Citation: Wicks v. Intact Insurance Company, 2023 ONLAT 20-011457/AABS

Licence Appeal Tribunal File Number: 20-011457/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:

Shane Wicks

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Frank McNally, Counsel

For the Respondent: Peter Trueman, Counsel

HEARD: By Way of Written Hearing

BACKGROUND

1The applicant was involved in an automobile accident on May 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the Intact Insurance Company, (“respondent”), and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be decided:

a. Is the applicant entitled to $37,129.50 for vocational/academic training services and rehabilitation devices, a mattress and massage chair proposed by Functionability Rehabilitation Services in a treatment plan (“OCF-18”) denied September 11, 2019?

b. Is the applicant entitled to $2,460 for medical and rehabilitation services, for a stairmaster, proposed by Functionability Rehabilitation Services in an OCF-18 denied July 27, 2020?

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

RESULT

3I find that the applicant is not entitled to:

a. $37,129.50 for Vocational/Academic Training Services, a Mattress, and Massage Chair;

b. $2,460 For Medical Services;

c. Interest on any overdue payment of benefits.

FACTS

4The applicant was injured in an accident on May 5, 2018, when he witnessed another vehicle collided with his parked vehicle. The applicant confronted the other driver and stood in front of his vehicle to prevent him from driving away, the other drive drove forward, and the applicant jumped onto the hood of the vehicle. The applicant held onto the hood while the other driver drove away. The applicant eventually rolled off the hood of the vehicle. The attending police officer noted that the applicant did not appear physically injured but was shaken up.² The applicant did not ask for an ambulance and was not taken to the hospital.

ANALYSIS

5Section 16 of the Schedule states:

16. (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

(2) Measures to reintegrate an insured person into the labour market are considered reasonable and necessary, taking into consideration the person’s personal and vocational characteristics, if they enable the person to,

(a) engage in employment or self-employment that is as similar as possible to the employment or self-employment in which he or she was engaged at the time of the accident; or

(b) lead as normal a work life as possible.

6The onus is on the applicant to show that each proposed OCF-18 is reasonable and necessary.³

$37,129.50 for Vocational/Academic Training Services, a Mattress, and Massage Chair

7I find that the applicant is not entitled to the disputed OCF-18 in the amount of $37,129.50 as he has not met his onus to prove that it is reasonable and necessary.

Vocational/Academic Training Services

8In order to receive payment for a medical or rehabilitation benefit under the Schedule, an insured bears the burden of demonstrating on a balance of probabilities that the treatment sought is reasonable and necessary. The analysis should consider the reasonableness of the treatment goals, whether the goals are being met to a reasonable degree and if the overall cost of achieving the goals is reasonable.

9The applicant relies on the OCF-18, completed by Marin Burton, occupational therapist, that provides the applicant is the owner of an electrical company had to hire additional electrician staff as he can no longer complete many of the physical aspects of the electrician job. As a result of the accident, the applicant has had to focus on administration and office tasks rather than actual electronic tasks due to reduced physical tolerance and fatigue.

10The OCF-18 recommends the applicant pursue various vocational training seminars to develop and improve his managerial foundation to sustain his electrical business. These include networking seminars with Tony Robbins, Weekend in LA Business Seminar with Tony Robbins, Business Mastery Course with Tony Robbins and networking memberships.

11The applicant also relies on the functional capacity evaluation report completed by Alyssa Kadowaki, registered kinesiologist, dated March 3, 2020. The report determined the current level of physical capacities of the applicant, finding that the applicant met 0 of the 19 job demands.⁴ Furthermore, the musculoskeletal exam indicated revealed the applicant demonstrated postural impairments, muscular imbalances and movement deviations.

12Furthermore, the applicant relies on the assessment by Dr. Zeeshan Waseem, physiatrist, July 6, 2021, who opined that the applicant has suffered a loss of competitive advantage, he is unable to tolerate physical work and needs to delegate manual labour to others to remain employable.⁵

13It is the applicant’s position that as a result of the accident, he is now unable to complete the physical aspects of his previous job and this training will help him reintegrate into a stable economic environment, similar to that of his pre-accident work.

14The respondent cites F.J. v. Intact⁶ to determine the criteria if a treatment is reasonable or necessary, this includes taking into consideration whether the treatment goals, as identified, are reasonable, whether the goals are being or will be met to a reasonable degree and whether the overall cost of achieving goals is reasonable, taking into consideration both the degree of success and the availability of other treatment options.

15The respondent relies on the occupational therapy in-home assessment report, of Ms. Samantha Anstey, occupational therapist, dated August 12, 2019. Ms. Anstey opined that based on the medical documentation, injuries sustained, timeframe since the accident and evidence-based practice it was her opinion that the goods and services proposed were not reasonable and necessary at this time.

16Namely, the applicant was at the preliminary stages of opening a business at the time of the accident, there is an expectation that with time the business would grow, and additional staff would be hired to keep up with demand. The respondent also notes that it is anticipated that business owners would invest in their education to grow and mange their business overtime.

17As to the physical injuries sustained by the applicant, the respondent provides that the applicant visited Dr. Louis O’Connell, family physician, the day after the accident. No clinical notes and records (“CNRs”) from Dr. O’Connell in May 2018 were provided to the Tribunal by either party.

18Respondent provides that the vocational rehabilitation efforts have been directed towards helping him succeed in a role he did not have at the time of the accident. Furthermore, there is no indication that the applicant is unable to do the managerial or administration job now.

19I note that there is no medical evidence before me from a physician that endorses the vocational training. I find that the applicant failed to submit medical evidence to support the need for the proposed treatment the OCF-18 submitted. A treatment plan without more, is not enough to establish treatment.⁷ The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary. In the present case, the applicant does not provide the Tribunal evidence in support of the treatment plan.

20I am not persuaded by the applicant that the goal of the vocational/academic seminars to better facilitate his electrician business bears any relationship to what the applicant was doing at the time of the accident. Although I do accept that the applicant may need to delegate manual labour to others to remain employable as opined by Dr. Waseem.

21I am persuaded by the respondent that s. 16(2)(b) refers to leading a normal work life, not improving the quality of work life of the applicant. I find that the vocational/academic training is intended to improve the applicant’s quality of work life, not facilitate his return to employment similar to his pre-accident job.

Mattress

22The applicant submits that he suffers from poor sleep and fatigue following the accident. The applicant relies on the occupational therapy report which included a self-reported fatigue severity scale of sleep disorders testing completed by Ms. Burton, dated December 12, 2018. The report recommended assistive devices including a new mattress, pillow and weighted blanket to promote good sleep and mage sleep-based anxiety. The OCF-18 sought to reduce the applicant’s general fatigue and pain, increasing his daily abilities.

23The applicant cites various Tribunal decisions where a new mattress has been granted.⁸

24The respondent relies on the occupational therapy in-home assessment report, of Ms. Samantha Anstey, occupational therapist, dated August 12, 2019. Ms. Anstey opined that the mattress was not reasonable or necessary as there is insufficient clinical research to suggest that a new mattress will provide additional therapeutic benefits of what the applicant’s current mattress provides. In addition, a new mattress will not resolve the psychological symptoms that the applicant is reporting are impacting his present sleep.

25The respondent distinguishes this matter from the decisions cited by the applicant, noting that in the Owusu decision the cost of the matters was $1000. The applicant has failed to provide the Tribunal with anything to support the need for a $4000 mattress which would be most necessary to substantiate the reasonable of such an expensive mattress.

26I am not persuaded that the applicant has met his burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary. I find that the underlying need for a new mattress is based on the applicants self-reported fatigue severity scale of sleep disorders testing. There are no medical records or CNRs indicating that the applicant has a sleep disorder. I find this to be distinguishable to the cases provided by the applicant, in those cases the applicant’s issues with sleep and fatigue are well documented in the medical evidence before the Tribunal. While I agree that pain relief and restorative sleep are reasonable goals for any person to have, I have no evidence before me to suggest that this is a current impairment of the applicant.

27Furthermore, the report of Ms. Burton provides that the applicant and his therapist went to Sleep Country to shop for a new mattress in order to provide comfort and reduce pain. There is no indication as to how the $4,000 mattress differs from that of a $1,000 mattress, which has been held by the Tribunal to be a reasonable cost.

28As a result, I am not persuaded that the applicant has met his burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

Massage Chair

29The OCF-18 includes a massage chair, the applicant submits that he experiences significant pain relief in his shoulder, neck and back through massage treatments. However, the applicant finds it difficult to sustain massage treatment appointments due to his busy schedule, forcing him to chose between treatment relief and leisure time. The applicant submits that the massage chair is a great rehabilitation device for recovery.

30The respondent acknowledges that pain relief is a legitimate goal of treatment. The respondent relies on the occupational therapy in-home assessment report, of Ms. Samantha Anstey, occupational therapist, dated August 12, 2019. Ms. Anstey found that the massage chair was not reasonable or necessary because the applicant reported that his girlfriend is currently massaging his back and performing stretches. Furthermore, the respondent highlights that subsequent to Ms. Anstey’s assessment, the applicant bought the massage chair and trialed it.

31During an occupational therapy assessment, completed by Ms. Sarah Moore, occupational therapist, dated July 14, 2021, the applicant reported that he trialed the recommended chair at home and in fact it induced pain symptoms and decreased his comfort level.

32I find on a balance of probabilities that the applicant may continue to benefit from massage therapy however the massage chair is not reasonable or necessary. I find that any improvements would be negligible at best and pain inducing at worst. As a result, I find that the applicant has not met his burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

$2,460 For Medical Services (Stairmaster)

33I do not find that the applicant is entitled to the treatment plan in the amount of $2,460 for a stairmaster.

34The applicant submits that prior to the accident, he was very committed to his physical health, attending the gym 5-6 times a week. After the accident, the applicant turned to running on his home treadmill. It is the applicant’s position that his home treadmill was causing pain in his hip and back. The OCF-18 completed by Ms. Burton, submitted January 23, 2020, recommended the applicant use a stairmaster to provide a better level of workout and reduce hip and back pain.

35The respondent relies on the occupational therapy assessment, of Mr. Mohan Lynegar dated July 16, 2020. Mr. Mohan opined that a stairmaster is not reasonable or necessary, as the applicant is mostly independent in his daily living, resumed driving and his able to manage his business and leisure activities. The OCF-18 was submitted during the COVID-19 pandemic when gyms were closed, now that gyms are open there is no reason why the applicant would be unable to use the stairmaster at the gym.

36I am not persuaded that a stairmaster is reasonable or necessary. The applicant has a variety of options to maintain his physical health which do not require an at home stairmaster. There is no evidence before me to convey its necessity.

INTEREST

37Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.

ORDER

38The applicant is dismissed, and I find that the applicant is not entitled to:

a. $37,129.50 for Vocational/Academic Training Services, a Mattress, and Massage Chair;

b. $2,460 For Medical Services;

c. Interest on any overdue payment of benefits.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Ottawa Police Service, General Occurrence Notes, May 6, 2018.
3. 3Scarlett v. Belair, 2015 ONSC 3635
4. 4Overhead reach, shoulder reach, waist reach/dexterity, kneeling, bending, crouching, balance, crawling, twisting, walking, floor to waist lifting, waist to shoulder lifting, shoulder to overhead lifting, carrying, pushing and pulling.
5. 5Independent Medical Exam, Dr. Zeeshan Waseem, dated July 6, 2021.
6. 62020 CanLII 34495.
7. 7See: 17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
8. 8Owusu-Mensah v. Aviva Gen. Ins. Co. 2021 ONLAT 20-005266/AABS and Kazmi v. Pembridge Insurance Company, 2021 ONLAT 19-010107/AABS