Citation: Barabash v. Pembridge Insurance Company, 2023 ONLAT 21-003879/AABS

Licence Appeal Tribunal File Number: 21-003879/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:

Joanne Barabash

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Jacob Sazio, Counsel

For the Respondent:

Joel Chrolavicius, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Joanne Barabash, the applicant, was involved in an automobile accident on May 30, 2015, 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, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a medical benefit in the amount of $20,264.57 for assistive devices, proposed by Geronimo Occupational Therapy in a treatment plan dated November 27, 2019?

ii. Is the applicant entitled to a medical benefit in the amount of $6,200.00 for a neuropsychological assessment proposed by Kaplan & Levitt Psychologists in a treatment plan dated January 25, 2022?

iii. Is the applicant entitled to a medical benefit in the amount of $1,696.25 for physiotherapy services proposed by Physio in Motion in a treatment plan dated January 27, 2022?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue benefits?

RESULT

3The applicant is entitled to $4,117.87 for an automatic vacuum, assistive devices, and occupational therapy proposed by Geronimo Occupational Therapy in the treatment plan dated November 27, 2019, plus $199.50 for submitting the OCF-18 and any applicable HST. The applicant is not entitled to $14,975.40 for the items related to her hot tub.

4The applicant is entitled to $2,000.00 for a psychological assessment proposed by Kaplan & Levitt Psychologists in a treatment plan dated January 25, 2022, plus $200.00 for submitting the OCF-18. The applicant is not entitled to $4,000.00 for a neuropsychological assessment and neuropsychometric testing.

5The applicant is entitled to $1,696.25 for physiotherapy services proposed by Physio in Motion in a treatment plan dated January 27, 2022.

6The applicant is entitled to an award under s. 10 of O. Reg. 664 in the amount of $440.00 plus interest.

7The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.

ANALYSIS

8To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. 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 achieving them are reasonable.

9The following factors as set out by Director’s Delegate Draper in Violi and General Assurance Company of Canada, P99-00047, September 27, 2000, (“Violi”) have been adopted by the Tribunal¹ for determining whether a treatment plan is reasonable and necessary:

i. The treatment goals, as identified, are reasonable;

ii. These goals are being [or will be met] to a reasonable degree; and

iii. The overall cost [not just financial, but also investment of time, etc.] of achieving these goals is reasonable, taking into consideration both the degree of success and availability of other treatment alternatives.

10The Violi factors are helpful, but not exhaustive. Each case must turn on its own circumstances and requires a balancing of various factors to determine if a treatment plan is reasonable and necessary.

11The treatment plan for assistive devices was completed by Janelle Love-Miles, occupational therapist, on November 27, 2019. It includes the following items, plus $199.50 for completing the OCF-18 and HST:

i. Automated hot tub cover ($7,499.99);

ii. Safety rail for hot tub steps ($199.99);

iii. Cement pad and grading work in the backyard ($7,275.42);

iv. Roomba vacuum ($1,836.24);

v. Miscellaneous assistive devices (shower chair, long handled loofah, handheld shower head, u-shaped pillow, blind spot mirrors, telescopic scrub, steam mop, long-handled reacher, long-handled duster, mesh laundry bags, garden kneeler/stool, telescopic gardening tools, and wheeled garbage cans) ($785.34); and

vi. 4 sessions of occupational therapy intervention, including planning, travel time, education, documentation, and preparation ($1,496.29).

12For the reasons below, I find that the applicant is entitled to the Roomba vacuum, miscellaneous assistive devices, and occupational therapy sessions. She is not entitled to the items related to her hot tub.

Roomba and Assistive Devices

13The applicant submits that Ms. Love-Miles, occupational therapist, recommended an automatic Roomba vacuum and various assistive devices to reduce symptom aggravation and increase independence with cleaning tasks. Ms. Love-Miles found that the applicant has limitations with respect to mopping, vacuuming, and dusting. She reduced the frequency with which she engages in the majority of her housekeeping tasks and relies on her friend to assist her. The applicant also states that Dr. House is supportive of the Roomba as she finds vacuuming painful.

14The respondent argues that the cost of a Roomba is excessive, and that she can purchase a vacuum for $199.00 on Amazon instead. Further, the respondent states that during the vacuuming portion of the s. 44 assessment of Ms. Korman, occupational therapist, the applicant demonstrated sufficient capability to perform the task, and as such the proposed goods are not reasonable and necessary. The respondent does not make submissions with respect to the remainder of the proposed assistive devices.

15Ms. Love-Miles’ reports were very thorough. She discussed whether the applicant had the functional capability to do specific tasks, but also whether those tasks caused her pain, and whether she could do a task repetitively or for longer periods of time. She noticed that the applicant demonstrated a slow decline in her abilities to execute tasks successfully as the assessment went on. Ms. Love-Miles also conducted a collateral interview with the applicant’s friend, who (prior to the Covid-19 pandemic) assisted the applicant with driving, bringing in groceries, disposing of garbage, lifting items upstairs, and house cleaning. She explained the rationale for each recommended assistive device.

16Conversely, Ms. Korman opined that the assistive devices were not reasonable and necessary in their entirety. Although she noted that the applicant had resumed her housekeeping duties after the accident, including floor cleaning, she did not mention whether these tasks were difficult for her or whether she was able to complete them in the same way or the same frequency as before. Ms. Korman observed that the applicant was functionally able to engage in certain activities, but she did not discuss (or perhaps did not notice) the pain behaviours that Ms. Love-Miles identified, nor did she mention whether the applicant had pain when completing tasks. Ms. Korman made a blanket concluding statement that due to the applicant’s demonstrated abilities; she could not identify any objective evidence to support the need for the proposed equipment.

17The evidence is that even basic tasks, such as reading or watching TV, can aggravate the applicant’s symptoms. She has developed a tremor in her neck. She only showers every other day and does not blow dry her hair as often, instead wearing a wig or a scarf when she leaves her house. I find it difficult to accept that someone who is no longer able to work, participate in her pre-accident leisure activities such as golfing or knitting, and who struggles with her housekeeping and grocery shopping such that she enlists the help of a friend, would not require a single assistive device. For example, there is evidence that the applicant struggles reversing her vehicle out of parking spots and checking her blind spots due to her neck injury and had even obtained a disability parking permit so she could access larger parking spots for this reason. Yet Ms. Korman did not think $9.99 blind spot mirrors were reasonable and necessary.

18Dr. House, the applicant’s family physician, wrote a letter on May 9, 2018, stating that the applicant’s head tremor and dystonic neck positioning made it difficult for her to work as a dentist, and that her impairment impacted her day-to-day functioning. She tires easily, is unable to take care of her house and garden, and she can no longer do activities she previously enjoyed such as knitting. She is also unable to sit or walk for long periods of time due to the pain that occurs with dystonic head positioning. On March 14, 2019, Dr. House noted that the applicant had difficulty looking after her home, doing laundry, and buying groceries. In a letter dated June 6, 2019, she stated that the applicant tires easily, is unable to do many activities involving arm movements, and finds vacuuming painful.

19With respect to the recommendation for the Roomba vacuum, Ms. Love-Miles explained that the applicant had difficulty pushing and pulling a canister vacuum, which is also awkward to store with a trailing hose. Ms. Love-Miles considered recommending a cordless vacuum, but its suction power was not as strong, and it is quite noisy. Ms. Love-Miles indicated that the applicant would benefit from a quieter Roomba vacuum due to her sensitivity to noise since the accident. Further, the applicant experiences intermittent dizziness while walking and sharp neck pain with certain neck movements, which reduces her tolerances for pushing a vacuum.

20Ms. Korman stated that the applicant was observed to access the vacuum cleaner, bend towards it, remove the plug, and simulate vacuuming the floor. Her opinion was that she “demonstrated sufficient physical and functional capability to perform this task in an independent manner or with pacing techniques, rest breaks and activity modification”. She did not specify what kinds of pacing, rest, or activity modification the applicant required – in fact, each applicable task that Ms. Korman assessed had the exact same conclusion without further detail. She did not discuss whether the applicant experiences any pain, dizziness, or fatigue with this activity, or how long she would be able to do it for.

21I prefer the opinion of Ms. Love-Miles to that of Ms. Korman. Ms. Love-Miles’ observations were more in line with the limitations described throughout the evidentiary record. Ms. Korman’s report primarily dealt with whether the applicant could theoretically complete a task, and not whether it was realistic for her to, for example, vacuum her entire house. I am in agreement with Ms. Love-Miles that a robot vacuum is warranted. The question is whether the cost of the vacuum is also reasonable.

22I agree with the applicant that there is no medical opinion supporting the $199.00 vacuum over the Roomba vacuum recommended by Ms. Love-Miles. The respondent denied the robot vacuum in its entirety because of the opinions of its s. 44 assessors, not because of its cost. I do not find that a single Amazon listing with mixed reviews is compelling evidence that the respondent should only have to pay $199 for a robot vacuum. Further, the respondent does not provide any evidence as to the noise level of the recommended alternative.

23At the same time, the applicant has the onus of proving on a balance of probabilities that the expense is reasonable and necessary. I find it likely that Ms. Love-Miles did her research prior to recommending this specific vacuum; she even considered other vacuum options before concluding that this one was the most appropriate. I do not find that the cost for the recommended Roomba is excessive.

24The respondent does not make any submissions with respect to the cost or reasonableness of the other assistive devices recommended by Ms. Love-Miles. I note that neither of the other s. 44 assessors, Dr. Jaroszynski and Dr. Murty, discussed whether the applicant’s symptoms and functionality would be affected with the use of any of the assistive devices proposed in the treatment plan, despite her reported pain and diagnosed neurological condition. Given my comments with respect to Ms. Korman’s report, I do not find that there is a reason to doubt the recommendations for assistive devices made by Ms. Love-Miles, nor do I find their cost excessive, and accordingly I find them payable.

Occupational Therapy

25The applicant submits that the four sessions of occupational therapy proposed by Ms. Love-Miles are modest and reasonable. The applicant has not received occupational therapy intervention to date. The reasons for the intervention as stated by Ms. Love-Miles is to improve her participation in activities of daily living, facilitate community re-integration, and monitor her need for equipment. Further, a number of assistive devices have been recommended, and the applicant would benefit from training and education on how to use these devices. She will also be educated on energy conservation, task modification, and proper body mechanics to prevent further injury. Finally, occupational therapy intervention will assist with functional goals related to volunteering/visiting with service dogs, which was recommended by the applicant’s family physician.

26The respondent submits that occupational therapy intervention is not reasonable and necessary, because if the hot tub cover is deemed reasonable and necessary, Cedar Springs will demonstrate how to safely operate it. Further, an automatic vacuum includes an instruction guide. It submits that the sessions are excessive and unreasonable given that the above devices are motorized/electronic.

27I do not find that four occupational therapy sessions are excessive or unreasonable in light of the goals noted by Ms. Love-Miles. According to Ms. Love-Miles, the applicant has difficulty with her housekeeping tasks, grocery shopping, outdoor maintenance, and self-care tasks. She is not able to participate in many of her pre-accident leisure activities, and Ms. Love-Miles notes that she described feeling depressed due to her loss of independence. She has functional limitations and pain when she moves her neck in certain ways. This is a modest amount of treatment, and the applicant has never received occupational therapy before.

28Even if I were to accept the respondent’s submission with respect to the motorized/electronic devices, that does not take away from the fact that there are other valid treatment goals other than learning how to operate that machinery (e.g., training for the non-electronic assistive devices, education with respect to preventing further injury, and assistance with volunteering or visiting with service dogs).

29I accordingly find that the proposed occupational therapy sessions are reasonable and necessary.

Hot Tub Items

30The applicant purchased a hot tub six weeks after the accident. She states that using the hot tub helps manage her pain, which improves her ability to function. She submits that the hot tub is inaccessible because she cannot open the lid independently and safely, and it is not safe to climb the stairs to the hot tub without a safety rail. In order to install an automatic hot tub cover, she was advised that she requires the installation of a cement pad first, which involves grading work in her backyard.

31I accept Ms. Love-Miles’ suggestion that an automatic hot tub cover and safety rail would be helpful in allowing her to use her hot tub and agree that the applicant likely has difficulties raising the lid of her hot tub. As stated above, I am not persuaded by Ms. Korman’s opinion with respect to the applicant’s functionality. However, I find that the total cost of $14,975.40 to be excessive given the treatment goals.

32The applicant argues that the reason for the denial of the hot tub lid and grading had nothing to do with the cost. This appears to be correct, however the applicant still has the onus of proving that the items in the treatment plan are reasonable and necessary. That analysis involves taking cost into consideration, as well as whether there are reasonable alternatives.

33The applicant has a home sauna, which provides her with pain relief. I have not been provided adequate evidence that explains what the hot tub can do that the sauna cannot. Ms. Love-Miles noted that the applicant also purchased a membership to a community centre with a pool, which helps with her neck pain. Her ability to attend was limited as a result of the Covid-19 pandemic, but given the state of the pandemic now, I find it unlikely that she would not be able to visit the pool at this point. Further, the applicant uses a heating pad which assists her with pain as well.

34In light of other similar treatment modalities, I find that the cost of the hot tub items is excessive. The applicant has not proven on a balance of probabilities that the grading and concrete pad, automatic hot tub cover, and rail for the hot tub steps are reasonable and necessary.

35I find that the applicant is entitled to a psychological assessment, but not a neuropsychological assessment or neuropsychometric testing. She is therefore entitled to $2,000.00 for a psychological assessment, plus $200.00 for the completion of the OCF-18.

36The proposed treatment plan consists of three components: a psychological assessment, a neuropsychological assessment, and a neuropsychometric examination and testing. The neuropsychometric testing, according to the description appended to the OCF-18, provides additional data to be used with the neuropsychological assessment.

37A psychological assessment and/or treatment has been recommended by numerous treatment providers and assessors, including Dr. House, Dr. Paulseth (neurologist), and Ms. Love-Miles. In fact, the respondent’s own s. 44 assessor, Dr. Jaroszynski, believed that there was a significant psychogenic component to the applicant’s pain perception, which should be addressed by a mental health professional.

38The respondent submits that a s. 44 psychological assessment dated November 19, 2015 stated that there was no evidence of a psychological impairment. However, the evidence is clear that the applicant’s condition has changed. Since that assessment, there are numerous references throughout the medical records and reports of the applicant experiencing anxiety and depression. The records of Dr. House and Dr. Paulseth also indicate that the applicant’s condition has deteriorated over time. The applicant has lost her ability to work and participate in the activities she once enjoyed, and this has had an emotional impact on her. I find the recommendations of the practitioners noted above to be preferrable over one assessment that took place over seven years ago.

39The respondent also relies on Dr. Murty’s neurosurgical report, where he states that from a purely neurological perspective, he did not have any recommendations for further assessments. Dr. Murty did note that the applicant had difficulty maintaining her focus and concentrating, although he did not comment further on those symptoms. I find that his report is not particularly helpful in determining whether a psychological or neuropsychological assessment is warranted, as he did not address the applicant’s cognitive or psychological symptoms and was not commenting on her neuropsychological condition specifically.

40I agree with the applicant that she does not need to prove that psychological or neuropsychological treatment is necessary; she must prove that there is sufficient evidence to support the proposed assessments, which will determine the extent of any injury and determine whether treatment is warranted.

41Although I find that a psychological assessment is reasonable and necessary, the applicant has not explained why she requires a neuropsychological assessment in addition to a psychological assessment.

42Dr. House did not recommend a neuropsychological assessment – she simply states in her letter of March 23, 2021, that the applicant suffers from anxiety and fears, and would benefit from psychological treatments. In fact, none of the other assessors who recommended a psychological assessment specified that a neuropsychological assessment should also be done. Similarly, Dr. Paulseth diagnosed cervical dystonia, but did not make any mention of a concussion or recommend a neuropsychological assessment.

43Dr. Rathbone, neurologist, indicated in his July 12, 2020, report that the applicant suffers from post-concussion symptoms as a result of the accident. It appears that Dr. Rathbone only conducted a paper review rather than an assessment of the applicant. In his list of documents reviewed and summarized, there is no record that states the applicant sustained a concussion in the accident. I am not sure why he determined that she is experiencing post-concussion symptoms without further information or a physical assessment. I give limited weight to Dr. Rathbone’s report.

44Dr. Kaplan’s prescreen report, attached to the OCF-18, indicates that the applicant’s post-concussive symptoms require a neuropsychological assessment. Again, it is not clear why Dr. Kaplan also believes the applicant is suffering from post-concussive symptoms in the absence of a diagnosed concussion. In any event, a single OCF-18 recommending a neuropsychological assessment is not sufficient evidence that one is warranted. No other practitioner has recommended a neuropsychological assessment.

45Although there are indications of cognitive difficulties in some of the medical records and reports, there is no evidence before me to suggest that this is as a result of a concussion. The applicant’s headaches were noted by multiple assessors to be cervicogenic in nature. It is possible that her cognitive issues could be due to fatigue or pain, although it is not for me to speculate. The applicant has not met her burden of proof in showing that a neuropsychological assessment is reasonable and necessary.

46Laura Kauppinen, physiotherapist at Physio in Motion Inc., proposed 12 one-hour sessions of physiotherapy in their OCF-18. I find this treatment plan to be reasonable and necessary.

47The applicant relies on the goals identified in the proposed treatment plan: maintain normal movement of left sacroiliac joint to avoid pain and allow daily functioning, return to activities of normal living, and be able to do light housework, continue light grocery shopping, and continue daily walks up to 45 minutes with minimal pain. Despite the denial, the applicant has attended physiotherapy sessions with Ms. Kauppinen. She points to the clinical note of March 3, 2022, to show that her pain had been reduced. She further relies on the note from Dr. House from January 18, 2022, indicating that she would benefit from physiotherapy to manage her ongoing pain.

48The respondent relies on the orthopaedic assessment of Dr. Jarosznski from October 10, 2020, stating that the applicant has achieved maximum medical recovery from her musculoskeletal injuries. Dr. Jarosznski further states that the applicant’s condition is not explainable by traumatic accident-related injury to the musculoskeletal structures. The respondent also argues that there is no benefit to additional therapy when she can complete in-home exercises instead.

49In Ms. Kauppinen’s physiotherapy report of January 28, 2022, she explains the rationale for a further slate of physiotherapy. The applicant has been receiving physiotherapy treatments off and on when she experiences a flare-up of pain in her sacroiliac joint. Ms. Kauppinen was of the opinion that the applicant might benefit from 3 months of consistent physiotherapy over a 3-month period, in order to help resolve and maintain sacroiliac joint function.

50I prefer the more recent records of the applicant’s treatment provider and family physician over the report of Dr. Jorsznski with respect to this treatment plan. Dr. Jarosznski was not asked to comment on this treatment plan (or any treatment plan for physiotherapy), and his most recent report is from October 2020. Dr. Jarosznski notes that the applicant had recently started receiving physiotherapy but did not discuss the pain relief that the applicant was receiving from it. He mentions that the applicant has achieved “maximum medical recovery”, which does not necessarily address ongoing pain complaints.

51Both parties agree that pain relief is a reasonable treatment goal. The records and reports from Dr. House and Physio in Motion support the fact that physiotherapy has been beneficial in providing the applicant with pain relief. I find it reasonable and necessary to approve one more treatment plan for 12 sessions of physiotherapy, especially in light of Ms. Kauppinen’s hope that with consistent treatment for 3 months there might be a resolution of sacroiliac joint dysfunction. The goals of the treatment plan are reasonable, and the cost is modest.

Award

52Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to her if I find that the respondent unreasonably withheld or delayed payments.

53The applicant submits that the respondent’s behaviour has been excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. She states that the respondent papered terminations by obtaining compliant reports and closed its mind to other information available that might have affected its decision. The respondent disagrees. It states that it relied on the opinions of the s. 44 assessors, and that no harm was caused to the applicant as she could continue to attend physiotherapy, pace herself with vacuuming, and slowly enter and exit the hot tub without assistance.

54The bar is high for an award. With respect to the request for assistive devices, hot tub safety items, and occupational therapy, I do not find that the respondent’s behaviour rose to the level that the applicant suggests. The respondent relied on assessments from an orthopaedic surgeon, neurosurgeon, and occupational therapist in coming to its decision. Those assessors were specifically asked about the treatment plan in question. I do not find the respondent’s decision to rely on their opinions to be unreasonable. Additionally, my decision to approve a further slate of physiotherapy was a close call. The respondent cannot be faulted for coming to the opposite conclusion.

55However, I do find that the respondent’s actions with respect to the psychological assessment warrants the provision of an award. The respondent closed its mind to the multiple records and reports depicting the applicant’s psychological difficulties, and even the recommendation from its own s. 44 assessor, Dr. Jaroszynski, that the applicant’s symptoms should be addressed by a mental health professional. Although the respondent requested the clinical notes and records of Dr. Kaplan, the applicant did not receive psychological treatment from Dr. Kaplan, so no such records exist. In any event, further information including Dr. House’s letter of March 23, 2021, was provided to the respondent in March 2022, but the denial was not reversed. I find that a blanket denial of the entirety of the treatment plan for psychological/neuropsychological assessments was excessive, unyielding, and unreasonable.

56In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) whether there are any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.²

57In this case, the respondent’s conduct should be deterred, and not paying for an assessment constitutes a monetary advantage. I do not find the applicant’s vulnerability or potential harm to be strong factors without further evidence in that regard. I do not believe that the respondent’s behaviour attracts the full 50% maximum allowable under O. Reg. 664. I find that $440.00 is an appropriate quantum for the award, plus interest pursuant to O. Reg. 664. This represents 20% of the unreasonably denied psychological assessment.

Interest

58Having determined that certain benefits are payable, it follows that interest applies pursuant to s. 51 once the benefits are incurred.

ORDER

59I order the following:

i. The applicant is entitled to $4,117.87 for an automatic vacuum, assistive devices, and occupational therapy proposed by Geronimo Occupational Therapy in the treatment plan dated November 27, 2019, plus $199.50 for submitting the OCF-18 and any applicable HST. The applicant is not entitled to $14,975.40 for the items related to her hot tub.

ii. The applicant is entitled to $2,000.00 for a psychological assessment proposed by Kaplan & Levitt Psychologists in a treatment plan dated January 25, 2022, plus $200.00 for submitting the OCF-18. The applicant is not entitled to $4,000.00 for neuropsychological assessment and neuropsychometric testing.

iii. The applicant is entitled to $1,696.25 for physiotherapy services proposed by Physio in Motion in a treatment plan dated January 27, 2022.

iv. The applicant is entitled to an award under s. 10 of O. Reg. 664 in the amount of $440.00 plus interest.

v. The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.

Footnotes

1. 1FJ v. Intact Insurance, 2020 CanLII 34495.
2. 2Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649.