Licence Appeal Tribunal File Number: 19-002767/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:
[J.D]
Applicant
and
Intact Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Poeme Manigat
APPEARANCES:
For the Applicant:
[J.D], Applicant
Doug Wright, Counsel
For the Respondent:
Intact Insurance Company
Darrell March, Counsel
Court Reporters:
Greg Vaughan, Victory Verbatim and Michelle Gordon
HEARD: by Videoconference:
March 2, 2020
REASONS FOR DECISION
OVERVIEW
1The applicant (“J.D.”) was injured in a motorcycle accident (“the accident”) on August 5, 2018 that resulted in his leg being amputated. He sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). The applicant’s injuries were deemed catastrophic by the respondent. On November 27, 2019, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent, Intact Insurance Company (“Intact”).
2The respondent denied the applicant’s claim for Attendant Care Benefits (ACBs), various medical benefits, housekeeping benefits, and rehabilitation benefits.
3The applicant bears the onus of proving entitlement to the benefits claimed.
4At the hearing on March 2, 2020, the respondent raised a motion regarding the production of documents. The respondent sought updated records, including but not limited to the updated records of Dr. Pang; updated records of Lakeridge Hospital; updated records of Nevena Christina Case Management and occupational Therapy Services (“NCCO”) from August 2019; and an updated Ambulance Call Report. The applicant was ordered to produce all the requested documents.
5At the hearing on March 2, 2021, the applicant raised his own motion regarding the witness list and the filing of the Insurer Examination (“IE”) reports. The respondent objected to the claim adjuster testifying. The Tribunal ordered that the reports (including all the IE reports) be filed and that the claim adjuster be permitted to testify.
6On March 3, 2020, the hearing was adjourned due to COVID-19 concerns brought to the Tribunal’s attention by the respondent’s counsel. Out of an abundance of caution and to avoid the risk of possible exposure to the virus, the Tribunal adjourned the hearing.
7At the hearing’s resumption on January 11 and 12, 2021, the respondent’s counsel raised concerns about continuing the hearing by videoconference at his office or at home during the provincial stay-at-home order. Consequently, due to the respondent’s counsel’s inability to proceed with the hearing, the matter was once again adjourned.
8On February 22, 2021, the respondent’s counsel raised concerns about the Tribunal insisting on proceeding with the hearing despite the province-wide stay-at-home order and lockdown. The parties were advised that notwithstanding the global pandemic, all parties involved had a responsibility to fulfill their professional obligations. The parties were also reminded of the fact that at the last videoconference hearing in January 2021, they were advised to make the necessary arrangements to proceed with this matter in February 2021. Additionally, the parties were told that the hearing could not be postponed indefinitely, and therefore, the Tribunal made the decision to proceed with the hearing on March 2, 2020.
ISSUES IN DISPUTE
9On March 2, 2020 – the first day of the hearing – the issues in dispute were identified and agreed to as follows:
10Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $6,000.00 per month for the period starting on September 1, 2018 to date, and on an ongoing basis?
11Is the applicant entitled to receive a medical benefit in the amount of $1,530.41 ($7,066.92 less the approved amount of $5,536.51) for provider mileage and documentation, as recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated August 22, 2018, and denied by the respondent on September 11, 2018?
12Is the applicant entitled to payments for the cost of examinations in the amount of $200 ($2,075.00 less the approved amount of $1,875.00) for an In-home Assessment, as recommended by Arely Diaz of NCCO Rehabilitation Service, mentioned in the treatment plan dated August 22, 2018, and denied by the respondent on September 11, 2018?
13Is the applicant entitled to receive a medical benefit in the amount of $264.47 ($4,971.71 less the approved amount of $4,707.24) for Occupational Therapy (OT)/rehabilitation consulting services, recommended by Alicia McDougall of NCCO Rehabilitation Service in the treatment plan dated August 29, 2018, and denied by the respondent on September 17, 2018?
14Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,024.34 ($6,466.81 less the approved amount of $5,454.47) for Registered Social Worker (RSW) services, recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated September 27, 2018, and denied by the respondent on October 18, 2018?
15Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100 per week for the period starting on September 1, 2018 to date, and on an ongoing basis?
16Is the applicant entitled to receive a benefit in the amount of $813.44 ($3,999.12 less amounts approved for moving, storage and planning expenses) for an iPhone and document fee, recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated September 27, 2018, and denied by the respondent on October 18, 2018?
17Is the applicant entitled to receive a medical benefit in the amount of $1,038.18 ($4,971.71 less the approved amount of $3,933.53) for case management support, recommended by Alicia McDougall of NCCO Rehabilitation Service in the treatment plan dated March 6, 2019, and denied by the respondent on March 25, 2019?
18Is the applicant entitled to receive a medical benefit in the amount of $2,642.51 ($5,470.20 less the approved amount of $2,827.69) for psychotherapy services, recommended by Dr. Jon Mills in the treatment plan dated March 19, 2019, and denied by the respondent on March 27, 2019?
19Is the applicant entitled to receive a medical benefit in the amount of $2,350.70 ($8,446.72 less the approved amount of $6,096.00) for occupational therapy services, recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated March 13, 2019, and denied by the respondent on April 5, 2019?
20Is the applicant entitled to receive a medical benefit in the amount of $80.93 ($1,643.01 less the approved amount of $1,562.93) for community recreational activities, recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated March 13, 2019, and denied by the respondent on April 5, 2019?
21Is the applicant entitled to receive a medical benefit in the amount of $60.93 ($4,681.24 less the approved amount of $4,620.31) for aqua therapy and gym membership, recommended by Alicia McDougall of NCCO Rehabilitation Service in the treatment plan dated March 13, 2019, and denied by the respondent on April 5, 2019?
22Is the applicant entitled to receive a medical benefit in the amount of $80.08 ($4,487.14 less the approved amount of $4,407.06) for exercises – multiple body sites, recommended by Shirlene Campbell in the treatment plan dated April 3, 2019, and denied by the respondent on May 2, 2019?
23Is the applicant entitled to receive a medical benefit in the amount of $2,234.00 for medical cannabis, recommended by Alicia McDougall of NCCO Rehabilitation Service in the treatment plan dated April 17, 2019, and denied by the respondent on May 2, 2019?
24Is the applicant entitled to receive a medical benefit in the amount of $609.52 ($4,598.90 less the approved amount of $3,898.38) for RSW services, recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated May 7, 2019, and denied by the respondent on June 4, 2019?
25Is the applicant entitled to receive a rehabilitation benefit in the amount of $8,858.78 ($9,228.70 less the approved amount of $369.92) for adaptable assessments, recommended by Arely Diaz of NCCO Rehabilitation Services in the treatment plan dated September 27, 2018, and denied by the respondent on October 18, 2019?
26Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,126,560.00 for alternative accessible housing, recommended by Adapt-Able Design (submitted by Alicia McDougall of NCCO) in the treatment plan dated May 29, 2019, and no response received from the respondent?
27Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,616.20 ($4,067.15 less the approved amount of $2,450.95) for driver training, recommended by Elana Korman of DriveLab in the treatment plan dated August 21, 2019 and denied by the respondent on September 13, 2019?
28Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,137.00 for social work support, recommended by Alicia McDougall of NCCO in the treatment plan dated October 1, 2019, and denied by the respondent on October 24, 2019?
29Is the applicant entitled to receive a rehabilitation benefit in the amount of $19,200.00 for alternative short-term housing, recommended by Alicia McDougall of NCCO in the treatment plan dated October 25, 2019, and about which no response was received from the respondent?
30Is the applicant entitled to receive a medical benefit in the amount of $4,249.79 ($4,668.59 less the approved amount of $418.80) for assistive devices, recommended by Arely Diaz of NCCO in the treatment plan dated November 13, 2019, and denied by the respondent on November 28, 2019?
31Is the applicant entitled to receive a medical benefit in the amount of $1,075.29 ($9,216.18 less the approved amount of $8,140.89) for RSW, recommended by Arely Diaz of NCCO in the treatment plan dated August 27, 2019, and denied by the respondent on November 12, 2019?
32Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
33Is the applicant entitled to interest on any overdue payments for benefits?
RESULTS
34I find that:
i. The applicant is entitled to receive ACBs in the amount of $3,000.00 per month for the period starting on September 1, 2018 to date, and on an ongoing basis.
ii. The applicant is entitled to receive a medical benefit in the amount of $1,530.41 for provider mileage and documentation, included in the treatment plan dated August 22, 2018.
iii. The applicant is entitled to receive payment for the cost of examinations in the amount of $200.00 for an In-home Assessment, included in the treatment plan dated August 22, 2018.
iv. The applicant is entitled to receive payment for a medical benefit in the amount of $264.47 for OT/Rehabilitation Service, included in the treatment plan dated August 29, 2018.
v. The applicant is not entitled to receive a rehabilitation benefit in the amount of $1,024.34 for RSW services, included in the treatment plan dated September 27, 2018.
vi. The applicant is entitled to receive housekeeping and home maintenance benefits in the amount of $50.00 per week for the period starting on September 1, 2018 to date, and on an ongoing basis.
vii. The applicant is entitled to receive a benefit in the amount of $813.44 for an iPhone and document fee, included in the treatment plan dated September 27, 2018.
viii. The applicant is entitled to receive a medical benefit in the amount of $1,038.18 for case management support, included in the treatment plan dated March 6, 2019.
ix. The applicant is not entitled to receive a medical benefit in the amount of $2,642.51 for psychotherapy services, included in the treatment plan dated March 19, 2019.
x. The applicant is entitled to receive a medical benefit in the amount of $2,350.70 for occupational therapy services, included in the treatment plan dated March 13, 2019.
xi. The applicant is entitled to receive a medical benefit in the amount of $80.93 for community recreational activities, included in the treatment plan dated April 5, 2019.
xii. The applicant is entitled to receive a medical benefit in the amount of $60.93 for aqua therapy and gym membership, included in the treatment plan dated March 13, 2019.
xiii. The applicant is entitled to receive a medical benefit in the amount of $80.08 for exercises – multiple body sites, included in the treatment plan dated April 3, 2019.
xiv. The applicant is entitled to a medical benefit in the amount of $2,234.00 for medical cannabis, included in the treatment plan dated April 17, 2019.
xv. The applicant is not entitled to a medical benefit in the amount of $609.52 for RSW services, included in the treatment plan dated May 7, 2019.
xvi. The applicant is entitled to receive a rehabilitation benefit in the amount of $8,858.78 for adaptable assessments, included in the treatment plan dated September 27, 2018.
xvii. The applicant is not entitled to receive a rehabilitation benefit in the amount of $1,126,560.00 for alternative accessible housing, included in the treatment plan dated May 29, 2019.
xviii. The applicant is entitled to receive a rehabilitation benefit in the amount of $1,616.20 for driver training, included in the treatment plan dated August 21, 2019.
xix. The applicant is not entitled to receive a rehabilitation benefit in the amount of $2,137.00 for social work support, included in the treatment plan dated October 1, 2019.
xx. The applicant is entitled to receive a rehabilitation benefit in the amount of $19,200.00 for alternative short-term housing, included in the treatment plan dated October 25, 2019.
xxi. The applicant is entitled to receive a medical benefit in the amount of $4,249.79 for assistive devices, included in the treatment plan dated November 28, 2019.
xxii. I am unable to make a determination with regard to the treatment plan pertaining to a medical benefit in the amount of $1,075.29 for RSW services. This is because I could not locate documentation/evidence concerning this treatment plan in the records submitted to the Tribunal.
xxiii. The applicant is not entitled to an award under Regulation 664.
xxiv. The applicant is entitled to interest on all overdue benefits now payable to the applicant.
ANALYSIS
Attendant Care Benefit (ACB)
35The applicant made a claim for an ACB, and the applicant’s treating Occupational Therapist (Ms. Diaz) testified that she recommended that the applicant receive 24 hours of attendant care and support per day. The respondent’s position is that the applicant does not require an ACB.
36The applicant’s treating Occupational Therapist (Ms. Diaz) testified that due to the acute nature of the applicant’s injuries, J.D. is incapable of responding to an emergency, and therefore, requires 24 hours of attendant care per day.
37The applicant testified that the reason behind why he wants his own apartment is because he feels that he can live alone. The applicant testified that between March and May of 2020, he lived alone. The applicant testified that he spent 50% of his time at his late father’s property on [W. street], which he jointly owns with his siblings. The applicant testified that he received no attendant care while staying at the property on [W. street], and that he managed his daily activities on his own. He further testified that [S.B], his qualified Personal Support Worker, and friend – who provided attendant care services – never attended the property on [W. street]. The applicant testified that in July of 2019, he was able to balance his stance himself without the use of a cane, cook, and do laundry on occasion. The applicant testified that in the early part of 2019, he was able to tidy up the bathroom and bedroom on his own. The applicant also testified that he travelled to Las Vegas for three days and to Florida for one week since the accident, and that when he travelled, he was not receiving attendant care services.
38Ms. Diaz testified that the applicant could do more activities in 2019 than in 2018. She testified that he was able to cook for himself, walk longer distances, and manage basic activities related to daily living, such as showering and getting dressed. She also testified that the applicant could negotiate stairs with his prosthetic leg by bending his right knee outwards. She further testified that the applicant could walk with the prosthetic for five to six hours on a daily basis and that it is painful for the applicant to walk with the prosthetic for longer than this period. Ms. Diaz testified that a year and a couple months after the accident, the applicant began using a prosthetic leg daily, which helps his mobility. However, she mentioned that the applicant cannot keep the prosthetic on for the entire day due to pain. Once the prosthetic leg is off, the applicant’s movement is restricted, and he can only hop on his left foot while using crutches—he experiences pain while doing so.
39Ms. Diaz testified that [S.B]’s (PSW and friend) husband, [R], provided attendant care services to the applicant for approximately seven hours per day when Ms. Bernard was at work. Ms. Diaz also testified that she is aware that [R] is not eligible to receive compensation for attendant care services that he provided to the applicant. Ms. Diaz testified that [S.B] was the primary attendant care service provider for the applicant.
40I accept that the applicant requires assistance for certain daily duties. Despite the improvement in the applicant’s condition and with his mobility since using the prosthetic leg, he still requires daily assistance for certain tasks. I am mindful of the fact that the applicant cannot keep wearing his prosthetic leg for more than 5 hours without needing a break and/or feeling pain. As well, when the applicant removes his prosthetic leg, his mobility, and the ability to complete daily tasks is severely restricted, thereby requiring assistance. The applicant sought attendant care services in the amount of $6,000.00 per month for 24 hours a day. Notwithstanding the fact that the applicant requires attendant care support, I am not persuaded that he needs this service for 24 hours per day. The fact that he managed to stay alone at the [W. street] property, and travel out of the country twice without attendant care services, persuades me that he does not require this type of service at all times. I find it reasonable to award the applicant $3,000.00 per month for attendant care services. The applicant may require less attendant care services in the future as his condition continues to improve.
Alternative Accessible Housing Benefit
41The applicant is seeking a rehabilitation benefit for alternative accessible housing, recommended by Adapt-Able Design. The applicant submitted that his pre-accident apartment on [B Street] is no longer suitable for him to live in given his post-accident accessibility needs. Primarily, the applicant is unable to access his pre-accident apartment using the stairway, which is located on the third floor of the building. The applicant relocated to his friends’ house on [C Road] after they agreed to help him temporarily. The applicant testified that this living arrangement at his friends’ residence was never meant to be a permanent solution for his housing needs.
42The [C Road] home is a three-storey home where the applicant resides primarily in a room located in the basement of the house. This house is not suitable for the applicant as it is not an accessible home. The applicant has to use the stairs in order to get to different parts of the house such as the kitchen and main entrance—both of which are located on the main floor.
43The applicant’s Occupational Therapist (Ms. Diaz) retained Adapt-Able Design to complete a housing assessment based on the applicant’s accessibility needs. Mr. Baum, a housing expert from Adapt-Able Design, completed the housing assessment and issued a first report (December 17, 2018) with recommendations. A member of Mr. Baum’s staff, David Wallace, attended the applicant’s pre-accident apartment to take pictures and inspect the unit in order to gain a better understanding of the applicant’s pre-accident living conditions. The purpose of this first report was to assess the applicant’s pre-accident apartment and identify what modification(s) was/were required to make the unit suitable for the applicant, given his new accessibility needs. Mr. Baum concluded that several of the applicant’s housing requirements, specific to his reported disability, remained unfulfilled at his pre-accident residence. Interior and exterior modifications were required to ensure that the applicant’s pre-accident apartment on [B Street] would meet his new accessibility needs. To meet the applicant’s accessible housing needs, additional space was also required. Specifically, the applicant would need to expand his living space into the adjacent one-bedroom apartment unit, which would require the forced eviction of the existing tenant of the neighboring unit—Mr. Baum submitted that this was unlikely. Adapt-Able Design reported that the total projected cost for the interior and exterior modifications of the applicant’s pre-accident apartment was $357,385.00. Adapt-Able Design opined that this option was impractical due to the need to amalgamate two rental apartment units, construct a carport, and add an exterior elevator hoistway, as well as a third-floor addition. The applicant surrendered this rental unit effective October 1, 2018. As a result, alternative housing options were still required in order for the applicant to have adequate accessible housing to meet his post-accident needs.
44The second report, dated May 21, 2019, aimed at identifying the alternative housing needs and prospective alternative housing options available to the applicant. Adapt-Able Design’s search revealed that only one three-bedroom rental apartment ($1,750.00 per month) met the applicant’s housing criteria in Oshawa—this is where the applicant wished to stay to remain close to his family. However, this rental accommodation was not a viable option because the building management would not permit that the recommended modifications be made to the unit to meet the applicant’s accessibility needs. As well, Adapt-Able Design investigated the option of purchasing a re-sale condominium unit for the applicant. Adapt-Able Design found two units meeting the applicant’s housing criteria, which would likely cost between $701,055.00 and $747,655.00. They also investigated the option of purchasing a re-sale bungalow, which could be modified to meet the applicant’s accessibility needs; the estimated cost was between $968,060.00 and $1,103,260.00. Finally, Adapt-Able Design investigated the option of purchasing a re-sale two-storey home that could also be modified to meet the applicant’s accessibility needs; this home was estimated to cost between $910,750.00 to $1,100,860.00 in order to meet the applicant’s accessibility needs.
45As stated above, the applicant had access to his late father’s home on [W Street], which he inherited jointly with his siblings in June of 2017. The applicant testified that the [W Street] property is located ten kilometers from his pre-accident apartment on [B Street]. The applicant testified that he spent 50% of his time at the [W Street] house while residing with his friends at the [C Road] address. He further testified that the first time he stayed at the [W Street] property after his accident was in the summer of 2019. The applicant testified that he stayed overnight alone at the [W Street] property several times after his accident. The applicant testified that he remained on the main floor of the property, which is at the street level. He had access to a bedroom, kitchen, bathroom, and laundry room on the main floor of the [W Street] house. The applicant testified that there are no stairs on the main floor of the [W Street] property. Furthermore, he stated that he moved some of his items from storage into the [W Street] property around October or November of 2019. The applicant testified that a friend brought his wheelchair to the [W Street] property, which enabled him to stay overnight at this property. The applicant also stated that at one point he was considering moving into the [W Street] house because he was running out of options, and that he discussed this option with his treating Occupational Therapist and family members. The applicant testified that Ms. Diaz (Occupational Therapist) and Alisha McDougall (Case Manager) came to see the [W Street] property. Ms. Diaz testified that she attended the [W Street] property on October 17, 2019 to conduct an occupational therapy session.
46The housing expert, Mr. Baum, testified that he was never made aware of the [W Street] property and that if he had been made aware of it, he would have inspected it to see if it was a reasonable option for the applicant. I find it problematic that the [W Street] property was never brought to the attention of the housing expert. The second Adapt-Able Design report was intended to identify all the alternative housing options for the applicant. Given the fact that the applicant stayed alone overnight at the [W Street] property; that he is a part owner of that property; that the property in his preferred geographical area; and that the property has a bedroom, bathroom, laundry room and kitchen on the main floor, make it a reasonable option for the applicant that should have been worth investigating. Without the opportunity to properly investigate the suitability of the [W Street] property for the applicant, I find the Adapt-Able Design second report lacking. I must assess the reasonableness and necessity of each rehabilitation benefit submitted by the applicant. I find that this treatment plan for alternative accessible housing submitted by the applicant is reasonable given the severity of the applicant’s injuries and the uncertain housing circumstances he finds himself in. However, I do not find this treatment plan necessary because a potential, legitimate option (i.e., the [W Street] property) was not included in the alternative housing assessment report, which I find renders the second report incomplete. Therefore, the applicant is not entitled to receive this benefit as requested, because all viable housing options are not before me. However, I do find that the applicant requires alternative housing to meet his disability-related needs.
Other Rehabilitation and Medical Benefits
47The applicant claimed various rehabilitation and medical benefits that were denied in full or in part by the respondent. The applicant testified extensively about the treatments he was receiving, the pain he was experiencing, and the benefits derived from these various treatments. The applicant testified that he was experiencing sporadic pain of varying degrees since the motor vehicle accident. I found the applicant to be a genuine and credible witness.
48The applicant has established, on a balance of probabilities, that it was reasonable and necessary for his occupational therapy treatments to take place in-home. Therefore, the applicant is entitled to the provider-mileage costs associated with his treatment. The Occupational Therapist (OT) was required to attend the applicant’s residence at [C Road] to provide the treatments. I find the flat rate of $200.00 for the preparation of the OCF-18 to be reasonable given the details and information that the OT must consider when preparing it.
49I do not find $200.00 to be an unreasonable amount for the completion of medical documentation required when submitting treatment plans. There are several factors to consider when completing the treatment plans for this applicant. Most of the treatment plans include detailed additional comments. I find it reasonable that the completion of these treatment plans required two hours on average. The time required to complete the treatment forms for an applicant who suffered a catastrophic injury, such as the applicant, is likely to be more than one hour.
50The case management services provided by Alicia McDougall to the applicant in the treatment plan dated March 25, 2019, are reasonable and necessary. There is no legitimate reason for the respondent to refuse to pay the amount stated in the treatment plan. As established above, given the nature of the applicant’s injuries and his physical limitations, the services and treatment must be provided at his residence. Therefore, the costs associated with providing the services at the applicant’s resident are reasonable and necessary.
51The provider’s travel time, the mileage, and parking costs are reasonable and necessary given the fact that the services must be provided at the applicant’s home. The costs incurred by the treatment service providers related to mileage and parking are reasonable given the fact that the services are provided at the applicant’s home. As well, the treatment providers should be compensated for their time while traveling to provide treatment to the applicant. These additional costs are reasonable since the applicant is receiving in-home services.
52The applicant and the treating Occupational Therapist testified that the applicant could complete some housekeeping tasks. The applicant has stayed alone at the [W Street] property post-accident and admitted to completing some basic daily tasks. I find that the applicant is entitled to some assistance for housekeeping and maintenance services in the amount of $50.00 per week, rather than the $100.00 per week requested. I do not anticipate that the applicant will require housekeeping and maintenance services constantly as his condition continues to improve.
53The respondent’s reason for denying the treatment plan pertaining to the iPhone is that the cellular phone is not medically necessary. I disagree with the respondent’s reason for denying this treatment plan. Given the applicant’s physical limitations and the risks involved with him being alone, a cellular phone is essential for him to access medical attention when required. The applicant needs a cellular phone in case of an emergency in order to get immediate medical attention. Based on the applicant’s disability and limitations, a cellular phone is medically necessary to ensure the safety of the applicant.
54The respondent partially approved the psychological treatment. The applicant testified that he was not aware that psychological treatment was approved. The applicant did not provide any plausible explanation as to why he was unaware that psychological treatment had been partially approved by the respondent. The respondent approved 16 sessions of psychological treatment and the applicant failed to attend all sessions. The fact that the applicant failed to attend the psychological treatment sessions is inconsistent with the proposition that he requires additional psychological treatment. The applicant testified that he was depressed and developed an addiction to alcohol, which he managed to overcome by attending support groups for those dependent on alcohol. To his credit, the applicant stopped drinking effective October 10, 2019. I acknowledge that the applicant may have experienced some psychological difficulties associated with the accident; however, before approving further psychotherapy treatment, I find it reasonable for the applicant to use the psychological treatment that has already been approved by the respondent, which is likely to help improve his psychological state.
55The applicant testified that he was experiencing various types of pain and that he had a low tolerance level for the pain he was feeling. The applicant testified that at first, it was very painful to wear the prosthetic leg and that he had stability issues. He also testified that the occupational therapy and aqua therapy treatments helped him cope with the pain. The applicant was assessed and prescribed medicinal marijuana. The applicant also testified that medicinal marijuana helped reduce his pain. The applicant testified that the prescription medicine that he took, such as Lyriac, made him feel unwell. As well, the treating Occupational Therapist (Alicia McDougall) testified that the applicant was struggling with neuropathic pain and that the applicant wanted to avoid narcotic medication. Medicinal marijuana was viewed as an alternative solution for pain management. The medicinal marijuana, aqua therapy, and occupational therapy help the applicant cope with the pain. I find them to be reasonable and necessary for the applicant.
56The applicant testified that he was employed, active in the community, and very independent before the accident. The applicant testified that he made best efforts to engage with the community and participate in recreational activities post-accident, despite the pain and difficulties he was experiencing. The O.T. testified that it is beneficial for the applicant to engage in activities within the community. Engaging in various community and recreational activities will assist the applicant in establishing a sense of normalcy and will also help him regain some independence. The applicant testified that he tried playing golf and bowling after the accident with the assistance of Meghan Leckie (Assistant to the O.T.), which I find is contributing to his rehabilitation. I find that these activities are essential and helpful in supporting the applicant with his efforts to resume some of his community-related and recreational activities, which should be funded by the respondent.
57The O.T. and the applicant testified that swimming helps relieve some of his pain. The applicant testified that he engaged in swimming activities a few times after the accident and that this benefited him. The applicant is likely to walk longer distances as he adapts and learns to live with his new disability. The applicant testified that extended walking exacerbates the pain in his leg and that he must take the prosthetic leg off to alleviate the pain. In addition to medicinal marijuana, the applicant testified that another effective method of reducing the pain is to perform aqua therapy. I am satisfied that aqua therapy would be of assistance to the applicant in his rehabilitation efforts and that it is a good long-term pain relief solution. The applicant also obtained a Goodlife gym membership and the respondent provided evidence of the applicant attending the gym. Having access to a gym and a pool is helpful for the applicant’s rehabilitation journey, as it will make it easier for him to remain active and exercise.
58The respondent refused to cover the entire treatment plan related to the Adapt-Able Design housing assessment. The respondent’s reason for denying this treatment plan is that it was too early to do a full housing assessment because the applicant must first receive his prosthetic leg. While I accept that the receipt of the prosthetic leg may have assisted the applicant’s mobility at his pre-accident dwelling, it does not warrant delaying the housing assessment. Had the O.T. (Ms. Diaz) not conducted the housing assessment when she did, this would have been problematic as the applicant would have most certainly left his apartment, preventing a pre-accident housing assessment from occurring after the receipt of the prosthetic. The O.T. (Ms. Diaz) testified that it was necessary to complete the housing assessment early, because the applicant was giving up his apartment. The applicant must be accommodated based on his pre-accident dwelling—therefore, taking pictures of the applicant’s pre-accident apartment, and assessing it, is crucial to meeting his accommodation needs. There was an urgency in ensuring that the applicant’s pre-accident dwelling was assessed and evaluated before he gave up his apartment. I disagree with the respondent’s reasoning for denying this treatment plan. The applicant’s need to have accessible housing is important and time sensitive. Identifying the type of accessible housing the applicant requires at an early stage is imperative. I see there being no legitimate reason for denying this treatment plan partially, and therefore award the remaining $8,858.78 to be paid.
59The applicant drove short distances a few times since the accident despite the risks associated with him driving his vehicle. Being able to drive safely will greatly assist the applicant in regaining independence, receiving treatment, and reintegrating successfully within the community. The driver training program will help the applicant acquire the essential skills required to drive safely and longer distances without endangering himself and others. This treatment plan of $1,616.20 is reasonable and necessary for the applicant to drive safely and in order to gain more independence.
60On October 24, 2019, the respondent denied the treatment plan for a Social Worker. The respondent denied the treatment plan because the applicant was seeing a psychotherapist for the same issues (counselling, mental health, and addictions) outlined in the treatment plan. At the hearing, the applicant did not provide adequate evidence about how the services offered by social workers would benefit him. I am not persuaded that the RSW services recommended in all submitted treatment plans are reasonable or necessary for the applicant.
61As stated above, the applicant’s housing arrangement was intended to be temporary. It was reasonable and necessary for the applicant to find an alternative housing solution as quickly as possible in order to move out of his friends’ home. Furthermore, the applicant’s friends’ home on [C Road] was not accommodating enough to make it suitable for the applicant’s disability. No initiative was taken to make major alterations to the [C Road] home to make it more accessible for the applicant as it was a temporary arrangement pending a long-term housing solution for the applicant. Therefore, I find the treatment plan for alternative short-term housing in the amount of $19,200.00 to be reasonable and necessary.
62The applicant and the treating O.T. (Ms. Diaz) testified that the applicant used and benefited from various assistive devices including crutches, a prosthetic leg, wheelchair, cane, walker, and rollator. The applicant went through various post-accident stages where his mobility and limitations changed over time. Shortly after the accident, the applicant and the treating O.T. (Ms. Diaz) testified that he was experiencing a lot of pain; his balance/gate was severely reduced; and that the applicant was hopping on one leg to get around. Also, shortly after the motor vehicle accident, the applicant was having difficulty negotiating stairs and standing for an extended period. The various stages that the applicant went through due to his disability would explain why he needed various assistive devices at different times. The applicant’s mobility has improved and some of the assistive devices that he required previously are no longer essential. However, this does not mean that when the treatment plan was submitted, that these assistive devices were not reasonable and necessary. I find that these assistive devices are reasonable and necessary in helping the applicant acquire more mobility and independence post-accident. I see no valid reason to deny this treatment plan. All the assistive devices served a purpose in the applicant’s efforts to regain mobility and independence.
Award and Interest
63As per Regulation 664, an award may be granted where the Tribunal finds that an insurer unreasonably withheld or delayed the payment of benefits.
64I find that the respondent is not liable to pay an award under Regulation 664. The applicant’s injuries were deemed catastrophic by the respondent within a reasonable amount of time following the accident. For some of the treatment plans, the respondent could have taken more proactive measures and acted expeditiously. However, there is no evidence of neglect or patent unfairness by the respondent in carrying out its duties. The respondent’s positions on the treatment plans differ from those of the applicant, and they interpret the medical evidence differently; however, I am not persuaded that the respondent’s approach or behaviour, in managing the applicant’s file, is egregious or unreasonable which would be needed to grant an award under Regulation 664. It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. In this case, since I found that no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award under Regulation 664.
65The applicant is entitled to interest on the outstanding payments for benefits awarded in this order pursuant to section 51 of the Schedule.
Released: January 21, 2022
Poeme Manigat
Adjudicator
Footnotes
- O. Reg. 34/10 as amended.