Barbara Poterski v. Northbridge General Insurance Company, 2023 CanLII 52377

Licence Appeal Tribunal

File Number: 20-010516/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:

Barbara Poterski Applicant

and

Northbridge General Insurance Company Respondent

DECISION

Adjudicator: Derek Grant

Appearances: For the Applicant: Gordon Harris, Counsel For the Respondent: Daniel Himelfarb, Counsel

Heard: By way of written submissions

OVERVIEW

1Barbara Poterski (“B.P.”), the applicant, was involved in an automobile accident on August 30, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). B.P. was denied benefits by the respondent, Northbridge, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is B.P. entitled to a medical benefit in the amount of $1,397.01 for occupational therapy services, denied September 11, 2018? ii. Is B.P. entitled to an attendant care benefit (“ACB”) in the amount of $728.32 per month for the period of August 30, 2015 to September 30, 2015, denied September 30, 2015? iii. Is B.P. entitled to an ACB in the amount of $496.38 per month for the period October 1, 2015 to August 29, 2017, denied August 29, 2017? iv. Is B.P. entitled to a medical benefit in the amount of $838.50 for physiotherapy services, denied February 21, 2019? v. Is B.P. entitled to a medical benefit in the amount of $1,777.19 for occupational therapy services, denied February 21, 2019? vi. Is B.P. entitled to interest on any overdue payment of benefits? vii. Is Northbridge liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to B.P.?

RESULT

3B. P. is not entitled to ACBs or the OCF-18s in dispute, as she has not demonstrated that they are reasonable and necessary.

4B.P. is not entitled to interest or an award.

ANALYSIS

OCF-18 in the amount of $1,397.00 for an occupational therapy assessment dated August 16, 2018

5Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so 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.

6In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

7The purpose of an assessment is to determine if a condition exists. To establish whether an OCF-18 for an assessment is reasonable and necessary, B.P. must point to objective evidence that there are grounds to support that the condition exists for which she seeks the assessment. I find that B.P. has not demonstrated that the OCF-18 is reasonable and necessary.

8B.P. submits that the in-home occupational therapy assessment is reasonable and necessary in order to address the level of occupational therapy intervention required. She relies on the OCF-18, completed by occupational therapist, Alison LeBlanc, and a s. 25 in-home occupational therapy report of Alison Leblanc, dated October 15, 2018.

9Her position is that the observed restricted ranges of motion in her cervical spine and lateral flexion and right shoulder abduction demonstrate that she requires some level of occupational therapy intervention. Further, she submits she reported dizziness when Ms. LeBlanc assessed her neck and lower back and reported low back pain. B.P. also relies on the concussion diagnosis of family physician, Dr. Bruce, at an initial September 2015 post-accident visit.

10In response, Northbridge relies on the November 29, 2018 s. 44 in-home occupational therapy report of Heather Seiling in support of its determination that the OCF-18 is not reasonable and necessary.

11In her report, Ms. Seiling indicates that B.P. reported being independent with all personal care, housekeeping and maintenance chores (sharing the duties with her husband). On examination, Ms. Seiling noted that B.P.’s range of motion and strength were within functional limits. Ms. Seiling noted that B.P.’s reported limitations were greater than what was observed during the assessment. I note that Ms. Seiling indicated that no cognitive deficits were observed during examination.

12I find that the OCF-18 for the in-home occupational therapy assessment is not reasonable and necessary. First, given that the assessment is being submitted approximately three years post-accident, and B.P. has had a post-accident slip and fall injury in December 2020, resulting in a swollen and deformed left wrist with an inability to lift, it is difficult to ascertain that B.P.’s accident-related injuries are the sole reason for the assessment. Second, having been receiving ongoing treatment from Walsh Health and Wellness since the accident, the most significant period would be the immediate post-accident period and yet there was no claim for an in-home occupational assessment to determine what level of occupational intervention may be required at that time. Lastly, the delay in submitting the OCF-18 for such time-sensitive treatment or service provider recommendations is difficult to overlook. This is not addressed in B.P.’s submissions, which I find does not justify why the claim for treatment was not pursued in a timelier manner.

13With the significant passage of time, I find B.P.’s reporting and Ms. Seiling’s objective examination results are in line with anticipated healing that may have taken place after three years post-accident, to the point where Ms. Seiling’s objective observations of B.P.’s abilities are reasonable and persuasive.

Attendant Care Benefits - $728.32 per month for the period of August 30, 2015 to September 30, 2015

14I find that B.P. is not entitled to receive ACBs.

15Section 42(1) and (2) of the Schedule sets out the requirements to apply for an attendant care benefit and identifies the documents required to apply for the ACB. Section 42(1) states the application for an ACB must be in the form of and contain the information required to be provided in a document called an Assessment of Attendant Care Needs (Form 1). The Form 1 must be prepared and submitted to the respondent by an occupational therapist or a registered nurse.

16Section 19(2) states that the amount of an attendant care benefit is determined in accordance with the version of the Form 1 that is required to be submitted under s. 42.

17In all cases, the onus is on B.P. to establish entitlement to ACBs on a balance of probabilities.

18B.P. is claiming ACBs in the amount of $728.32 per month for the period of August 20, 2015 to September 20, 2015 (as recommended by occupational therapist Alison LeBlanc in her January 9, 2019 report) for retroactive ACB services provided by her husband, R.P.

19Generally, s. 42(5) of the Schedule states that an insurer is not required to pay an ACB prior to the submission of a Form 1. As it pertains to retroactive ACB claims, a Form 1 can be submitted and considered if it is reasonable and necessary and where the evidence supports an urgency and/or an impossibility or impracticability of compliance with the requirements of the Schedule. This test was set out in T.K. v. Unica Insurance Inc., 2017 CanLII 15835 (ON LAT) and I apply it here.

20Based on the test in T.K., B.P. is required to provide a reasonable explanation for the delay in filing a retroactive Form 1 and her explanation should demonstrate the urgency, impossibility or impracticability of compliance with s. 42(5) of the Schedule.

21I agree with Northbridge that B.P. has not produced any evidence that she was unable to apply for ACBs sooner and within the prescribed time period in accordance with the Schedule. In addition, B.P. has not produced any submissions or evidence that any ACB expenses have been incurred. As such, the requirement under s. 3(7) of the Schedule that benefits be incurred in order to be considered payable, has not been met. Further, B.P. reported to Ms. Seiling that she is independent with her personal care and housekeeping (with the assistance of her husband). As such, I find that B.P. has not demonstrated that she is entitled to ACBs for the period of August 30, 2015 to September 30, 2015.

Attendant Care Benefits - $496.38 for the period of October 1, 2015 to August 29, 2017

22B.P. is claiming ACBs in the amount of $555.40 per month for the period of October 1, 2015 to August 29, 2017 (also recommended in Ms. LeBlanc’s January 9, 2019 report) for retroactive ACBs.

23This portion of ACBs is also based on the recommendation in Ms. LeBlanc’s January 9, 2019 occupational therapy report, again, approximately 3.5 years post-accident. In accordance with s. 20(2) of the Schedule (effective September 1, 2010), ACBs are payable up to 104 weeks post-accident (August 29, 2017).

24For the reasons discussed in paragraphs 18 to 21, and as B.P. does not point me to any other evidence in support of her claim for this period of ACBs, I find that B.P. has not established that she is entitled to ACBs in the amount of $496.38 for the period of October 1, 2015 to August 29, 2017.

OCF-18 in the amount of $838.50 for a concussion assessment submitted February 6, 2019

25Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so 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.

26In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

27The purpose of an assessment is to determine if a condition exists. To establish whether an OCF-18 for an assessment is reasonable and necessary, B.P. must point to objective evidence that there are grounds to support that the condition exists for which she seeks the assessment. I find that B.P. has not demonstrated that the OCF-18 is reasonable and necessary.

28B.P. submits that the OCF-18 could have resulted in recommendations for treatment, accommodations to assist with activities of daily living and expedite recovery. Her position is that at almost four years post-accident, the fact that she is still seeking treatment, and experiencing accident-related headaches, balance issues, and anxiety supports that the OCF-18 is reasonable and necessary.

29In response, Northbridge relied on the March 7, 2019 s. 44 physiatry paper report of Dr. Heitzner, in support of its determination. Dr. Heitzner opined that there was no objective organic pathology to support B.P.’s subjective complaints and that her prognosis for recovery from her soft tissue injuries was good. Dr. Heitzner also noted that there were no signs of cognitive impairment observed during an in-person assessment.

30I find the evidence supports that the concussion assessment is not reasonable and necessary. In the records of Walsh Health and Wellness, particularly a November 17, 2015 note, B.P. reported that she was “feeling good” about her balance and was able to tolerate a 55 minute treatment session with mild dizziness reported when moving her head quickly. B.P.’s evidence also supports that at 3.5 years post-accident (at the time of the OCF-18), Dr. Bruce’s records do not support that further investigation into any concussion symptoms is reasonable. Dr. Bruce’s records do not indicate any loss of consciousness or head injury, nor was there a referral to a concussion specialist. It is unclear as to why Dr. Bruce noted that B.P. suffered a concussion, and yet there were no follow-up recommendations made. I note that B.P. reported to s. 44 assessor, psychologist, Dr. Abram that her physical injuries had resolved and that her only ongoing symptoms were emotional.

31Accordingly, I find that B.P. has not demonstrated that the OCF-18 is reasonable and necessary.

OCF-18 in the amount of $1,867.59 for occupational therapy services (assistive devices) dated October 9, 2018

32The OCF-18 recommended an electric heating pad and an anti-fatigue mat.

33Northbridge denied the OCF-18 on December 13, 2018, determining that the “modalities and services requested are substantially similar to the services requested in the OCF-18 dated August 16, 2018.” The August 16, 2018 OCF-18 is for an in-home occupational therapy assessment. The stated purpose of the August 2018 OCF-18 was to address cognition, pain management, energy conservation, sleep hygiene, activities of daily living, and assistive aids/devices, equipment research and pricing.

34B.P. submits that the October 2019 OCF-18 is not similar to the August 2018 OCF-18 as “the requests are for completely different things.” I disagree.

35The August 2018 OCF-18 clearly indicates that assistive aids/devices are recommended. An electric hearing pad and anti-fatigue mat are such “assistive aids/devices”, as they are meant to be used by B.P. to assist her in her engagement in activities of daily living at home. The very nature and purpose of such devices is to aid and assist and are therefore similar to the recommendations made in the August 2018 OCF-18.

36While B.P. submits that the only similarity is that both OCF-18s were recommended by Ms. LeBlanc, I find that the recommendations between the August 2018 OCF-18 and October 2019 OCF-18 for assistive aids/devices and a heating pad and mat is indeed a comparison of “apples to apples”. Lastly, having self-reported that her physical symptoms have resolved, and objectively (based on Ms. Seiling’s report), she is able to physically engage in her activities of daily living, without the use of a heating pad or mat, I see no reason to interfere with Northbridge’s determination.

37As such, I find that B.P. has not established that the October 2019 OCF-18 is reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

39As B.P. is not entitled to the benefits in dispute, no interest is payable.

Award

40B.P. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

41Having determined that B.P. is not entitled to the benefits in dispute, an award is not appropriate.

ORDER

42B.P. is not entitled to ACBS or the OCF-18s in dispute as she has not demonstrated that they are reasonable and necessary. No interest is payable.

43B.P. is not entitled to an award.