Citation: Gibson v. Intact Insurance Company, 2023 ONLAT 20-012060/AABS - A

Licence Appeal Tribunal File Number: 20-012060/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:

Paul Gibson

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Alfonso Campos Reales, Counsel

Stephanie C. Coppens, Counsel

For the Respondent:

Mercedes Marin, Counsel

HEARD:

BACKGROUND

1The applicant was involved in an automobile accident on December 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule, - Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties attended a case conference on June 21, 2021, where the issues in dispute for this written hearing were identified as seven treatment plans, including the addition of a treatment plan dated December 7, 2020, for a Kubota tractor in the amount of $54,440.00.

3On October 20, 2021, the respondent filed a Notice of Motion with respect to the treatment plan for the Kubota tractor. The respondent raised the preliminary issue of the applicant’s non-attendance at two scheduled s.44 Insurer’s Examinations (“IE”s) with respect to this treatment plan. By Motion Order dated November 17, 2021, the Tribunal added the preliminary issue of the applicant’s non-attendance to this written hearing, to be considered prior to the hearing of the substantive issues in dispute.

PRELIMINARY ISSUE

4The following preliminary issue is before the Tribunal:

a. Is the applicant barred from disputing the treatment plan (“OCF-18”) dated December 7, 2020 in the amount for $54,440.00 for a Kubota tractor, as he failed to comply with two s. 44 examinations scheduled in September 2021?

Result

5For the reasons outlined below, I find that the applicant cannot proceed with the issue of the OCF-18 for the Kubota tractor, by virtue of s.55(1)2. As such, I will not consider this OCF-18 as an issue in dispute in this written hearing.

Law

6Section 44(1) of the Schedule states that an insurer may—but not more than reasonably necessary—require an insured person to be examined under this section by one or more people chosen by the insurer, who are regulated health professionals or have expertise in vocational rehabilitation, for the purposes of assisting the insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made.

7Section 55(1)2 of the Schedule disallows applicants from pursuing a benefit if they did not attend an IE when a proper notice has been filed in accordance with the Schedule.

Overview and Parties’ Positions

8The applicant submitted an OCF-18 dated December 14, 2020 in the amount of $54,440.00 for a Kubota Tractor.

9It is not disputed that the applicant attended two s.44 assessments with respect to this OCF-18, one on April 11, 2021 for a physiatry assessment with Dr. Yuri Marchuk, physiatrist², and one on April 19, 2021, for an occupational therapy (“OT”) in-home assessment, with Demetrios Kostadopoulos, occupational therapist³. The applicant also underwent a s.25 neurological assessment with Dr. Paul E. Cooper, neurologist, on January 8, 2021⁴.

10The respondent subsequently scheduled two additional s.44 assessments for September 2021, namely, a neurological assessment with Dr. Abdalhakim Mustafa, neurologist and an orthopaedic assessment with Dr. Alexander Rabinovich, orthopaedic surgeon. The applicant did not attend these examinations.

11The respondent submits that each of the two notices of examination are valid and that the two s.44 assessments scheduled were reasonably necessary. The respondent argues that all three of the assessors who had assessed the applicant in 2021 believed that assessments by a neurologist and orthopaedic surgeon were warranted to assess the applicant’s neck and shoulder impairments and headaches.

12The respondent argues that there a clear nexus between the injuries and the examinations requested, given that the OCF-18 for the Kubota tractor was submitted to assist with tasks that were alleged to be difficult given the applicant’s neck pain, shoulder pain, headaches and fatigue. Finally, the respondent submits that in the entirety of the accident benefit claim, the applicant has not undergone any s.44 neurological or orthopaedic assessments.

13The applicant submits that the additional two s.44 assessments are unnecessary and redundant, arguing that the respondent has sufficient reports to properly assess the applicant’s headaches, neck and shoulder impairments. The applicant submits that Dr. Marchuk’s physiatry IE sufficiently addressed the applicant’s physical injuries, and that the applicant’s neurological impairments have been properly assessed by Dr. Cooper, the applicant’s s.25 assessor. Moreover, the applicant submits that one of the respondent’s own assessors, Mr. Kostadopoulos, found the Kubota tractor to be reasonable and necessary.

14The applicant also questions the timing of the respondent’s requests for the additional IEs. The applicant submits that the respondent required, and the applicant attended, two scheduled s.44 assessments in April 2021. However, the applicant argues that the respondent did not request an additional neurology IE until five weeks after the physiatry and OT assessments were completed, and that the request for the orthopaedic IE was not made until three months after the previous IEs were completed.

15In addition, the applicant submits that the respondent refused to release the physiatry and OT IE reports to the applicant until the respondent conducted its own neurology assessment, resulting in the case conference adjudicator having to order the respondent to provide the reports by July 19, 2021⁵. As such, the applicant infers that the respondent was simply requesting these additional IEs to “bolster its position”⁶ or “expert shop”⁷ and as such, the two proposed additional IEs are not reasonable and necessary.

Analysis

16Section 44 of the Schedule allows insurers to examine an insured person—but not more than is reasonably necessary—to determine if said person is entitled to a benefit. Given that both parties relied on the Tribunal decision 17-005291/AABS v. Travelers⁸, I adopt the Tribunal’s criteria when assessing whether an IE is reasonably necessary:

i. The timing of the insurer’s request;

ii. The possible prejudice to the other side;

iii. The number and nature of the previous insurer’s examinations;

iv. The nature of the examinations being requested;

v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and

vi. whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

17After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the IEs required by the respondent are reasonable and necessary.

18In this case, there is a reasonable nexus between the examinations requested and the applicant’s injuries. The OCF-18 in dispute and attached letter dated December 7, 2020, by Troy Taylor, occupational therapist, state that currently it was difficult for the applicant to complete his outdoor maintenance tasks, “due to his neck and bilateral shoulder pain, constant headaches and significant fatigue”.⁹ As such, I find that an orthopaedic surgeon and neurologist would be appropriate medical professionals to assess these impairments. Particularly given that, it appears from the evidence and submissions, the respondent has not previously conducted a neurology or orthopaedic assessment.

19Although I agree with the applicant that the respondent had conducted two IEs already, the physiatry IE and the occupational therapy (“OT”) IE, both of these assessors provided limitations to their conclusions. Dr. Marchuk, in his physiatry assessment found the proposed OCF-18 not to be reasonable and necessary, but deferred to a “Neurologist regarding the advanced findings on imaging of the cervical spine and an Orthopaedic Surgeon regarding the left shoulder condition.”¹⁰ As such, I accept that Dr. Marchuk’s report indicates that a neurological and orthopaedic assessment would be appropriate for the applicant’s impairments.

20With respect to the OT s.44 assessment, while I agree with the applicant that Mr. Kostadopoulos found the proposed tractor to be reasonable and necessary, the occupational therapist qualified his finding by stating that the proposed device was reasonable and necessary “from a functional perspective”, but that further comment concerning the neck and left shoulder was deferred to a medical perspective. ¹¹ In response to the question of whether further investigations were necessary, Mr. Kostadopoulos states that this question was being deferred to a medical perspective as being outside the scope of occupational therapy practice.¹² Therefore, I find that the second s.44 assessment also explicitly contemplated and deferred to further medical assessments.

21With respect to the proposed neurology assessment, the applicant states that the respondent does not need to conduct its own assessment, as the applicant’s s.25 assessor, Dr. Cooper, had already fully investigated the applicant’s neurological complaints. On this issue I agree with the respondent’s submissions, namely that s.44(1) of the Schedule permits an insurer to conduct an examination by an expert of its own choosing. The respondent is not obligated to rely on the applicant’s assessors.

22As such, I find that the neurology and orthopaedic IEs requested by the respondent are not duplicative or redundant. Although the applicant submits that the respondent should rely on the s.25 neurology assessment of Dr. Cooper, and that the previously conducted physiatry assessment negates the need for an additional orthopaedic assessment, the Schedule and caselaw do not afford the applicant to pick the designation of the assessor.

23Further, I do not find that the timing of the respondent’s subsequent IE requests is evidence that it was simply “expert shopping”, as argued by the applicant. The applicant questioned the fact that the respondent had not requested the two additional IEs until weeks and months after the previous IEs were completed in April 2021, and that the respondent had resisted providing the reports until its scheduled neurological IE was completed.

24However, I accept the respondent’s submissions that it had considered the fact that the applicant had conducted his own neurological assessment and subsequently determined that it would be beneficial to conduct its own such assessment. In addition, the respondent submitted that upon receipt of the physiatry IE and the OT IE on July 19, 2021, it determined that an orthopaedic assessment was reasonable and necessary as well, given the qualifications in the respective reports¹³. Although the applicant inferred that the respondent had obtained the conclusions of the respective assessors prior to the release of their reports, I agree with the respondent that the applicant has not provided any evidence that the respondent had these assessments or conclusions prior to July 19, 2021, when the reports were released.

25For the above-noted reasons, I find that both the proposed neurology and orthopaedic assessments are reasonably necessary to address the applicant’s headaches, neck and shoulder injuries. The applicant has failed to attend them as required by s. 44 of the Schedule, and therefore, I find that the applicant cannot proceed with disputing the OCF-18 for the Kubota Tractor by virtue of s.55(1)2 of the Schedule. As such, I will not consider this OCF-18 as an issue in dispute in this written hearing.

SUBSTANTIVE ISSUES IN DISPUTE

26The issues in dispute in this hearing are:

Is the applicant entitled to $1,796.16 for physiotherapy services, proposed by Craig Irwin in an OCF-18 dated August 9, 2019?
Is the applicant entitled to $5,092.87 for occupational therapy services, proposed by Troy Taylor in an OCF-18 dated January 27, 2020?
Is the applicant entitled to $5,912.26 for occupational therapy services, proposed by Troy Taylor in an OCF-18 dated March 16, 2020?
Is the applicant entitled to $5,038.00 for occupational therapy services, proposed by Troy Taylor in an OCF-18 dated March 16, 2020?
Is the applicant entitled to $15,574.00 for occupational therapy services, proposed by Troy Taylor in an OCF-18 dated August 25, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

27Based on the totality of the evidence before me, I find that:

(i) The applicant is entitled to $1,796.16 for physiotherapy services, plus interest in accordance with s.51 of the Schedule;

(ii) The applicant is entitled to a portion of the OCF-18 in the amount of $5,912.26 dated March 16, 2020 for assistive devices, namely the cost of the knipex pliers, plus interest in accordance with s.51 of the Schedule. The applicant is not entitled to the remaining amount of the OCF-18 as he has not established that the additional assistive devices are reasonable and necessary.

(iii) The applicant is entitled to a portion of the outstanding balance of the OCF-18 in the amount of $5,038.00 dated March 16, 2020 for occupational therapy services. Namely, the cost of eight half-hour sessions of preparation time, plus interest in accordance with s.51 of the Schedule. The applicant is not entitled to the remaining amount of the OCF-18 as he has not established that the additional fees are reasonable and necessary.

(iv) The applicant is not entitled to the remaining treatment plans in dispute, as he has not established that they are reasonable and necessary.

ANALYSIS

28Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

29The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

30Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

Is the Applicant Entitled to $1,796.16 for Physiotherapy Services?

31The applicant submitted an OCF-18¹⁴ dated August 9, 2019 for a total body assessment and physiotherapy sessions, with the stated goals including: pain reduction, increase in range of motion and strength, decrease in headache frequency and return to activities of normal living. The applicant submits that this treatment plan is reasonable and necessary due to his constant neck pain, chronic headaches, bilateral shoulder pain, sleep disturbance and fatigue.

32The applicant relies on the physiotherapy progress notes and reports of Mr. Craig Irwin, physiotherapist, who documented¹⁵ improvements in the applicant’s cervical and shoulder range of motion, and test scores in pain impairment and self-perceived disability, with physiotherapy treatment. The applicant also submits that physiotherapy treatment continues to be recommended by his treating physiatrists.¹⁶

33In contrast, the respondent submits that the applicant has attended three different physiotherapy clinics since the accident and has not reported making any gains in physiotherapy in three years. The respondent also relies on the s.44 physiatry assessment¹⁷ of Dr. Marchuk, dated December 5, 2019, which stated that the applicant’s condition has plateaued, that it is unlikely that further facility-based treatment will aid in recovery and that further physiotherapy is not reasonable and necessary.

34Upon review of the submissions and evidence of the parties, I find that the proposed physiotherapy treatment is reasonable and necessary.

35The respondent denied the proposed physiotherapy treatment on the basis of Dr. Marchuk’s physiatry assessment and the fact that the applicant had reported no improvement in his pain or function despite having had physiotherapy treatment for over three years. In its submissions, the respondent listed a number of instances¹⁸ where the applicant purportedly reported that physiotherapy was ineffective.

36However, I agree with the applicant’s submissions that some of these statements referred to chiropractic treatment or medications that had been prescribed for pain, and not physiotherapy. Therefore, I do not find that the applicant has consistently stated that physiotherapy has not been helpful. In fact, in a reporting letter from Dr. Baraa Achtar, who had seen the applicant on a referral for his chronic pain not long after the OCF-18 was submitted, it was noted¹⁹ that the applicant has tried physiotherapy, which he found beneficial.

37In addition, I agree with the applicant’s submissions that the proposed treatment does not necessarily have to lead to a full recovery or improve the applicant’s function. Rather, treatment that helps to relieve pain alone, even if temporarily, can be reasonable and necessary. Dr. Marchuk’s IE did find that further facility-based treatment will not aid in further recovery, however, he did not address the issue of pain relief.

38On the issue of pain relief, I find it persuasive that two separate doctors at pain clinics the applicant attended recommended physiotherapy treatment. Dr. Baraa Achtar, in a reporting letter²⁰ dated November 13, 2019, listed physiotherapy as a specific treatment recommendation, in addition to medications and interventions such as nerve blocks and trigger point injections. In addition, Dr. Eldon Loh who was seeing the applicant for chronic pain specifically prescribed²¹ physiotherapy treatment.

39As such, I find that the applicant has adduced sufficient medical evidence to establish that the proposed physiotherapy treatment is reasonable and necessary.

Is the Applicant Entitled to $5,092.87 for a mattress and pillow?

40An OCF-18 dated January 27, 2020 prepared by Troy Taylor, occupational therapist, recommended a supportive foam mattress with an adjustable base and pillow in the amount of $5,092.87. Mr. Taylor proposed²² that this mattress would address the applicant’s interrupted sleep due to his neck and bilateral shoulder pain by providing better support and spine alignment.

41The applicant submits that this memory foam mattress was the most appropriate option, as it resulted in bilateral shoulder relief and proper spine alignment due to the fact that it was a medium firm, supportive memory foam mattress. The applicant argues that Mr. Taylor is the only expert to have assessed his mattress in person and that his recommendations should be given substantial weight.

42In addition, the applicant argues that there is significant medical evidence showing that the applicant has consistently complained of sleep disturbances to treatment providers and assessors. Finally, the applicant submits that pain reduction and restorative sleep are legitimate goals for assistive devices such as a mattress and cites Tribunal decisions Owusu-Mensah v Aviva²³ and RF v Unifund²⁴, where the Tribunal found that the mattresses were reasonable and necessary.

43The respondent argues that the proposed treatment plan is not reasonable and necessary, relying on the physiatry paper review²⁵ of Dr. Marchuk which opined that the applicant’s condition had plateaued and that the proposed assistive devices would not aid further recovery. In addition, the respondent submits that the applicant has seen multiple treating doctors since the accident, and none of them have recommended a new mattress and pillow.

44I find that the applicant has not adduced sufficient medical evidence that the OCF-18 for the proposed mattress and pillow is reasonable and necessary and as such, it is not payable.

45Although the applicant’s treatment provider Mr. Taylor recommended the mattress to reduce his pain and improve the quantity and quality of his sleep, this was not similarly recommended by the numerous physicians and specialists the applicant has seen.

46The applicant relies in part on a sleep study with Dr. Vivian El-Kholi, psychiatrist, which found that the applicant suffered from initial insomnia and sleep maintenance insomnia, and that pain management is crucial to improve sleep efficiency.²⁶ However Dr. El-Kholi goes on to provide a number of recommendations, including CPAP therapy, an oral appliance, surgical intervention (if indicated), behavioural management including positional therapy, weight management and good sleep hygiene measures.²⁷ Dr. El-Kholi, did not recommend a new mattress or pillow as part of these recommendations.

47Similarly, neither the applicant’s family physician²⁸, nor the pain specialist that he saw, recommended a new mattress or pillow, despite noting that the applicant complained of sleep disturbances. Dr. Achtar had a number of treatment recommendations²⁹ to address the applicant’s chronic pain, but a new mattress or pillow was not one of the recommendations.

48This is in contrast to the two Tribunal decisions that the applicant relies upon. The applicant cites Owusu-Mensah v Aviva and RF v Unifund Assurance Company as authority for the principle that pain relief and restorative sleep are legitimate goals for treatment. While I agree with this principle, in both of these decisions, there was additional objective medical evidence recommending the mattresses. Namely, in addition to the recommendation of the treatment provider such as an occupational therapist or physiotherapist, the disputed mattresses were also specifically recommended by the treating physicians.

49In Owusu-Mensah, the adjudicator noted that the family physician had authored a report specifically recommending an orthopaedic mattress³⁰. In RF v. Unifund, the adjudicator similarly noted that Dr. Nahas had recommended an adjustable bed to address spinal deformity in addition to chronic pain³¹. As a result, I find that these decisions can be distinguished from the present case due to the specific fact patterns and medical recommendations from treating physicians and therefore did not find the decisions to be persuasive.

50As such, I find that the applicant has not adduced sufficient objective medical evidence that the OCF-18 for a mattress and pillow is reasonable and necessary.

Is the applicant entitled to $5,912.26 for car repair assistive devices?

51The applicant submitted an OCF-18 dated March 16, 2020 for assistive devices that would assist him with resuming car repairs, namely, a vehicle lift, an adjustable rolling creeper and knipex pliers³². The applicant submits that car repair was his primary leisure activity, and the assistive devices would help him with his neck and shoulder pain, inability to reach overhead, decreased grip strength and decreased tolerance for physical activity.

52I find that the proposed knipex pliers are reasonable and necessary to assist the applicant with resuming car repairs and re-engagement with his activities of daily living (“ADL”s). I agree with the applicant’s submissions that Dr. Cooper, in his s.25 neurology assessment³³ found that the applicant had numbness in his hands and features of carpal tunnel syndrome. In addition, in the subsequent physiatry s.44 assessment ³⁴ Dr. Marchuk noted bilateral carpal tunnel syndrome as a result of the accident.

53Mr. Taylor notes in his progress report³⁵ dated March 12, 2020 that the knipex pliers are appropriate, as they lock in place and as a result, decrease the need to maintain a constant grip force to hold the pliers in place. Given the applicant’s noted numbness and features of carpal tunnel syndrome, this locking in place mechanism would appear to substantially help to alleviate the applicant’s difficulties with grip strength. As such, I find that the pliers are a reasonable and necessary assistive device.

54With respect to the two additional assistive devices, the vehicle lift and adjustable rolling creeper, in Mr. Taylor’s March 12, 2020 Progress Report appended to the OCF-18, Mr. Taylor proposes that the vehicle hoist will give the applicant greater access to complete repairs underneath the vehicle and at the side of the vehicle. Further, Mr. Taylor proposes³⁶ the adjustable rolling creeper as it would allow the applicant to work from a seated reclining condition and allow him to improve his positioning.

55However, I agree with the respondent’s submissions that the applicant has not adduced sufficient evidence that these assistive devices will meet their stated goals. In his Progress Report³⁷, Mr. Taylor notes that due to head pain as well as bilateral shoulder pain, the applicant has difficulty lying on the floor of his garage, and maintaining approximately 90° of shoulder flexion to complete underbody work. The respondent also noted two clinical notes³⁸ from the applicant’s family physician, Dr. Susan MacLean, who reported that the applicant has difficulty looking up and that he felt “nauseated and dizzy” when he went under his vehicle.

56As such, it appears that both Mr. Taylor and Dr. MacLean, note that the applicant has difficulty lying on the floor of his garage and looking up. Mr. Taylor notes the applicant’s difficulty in maintaining a shoulder flexion of 90° while working on vehicles. However, one of the primary purposes of the vehicle hoist was noted by Mr. Taylor to be the “greater access to completing repairs underneath the vehicle”.³⁹

57Although the assistive devices would give the applicant greater access beneath his vehicles, the applicant has not adduced sufficient evidence as to how they will assist in his noted issues while working beneath the vehicles – such as when looking up, reaching up or maintaining a flexion of 90° while working on vehicles.

58The applicant submits that while these devices may not eliminate all of the applicant’s symptoms, but they will allow him to return to work in a more “accommodative position” which would lead to less strain on his neck, back and shoulders.⁴⁰ While I accept that the different positioning due to the vehicle hoist and adjustable rolling creeper may somewhat lessen the strain on the applicant’s neck back and shoulders, it still does not address his noted difficulties in looking up, reaching or maintaining a flexion of 90°, which would appear to be a serious impediment to working underneath a vehicle or depending on the positioning, at the side of a vehicle.

59As such, I find that the applicant has not adduced sufficient evidence to establish that the vehicle lift and adjustable rolling creeper would meet its goal of allowing the applicant to resume him car repair activity, thereby returning to his ADLs and leisure activity. Therefore, the applicant has not met his onus to establish that the assistive devices, other than the knipex pliers, are reasonable and necessary.

Is the applicant entitled to the outstanding balance of the OCF-18 dated March 16, 2020?

60In the second OCF-18 dated March 16, 2020, the applicant proposed eight two-hour sessions of occupational therapy, with corresponding fees, totalling $5,038.00. The respondent partially approved this OCF-18 for one hour of treatment sessions as opposed to two hours, along with transportation costs for the treatment provider, and some documentation fees, in the amount of $3,790.54.

61The respondent denied the remaining balance of an additional sixteen half hour sessions of “indirect time”, which were identified by Mr. Taylor as being preparation time, time for research and communication with team members. The respondent also approved a $200.00 fee for documentation support activity as well as partially approved one hour for the completion of a progress report, rather than the 4.5 hours requested.

62With respect to the half hour sessions of “indirect time”, I find that the applicant is entitled to half of the sessions requested, namely eight half-hour sessions, rather than the sixteen sessions proposed. I find a half-hour of preparation time per therapy session to be reasonable. The applicant has not led any evidence as to why two such half-hour sessions were required for every therapy session.

63I further find that the applicant has not provided sufficient evidence to establish that the remaining unapproved balance of the treatment plan is reasonable and necessary.

64With respect to the two-hour vs. one-hour treatment sessions, the applicant states that one hour treatment sessions are not sufficient and references a letter from Mr. Taylor which states that session length can be dependent on what activity observation is required and that longer session duration may be required. Mr. Taylor also notes that if two hours are not required for a treatment session, the additional time will not be billed.⁴¹ I agree with the respondent’s submissions that this explanation was vague and does not provide sufficient detail as to why two-hour treatment sessions are required.

65In addition, I find 4.5 hours to prepare a progress report to be excessive. Although the applicant states that one hour would not be sufficient and that 4.5 hours are required, no additional clarification or explanation was provided.

66The onus rests with the applicant to prove that the disputed expenses are reasonable on a balance of probabilities and not on the respondent to disprove it. The applicant did not direct me to specific evidence which supports his entitlement to the unapproved portion of the treatment plan, other than the letter from Mr. Taylor dated April 6, 2020, which states that two hours for treatment sessions and one hour for a progress note are not enough. I do not find that this is sufficient evidence to infer that the remaining amounts are reasonable and necessary.

67As such with respect to the outstanding balance of the OCF-18 in dispute, I find that the applicant is only entitled to the cost of eight half-hour sessions of preparation or “indirect” time.

Is the applicant entitled to $15,574.00 for a John Deere lawn mower?

68The applicant submitted an OCF-18 dated August 25, 2020, wherein Mr. Taylor proposed a John Deere zero-turn lawnmower. Mr. Taylor provided a letter dated August 31, 2020 detailing the need for a new lawn mower, noting that the proposed lawnmower had improved suspension, seating and manoeuvring which would reduce the applicant’s neck and shoulder pain.⁴²

69To support his claim that the proposed lawn mower is reasonable and necessary, the applicant relies on the letter from Mr. Taylor, but also asserts that two s.44 occupational assessments conducted by the respondent support his claim. The applicant submits that the In-Home Assessment Report⁴³ of Matt Sutherland, occupational therapist, dated December 10, 2019 found that the applicant continued to suffer accident-related impairments impacting his tolerance for home and property activities.

70The applicant further states that the most recent OT assessment conducted by Mr. Kostadopoulos, dated July 19, 2021, referenced in the Preliminary Issue section above, indirectly supports the claim for the lawn mower. Since Mr. Kostadopoulos found that the proposed Kubota tractor was reasonable and necessary, the applicant submits that the lawn mower should similarly be found to be reasonable and necessary, as the need for a lawn mower arises out of the same impairments and property demands as considered in Mr. Kostadopoulos’ assessment.

71In contrast, the respondent submits that the proposed lawn mower is not reasonable and necessary. The respondent relies on the paper review⁴⁴ of Mr. Sutherland dated May 14, 2020, which concluded that no equipment or modification to equipment is necessary for the applicant to return to pre-accident activities. Further, the respondent argues that the applicant has not demonstrated why his current lawn mower is insufficient to meet his needs and why a new mower would be better in helping him with outdoor tasks.

72Upon a review of the submissions and evidence, I find that the applicant has not met his evidentiary onus to establish that the proposed lawn mower is reasonable and necessary.

73One of the IE reports the applicant relies on to advance his claim for a new lawn mower, is the OT Report prepared by Mr. Kostadopoulos with respect to the Kubota tractor, previously discussed. The applicant argues that the proposed John Deere mower is meant to address the same impairments and purpose as the Kubota tractor, and since Mr. Kostadopoulos found that to be reasonable and necessary, the same would apply with respect to this treatment plan.

74However, as previously noted in the Preliminary Issue section, the OT Report prepared by Mr. Kostadopoulos was qualified, in that he limited his findings to a “functional perspective” but deferred further comment concerning the left shoulder and neck and any further investigations, to a “medical perspective”. As such, I find that the conclusions of Mr. Kostadopoulos are limited and should be read together with any future reports of the proposed orthopaedic and neurology IEs, if completed.

75More persuasively, the applicant also submits that the respondent’s previous OT IE Report of Mr. Sutherland, dated December 10, 2019 is supportive of his claim for a new mower. The applicant submits that Mr. Sutherland expressly noted⁴⁵ that the applicant continued to suffer accident-related impairments impacting his tolerance for home and property activities. However, from my review of the report, Mr. Sutherland goes on to further report that “Mr. Gibson stated that he utilizes pacing to complete lawn care with his riding mower, as needed. He has not returned to property maintenance duties”.⁴⁶

76Therefore, it appears that Mr. Sutherland distinguishes lawn care duties from property maintenance duties, and reported that the applicant was completing lawn care with his present riding mower. Although the applicant partially relies on this IE Report of Mr. Sutherland to support his claim, I find that it supports the respondent’s position that the applicant was able to fulfill his lawn care duties with his existing lawn mower, and as such, it calls into question the necessity of the proposed treatment plan.

77The onus rests with the applicant to establish that the proposed lawn mower is not only reasonable, but necessary. The respondent submits that the applicant has not submitted any information about his current lawn mower such as model, make, age and specifications, to allow for a comparison to be made to the proposed mower. I agree with these submissions, particularly in light of Mr. Sutherland’s comments, which note that with pacing, the applicant was using his existing mower to complete his lawn care.

78As such, I find that the applicant has not met his evidentiary onus to establish that the proposed John Deere lawn mower is reasonable and necessary.

Interest

79The applicant is entitled to interest in accordance with s. 51 of the Schedule once the physiotherapy services set out in the OCF-18 dated August 9, 2019, the cost of the knipex pliers listed in the OCF-18 dated March 16, 2020, and the eight half-hour sessions of preparation time listed in the second OCF-18 dated March 16, 2020, have been incurred and become overdue. If the applicant has already incurred these goods and services, then the applicant is entitled to interest in accordance with s. 51 of the Schedule.

CONCLUSION AND ORDER

80For the reasons outlined above, I find that:

a. The applicant is entitled to $1,796.16 for physiotherapy services, plus interest in accordance with s.51 of the Schedule;

b. The applicant is entitled to the cost of the knipex pliers listed in the OCF-18 dated March 16, 2020 for assistive devices, plus interest in accordance with s.51 of the Schedule. The applicant is not entitled to the remaining amount of the OCF-18.

c. The applicant is entitled to the cost of eight half-hour sessions of preparation/indirect time listed in the OCF-18 dated March 16, 2020 for occupational therapy services, plus interest in accordance with s.51 of the Schedule. The applicant is not entitled to the remaining amount of the OCF-18.

d. The applicant is not entitled to the remaining treatment plans in dispute.

Released: February 8, 2023