Citation: C. C. vs. Aviva Insurance Canada, 2020 ONLAT 19-001740/AABS

Date: July 14, 2020 Tribunal File Number: 19-001740/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.C. Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Counsel For the applicant: Philip J. Smith Counsel for the respondent: Alexander Hartwig

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident (the “accident”) on December 20, 2016 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent, Aviva Insurance Canada (“Aviva”), refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2A case conference was held on September 25, 2019. The parties were unable to resolve their dispute and have proceeded to a written hearing.

ISSUES

3The disputed claims in this hearing are:

i. Is the applicant entitled to payment for the cost of examinations in the amount of $1,920.69 for an attendant care in-home assessment, recommended by Kelsea Liotta of Moving Towards Wellness in a treatment plan (OCF-18) dated October 20, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $2,600.03 for occupational therapy (OT) services, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated January 9, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $906.70 for massage therapy services recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated May 4, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $3,242.64 for physiotherapy services recommended by June Williamson New Horizons in a treatment plan (OCF-18) dated August 31, 2018?

v. Is the applicant entitled to payment for the cost of examinations in the amount of $5,571.00 for the balance of a neuropsychological assessment (original OCF-18 in the amount of $7,571.00, partially approved in the amount of $2,000.00), recommended by Omega Medical Associates in an OCF-18 dated January 10, 2018?

vi. Is the applicant entitled to a rehabilitation benefit in the amount of $4,064.73 for rehabilitation support worker services, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated May 22, 2018?

vii. Is the applicant entitled to a medical benefit in the amount of $472.89 (original OCF-18 in the amount of $822.89, partially approved in the amount of $350.00) for assistive devices, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated October 6, 2018?

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

RESULT

4Based on the evidence before me, and on a balance of probabilities, I find that:

(i) The applicant is entitled to payment for the cost of examinations in the amount of $1,920.69 an attendant care in-home assessment, recommended by Kelsea Liotta of Moving Towards Wellness in a treatment plan (OCF-18) dated October 20, 2017.

(ii) The applicant is entitled to a medical benefit in the amount of $2,600.03 for occupational therapy services, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated January 9, 2018.

(iii) The applicant is not entitled to a medical benefit in the amount of $906.70 for massage therapy services recommended by Moving Towards Wellness in a treatment plan (OCF-18) 8 dated May 4, 2018.

(iv) The applicant is not entitled to a medical benefit in the amount of $3,242.64 for physiotherapy services recommended by June Williamson New Horizons in a treatment plan (OCF-18) dated August 31, 2018.

(v) The applicant is entitled to payment for the cost of examinations in the amount of $2,000.00 towards the unapproved balance of the neuropsychological assessment, recommended by Omega Medical Associates in a treatment plan (OCF-18) dated January 10, 2018.

(vi) The applicant is not entitled to a rehabilitation benefit in the amount of $4,064.73 for rehabilitation support worker services, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated May 22, 2018.

(vii) The applicant is entitled to a medical benefit in the amount of $472.89 for assistive devices, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated October 6, 2018.

(viii) The applicant is entitled to interest in accordance with section 51 of the Schedule.

BACKGROUND

5The applicant was driving and proceeding through an intersection when her vehicle was t-boned on the passenger side by another vehicle which ran a stop sign. She was transported by ambulance to the hospital and sustained a fracture to her right thumb. The disability certificate (“OCF-3”), dated February 10, 2017¹ completed by her family doctor, Dr. K. Spacek, provided the diagnosis of a concussion and that she suffered a substantial inability to perform her employment tasks for more than 12 weeks. The applicant is disputing Aviva’s denial of medical and rehabilitation benefits.

ANALYSIS

Is the applicant entitled to an in-home assessment in the amount of $1,920.69?

6I find this treatment plan is reasonable and necessary for the following reasons. I accept the applicant was suffering from post concussive syndrome. I find this impacted her ability to perform her caregiving and housekeeping duties. As a result of the emotional and physical impairments sustained as a result of the accident, the applicant experiences great difficulties when performing these tasks, which I address below.

7The applicant incurred this assessment and an occupational therapy (“OT”) assessment report was issued by Kelsea Liotta (“Ms. Liotta”), occupational therapist, dated November 21, 2017.² I find the assessment report persuasive in supporting the applicant’s claim that the OCF-18 for this assessment is reasonable and necessary. The assessment took place in the applicant’s home and was based on subjective reporting combined with functional testing and observation. The assessment identified the psychosocial, cognitive and physical symptoms experienced by the applicant which were impeding her ability to successfully carry out her caregiving and housekeeping duties. The report was thorough and Ms. Liotta provided specific recommendations to assist the applicant with improving the quality of her participation in everyday activities and caregiving duties.³ I accept the findings of this report support that this assessment is reasonable and necessary to assist with identifying the applicant’s post concussion symptoms and identifying the areas where she requires assistance relating to her household activities of daily living and caregiving duties.

8The applicant argues that an in-home assessment is reasonable and necessary to address her post concussion syndrome. She relies on a neurological insurance examination (“IE”) assessment report of Dr. J. Desai, neurologist⁴, in which he diagnosed: low-grade persistent headache secondary to mild traumatic brain injury complicated with post concussion syndrome. Dr. Desai attributed this to the motor vehicle accident and opined that her symptoms would gradually resolve within twelve months. Dr. Desai noted she had returned to work on modified duties and was performing her caregiving and housekeeping tasks. The following had been reported to Dr. Desai: the applicant was emotional and irritable since the accident, she continued to experience headaches and dizziness, she experienced numbness in her right arm from her shoulder to her hand, and numbness in her cheek/face when sleeping on a pillow.

9The applicant also relies on a neuropsychological assessment report, prepared by Dr. L. Davidson⁵ in which OT was recommended to address the impact of her cognitive, emotional, and somatic symptoms and their interference with the quality of her work performance, caregiving duties, and household tasks. Dr. Davidson recommended OT services to assist her with developing practical strategies to increase her efficiency and support her mood and cognitive functioning. The post-accident symptoms noted by Dr. Davidson include: headaches, pain, dizziness, photo sensitivity, sleep disturbance, and cognitive difficulties. While Dr. Davidson noted the applicant has returned to working full-time, and many household and caregiving activities, she is doing so with modifications, altered/reduced engagement, and reduced quality of life. Dr. Davidson also noted she is less efficient at completing household tasks and relies on her husband to occupy the children, so she does not get distracted when doing these tasks. Further, it was noted that she has decreased her involvement in physically demanding activities which are the result of her diminished mood, irritability, and reduced frustration tolerance, and numbness in her right arm and face.

10I find Dr. Davidson’s neuropsychological report supports that she suffered from cognitive, emotional, and somatic symptoms since the accident. This report was completed seven months after the date of the treatment plan. The report was very comprehensive and relied on objective testing/self-reporting and no issues with validity were noted. I accept that the findings of both Dr. Desai and Dr. Davidson align with the goals proposed within the treatment plan⁶ which include assessing the present deficits relating to post concussion syndrome and making recommendations for other therapeutic interventions. I accept the applicant was still experiencing these post concussion systems at the time Dr. Davidson issued her report and as a result, I accept the applicant was experiencing these symptoms at the time the treatment plan was submitted to Aviva.

11Aviva refutes that the treatment plan is reasonable and necessary and relies on its IE assessment paper review report of Dr. G. Yu Ming Yee, orthopedic surgeon.⁷ Dr. Yu Ming Yee found this treatment plan was not reasonable and necessary from an orthopedic perspective as the applicant had reached maximum medical improvement. Aviva further argues that she had returned to working as an assistant 21 hours per week, she was able to manage her household and three children while her husband was away for work, she is independent with her self-care tasks, and is able to perform all her pre-accident housekeeping duties, albeit at a slower pace.

12I afford little weight to the report of Dr. Yu Ming Yee. While his report specifically assessed this benefit, I find his opinion did not properly assess how this treatment plan would assist the applicant in addressing her specific deficits relating to performing her employment tasks, caregiving duties, and household tasks. For the reasons I have addressed above, I prefer the reports of Dr. Desai, Ms. Liotta, and Dr. Davidson. I find this treatment plan is reasonable and necessary.

Is the applicant entitled to a medical benefit in the amount of $2,600.03 for occupational therapy (“OT”) services?

13I find this treatment plan to be reasonable and necessary. I find Ms. Liotta’s OT report is persuasive for the reasons I outlined in paragraph 7 above. Ms. Liotta’s recommendations aligned with her findings. For example, her report noted the applicant’s ongoing issues with dizziness and numbness and further noted her difficulty with onset and sleep maintenance and the cognitive and emotional impact as a result of being fatigued. Ms. Liotta provided information which supports this. Her report noted that on the Rivermead Post Concussion Symptom Questionnaire, the applicant rated sleep disturbance and dizziness as a severe problem.⁸ Ms. Liotta noted that the applicant would feel overwhelmed with grocery shopping and completing household tasks like laundry and cleaning. She would often avoid doing them until her husband was home to assist her. Ms. Liotta noted that the applicant felt frustrated and emotional because she could not complete tasks as she did prior to the accident, and that she feels slower. She also reported difficulty with memory issues, multitasking, listening and following verbal instructions. Six OT sessions were recommended to educate her regarding energy conservation, sleep management, management of post-concussion symptoms, and household management.

14While Dr. Yu Ming Yee’s orthopedic assessment did conclude from an orthopedic perspective that the applicant had reached maximum medical improvement, I do not find his report provides any support that she is able to perform her activities of daily living without difficulty or impairment. His report was issued prior to the OT report of Ms. Liotta and there is no documentation produced that he later reviewed Ms. Liotta’s OT report or this proposed treatment plan.

15I accept that the combination of headaches, dizziness, right-side numbness, fatigue, frustration, and being more emotional would make it challenging for the applicant to carry out and complete her activities of daily living, including caregiving and housekeeping tasks, on a regular basis. The functional goals noted within the OCF-18 are to improve participation in everyday activities, improve caregiving capacities, and allow her adequate time to recover from post concussive symptoms. I find the goals outlined in the treatment plan are supported by the findings in Ms. Liotta’s assessment and for the reasons I have outlined above, I find this treatment plan to be reasonable and necessary.

Is the applicant entitled to a medical benefit in the amount of $906.70 for massage therapy services?

16I do not find this treatment plan is reasonable and necessary. In Aviva’s Explanation of Benefits (“EOB”), dated May 18, 2018 which denied this treatment plan, it relied on its IE reports of Dr. Yu Ming Yee (December 5, 2017) and Dr. Desai (November 2, 2017). While Dr. Yu Ming Yee’s December 2017 orthopedic IE assessment report did not specifically comment on the OCF-18 for massage therapy, his report did opine that she had residual symptomatology related to myofascial strains of the cervical spine and trapezius. His clinical findings revealed functional range of motion. There were no objective findings to suggest any active radiculopathy or myelopathy. Dr. Yu Ming Yee deferred comment on her neurologic symptoms of right arm and facial numbness to the appropriate expertise. Dr. Desai’s neurological IE report does not comment on the benefits of massage therapy which the applicant reported to Dr. Desai she was receiving once per week. While neither report specifically comments on massage therapy, I find Dr. Yu Ming Yee’s report supports his conclusion that from an orthopedic perspective, she has reached maximum medical improvement. I find this evidence supports that the massage therapy proposed in the OCF-18 is not reasonable and necessary.

17The applicant relies on the report issued by Dr. K. Sequeira, physiatrist⁹, who provided a diagnosis of myofascial thoracic outlet syndrome and recommended massage therapy to manage pain flare-ups. He further opined that this treatment was appropriate as long as she did not solely rely on it but used it in conjunction with an active treatment program. Further, Dr. Sequeira noted on page 5 of his report that she received bi-weekly massage therapy and it reduced her pain by 50-75% for that day.

18A report from her treating neurologist, Dr. J. Clifford¹⁰, noted that neither mechanical or central pain generators represent any active or progressive tissue pathology and any soft tissue injuries have long since healed. Dr. Clifford recommended shifting away from the traditional acute medical model which focuses on resolution of symptoms and moving to the functional restoration model, with the goal of enhancing function.

19I am not persuaded by Dr. Sequeria’s report which recommends massage therapy as she reported that the results of massage therapy provided pain relief for a very short duration. As this OCF-18 was submitted more than two years following the accident, I am persuaded by the recommendation of Dr. Clifford who recommends moving away from passive treatment. Dr. Clifford opined that the applicant’s soft tissue injuries have healed which was also the finding of Dr. Yu Ming Yee during his 2017 orthopedic IE assessment. Therefore, I find the applicant has not proven on a balance of probabilities that this treatment plan is reasonable and necessary.

Is the applicant entitled to a medical benefit in the amount of $3,442.64 for physiotherapy?

20I find this treatment plan is not reasonable and necessary. I rely on the information the applicant had reported to two assessors - Ms. June Williamson, physiotherapist, and Dr. Yu Ming Lee, orthopedic surgeon - that ongoing physiotherapy only provided temporary relief of her symptoms. I find this information aligns with the recommendations of Dr. Clifford which supported the applicant moving away from the acute medical model to resolve her physical symptoms.

21A physiotherapy assessment was completed by June Williamson (“Ms. Williamson”), physiotherapist, and a report was issued.¹¹ The assessment was based on an in-person interview, objective testing, and questionnaires. The applicant reported to Ms. Williamson that physiotherapy assisted with maintaining her current status but “she no longer notes progress.”¹² Ms. Williamson noted the applicant continues to experience post concussion symptoms which significantly impact her life at home and at work. An OCF-18 was submitted recommending twelve weeks of physiotherapy treatment twice weekly to manage her headaches, right shoulder pain and knot in right shoulder, and right arm paraesthesia.

22An in person orthopedic IE assessment was performed by Dr. Yu Ming Yee which specifically assessed this OCF-18 and a report was issued.¹³ The assessment consisted of an in-person interview, a clinical assessment and a review of the available documentation. The report notes that the applicant reported receiving chiropractic treatment and massage therapy once every two weeks. The treatment includes adjustment, stretching, cognitive therapy, and participation in a home exercise program consisting of stretching. The applicant reported the treatment helps 30-40% for a day or two and then the pain returns. Dr. Yu Ming Yee found that she has residual symptomology related to myofascial strains of the cervical spine and right trapezius as a result of the accident. No objective findings suggested any active radiculopathy or myelopathy. Dr. Yu Ming Yee concluded the OCF-18 for physiotherapy was not reasonable and necessary given the time lapsed since the accident and the treatment received to date. He opined any further facility-based rehabilitation programs would not provide any lasting clinical benefits and referenced that the applicant had reported it only provided temporary relief of her symptoms.

23I prefer the findings of Dr. Yu Ming Lee over Ms. Williamson. While I accept that Dr. Yu Ming Lee’s findings are from an orthopedic perspective, his report addresses the results of physiotherapy treatment to date and addresses the reason why ongoing physiotherapy would not be beneficial to the applicant. He also addressed the fact that she had reported it did not provide any long lasting benefits. The applicant had also reported to Ms. Williamson that she was no longer progressing from the ongoing physiotherapy she was receiving, but this was not addressed by Ms. Williamson. Rather, Ms. Williamson recommended 24 sessions of physiotherapy to address the applicant’s ongoing post concussive symptoms. On a balance of probabilities, I find this treatment plan is not reasonable and necessary.

Is the applicant entitled to the cost of examinations in the amount of $5,571.00 for the unapproved balance of the neuropsychological assessment?

24I find the applicant is entitled to $2,000.00 towards the unapproved balance of this treatment plan. I find that s. 25(5)(a) of the Schedule applies. I find the neuropsychological assessment report of Dr. Davidson, dated May 29, 2018 is comprised of two separate assessments: 1) the applicant was assessed for cognitive function, addressing the applicant’s cognitive symptoms and specific cognitive testing was performed; 2) Dr. Davidson also assessed the applicant from a psychological perspective and administered separate psychological testing. Dr. Davidson opined the applicant’s cognitive impairments were largely related to fluctuations in attention which affected functioning across other domains including: memory, processing and fluency. While Dr. Davidson opined that the applicant did not meet the full criteria for a psychological diagnosis, she presented with mood, anxiety, and posttraumatic symptoms which interfered with her quality of life. Dr. Davidson opined that the applicant’s symptoms and cognitive impairments were as a result of the accident.¹⁴ Further, I have found Dr. Davidson’s neuropsychological report persuasive and relied on it above in paragraphs 9 and 10 to identify how her cognitive impairments and psychological symptoms have impacted her ability to perform her activities of daily living.

25I am persuaded by the neuropsychological IE report of Dr. M. Watson, neuropsychologist, in which he opines that a neuropsychological assessment is comprised of two assessments - a neurocognitive assessment and a psychological assessment - and notes how they are distinguishable. Dr. Watson assessed the applicant on June 14, 2018 and issued three separate IE reports: a neuropsychological, a neurocognitive, and a psychological report, all dated June 28, 2018.¹⁵ Within the neurocognitive and psychological reports, Dr. Watson found that both [emphasis mine] the neurocognitive assessment and the psychological assessment are reasonable and necessary. However, Dr. Watson noted the fee for each of these assessments needed to be adjusted to fit within the statutory cap of $2,000.00 maximum per assessment. The treatment plan in dispute proposed a neuropsychological assessment in the amount of $6,500.00 plus $200.00 for completion of the treatment plan plus HST. In the EOB from Aviva dated August 2, 2018, a maximum of $2,000.00 was approved for a psychological assessment only.

26Dr. Watson notes on page 3 of his neurocognitive report that a neurocognitive assessment measures cognition, including memory, attention, and visual abilities. He further notes it does not assess psychological functioning in detail and it does not allow for the diagnosis of psychological conditions. Within his neurocognitive report, he diagnosed the applicant with an unspecified neurocognitive disorder with etiology deferred to the proper medical practitioner. Dr. Watson recommended that a neurocognitive assessment in the amount of $2,000.00 was reasonable and necessary. His psychological assessment report diagnosed her with an unspecified somatoform disorder and recommended that a psychological assessment in the amount of $2,000.00 was reasonable and necessary. I find this information supports that the neuropsychological assessment proposed within the treatment plan provides justification that two separate assessments; neurocognitive and psychological are reasonable and necessary. Neurocognitive and psychological clarification addendum reports, both dated July 19, 2018 were issued by Dr. Watson. He confirmed the neurological and psychological findings noted in his June 2018 reports were linked to the accident. His recommendations regarding the neurocognitive and psychological assessments remained unchanged.

27Aviva argues, as per s. 25(5)(a) of the Schedule, it is not required to pay more than $2,000.00 plus any applicable HST with respect to conducting any one assessment or examination and preparing the reports connected with it. Aviva relies on the Tribunal decision 16-002285 v. Allstate Insurance Company¹⁶ in which the applicant submitted two neuropsychological treatment plans with the same provider and date. One was for neuropsychometric testing, and the other for a neuropsychological assessment. The respondent approved one of the treatment plans. The adjudicator agreed with the respondent that breaking the assessment into two separate parts, submitted as two separate treatment plans does not circumvent the $2,000.00 cap stipulated within s. 25 of the Schedule. I am not persuaded by this decision as I find it is distinguishable. In the prior Tribunal decision, the applicant sought $2,000.00 each for neurocognitive testing and a neuropsychological assessment. I agree with the adjudicator that they form the basis for one assessment. In the case before me, I find the neurocognitive and psychological assessment are two separate assessments as noted and recommended by Dr. Watson within his June 2018 IE reports. Therefore, I find the balance of the neuropsychological assessment up to $2,000.00 is reasonable and necessary. I find s. 25(5)(a) of the Schedule applies and as a result, the balance of the treatment plan in dispute is not payable.

Is the applicant entitled to a rehabilitation benefit in the amount of $4,064.73?

28I do not find this treatment plan for a rehabilitation support worker is reasonable and necessary. The EOB from Aviva dated May 30, 2018¹⁷ denied this treatment plan and relied on two prior IE assessments: orthopedic assessment of Dr. Yu Ming Lee (December 5, 2017) and the neurological assessment of Dr. Desai (October 24, 2017). While this OCF-18 was not before these assessors, and neither assessor commented on any rehabilitative support worker, or rehabilitative treatment program, I find the applicant has not demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.

29The applicant relies on the physiatry assessment report of Dr. Sequeira, dated February 12, 2018. Dr. Sequeria’s diagnosis included: concussion, post concussive syndrome, myofascial thoracic outlet syndrome – relating to her right side neck and arm pain, sleep dysfunction, mood dysfunction, cervicogenic and tension type headaches, and neck pain of a musculoligamentous etiology (WAD II). It is noted on page 5 of his report that the applicant reported: “…she does an exercise program for about one hour, twice per week with a personal trainer as well as using her own body to do various exercises. She reported that she gets stretched by the personal trainer afterwards but does not do any particular stretching routine on her own.” She also reported feeling frustrated, anxious, clouded thinking when her pain is escalated, her processing speed is reduced, and she feels fatigued both physically and cognitively.

30I am not persuaded by the following recommendations noted by Dr. Sequeira: a low impact exercise and activity program (similar to what she is currently doing), incorporating a stretching routine for her neck and parascapular region, and a low impact yoga type program. The applicant was already participating in something similar at the time Dr. Sequeira assessed her, yet she was experiencing pain and other symptoms which led to the diagnoses noted by Dr. Sequeira. He noted her problems have persisted for over a year and will likely remain. He further noted relevant gains may be made with the passage of time and as a result of the recommended treatment. I accept that she was still experiencing post concussive symptoms, but I find Dr. Sequeira has not established how further rehabilitative treatment will address her post concussive symptoms and the other diagnoses which he provided.

31While the IE reports of Dr. Yu Ming Lee and Dr. Desai were relied on by the respondent and this treatment plan was not specifically addressed, nor the benefits of rehabilitation treatment, I do not accept this establishes the treatment is reasonable and necessary. I accepted the findings of Dr. Yu Ming Lee as noted in paragraph 16 above. I agree with Dr. Yu Ming Lee that from an orthopedic perspective, the applicant has reached maximum medical improvement. Therefore, I do not find this treatment plan to be reasonable and necessary.

Is the applicant entitled to the unapproved amount of $472.89 for assistive devices?

32I find the applicant is entitled to the unapproved portion of this treatment plan in the amount of $472.89. I find the balance of the treatment plan for noise cancelling headphones in the amount of $372.89 plus the tile Bluetooth tracker/memory aid - applications for cognitive rehabilitation in the amount of $100.00 are reasonable and necessary.

33The full amount of the treatment plan submitted to Aviva was for $822.89. Dr. Desai, neurologist assessed the applicant and this treatment plan. An IE report was issued.¹⁸ Dr. Desai found the treatment plan was partially reasonable and necessary in the amount of $350.00 which included $250.00 for ear plugs with a noise attenuation filter and $100.00 for documentation support activity. He opined she had not reached maximum medical improvement. The diagnosis provided by Dr. Desai remains unchanged from the diagnosis provided in his prior report from 2017.¹⁹ He reported she works 35-40 hours per week performing tasks including: scheduling, design work, and computer work. His report noted the applicant reported: her memory has worsened, and she is forgetful, she has difficulty getting words out resulting in it taking longer to verbally respond, a lot of activities she does cause dizziness, she feels overwhelmed at work, and she experiences headaches daily which last for hours which she attributes to stress. It was Dr. Desai’s recommendation that the use of simple earplugs in noisy environments would be sufficient to address her reported noise sensitivity.

34However, Dr. Desai’s report does not provide comment on the why the balance of the treatment plan is not reasonable and necessary. Aviva argues that a copy of the applicant’s employment file was requested as she maintains she has difficulty functioning at work due to noise. A copy of the employment file was not produced for the hearing despite the applicant sending request letters to the employer on three separate dates.²⁰ I do not afford much weight to the employment file not being produced. Dr. Desai did recommend ear plugs to assist her in dealing with noisy environments. Based on the combination of the diagnosis provided by Dr. Desai and the symptoms reported by the applicant, I accept that a noisy environment aggravated her symptoms. In addition, she works in a gym/personal training studio which I accept would have a significant amount of noise.

35I rely on the report issued by Joanne Ruediger, speech language pathologist²¹, to support that the balance of this treatment plan is reasonable and necessary. Her report consisted of an interview with the applicant and objective testing. Ms. Ruediger provided an explanation why the specific assistive devices are being recommended and how they will assist the applicant. I am persuaded by the findings within Ms. Ruediger’s report relating to the applicant’s memory issues and regarding noise at work. Her findings align with the proposed goals of the treatment plan and the additional comments outlined on page 10 of the treatment plan. Dr. Ruediger noted that technology was required to assist the applicant with organization and retrieval of information. I accept that the applicant has ongoing issues with her memory. The information has been documented within the reports of Dr. Desai and Dr. Ruediger. Therefore, I find the tile Bluetooth tracker/memory aid - applications for cognitive rehabilitation in the amount of $100.00 is reasonable and necessary.

36The noise cancelling headphones were recommended by Ms. Ruediger which can be used in conjunction with the musician’s filters (also proposed in the treatment plan), or in situations requiring her to reduce the background noise coming at her. The applicant has three children who play sports. Her husband is away for work during the week. Ms. Ruediger further noted on page 10 of the treatment plan that the noise cancelling headphones would assist the applicant in noisy and busy environments like the grocery store. On page 16 of her report, Ms. Ruediger notes the noise cancelling headphones would assist the applicant in noisier environments including the hockey arena where she takes her children for their games. I accept that the applicant is exposed to environments within her activities of daily living in which the ear plugs would not suffice. I rely on Ms. Ruediger’s report and find the proposed goals and recommendations she noted in this OCF-18 are supported by her findings noted within her report. I find the noise cancelling headphones in the amount of $372.89 are reasonable and necessary.

Is the applicant entitled to interest?

37I find the applicant is entitled to interest in accordance with s. 51 of the Schedule on the benefits I have found she is entitled to.

CONCLUSION

38I order the applicant is entitled to receive the following benefits:

(i) The cost of examinations in the amount of $1,920.69 an attendant care in-home assessment, recommended by Kelsea Liotta of Moving Towards Wellness in a treatment plan (OCF-18) dated October 20, 2017.

(ii) A medical benefit in the amount of $2,600.03 for occupational therapy (OT) services, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated January 9, 2018.

(iii) The applicant is entitled to payment for the cost of examinations in the amount of $2,000.00 towards the unapproved balance of the neuropsychological assessment, recommended by Omega Medical Associates in a treatment plan (OCF-18) dated January 10, 2018.

(iv) A medical benefit in the amount of $472.89 for assistive devices, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated October 6, 2018.

(v) The applicant is entitled to interest in accordance with section 51 of the Schedule.

39The applicant is not entitled to receive the following benefits:

(i) A medical benefit in the amount of $906.70 for massage therapy services recommended by Moving Towards Wellness in a treatment plan (OCF-18) 8 dated May 4, 2018.

(ii) A medical benefit in the amount of $3,242.64 for physiotherapy services recommended by June Williamson New Horizons in a treatment plan (OCF-18) dated August 31, 2018.

(iii) A rehabilitation benefit in the amount of $4,064.73 for rehabilitation support worker services, recommended by Moving Towards Wellness in a treatment plan (OCF-18) dated May 22, 2018.

Footnotes

1. 1Tab A of applicant’s submissions - OCF-3 completed by Dr. Spacek, dated February 10, 2017, at 14.
2. 2Tab 26 of applicant’s submissions - OT in home assessment report by Kelsea Liotta, dated November 21, 2017
3. 3Ibid, at 4-5.
4. 4Tab 18 of applicant’s submissions - neurological IE report of Dr. J. Desai, dated November 2, 2017, at 7-8.
5. 5Tab 28 of applicant’s submissions, neuropsychological report of Dr. L. Davidson, dated May 29, 2018, at 20.
6. 6Tab 1 of applicant’s submissions – occupational therapy treatment plan (OCF-18) recommended by Moving Towards Wellness Ltd, dated October 20, 2019, at 6.
7. 7Tab 17 of applicant’s submissions – orthopedic IE report of Dr. Yu Ming Yee, dated December 5, 2017.
8. 8Supra, note 2 at 8.
9. 9Tab 27 of applicant’s submissions – physiatry report of Dr. Sequeira, dated February 12, 2018, at 9.
10. 10Tab K of respondent’s submissions – report of Dr. J. Clifford, neurologist, dated January 12, 2018, at 2-3.
11. 11Tab 32 of applicant’s submissions – report of June Williamson, physiotherapist, dated September 4, 2018.
12. 12Ibid, at 3.
13. 13Tab 19 of applicant’s submissions – orthopedic IE report of Dr. G. Yu Ming Yee, dated November 9, 2018.
14. 14Supra, note 5, at 17, 19.
15. 15Tabs 20, 22 & 23 of the applicant’s submissions – neuropsychological, neurocognitive, and psychological IE reports IE of Dr. M. Watson, dated June 28, 2018.
16. 16Tab Y of the respondent’s submissions - 16-002285 v. Allstate Insurance Company, 2017 CanLII 39580 (ONLAT).
17. 17Tab Z of respondent’s submissions – Explanation of Benefits (“EOB”) dated May 30, 2018.
18. 18Tab 25 of applicant’s submissions – neurological assessment report of Dr. Desai, dated December 19, 2018.
19. 19Supra, note 4.
20. 20Applicant’s reply submissions – Tab A – request letters sent to employer dated September 26, October 24, and November 26, 2019 to request a copy of the employment file.
21. 21Tab 29 of applicant’s submissions – Speech Language Pathology Cognitive Communication Assessment Report of Joanne Ruediger, dated August 31, 2018.