionary expense that is not compensable under the Schedule and, in any event, is a duplication of her previous, less expensive claim for a cell phone cover.

20Again, having determined above that the protective case in the amount of $34.99 already incurred by C.S. is reasonable and necessary, it follows that a second case would be a duplication. In any event, I would not consider the proposed cost of 101.69 ($89.99 plus HST) for a protective case to be a reasonable expense.

$2,079.91 for a riding lawnmower ($1,751.49 incurred and in dispute)

21Prior to the accident, C.S. submits that she did not have a riding lawnmower but argues that she enjoys this task and wishes to return to mowing her lawn. The OCF-18 indicates she used to borrow her neighbours’ riding mower to cut the lawn. She submits that her desire to return to a purposeful task needs to be encouraged, making the incurred expense in the amount of $1,751.49 reasonable and necessary. In response, Co-Operators points to C.S.’s affidavit that states she had access to a riding lawnmower pre-accident and argues that there is no evidence why this specific model is reasonable and necessary. It further queries how a riding lawnmower is a reasonable and necessary expense to reduce or eliminate the effects of her accident-related disability, what happened to her previous lawnmower, that a lawnmower is not compensable and that, under the Schedule, there are other provisions to assist C.S. with home maintenance activities via the housekeeping benefit.

22I agree with Co-Operators. Unlike the other items in dispute, C.S. did not provide specific submissions explaining why the incurred riding lawnmower is reasonable and necessary for her specific impairments other than her statement in her affidavit that she wants to mow her lawn. Further, I agree with Co-Operators that a riding lawnmower does not fit under any of the rehabilitation benefit subsections of s. 16. Even if it could be lumped in under s. 16(3)(l) as “a benefit not otherwise provided” in the Schedule, I find it clear that it would then be captured by s. 16(3)(l)(ii), which provides for housekeeping services, which include home maintenance activities. While finding purpose through activity is important for recovery and C.S. should be commended for her efforts, for these reasons, I find the riding lawnmower is not a reasonable and necessary expense under the Schedule and is therefore not payable despite being incurred by C.S.

$2,688.55 for case manager services rate ($109.24 vs. $89.07 per hour)

23Ms. Murphy completed an OCF-18 on December 20, 2017, for case manager services to be provided by Ms. Eisler, who is a registered nurse. The hourly rate was proposed to be $109.24. Co-Operators approved the services of this treatment plan but would only agree to pay $89.07 per hour for Ms. Eisler’s services, which it argued was the proper rate under the Superintendent’s Guideline. Further, Co-Operators submits that there was no evidence that Ms. Eisler was providing services in her capacity as a registered nurse and that it is not reasonable to pay the hourly rate in excess of the Guideline rates for a case manager considering the roles of other members of C.S.’s treatment team.

24In response, C.S. submits that Co-Operators’ position contradicts Guideline A-03/18, which states that expenses for regulated and unregulated providers identified are payable according to their professional designation and not by the services they provide. Further, C.S. submits that upon cross-examination on his affidavit, the Co-Operators’ adjuster agreed that the amount payable should be $109.24 per hour.

25On review, I agree with C.S. Guideline A-03/18 clearly states that expenses for regulated providers (Registered Nurses are specifically designated in the Guideline appendix) are payable according to their professional designation and not by the services they provide. As it is uncontroverted that Ms. Eisler is a registered nurse, it follows that her expenses for services are payable at the registered nurse rate under the Guideline, which is $109.24. Accordingly, I find C.S. is entitled to payment for the difference in the rate for Ms. Eisler’s services and the rate applied by Co-Operators, being $2,688.55

$1,203.54 for the difference in the acupuncture rate ($135.35 vs. $89.07 per hour)

26Here, the dispute concerns the proper acupuncture rate and whether acupuncturists are considered to be regulated under the Guideline rates. Co-Operators refused to pay $135.36 per hour for acupuncture treatment recommended by Mr. Amato, a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and took the position that the hourly rate should be $89.07 because an acupuncturist is an unregulated provider under the Guideline because it is not specifically identified. C.S. submits that Co-Operators “unreasonably assumed that an acupuncturist is unregulated and failed to perform due diligence in denying this treatment plan” and argues that the rate charged by Mr. Amato is similar to the rate charged by a chiropractor under the Guideline. C.S. asserts that an acupuncturist provides the exact same service that a chiropractor provides and, as such, should be allowed to be paid at the same hourly rate as a chiropractor.

27I agree with Co-Operators and find it applied the proper rate of $89.07 to the acupuncture services provided. While I accept that Mr. Amato is a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, it still does not make him a regulated professional under the Guideline. Acupuncturists are not specifically identified in the appendix, nor is a rate provided, so Mr. Amato’s services are not covered by the Guideline. Therefore, the amounts payable to providers not listed in the Guideline, in this case, Mr. Amato, are to be determined by the parties. C.S. may propose a higher rate—in this case, the second highest rate possible— but Co-Operators is not required to pay for services above Guideline rates.

28As a regulated professional not identified in the Guideline, I agree that the proper rate is $89.07, as agreed to be paid by Co-Operators, as the services provided by Mr. Amato are akin to those provided by massage therapists and kinesiologists. C.S. has not demonstrated why it would be reasonable and necessary to pay $46.29 more per hour for acupuncture services (that are regulated but not specifically listed in the Guideline) than for massage or kinesiology services (which are also regulated by professional bodies but are specifically listed in the Guideline). Accordingly, I find C.S. is not entitled to the difference between the proposed rates.

Award, Costs and Interest

29C.S. claims an award under s. 10 of O. Reg. 664 due to Co-Operators’ unreasonable withholding and delaying the full payment of her benefit and expense claims. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payment of benefits.

30I find an award is not appropriate. On review, Co-Operators partially approved almost all of C.S.’s claims or re-assessed same on receipt of more information. Where it denied her claims, I find there were grounds for a genuine disagreement over whether the items were reasonable and necessary for C.S.’s accident-related impairments. As is evident, I agreed with some of Co-Operators’ denials and disagreed with others. An award is not meant to punish an insurer for getting a decision wrong but where there is evidence that it acted unreasonably in doing so. I find no evidence to suggest deterrence is needed.

31C.S. also claims her costs in this proceeding under Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. The Tribunal may award costs where a party has acted unreasonably, vexatiously, frivolously or in bad faith during a proceeding. It is C.S.’s position that $5,000 in costs “would be appropriate in this case” because Co-Operators “unreasonably extended these proceedings by being inflexible and unreasonable in changing their position in light of further submissions.” I disagree. On review, I find no evidence that Co-Operators acted unreasonably, vexatiously, frivolously or in bad faith to warrant costs.

32Finally, having determined that certain benefits are payable, it follows that interest applies to all overdue benefits pursuant to s. 51 of the Schedule.

CONCLUSION

33C.S. is entitled to payment once incurred for the following items as they are reasonable and necessary: a cell phone protective case in the amount of $34.99; an ergonomic lawn chair not to exceed $150; a mattress and box spring not to exceed $1,500; and $2,688.55, representing the difference in the Guideline rate for services provided by her registered nurse that were not approved. Interest applies to all overdue benefits incurred pursuant to s. 51.

34C.S. is not entitled to payment for the following items as they are not reasonable and necessary: an iPhone 7 Plus; two-year Apple Care Warranty; a FitBit; a riding lawnmower; $73.45 for cellphone screen repair; $101.69 for a protective cell phone case; and $1,203.54 for the difference in the Guideline rate for services provided by her acupuncturist that were not approved. I find a s. 10 award and costs are not appropriate.