Citation: Kravic v. Aviva Insurance Canada, 2022 ONLAT 20-013987/AABS

Licence Appeal Tribunal File Number: 20-013987/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:

Sanja Kravic

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Sanja Kravic, Applicant Kimberly Kenney, Counsel

For the Respondent: Arsheena Harripaul, Claims Specialist Alexander Hartwig, Counsel

Court Reporter: Stephanie Penman

HEARD: by Videoconference: October 31 and November 1, 2022, followed by written submissions

OVERVIEW

1Sanja Kravic, the applicant, was involved in an automobile accident on December 11, 2019, 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 respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The applicant requested that 15 OCF-6s be added as issues in dispute. The OCF-6s include 163 items to be considered for payment. Twelve of these OCF-6s are dating back to 2020.

3The applicant wrote to the respondent in November of 2021 and requested to add these issues. The respondent did not agree at that time and the applicant did not submit a request to the Tribunal to add the issues.

4The applicant brought a motion on June 14, 2022 requesting the addition of several issues in dispute. The applicant did not request to add the OCF-6s as issues in dispute at that time.

5The respondent submitted that the OCF-6s involve a large number of items to be considered and they were only given a few days notice. They would be prejudiced if the issues were added as it would take some time to consider whether each of the 163 items were reasonable and necessary.

6The applicant’s understanding from correspondence with the respondent was that 12 of the OCF-6s were being added on consent. In the respondent’s correspondence from October 26, 2022, it set out the issues that are in dispute in this hearing (as set out in paragraph 9, below) and it clearly advised that it was opposed to adding any of the OCF-6s as issues in dispute.

7When asked why there was no request to add all of the OCF-6s as issues in dispute in the June 14, 2022 motion, applicant’s counsel advised that she was not the representative on the file at the time.

8I find that to add the OCF-6s as issues in dispute on the first day of the hearing with such short notice would be prejudicial to the respondent. In order to ensure fairness, each party should know the case against them prior to the hearing, in order to prepare. The applicant should have brought their request to add these issues at the June 14, 2022 motion, when other issues were added. As such, the applicant’s request to add 15 OCF-6s as issues in dispute is denied.

ISSUES

9The issues to be decided in the hearing are:

1. Is the applicant entitled to $7,000 for a septorhinoplasty, proposed by Dr. Leigh Sowerby in a treatment plan/OCF-18 (“treatment plan”) dated March 23, 2020?
2. Is the applicant entitled to $2,522.11 ($2,794.29 less $272.18 approved) for assistive devices, proposed by Andrew Agyemang-Duah, in a treatment plan dated December 10, 2020?
3. Is the applicant entitled to $4,292.11 for hyperbaric oxygen therapy, proposed by Dr. Ilona Dreyzin, in a treatment plan dated October 14, 2020?
4. Is the applicant entitled to attendant care benefits in the amount of $10,198.06 per month from December 1, 2020 to December 31, 2020?
5. Is the applicant entitled to interest on any overdue payment of benefits?

10The applicant advised in her opening submissions that she was claiming $3,000 per month (plus applicable sales tax) for attendant care benefits (“ACBs”), rather than $10,198.06, as the applicant did not sustain a catastrophic impairment.

11Resolved Issue: At the start of the hearing, the applicant withdrew the issue of whether she was entitled to $3,175.74 for occupational services, as proposed by Andrew Agyemang-Duah, in a plan dated January 11, 2021.

RESULT

12The treatment plan in the amount of $7,000 for septorhinoplasty is reasonable and necessary.

13The treatment plans in the amount of $2,522.11 for assistive devices and $4,292.11 for hyperbaric oxygen therapy are not reasonable and necessary.

14The applicant is not entitled to ACBs in the amount of $3,000 per month from December 1, 2020 to December 31, 2020.

15The applicant is entitled to interest as it relates to the treatment plan for septorhinoplasty, if this expense has been incurred.

ANALYSIS

16Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

17The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating the benefits are reasonable and necessary on a balance of probabilities. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieve them are reasonable.

18On December 11, 2019 the applicant was involved in a motor vehicle collision. As a result, the applicant testified that she suffered a broken right ankle, significant bruising around her lungs and a nose injury from the airbag, whiplash, a concussion, as well as bruising and an injury to her back. At the time of the accident the applicant worked as a service desk attendant with the Ontario Lottery and Gaming Corporation. She was off work from November 5, 2020 until January 14, 2021 due to ankle surgery. She was discharged after surgery with an Aircast walking boot and crutches. She was advised not to bear weight on her ankle for 4 to 6 weeks.

19The applicant submits that the fracture to her ankle caused her severe and prolonged pain and loss of flexion. She sought treatment within two weeks. Physiotherapy helped significantly and she used CBD oil and Advil for pain. She still struggles with pain in her ankle. She no longer attends for treatment as she has no time to commit to attend physiotherapy.

The applicant is entitled to $7,000 for a septorhinoplasty

20In a treatment plan prepared by Dr. Leigh Sowerby on March 23, 2020, he confirmed that the applicant suffered from a nasal fracture and a deviated septum as a result of the accident. The applicant had a deviated septum corrected in April of 2019 and the motor vehicle collision caused the re-displacement of the septum. Dr. Sowerby recommended septorhinoplasty to correct this at an estimated cost of $7,000. Another record prepared by Dr. Sowerby indicates that on March 9, 2020 he observed some prominence of the nasal dorsum with some flattening at the level of the rhinion. He could not recall whether that was present when he last saw the applicant but noted that the applicant told him that his was a new defect.

21A letter was also provided by Dr. Yuliya Baryla indicating that the applicant sustained a nasal septum injury as a result of the accident and has recurrent nasal bleeds. Dr. Baryla indicated that a previously done septoplasty likely requires revision.

22The applicant testified that she had a septoplasty in April 2019, prior to the accident, to correct a deviated septum. When the airbag hit her in the face during the accident it felt like her nose shifted. Dr. Sowerby advised her that there was a shift. Since the accident she has had difficulty breathing and there is a bump on her nose that was not there before the accident. This bump has affected her confidence and impacted her quality of life. The applicant pointed at a small obvious bump on the bridge of her nose during questioning in cross-examination.

23The respondent noted that OHIP advised that the septorhinoplasty operation was not covered as there was no sign of functional impairment related to the trauma. The respondent requested that the applicant attend a section 44 assessment to determine entitlement. No section 44 assessor was willing to travel to Sault Ste. Marie, where the applicant resides so the respondent made arrangements for an assessment in Toronto in May of 2021. As a result of concerns around traveling during the pandemic, the applicant did not agree to travel to Toronto. The applicant indicated that she would attend an assessment in Sudbury.

24The applicant testified that she traveled to Toronto in December 2020 for hyperbaric oxygen therapy, which she felt was a countermeasure for COVID. The respondent felt that in these circumstances, the applicant has not complied with the respondent’s request for an examination and should not be considered for this treatment plan. Further, the respondent argued that there was no compelling evidence that the applicant sustained a nose injury due to the accident.

25Section 44(9)(2)(i) requires that the insurer make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person. The onus is on the insurer to demonstrate that their efforts were reasonable. I find that in these circumstances, where the applicant provided an alternate, more convenient location to participate in the assessment, the respondent’s insistence that she fly to Toronto is not reasonable. As such, the applicant is not precluded from making the request for the treatment plan.

26I find that the treatment plan proposed by Dr. Sowerby for septorhinoplasty is reasonable and necessary. I accept the applicant’s testimony as well as the medical evidence in support of the fact that the accident caused the re-displacement of the septum. The applicant has had difficulty breathing, recurrent nose bleeds, and now has a bump on her nose that was visible at the hearing. The injury to her nose that was caused by the accident has affected her quality of life. I find that the cost of the septorhinoplasty is a reasonable and necessary expense to correct these symptoms.

The applicant is not entitled to $2,522.11 ($2,794.29 less $272.18 approved) for assistive devices

27The applicant is seeking payment for various assistive devices: a knee scooter, mattress, bed, bed risers, bed tray, seated bench, space heater and an anti-fatigue mat. An OCF-18 was completed by occupational therapist Andrew Agyemang-Duah on December 17, 2020 for all of these assistive devices, with the exception of the anti-fatigue mat.

28On November 10, 2020, Mr. Agyemang-Duah, completed an Assessment of Attendant Care Needs (Form 1). On November 25, 2020, he completed an in-home Occupational Therapy Assessment of Attendant Care Needs. This assessment was completed for a period of four hours and thirty minutes virtually through Zoom on November 9th and 10th, 2020.

29The following devices were listed as being recommended to assist the applicant in attaining maximum independence and safety when completing daily activities:

(a) Knee walker rental: to facilitate increased mobility at home and in the community;

(b) Mattress, bed, and bed risers: to facilitate easier bed transfers as hospital bed rentals were not available due to COVID-19;

(c) Bed tray: to facilitate easier eating in bed;

(d) Seated bench: to facilitate donning and doffing of Aircast boot in mudroom;

(e) Space heater: to prevent frequent ambulation to front of house to adjust heating;

30The applicant testified that immediately following surgery she needed assistance with laundry, going to the bathroom, showering, sitting on the toilet, coming in and out of the house, going up and down the stairs, cleaning, cooking, and walking around. She had minimal help and she did not hire anyone to assist her as it was during the pandemic. Taxi drivers would help her in and out of her home with groceries and her friends left groceries for her on the doorstep. The applicant testified that she used a skateboard in the house at one point.

31The applicant testified that a knee scooter would have assisted her to navigate in public. She indicated that this would have reduced muscle fatigue. Instead, she had to use crutches and an Aircast boot. She saw a massage therapist and a chiropractor for muscle fatigue.

32The applicant testified that her bed is low to the ground, and she had issues getting in and out of bed because she could not put weight on her leg. A bed raiser would have assisted with lowering and picking herself back up so as to prevent muscle fatigue. She indicated that she would fall onto her mattress and as a result her mattress had become damaged.

33The applicant testified that the use of a bed tray would have assisted her as it was difficult to sit at her table with her Aircast. She was also required to lay down a lot after her surgery and it would have been beneficial to have a bed tray to eat in. Since she did not have one, she spilled a lot of food and damaged her linens.

34The applicant testified that she required a seated bench in the mudroom to put on her Aircast as there was no seating there. In cross-examination, she advised there was no alternative item for her to sit on other than a $190 bench. She indicated that the dining room chairs were the only ones she could sit on. She did not say why she could not put one of those chairs in the mudroom.

35The applicant testified that she required a space heater as she had to get up in the middle of the night to turn up the heat if it was cold. Having a space heater would eliminate the time and energy it took to get up and adjust the heat. The respondent did provide her with a space heater at one point but she returned it and could not remember why. In cross-examination, the applicant did not explain why she could not leave the heat at a steady temperature. The applicant insisted she had to turn the heat up at night.

36The applicant testified that she required an anti-fatigue mat when she was standing in the kitchen to prevent fatigue. She indicated that she still has these fatigue issues.

37Based on the recommendations in the OCF-18 and the applicant’s testimony, I am not satisfied that the applicant has met her onus to demonstrate that the assistive devices are reasonable and necessary. Based on the applicant’s testimony with respect to the devices, I find that they would have been beneficial and convenient, but not necessary. Further, there was no contemporaneous medical evidence in support of any of these devices. As such, I find the applicant is not entitled to $2,522.11 for assistive devices.

The applicant is not entitled to $4,292.11 for hyperbaric oxygen therapy

38An OCF-18 was prepared on October 14, 2020 by Dr. Ilona Dryzin recommending hyperbaric oxygen therapy at a cost of $4,292.11. The goals of the treatment were listed as pain reduction, increase in strength, increased range of motion and to expedite the recovery of soft-tissue and nerve damage.

39In a letter dated January 10, 2020, Dr. Yuliya Baryla recommended a minimum of 20 sessions of hyperbaric oxygen therapy to address the traumatic brain injury and post-concussion syndrome that resulted from the accident. Dr. Baryla provided the applicant with a prescription for hyperbaric oxygen therapy.

40When asked what hyperbaric oxygen therapy entails, the applicant responded that you do “dive sessions” in a chamber which helps you to recover from injuries. The applicant flew to Toronto to attend sessions at Ontario HBox Centre over a two-week period in December 2020. She advised that after treatment she improved significantly to the point where she was walking better, and her gait had improved. Her muscles were no longer fatigued, and she did not have to rely on the Aircast boot anymore. In cross-examination the applicant agreed that her mobility likely would have improved in December even without the hyperbaric oxygen therapy, however she indicated not to the extent that it had.

41There was no medical evidence provided by the applicant to establish that hyperbaric oxygen therapy treatment speeds up recovery from a fracture or a brain injury. Dr. Adrienne Kelly, who conducted a section 44 assessment of the applicant, prepared a report on March 23, 2021. Dr. Kelly referred to some literature in support of hyperbaric oxygen therapy for many conditions, however she indicated that this treatment has, to her knowledge, no proven or routinely accepted role in expediting healing of fractures or osteochondral lesions.

42Without any medical evidence in support of the effectiveness of hyperbaric oxygen therapy in treating the applicant’s accident-related injuries, I find that this treatment would be considered experimental in nature pursuant to section 15(2)(a) of the Schedule. In these circumstances, I find that this treatment is not reasonable and necessary, and the applicant is not entitled to the $4,292.11 for hyperbaric oxygen therapy.

The applicant is not entitled to attendant care benefits

43A Form 1 prepared by an occupational therapist sets out the services and the amount of care an individual requires, as well as the monthly amount payable. If a person does not sustain a catastrophic impairment as a result of an accident, the maximum amount of ACBs payable is $3,000 per month.

44During the in-home Occupational Therapy Assessment of Attendant Care Needs conducted by Mr. Agyemang-Duah on November 25, 2020, he assessed the applicant to require 722.33 hours of assistance per month.

45The applicant did not incur any ACB expenses. She testified that she did not hire anyone to assist her due to the pandemic. Mr. Agyemang-Duah’s assessment was completed on November 25, 2020. The respondent’s section 44 report was released on May 11, 2021. Pursuant to section 42(6) of the Schedule, an insurer shall begin payment of ACBs within 10 business days after receipt of the assessment of attendant care needs and pending receipt by the insurer of the report of any section 44 examination, shall calculate the amount of the benefits based on the assessment of attendant care needs. Section 19(1)(a) of the Schedule requires that ACBs have to be incurred to be payable. Since the applicant did not incur any expenses for ACBs, I find that she is not entitled to them.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with s. 51 related to the treatment plan for septorhinoplasty dated March 23, 2020, only if the treatment plan has been incurred.

ORDER

47The applicant is entitled to $7,000 for a septorhinoplasty, proposed by Dr. Leigh Sowerby in a treatment plan dated March 23, 2020.

48The applicant is not entitled to $2,522.11 for assistive devices and $4,292.11 for hyperbaric oxygen therapy.

49The applicant is not entitled to ACBs in the amount of $3,000 per month.

50The applicant is entitled to interest as it relates to the treatment plan for septorhinoplasty, if this expense has been incurred