Owusu-Mensah v. Aviva Gen. Ins. Co.
Release date: 09/27/2021
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:
Isaac Owusu-Mensah
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Dianna Morello, Counsel
For the Respondent:
Vicky Chan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on May 31, 2019, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied the benefit in dispute on the basis that it was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
i. Is the applicant entitled to receive medical benefits in the outstanding amount of $1,000 for an orthopaedic mattress recommended by New Age Specialized Assessments as part of a treatment plan submitted September 11, 2019, and denied by the respondent on September 16, 2019?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to payment for the orthopaedic mattress, plus applicable interest under s. 51, as it is reasonable and necessary.
ANALYSIS
Is the orthopaedic mattress reasonable and necessary?
4To receive payment for items in an OCF-18 under the Schedule, the applicant bears the burden of proving on a balance of probabilities that the items in the treatment plan are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.
5As a result of the accident, the applicant sustained a C2 vertebrae fracture which required he wear a cervical collar for three-months, as well as whiplash and sprain and strain injuries. In the months that followed the accident, he consistently complained to his family physician, Dr. Kovacs, physiotherapist, Ms. Filion, and psychologist Dr. Solomon of headaches and pain and, notably for the purposes of this hearing, fatigue and disturbed sleep. The applicant relies on occupational therapist Mr. Moorthy’s home-site assessment and follow-up sessions that document his excessive fatigue and sleep disturbances, as well as his recommendation for appropriate sleep equipment. In addition, the applicant submits that Dr. Solomon identified improving sleep quality as one of the applicant’s treatment goals and Dr. Kovacs authored a January 2021 medical report recommending an orthopaedic mattress. The applicant also points to the February 2021 s. 44 report of Dr. Reis and the reports of occupational therapist Ms. Mohan, who found that the applicant continued to have difficulties with sleep. He submits that the $1,000 Posturepedic mattress is a reasonable and necessary expense to help eliminate the effects of his impairments, reduce pain and return to his pre-accident function.
6Aviva submits that it approved treatment in line with Dr. Kovac’s recommendations and relies on the s. 44 report and addendum of Dr. Weisleder, who opined that the mattress was not required because it was unlikely to assist in managing the applicant’s pain. Aviva also sought a s. 44 opinion and addendum from Ms. Mohan, occupational therapist.
7I find the applicant has demonstrated that the orthopaedic mattress is reasonable and necessary. The applicant’s issues with sleep and fatigue are well-documented in the medical evidence before the Tribunal and I agree that pain relief and restorative sleep are reasonable goals given the applicant’s accident-related impairments.2 His sleep issues are also consistently identified by Aviva’s experts and I find it telling that Ms. Mohan’s February 2021 addendum identified the applicant’s sleep difficulty and pain symptoms, amongst other impairments, ultimately stating that “the information available supports the need for … assistive aids reference in the proposed treatment plan.” The mattress is not specifically identified. However, notably, in her initial report from January 2020, she was asked to provide an opinion on all of the assistive devices in the OCF-18, except the subject mattress. Ms. Mohan’s notes were not available, and Aviva did not provide submissions to explain why Ms. Mohan was asked not to address the mattress. Indeed, only the opinion of Dr. Weisleder was relied on for the denial, and I find his opinion inconsistent with the recommendations of other practitioners and especially so where Ms. Mohan found all of the other sleep aids to be reasonable and necessary.
8In any event, where all of Dr. Kovac, Dr. Solomon, Dr. Reis, Ms. Mohan and Mr. Moorthy identified sleep issues and fatigue as ongoing accident-related issues, where Dr. Kovac and Mr. Moorthy have both specifically identified the orthopaedic mattress to assist in the applicant’s recovery and where Ms. Mohan found all of the other sleeping aids to be reasonable and necessary, I afford Dr. Weisleder’s opinion less weight and I find the mattress proposed in the OCF-18, at the reasonable cost of $1,000, to be reasonable and necessary and payable. The applicant has satisfied his burden to prove that the goals of the proposed mattress are achievable and proportional to the cervical fracture injury sustained and the cost of the item. As the benefit is overdue, it follows that interest is payable under s. 51.
ORDER
9The applicant is entitled to payment for the orthopaedic mattress and interest under s. 51 as he has demonstrated that it is reasonable and necessary as a result of the accident.
Date of Issue: September 27, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- See: Lionti and Security National Insurance Company (FSCO A99-000823) and R.F. v. Unifund Assurance Company, 2019 CanLII 101512 (ON LAT).