Citation: Tobin v. Cayuga Mutual Insurance Company, 2022 ONLAT 20-011343/AABS

Licence Appeal Tribunal File Number: 20-011343/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:

Janice Tobin

Applicant

and

Cayuga Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Charles Flaherty, Counsel

For the Respondent: Filipe Santos, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on August 3, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant was removed from the Minor Injury Guideline funding limits by way of correspondence on December 5, 2018.

ISSUES

3The following issue is in dispute:

i. Is the applicant entitled to a rehabilitation benefit in the amount of $6,482.72 for the cost of an adjustable bed and mattress recommended by Celina Grande in a treatment plan (“OCF-18”)?

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

RESULT

4I find:

i. The applicant is entitled to $6,482.72 for the cost of an adjustable bed and mattress, plus interest.

ANALYSIS

Is the OCF-18 Reasonable and Necessary?

5I am persuaded that the cost of a queen-sized adjustable bed and mattress in the amount of $6,482.72 is reasonable and necessary pursuant to the Schedule.

6Sections 14 and 15 of the Schedule provide that the insurer shall pay 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.

7The applicant bears the onus of proving entitlement to the proposed treatment by proving that the OCF-18 is reasonable and necessary on a balance of probabilities.¹

8The OCF-18 (dated August 13, 2019) indicates the applicant is suffering from headache, post-traumatic stress disorder (“PTSD”), problems related to life management difficulty, limitation of activities due to disability, need for assistance with personal care, and unspecified pain.² The goals of the treatment plan were listed as pain reduction, improved sleep quality, and return to activities of daily living.³ In the additional comments section of the OCF-18, it was noted that improving the applicant’s sleep quality will likely contribute to better rehabilitation outcomes, and the quality of her life has been negatively impacted by her sleeping difficulties.⁴

9In denying the cost of an adjustable bed and mattress on August 14, 2019, the respondent noted these benefits were not of a medical nature, nor essential to the applicant’s treatment, rehabilitation, or recovery as a result of accident-related injuries. It was noted she was receiving appropriate care for her PTSD and chronic pain, and alternative measures can be trialed in order to provide a “better nights rest”.⁵

10The respondent relies on three key arguments to demonstrate how this rehabilitation expense is not reasonable and necessary. I find these arguments unpersuasive, and I find the medical evidence before me establishes the reasonable and necessary nature of the OCF-18. To help demonstrate my findings, I will address each of the respondent’s arguments in turn.

11First, the respondent submits the applicant had difficulty maintaining sleep prior to the accident. I accept that she reported sleep issues to her family physician in March 2012, including reports of depression, self-esteem issues and panic. The respondent also faults Celina Grande, the Occupational Therapist (“OT”) who completed an assessment for the applicant (report dated June 26, 2019), for failing to canvass the applicant’s pre-accident ailments in her report. However, the respondent has not provided any evidence she exhibited pre-accident symptoms related to PTSD or chronic pain, which (as detailed in the medical evidence below) were only evident in the post-accident documentation and reports.

12Second, the respondent submits that this rehabilitation expense is an unnecessary one, as she reported markedly improved sleep once she began utilizing cannabidiol (“CBD”) oil. However, she had not refilled her prescription for CBD oil since 2018, due to the expense, as was noted in Psychologist Fabio Salerno’s second Insurer’s Examination Psychological Examination Report (dated January 21, 2019).⁶ Thus, it cannot be said the applicant was benefitting from other treatment for her chronic pain and sleep issues, following her failure to renew her CBD oil prescription in 2018.

13Critically, the respondent relies on the Physiatry Examination Paper Review Report by Dr. Steven Baker, Physiatrist (dated August 27, 2019). The respondent specifically relied on this report to deny the OCF-18 at issue, as Dr. Baker concluded that, from a musculoskeletal perspective, the proposed mattress was not reasonable and necessary as a result of the accident.⁷ In making this conclusion, he relied on his previous physical assessment nearly six months earlier, on March 1, 2019, where he concluded that—from an objective perspective—he could not assign any particular limitations or restrictions as a direct result of the accident.⁸

14However, Dr. Baker’s initial report from the March 2019 assessment was not included in the evidence before me. Although he briefly cites Hoover’s test, and the SLR test, I otherwise have no evidence of the objective physical assessment testing he undertook as part of his first assessment.⁹

15Further, I do not consider the paper review I was provided to be a comprehensive analysis of the issue raised in this OCF-18. Although Dr. Baker is said to have reviewed more than fifty documents, including the clinical notes and records of her family physician and the OT report by Ms. Grande, he makes no comment on the applicant’s sleep issues or chronic pain diagnoses. Nor does he document any physical changes in the applicant’s impairments in the six-month intervening period between his assessments. Although the respondent relied on the applicant’s usage of CBD oil as an alternative to this adjustable bed and mattress, Dr. Baker makes no reference to this prescription, noting that it was beyond the scope of a file review to comment on her current medication and treatment.¹⁰

16This paper review stands in contrast to the medical evidence before me.

17The applicant has consistently reported pain in her neck, shoulders, back, and headaches in the years since the accident. A Consultation Note from Dr. Mathoo, Physician from the Minerva Comprehensive Pain Management Program (dated June 5, 2018) noted diffuse neck, shoulder, lower back, and migraines post-accident.¹¹ He recommended trigger-point injections, occipital nerve blocks or Botox chemodenervation for her migraines. He stressed to the applicant that the emphasis was on focusing on pain-functional goals instead of being pain free.¹²

18In the Physiotherapy Assessment Report (dated January 4, 2019) by Physio In Motion, it was stated that the applicant suffered constant neck pain, burning pain and numbness in her thoracic spine, increased pain in lumbar spine while standing long periods, and cognitive memory changes since the subject accident. The clinical impression on that date was “chronic neck and back pain post MVA 2 years ago”.¹³

19In a Psychological Assessment Report (dated April 18, 2019), Dr. Amber Smith, Psychologist, concluded the applicant suffered from PTSD, major depressive disorder, and chronic pain disorder.¹⁴ She noted the applicant’s previous history of depression and anxiety worsened significantly post-accident. Notably, she indicated that sleep onset and maintenance was an issue. The applicant found it difficult to get comfortable and sleep was interrupted by pain and discomfort.¹⁵ The applicant noted that CBD oil assisted with her sleep, but she was unable to continue the prescription due to cost.

20Finally, the June 2019 Occupational Therapy Assessment Report completed by Ms. Grande noted there was a need for occupational therapy to treat the applicant’s conditions, as there had been an “occupational deprivation” in her case.¹⁶ She noted that PTSD and chronic pain had become well-engrained in the applicant’s daily experience, and she had adapted her life to accommodate these injuries.¹⁷ She further noted the applicant was experiencing emotional, cognitive, physical impairments since the accident. The applicant required a significant change in the quality of her life and ability to function compared to pre-accident levels.¹⁸ In relation to her sleep, the applicant reported she was sleeping on the recliner portion of their sectional couch, her sleep was interrupted by pain, positioning was a barrier to sleeping in her bed with her husband as she could not lie completely flat, and her husband had to assist her to transfer into and out of bed. The applicant noted it was easier to get up from the recliner.¹⁹

21In all, I find Dr. Baker’s Paper Review Report unpersuasive in relation to the treatment plan in dispute. Instead, I place significant weight upon the comprehensive reports provided by Dr. Smith and Ms. Grande, who verified the chronic nature of her continuing pain following the accident. It is clear from the medical evidence provided that the applicant’s chronic pain has resulted in long-term sleep maintenance issues. Together, with references to the clinical notes and records by her family physician and treatment providers, this evidence establishes a basis to conclude that this mattress and adjustable bed is reasonable and necessary pursuant to the Schedule.

22As a result, I am persuaded that the cost of a queen-sized adjustable bed and mattress is reasonable and necessary pursuant to the Schedule.

23Any applicable interest shall accrue and be paid pursuant to s. 51 of the Schedule.

ORDER

24The application is dismissed, and I find that:

i. The applicant is entitled to $6,482.72 for the cost of an adjustable bed and mattress, plus interest.

Released: November 8, 2022

__________________________

Ian Maedel

Vice-Chair

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
2. 2Submissions of the Applicant, Treatment Plan (“OCF-18”) by Celina Grande, August 13, 2019, Tab 1.
3. 3Ibid.
4. 4Ibid.
5. 5Written Submissions of the Respondent, Correspondence to Applicant, August 14, 2019, Tab 4.
6. 6Written Submissions of the Respondent, Independent Psychological Examination by Fabio Salerno, January 21, 2019, Tab 16 at pg. 8.
7. 7Written Submissions of the Respondent, Physiatry Examination Paper File Review Report by Dr. Steven Baker, August 27, 2019, Tab 9, pg. 5.
8. 8Ibid.
9. 9Ibid.
10. 10Ibid.
11. 11Submissions of the Applicant, Consultation Note by Dr. J. Mathoo, June 6, 2018, Tab 4.
12. 12Ibid.
13. 13Submissions of the Applicant, Physiotherapy Assessment Report by Physio in Motion, January 4, 2019, Tab 5.
14. 14Submissions of the Applicant, Psychological Assessment by Dr. Amber Smith, April 18, 2019, Tab 6, pp.12-13.
15. 15Ibid. pg. 8.
16. 16Submissions of the Applicant, Occupational Therapy Assessment Report by Celina Grande, June 26, 2019, Tab 7, pg. 16.
17. 17Ibid.
18. 18Ibid.
19. 19Ibid. pp. 6-7.