Licence Appeal Tribunal File Number: 21-005514/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:
Alojz Vajdec
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Christina Martin, Counsel
For the Respondent: Helen Friedman, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Alojz Vajdec ("the applicant"), was involved in an automobile accident on September 22, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by The Co-operators General Insurance Company ("the respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to attendant care benefits in the amount of $4,948.24 per month from June 15, 2021 to date and ongoing?
Is the applicant entitled to $651.21 ($2,039.63 less $1,388. 42 approved) for social work services proposed by Rehab First in a treatment plan dated June 24, 2019?
Is the applicant entitled to $1,289.52 ($3,854.68 less $2,565.17 approved) for occupational therapy services and assistive devices proposed by Rehab First in a treatment plan dated December 24, 2019?
Is the applicant entitled to $1,995.03 ($3,192.53 less $1,197.50 approved) for physiotherapy services proposed by Rehab First in a treatment plan dated May 1, 2020?
Is the applicant entitled to $1,381.73 ($2,724.63 less $1,342.90 approved) for social work services proposed by Rehab First in a treatment plan dated May 15, 2020?
Is the applicant entitled to $2,032.93 for audiometric and speech language services proposed by Rehab First in a treatment plan dated May 28, 2020?
Is the applicant entitled to $3,750.55 for physiotherapy services proposed by Rehab First in a treatment plan dated June 4, 2020?
Is the applicant entitled to $997.50 ($2,943.13 less $1,945.63 approved) for occupational therapy services proposed by Rehab First in a treatment plan dated July 16, 2020?
Is the applicant entitled to $254.39 for occupational therapy services pursuant to an invoice ($808.00 less paid amount of $279.30) submitted by Rehab First plan dated June 23, 2020?
Is the applicant entitled to $124.29 ($3,672.64 less approved $3,548.25) for occupational therapy services proposed by Rehab First in a treatment plan dated October 22, 2020?
Is the applicant entitled to $11,411.15 for home modifications proposed by Rehab First in a treatment plan dated November 30, 2020?
Is the applicant entitled to $4,573.90 for a mattress proposed by Rehab First in a treatment plan dated December 7, 2020?
Is the applicant entitled to $2,045.38 for an occupational therapy in-home assessment proposed by Rehab First in a treatment plan dated April 28, 2021?
Is the applicant entitled to $1,237.07 for Lifeline services and monitoring proposed by Rehab First in a treatment plan dated June 21, 2021?
Is the applicant entitled to $1,073.41($1,896.03 less $822.61 approved) for assistive devices proposed by Rehab First in a treatment plan dated June 11, 2021?
Is the applicant entitled to $1,883.20 for a speech language assessment proposed by Rehab First in a treatment plan dated June 29, 2021?
Is the applicant entitled to $9,183.50 for a home modification assessment proposed by Rehab First in a treatment plan dated July 18, 2021?
Is the applicant entitled to $7,538.33 ($9,828.44 less $2,290.11 approved) for occupational therapy/RSW services proposed by Rehab First in a treatment plan dated June 29, 2021?
Is the applicant entitled to $2,294.75 for a home accessibility assessment proposed by Rehab First in a treatment plan dated February 24, 2022?
Is the applicant entitled to $2,460.00 for a dietician assessment proposed by Rehab First in a treatment plan dated January 7, 2022?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to attendant care benefits at the rate of $2,242.24 per month from June 15, 2021.
4The applicant is entitled to the amounts sought in issues #6, 7, 8, 12 and 20, plus interest.
5The applicant is entitled to $249.99 plus interest with respect to issue #15.
6The applicant is entitled to $2,000.00 plus interest with respect to issue #17.
7The applicant is not entitled to the amounts sought with respect to issues #2, 3, 4, 5, 9, 10, 11, 13, 14, 18, or 19.
8The applicant withdrew the claim for the speech language assessment identified as issue 16 above.
9The respondent is not liable to pay an award under s. 10 of Regulation 664.
ANALYSIS
Background
10The applicant was self employed as a repair person/home renovator prior to the accident. His pre-accident medical history was remarkable for chronic intermittent low back pain due to degenerative disc disease. He also had cardiac issues, congestive heart failure, hypertension, gout, hyperlipidemia, and struggled with obesity. Prior to the accident, he was repeatedly recommended to exercise and reduce his weight. It seems that the applicant was frequently non-compliant with his medications.
11The respondent submits that the applicant also had pre-existing mental heath issues, which the applicant disputes. A few months prior to the accident, his wife voiced concerns about his mental health, including memory issues and inability to follow through, and she felt he failed to recognize his mental health issues, however the applicant's family physician, Dr. Swan, felt that the issues were more behavioural and suggested marital counselling.
12The applicant was a pedestrian struck by a motor vehicle at low speed in the parking lot of a retail store. He was not run over or pinned by the vehicle and declined to be taken to hospital. The applicant was able to stand and weight bear, with no difficulty and no reports of back pain. His GCS was 15; he was alert and oriented with no trauma noted.
13The next day the applicant attended a walk-in clinic, reporting pain in the right elbow, right knee, and the right side of his neck. He reported that he did not lose consciousness, was not run over, and had no amnesia. He was diagnosed with soft tissue injuries to the knee and elbow. X-rays dated September 23, 2017 revealed degenerative changes to the knee, and no acute injury to the right foot or elbow.
14The applicant first reported the accident to Dr. Swan on October 23, 2017, advising that he was hit from behind and knocked down on his front, striking his elbow, leg, and right side. He reported no loss of consciousness. Dr. Swan assessed a hip and right knee injury, referred the applicant for physiotherapy, and expressed concern about the applicant's ongoing non-compliance with his prescribed medications.
15The disability certificate dated October 29, 2017 by Dr. Swan indicates that the applicant could return to employment on modified hours or duties, and had in fact returned to full duties on October 26, 2017. It describes impairment of the right hip, right knee, right elbow, and right heel. Concussion is listed, inexplicably, as there is no other reference to concussion or related symptoms in the notes. An OCF-24 from the treating physiotherapist dated March 5, 2018 indicates that the applicant was able to return at his full pre-accident work activities.
16In March 2018, the applicant went to the hospital with complaints of significant headache, nausea, dizziness, and gait imbalance. He was diagnosed with a brain tumor on his pituitary gland and was scheduled for surgery. Fortunately, it decreased in size on its own and the surgery did not proceed.
17Dr. Angel, neurologist, noted in his May 14, 2019 insurer's examination ("IE") report that since the accident, the applicant had reduced walking tolerance, a change in his gait, a tendency to flex forward and pain that radiates down his right leg. Dr. Angel's impression was that the applicant had pre-existing multilevel severe spinal stenosis and neural foraminal stenosis, and suffered worsening multilevel lumbar radiculopathy as a result of the accident. He felt that the applicant had reached maximum medical recovery, and that his neurological deficits were compressive, and therefore of a surgical nature. The applicant's ability to walk, climb, lift, etc. had been compromised due to the accident. He recommended that the applicant be referred to a neurosurgeon.
18Dr. Kumbhare, physiatrist, noted in his October 22, 2019 s. 25 report that, while the applicant's pre-accident back pain was intermittent, a couple of times a year, he currently experienced constant back pain, radiating down his leg at times. On examination, the applicant demonstrated some reduced range of motion of his cervical and lumbar spine, and hips. Dr. Kumbhare diagnosed sprain/strain type injuries to the spine, knee, hip, ankle, and elbow as well as a possible concussion. Dr. Kumbhare concluded that the applicant was likely suffering from chronic pain syndrome affecting his back, neck, right shoulder, and right ankle, and noted that the applicant reported having difficulty with his concentration and memory. Dr. Kumbhare identified functional limitations in walking, transferring, climbing stairs, standing, lifting, carrying, bending, etc., which affected his ability to complete his personal care activities such as dressing, grooming, housekeeping and home maintenance tasks, and had difficulty sleeping as he could not get comfortable. His work had been cut in half as he was unable to perform at the same physical level. Dr. Kumbhare recommended the applicant participate in a chronic pain program.
19Dr. Khan, physiatrist, also assessed the applicant and noted in his February 13, 2019 IE report that the applicant reported intermittent pain in his neck, back, and right ankle. He reported independence with his personal hygiene and the majority of his housekeeping, with the exception of outdoor maintenance such as mowing the lawn or snow removal due to his low back pain. He reported that he continued to work full time as a contractor until November 2018, when he was diagnosed with the brain tumor. On examination, the applicant's gait was normal and he was able to walk, squat, stand on one leg. Ranges of motion testing revealed reduced ranges of motion with cervical rotation, but otherwise were within functional limits. Dr. Khan also diagnosed sprain strain injuries to the cervical and lumbar spine and right ankle. Dr. Khan identified reduced lower extremity sensation but deferred to an appropriate specialist. From a physical perspective, Dr. Khan opined that the applicant had achieved maximal medical recovery from his soft tissue injuries.
20The applicant had a consultation with an OHIP-funded neurosurgeon, Dr. Wang, in February 2020 for his back pain. Dr. Wang noted the imaging revealed some mild to moderate foraminal stenosis, but it was not severe enough to cause concern for L5 or S1 radiculopathy. He felt that there was no need for surgery, as it would really only address his leg pain and not his back pain. Dr. Wang suggested that the applicant lose weight and reconsider spinal injections that he had previously refused.
21The applicant underwent an interdisciplinary initial assessment by the Degroote Pain Clinic on July 23, 2020. He reported that he had worked very little since the accident. He was not able to do much in terms of his activities of daily living. He used the shopping cart for balance when shopping. He used a cane but still had some falls. He had limitations with standing, walking and sitting. He was able to get himself dressed. He and his wife described significant memory and speech problems and decreased concentration. He described broken sleep, having to get up every hour to use the bathroom, and also having difficulty finding a comfortable position in bed. He reported independence with his self care but went on to describe reduced personal hygiene and having to be reminded by his wife to shower or complete other hygiene tasks.
22A neurocognitive assessment report by Dr. Fulton, dated April 9, 2021, indicates that the applicant was diagnosed with a cognitive disorder, pain disorder, and adjustment disorder.
23Dr. Khan provided a second IE physiatry assessment, dated July 18, 2022. He noted that the applicant was using a single point cane since the accident. He sometimes required assistance from his wife with getting in and out of the bathtub, and required assistive devices such as grab bars in the bathroom and for donning/doffing his shoes. He used a self-propelled walker for longer trips, such as grocery shopping. The applicant was not able to perform all of the physical tasks required during the examination and had reduced ranges of motion of his cervical and lumbar spine. Dr. Khan opined that the applicant would not benefit from further facility based physiotherapy, but suggested the family doctor consider nerve blocks or trigger point injections, injectable muscle relaxants or other medications to allow him to better tolerate his pain, return to his pre-accident activities, and better tolerate the strengthening exercises he had already been instructed at therapy.
Attendant Care Benefits (ACB)
24Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an occupational therapist ("OT") sets out the services and amount of care an individual requires as well as the monthly amount payable. The parties agree that the applicant requires ACB but disagree on the amount.
25The applicant bears the onus of establishing, on a balance of probabilities, that he is entitled to the quantum of ACB claimed. The applicant relies on the occupational therapy assessment dated June 15, 2021 by Carol Smith and Form 1 in the amount of $5,437.58. The respondent relies on the Form 1 of Tony Jung who recommended $489.34.
26While I do agree with some of Ms. Smith's recommendations, I also agree with some of Mr. Jung's.
| Attendant Care | Ms. Smith Form 1 | Mr. Jung Form 1 |
|---|---|---|
| Level I ("LI") | Minutes/week | Minutes/week |
| Dressing/Undressing | 70 | 0 |
| Grooming - Toenail care | 10 | 0 |
| Feeding | 420 | 420 |
| Supervise walking | 630 | 0 |
| Extra laundering | 30 | 0 |
| L1 Fees - $14.90/hr | $1,238.69 | $448.49 |
| Level II ("LII") | ||
| Hygiene bathroom | 105 | 35 |
| Hygiene bedroom | 10 | 15 |
| Comfort/safety/security | 630 | 0 |
| Clothing care | 30 | 0 |
| Supervision in event of emergency | 3360 | 0 |
| Coordination of care | 60 | 0 |
| LII Fees - $14.00/hr | $3,427.32 | $40.85 |
| Level III ("LIII") | ||
| Exercise | 210 | 0 |
| Medication monitoring | 70 | 0 |
| Medication supply | 30 | 0 |
| Bath transfers | 35 | 0 |
| Bathing | 140 | 0 |
| Maintenance of supplies and equipment | 10 | 0 |
| Maintain safety of devices | 15 | 0 |
| LIII Fees - $21.11/hr | $771.57 | $0 |
| Total | $5,437.58 | $489.34 |
Level I
27I agree with Ms. Smith's recommendations for lower body dressing and toenail care, due to the applicant's physical limitations in accessing his lower body and feet. Mr. Jung also noted limitations in the applicant's ability to bend and made recommendations for devices such as a sock aid and shoehorn. The applicant was already provided with a sock aid at the time of Ms. Smith's assessment, and she noted that it was not effective due to his large feet.
28Both parties agreed that the applicant required 60 minutes a day for meal preparation, and I see no reason to interfere with that recommendation.
29The applicant's mobility and balance issues are well documented, including his use of a cane and walker for mobility. I find Ms. Smith's recommendations for supervision while walking and navigating stairs to be reasonable. There are currently no railings down the steps at the rear exit of the home, and the front porch/stairs are in a state of disrepair, and applicant cannot use his rollator walker on his gravel driveway.
30With respect to the need for extra laundry, the respondent submits that the applicant had issues with incontinence prior to the accident. A review of the notes states that he only experienced urinary frequency as a result of one of his medications pre-accident. It does not appear that the incontinence issue arose until later. However, in 2021 a urologist declined to comment on whether it was accident-related, noting that it seems to have commenced around 2019, and deferred to a spinal surgeon. The evidence does not establish that the incontinence issue is as a result of the accident, therefore I find the requirement for extra laundering is not reasonable.
Level II
31Similarly, the extra time recommended by Ms. Smith for cleaning the bathroom due to his incontinence is not reasonable.
32I am not persuaded that the applicant requires assistance with clothing care. Ms. Smith and Mr. Jung both documented that the applicant was able to obtain his clothing items from where they are stored.
33I find that the recommendation 630 minutes for ensuring comfort/safety and 3360 for basic supervisory care for nighttime supervision is not reasonable. There are cognitive issues documented with respect to memory, word finding and concentration, however I am not persuaded that the applicant would not be able to respond appropriately in the event of an emergency.
34I accept that coordination of attendant care is reasonable due to his difficulties with memory and concentration.
Level III
35I find that the recommendation for cueing and supervision to perform his prescribed exercises on a daily basis is reasonable. The applicant has reportedly gained approximately 40 lbs since the accident. He reported that his physiotherapist prescribed daily exercises, but he rarely completed them due to physical fatigue, apathy, difficulty with mobility and poor planning.
36I find Ms. Smith's recommendation for medication intake monitoring is reasonable given the applicant's cognitive difficulties, however he is able to drive in order to maintain his own supply of medications. I have not been directed to evidence that he was unable to attend the pharmacy to maintain his own supply.
37Assistance with bath transfers and bathing is reasonable given the applicant's mobility issues and incompatibility of assistive devices. Both assessors made recommendations for assistive devices in the bathtub given his mobility issues. Mr. Jung noted that the heavy-duty bath chair that Ms. Smith recommended would not fit into the applicant's bathtub. Also, his shower surround is acrylic and not compatible with wall-mounted grab bars.
38I am not persuaded that the applicant's emotional or cognitive issues would prevent him from being able to ensure that his cane and walker are safe and secure. The recommendation for 10 minutes a week to maintain the supply of disposable briefs is not reasonable, given that I am not persuaded that the medical evidence supports a finding that his incontinence issues are accident related.
39Based on the evidence, I find that the applicant is entitled to the following ACB quantum from June 15, 2021:
| Total Minutes Per Week | Total Weekly Hours | Total Monthly Hours | Hourly rate | Monthly Care Benefit | |
|---|---|---|---|---|---|
| Level I | 1130 | 18.8 | 80.8 | $14.90 | $1,203.92 |
| Level II | 110 | 1.8 | 7.9 | $11.40 | $90.06 |
| Level III | 455 | 7.6 | 32.7 | $21.11 | $690.30 |
| Total for Attendant Care Services | $1,984.28 | ||||
| Plus 13% HST | $257.96 | ||||
| Monthly total | $2,242.24 |
Issue 2: $651.21 for the balance of a partially approved plan for social work services is not reasonable and necessary
40The respondent does not dispute that social work services were reasonable. It approved the proposed five, two-hour social work counselling sessions proposed, and three hours for a progress report at the hourly rate of $91.43 rather than the $130.00 per hour claimed. A fee of $149.63 for "collaboration and provision of clinical practices" was not approved.
41The rate of $130.00 per hour was declined on the basis that social workers are not listed as a regulated health care professional on the Professional Services Guideline (Financial Services Commission of Ontario Superintendent's Guideline 03/14) ("PSGs"). The respondent proposed the fee of $91.43, which was the hourly rate for a registered nurse or nurse practitioner according to the PSGs. Given their relative training and responsibilities, the respondent submits than the rate of $91.43 was reasonable.
42Rates for unregulated provides under the PSGs, including case managers, family and vocational counsellors are limited to $58.19 under the PSGs. The respondent submits that the social work services proposed appear to be akin to family, vocational or rehabilitation counselling type of services, which would command a significantly lower rate than proposed.
43The applicant makes no submissions as to why the higher rate proposed was reasonable, or why the fee for collaboration is payable.
44I agree with the respondent. Consistent with other Tribunal decisions I find the hourly rate approved by the respondent was reasonable. (See for example Rawana v. Aviva Insurance Company, 2021 CanLII 60468 (ON LAT) at paras 16-18; M.I.A. v. Aviva General Insurance Company, 2020 CanLII 94805 (ON LAT), at paras 27-30; Haws v. Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT); Duffy v. Aviva General Insurance, 2022 CanLII 78788 (ON LAT), at paras 38, 43-49.) Further, the $149.63 fee for collaboration is not payable. Pursuant to the Superintendent's Guideline No. 03/14 which states:
"Expenses related to professional services" as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.
45Accordingly, I find that the applicant is not entitled to the balance of this treatment plan.
Issue 3: $1,289.52 for the balance of a partially approved plan for occupational therapy services and assistive devices is not reasonable and necessary
46This plan proposed $3,854.68 twenty hours of treatment by an occupational therapist along with planning time over five sessions, provider travel time, and twelve assistive devices, including two heating pads.
47The respondent approved five, 1.5-hour sessions, and 3 hours of planning, the travel time, and eleven of the twelve assistive devices. The respondent denied the excess 9.5 hours of planning time, the duplicate heating pad at line 12 as one was approved at line 11, and the collaboration fee of $195.00.
48The applicant has not met his onus to establish why the additional 9.5 hours of planning time was reasonable or necessary, why a second heating pad was required, or why the collaboration fee is payable.
49Accordingly, I find the applicant is not entitled to the balance of this treatment plan.
Issue 4: $1,995.03 for the balance of the partially approved plan for physiotherapy is not reasonable and necessary
50The respondent approved the proposed 10 physiotherapy sessions at $99.75, and the form completion fee totalling $1,197.50. The respondent denied further amounts allocated for documentation and report writing ($598.50), provider travel time ($1,246.90), and a "collaboration" fee of $149.63.
51The respondent submits, that the rehabilitation documentation would be completed during the sessions, and therefore additional time was not reasonable or necessary. The respondent did not require a progress report. If further treatment were required following completion of this plan, a subsequent treatment plan would detail his progress and any recommendations.
52The travel time was denied because the respondent had not received any medical documentation to support the need for in-home physiotherapy, or that the applicant was unable to attend in-clinic treatment. Further, physiotherapy was available locally to the applicant, and there was no need for a provider to travel from outside his region to the applicant's home.
53The applicant submits that the respondent's denial unfairly hindered his access to treatment, but fails to address why the documentation fees, travel time/in-home physiotherapy, or collaboration fees were reasonable or necessary.
54I agree with the respondent and find that the applicant has not met his onus to establish that the balance of this treatment plan was reasonable or necessary.
Issue 5: $1,381.73 for the balance of a partially approved plan for social work services is not reasonable and necessary
55Again, the respondent approved all of the eight social work sessions and the progress report proposed at the rate of $91.43 per hour, rather than the $130.00 per hour proposed. The sessions were approved for 75 minutes each, as there was no explanation given for why an additional 30 minutes per session was required. The provider travel time, and collaboration fee were also denied.
56In his submissions, the applicant sets out the respondent's rationale for its denial but makes no submissions as to why the higher rate, longer sessions, provider travel time, or collaboration fees were reasonable or necessary. Accordingly, I find the applicant has not met his burden to establish his entitlement to the balance of this plan.
Issue 6: $2,032.93 for audiometric and speech language services is reasonable and necessary
57This plan, dated May 28, 2020, was completed by an occupational therapist but recommended a speech language pathology referral. The plan was initially denied pending receipt of clinical notes and records and a s. 44 assessment to address whether the cognitive concerns reported by Rehab First were as a result of the accident.
58The treatment plan was denied following the neuropsychological assessment with Dr. Bradbury, report dated March 17, 2021. Dr. Bradbury concluded that there was no neuropsychological impairment related to the accident that would necessitate any additional speech language pathology intervention. His scores were largely average on testing. Dr. Bradbury concluded than the applicant had globally intact intellectual ability, with no indication of any substantive accident-related neurological compromises.
59I am persuaded that the treatment plan was reasonable and necessary. Despite Dr. Bradbury's conclusions, there are multiple references to issues with wordfinding, memory and concentration in the medical evidence that would warrant the proposed services. The neuropsychologist, Dr. Fulton, in his report dated April 9, 2021 diagnosed the applicant with a cognitive disorder due to mild traumatic brain injury. Dr. Fulton assessed the applicant with a variety of measures, which revealed a moderate degree of impairment. The applicant and his spouse reported that the applicant's cognitive symptoms developed in the weeks following the accident, well before the development of his brain tumour. Since his tumour dissipated, he continued to describe issues.
60The multidisciplinary team from the Degroote pain clinic also documented the applicant's issues with memory, speech, and concentration since the accident. Dr. Kumbhare, also opined in his report of August 22, 2022 that the treatment plan for a speech-language pathology assessment is reasonably required due to his cognitive and communication difficulties.
61Overall, I am persuaded that on a balance of probabilities, the proposed speech language therapy services were reasonably required as a result of the accident.
Issue 7: $3,750.55 for physiotherapy services is reasonable and necessary
62This plan dated June 4, 2020 proposed a combination of virtual and in-home therapy sessions to reduce pain and improve function and strength.
63The respondent points out that the applicant was discharged from physiotherapy on February 23, 2018. The OCF-24 indicated that no further intervention was required and he had returned to work. Further sessions were approved in July 2018 and May 2020. This plan was then denied pending receipt of further clinical notes and records and IE assessment to determine if further physiotherapy was reasonable and necessary. The respondent relies on IE reports of Dr. Khan dated February 13, 2019 and Dr. Angel dated April 25, 2019 which found the applicant had reached maximum medical recovery.
64I find that the treatment plan is reasonable and necessary to treat the applicant's ongoing pain. The applicant's pre-accident back pain was reportedly intermittent, but post-accident was constant. Drs. Sharieff and Sediq from the Centre for Pain Management recommended physiotherapy in 2021 and 2021. Dr. Hatcher from the Degroote Pain Clinic recommended ongoing physiotherapy in the July 2020 report. During the neurosurgical consultation, Dr. Wang recommended regular exercise and weight loss. Dr. Kumbhare also recommended an exercise program in his 2022 report.
65The applicant participated in a second IE with Dr. Khan on June 21, 2022 in relation to the subject treatment plan. The applicant was not able to perform all of the physical tasks required during the examination and had reduced ranges of motion of his cervical and lumbar spine. Dr. Khan opined that the applicant would not benefit from further facility based physiotherapy, but suggested the family doctor consider nerve blocks or trigger point injections, injectable muscle relaxants or other medications to allow him to better tolerate his pain, return to his pre-accident activities, and better tolerate the strengthening exercises he had already been instructed at therapy. If anything, I find that this report supports the need for physiotherapy. It seems that the applicant's condition had deteriorated somewhat since Dr. Khan's initial assessment in 2019. Dr. Khan appears to acknowledge the applicant's ongoing pain, limitations with respect to activities, and difficulty performing exercises.
66While the applicant has repeatedly been encouraged to participate in independent exercise, the applicant has struggled to complete them and has gained more weight since the accident. During the attendant care assessments, the applicant reported that his physiotherapist prescribed daily exercises, but he rarely completed them due to physical fatigue, apathy, difficulty with mobility and poor planning.
67I find that the treatment plan for further physiotherapy is reasonable and necessary.
Issue 8: $997.50 for the balance of the partially approved plan for occupational therapy services is reasonable and necessary
68The treatment plan totalling $2,943.13 dated July 16, 2020 recommended 20 hours with an occupational therapist to evaluate and follow up on the applicant's safe and effective use of assistive devices and improve his function around the home. A neuropsychological IE with Dr. Bradbury (report dated March 17, 2021) determined that 10 hours, not 20, would be reasonable to augment social and community reintegration goals, and the respondent partially approved the plan accordingly.
69The applicant relies on the 2022 report of Dr. Kumbhare, and his conclusion that the applicant's overall prognosis for further physical or functional gain was extremely poor. The applicant submits that he will therefore continue to require occupational therapy intervention.
70I find that the balance of this treatment plan was reasonable and necessary to further the OT goals of education (energy conservation, sleep hygiene, safe mobility), evaluation and follow up on his proper use of assistive devices, symptom management education, and home safety recommendations. These were all documented issues noted by various assessors.
Issue 9: $254.39 for the balance of the partially paid invoice for occupational therapy services is not reasonable and necessary
71An invoice was submitted by Carol Smith in respect of approved OT services in the amount of $808.00.
72The respondent partially paid ($279.30 for 1.8 hours of services and 1 hour of travel time provided on June 8, 2020) on July 24, 2020, and requested clarification/breakdown of the remaining services. Ms. Smith provided a breakdown of the 4.85 hours of services.
73By letter dated August 22, 2020 the respondent agreed to fund a further $274.31 comprising 2.75 hours for telephone calls with the applicant, procurement of assistive devices and research of educational materials. The respondent denied the remaining balance, noting that a progress report was documented on May 20, 2020, but they had not received a progress report. Further the addendum reports noted on May 25 and 26, 2020 were for clarification of his post-accident work situation, which was not requested by the respondent. Therefore, they must have been requested by the applicant's representative, and as such the respondent would not pay for them.
74The applicant has not made any submissions as to why the balance of the services are payable. Accordingly, I find that they are not.
Issue 10: $124.29 for the balance of the partially paid invoice for running shoes is not reasonable or necessary
75The OCF-18 was partially approved, including "orthotic friendly footwear" at $100 plus HST. An invoice dated December 30, 2020 was submitted by Bioped for various orthotic items and running shoes for $237.29.
76The respondent later paid $113.00 for the shoes, leaving a balance of $124.29. The respondent submits that the applicant would be required to replace his shoes due to wear and tear despite the accident, and therefore would contribute a total of $100 to the cost of shoes for the orthotics.
77The applicant submits that he has been unfairly prejudiced, but makes no submissions as to why the $100.00 contribution to the shoes was unreasonable, or why the cost of running shoes totalling $237.29 was reasonable and necessary for the use of his orthotics. The balance is not payable.
Issue 11: $11,411.15 for home modification is not reasonable and necessary
78The treatment plan dated November 30, 2020 was proposed by Ms. Smith for modifications to the applicant's front porch. The applicant's porch had fallen into disrepair and submits that because of his accident-related injuries, he was unable to repair it himself. He was a construction worker with renovation experience and it would have been an easy task for him prior to the accident. The applicant submits that due to his issues with balance, strength and tolerance for walking, the proposed plan is reasonable and necessary.
79The respondent submits that the porch deteriorated and the applicant had planned to replace it prior to the accident, and had already purchased the materials. The respondent submits that the porch repair was home maintenance required in the ordinary course regardless of the accident. Further, since the applicant had not purchased optional home maintenance benefits and was not catastrophically impaired, he was not entitled to funding for home maintenance, whether it was submitted under the guise of home modifications.
80Various assessors had noted the unsafe front porch and sagging steps that were a safety issue for the applicant to access his home. The respondent's own assessor, Mr. Jung, made recommendations for the reinforcement/upgrading of the steps at the front porch as a result of the applicant's declining mobility. I find that the one-time capital expenditure for a modification to the porch for safety reasons is not a home maintenance expense that would typically fall under home maintenance benefits.
81However, benefits are only payable for modifications which accommodate impairments sustained as a result of the accident. The scope of work submitted includes not only replacing the old porch, but also adding a new 8 x18 foot deck and staircase. No explanation was provided as to why the new deck and staircase are required to accommodate the needs of the applicant as a result of his impairments. Given the lack of a detailed breakdown in the quote, I am unable to determine the portion of the quote that relates to the replacement of the front porch and steps and which relates to the construction of the new deck and staircase. Accordingly, I am unable to find that the amount sought for home modifications is reasonable and necessary.
Issue 12: $4,573.90 for a mattress is reasonable and necessary
82The treatment plan dated December 7, 2020 proposed the purchase of a new orthopedic mattress and platform. Ms. Smith noted that the applicant experienced difficulty initiating and maintaining sleep due to his low back pain, which resulted in daytime fatigue. The therapist opined that his current bed offered poor spinal support, and obtained a quote for an orthopedic mattress that would meet his needs from a local mattress store.
83By letter dated December 23, 2020 the respondent denied the expenses as it was not essential to his recovery and rehabilitation, and required documentation regarding what other options were explored prior to this request, or other lower cost options.
84The respondent agrees that the applicant may have difficulty with sleep but submits that those difficulties are primarily related to his issues with urinary incontinence that required him to get up multiple times a night, severe sleep obstructive apnea and sleep hypoxia. The respondent points out that the applicant's mattress was approximately three years old, purchased shortly before the accident, was a high-end gel foam, and there was no objective information that it did not provide support.
85By letter dated December 24, 2020 Ms. Smith advised that the current mattress was soft-medium firmness, while the proposed mattress was very firm. The applicant trialed the mattress and found it helped his back pain, was easier to change position, and provided improved support.
86I am persuaded that the mattress is reasonable and necessary to provide improved support for the applicant's chronic back pain post-accident. He may have other comorbid conditions that contribute to his difficulty sleeping, however the applicant consistently reported that his back pain interfered with his sleep.
Issue 13: $2,045.38 for an occupational therapy in-home assessment is not reasonable and necessary
87The plan submitted by Melissa Jamieson dated April 28, 2021 was intended to provide an up-to-date snapshot of the applicant's current functioning and occupational performance. The previous assessment was conducted in November 2019 and according to Ms. Jamieson, was outdated.
88The respondent submits that it was not reasonable and necessary as the applicant was independent with activities of daily living, and further, the provider had been providing OT services since 2019 so a further in-home assessment by that provider was not reasonably required.
89I agree with the respondent. The provider had been providing OT services to the applicant, had followed his care since 2019, and should be well aware of the applicant's level of function. A full re-assessment was not reasonable and necessary.
Issue 14: $1,237.07 for Lifeline services and monitoring is not reasonable and necessary
90An OCF-18 dated June 18, 2021 proposed by the occupational therapist for a Lifeline personal monitoring system with automatic fall detection to improve safety in the home by improving timely access to emergency medical assistance if needed. The applicant submits that it is reasonable and necessary due to his accident-related impairments that create balance issues and fall risks.
91I am persuaded by the occupational therapy report of Mr. Jung in which he determined that there was no indication of mobility limitation to such a degree that the applicant would be incapable of getting up. The applicant advised that he would likely be able to do so, and/or use his cell phone for emergencies if required. There was no evidence of an accident-related injury or condition that would make losing consciousness more likely for the applicant. Even the applicant's own assessor, Dr. Kumbhare, found that the Lifeline services were unnecessary in his August 22, 2022 report.
92I find that the plan for Lifeline services is not reasonable or necessary.
Issue 15: $1,073.41 for the balance of the plan for assistive devices is partially reasonable and necessary in the amount of $249.99
93The treatment plan dated June 11, 2021 submitted by Ms. Jamieson proposed various assistive devices, totalling $1896.03. The plan was partially approved for $822.61 following an OT assessment with Mr. Jung.
94The heavy-duty bath chair and toilet safety recommended by Ms. Jamieson could not be accommodated by the applicant's bathroom due to their size and the limited space. The applicant demonstrated safe and independent tub and toilet transfers with his existing equipment, including a raised toilet frame that had previously been provided. The applicant already had a cane, so an additional cane was not reasonable and necessary. I find that those items are not payable for the foregoing reasons. I also agree that the proposed seven hours of education for the devices was excessive, particularly since some of the assistive devices are not reasonable and necessary.
95I do find that the proposed orthopaedic pillow is reasonable and necessary to address the applicant's ongoing pain and impairments, for a total of $249.99. The balance is not reasonable and necessary.
Issue 16: Speech Language Assessment – WITHDRAWN
Issue 17: $9,183.50 for a home modification assessment is partially reasonable and necessary for $2,000.00
96The plan dated July 18, 2021 proposed a home modification assessment by Adapt-Able Design, totalling $9,183.50. I find that the plan is partially reasonable and necessary to evaluate the applicant's ability to safely access and function in his home. The applicant's mobility and balance issues are well documented, including his use of a cane and walker for mobility. There are no railings down the steps at the rear exit of the home, his front porch and steps are in a state of disrepair, and applicant cannot use his rollator walker on his gravel driveway.
97However, I find the cost of the assessment exceeds the maximum amount payable for conducting an assessment under s. 25(5) of the Schedule. Accordingly, I find that the proposed assessment is partially reasonable and necessary up to a maximum of $2,000.00, plus HST.
Issue 18: $7,538.33 for the balance of a partially approved plan occupational therapy/RSW services is not reasonable and necessary
98The plan dated June 29, 2021 proposed $9,828.44 for 24 sessions of occupational therapy and rehabilitation support worker services ("RSW"). It was partially approved following an IE with Mr. Jung. It was determined that RSW services would assist the applicant in facilitating activities through behavioural activation and consistent activity management. 12 sessions were found to be an appropriate starting point, following which the applicant's response could be further evaluated and further services requested at that time. OT services were partially reasonable to oversee the activities, at a reduced rate: two to one ratio of RSW services to OT supervision, and the travel time was discounted proportionately. Personal protective equipment expenses were denied as it should be included in overhead expenses.
99I find that the applicant has not met his burden to prove why 24 sessions were reasonably required, or why the other expenses should be payable. I find that it was appropriate to approve twelve sessions and then evaluate the applicant's response. The balance of the treatment plan is not reasonable and necessary.
Issue 19: $2,294.75 for a home modification assessment is not reasonable and necessary
100The plan dated February 24, 2022 proposed another home accessibility assessment, this one conducted by an occupational therapist. Given my findings above that the first plan for a home accessibility assessment was reasonable and necessary, I find that this plan is not reasonable or necessary, as it would be a duplication of services.
Issue 20: $2,460.00 for a dietician assessment is reasonable and necessary
101The treatment plan for a dietician assessment dated January 7, 2022 was submitted by OT Shauna Smith to address the applicant's nutritional status, motivation issues regarding preparation of heathy food, and education about food choices to maximize energy and sustain a healthy weight.
102The respondent points to the applicant's pre-existing issues with obesity. While I agree Dr. Swan's records reference the need for exercise and weight loss prior to the accident, the applicant gained more weight since the accident. Dr. Kumbhare noted in his August 2022 report that the applicant's weight was stable at approximately 290 lbs prior to the accident, but he had now weighed between 320 and 335 lbs, in part due to immobility, and was now borderline diabetic. Given the applicant's cardiac issues and weight gain since the accident, I find the dietician assessment is reasonable and necessary.
Award
103The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that the respondent refused to pay for the benefits in dispute, despite the availability of medical and other evidence that supported the need for them, resulting in delay and that such conduct should be deterred.
104I find than an award is not appropriate. The test for a s. 10 award is whether the insurer's behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. While I have found that the applicant is entitled to some of the benefits in dispute, I find that the respondent's actions do not satisfy the threshold of unreasonable withholding or delaying payment of the benefits.
ORDER
105The applicant is entitled to attendant care benefits at the rate of $2,242.24 per month from June 15, 2021.
106The applicant is entitled to the amounts sought in issues #6, 7, 8, 12 and 20, plus interest.
107The applicant is entitled to $249.99 plus interest with respect to issue #15.
108The applicant is entitled to $2,000.00 plus interest with respect to issue #17.
109The applicant is not entitled to the amounts sought with respect to issues #2, 3, 4, 5, 9, 10, 11, 13, 14, 18, or 19.
110Issue #16 was withdrawn by the applicant.
111The respondent is not liable to pay an award under s. 10 of Regulation 664.
Released: November 24, 2023
Kate Grieves Adjudicator