Citation: [J.T.] v. Intact Insurance Company, 2023 ONLAT 20-003945/AABS

Licence Appeal Tribunal File Number: 20-003945/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:

[J. T.]

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Sandra Train, Counsel

For the Respondent:

Christine Haddad, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 29, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule, Effective September 1, 2010¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues to be decided in this hearing are²:

a. Is the applicant entitled to medical benefits in the amount of $2,725.09 for goods and services proposed by Galit Liffshiz & Associates in a treatment plan (“OCF-18”) dated June 24, 2019?

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

RESULT

3I find the applicant is not entitled to payment for the OCF-18 in dispute, as she has not met her onus to prove that it is reasonable and necessary. As no benefits are owing, no interest is payable.

ANALYSIS

4Sections 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 as a result of an accident.

5The 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.

Parties’ Positions

6The applicant submitted an OCF-18 dated June 24, 2019 for Indow Window Inserts and Moldex Pura-Fit soft foam earplugs. The goods and services were proposed by Ishanee Jahagirdar, occupational therapist, with the stated goals being: to assist the applicant in increasing her daily function and participation in daily activities, to provide noise-blocking of external noise and environmental sounds to manage her noise sensitivity and to improve productivity and sleep quality.

7The applicant submits that the OCF-18 is reasonable and necessary, as she suffers from ongoing concussion-related symptoms of headaches, dizziness, light headedness, noise and light sensitivity, impaired memory, attention, concentration and cognitive issues, since the accident. She contends that she has recently developed an increased noise sensitivity such that, even mild noise has an impact on her sleep quality as well as her ability to focus on a task at hand. The applicant submits that the soft foam earplugs and window inserts will help alleviate her increased sensitivity to sounds, which have led to “functional challenges across domains”³.

8The applicant relies on the Occupational Therapy Status Update dated June 21, 2019⁴ (“OT Status Report”) prepared by Ms. Jahagirdar in connection with the OCF-18 in dispute. The OT Status Report detailed the applicant’s increased sensitivity to sounds, that she lived on a busy street and constantly heard traffic noises and her neighbours, in addition to struggling with workplace sounds such as typing, coworkers moving around the office and traffic noise. According to the OT Status Report, this affected her quality of sleep at home and her productivity at work. As such, the occupational therapist recommended both the noise blocking earplugs and window inserts.

9The applicant also relies upon three medical assessments which she submits establish her ongoing, serious, post-concussive impairments. Dr. Veronica Kekosz, physiatrist, reported that the applicant continued to suffer from a major psychological impairment which needed continued monitoring and a program of rehabilitation⁵. Dr. David Kurzman, neuropsychologist, diagnosed the applicant with dysthymic disorder, somatic symptom disorder and opined that the applicant’s ongoing difficulties with bodily pain, headaches, fatigue, sensitivity to noise, light-headedness, mood issues, and variable cognitive ability were suggestive of a persistent post-concussion syndrome⁶. Finally, Dr. Zohar Waisman, psychiatrist, diagnosed the applicant with a major depressive disorder, with persistent high levels of anxiety, a diminished ability to concentrate and severe deterioration in occupational and other areas of functioning.⁷

10The respondent denied the OCF-18 by way of letter dated November 22, 2019, on the basis that its insurer’s examiners had found that the proposed goods and services were not reasonable and necessary.

11An occupational therapy (“OT”) insurer’s examination (“IE”) was conducted by John Duong. The respondent submits that Mr. Duong attended at the applicant’s home and opined that the noise heard from cars and lawn maintenance was only minimal or negligible depending on the room, and that the applicant reported that her white noise machine helped to drown out noise.⁸ Mr. Duong further reported that the applicant did not show discomfort when hearing various noises. The respondent further relies on the IE assessment conducted by Dr. Jamsheed Desai, neurologist, who conducted a physical examination and reviewed medical documentation. Dr. Desai concluded that the applicant’s deficits were subjective and not functionally disabling and that the proposed goods were not a validated treatment paradigm for individuals with suspected post-concussion syndrome.⁹

Is the Treatment Plan Reasonable and Necessary?

12Upon reviewing the evidence and submissions of the parties, I find that the applicant has not met her onus to establish, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.

13The onus is on the applicant to establish that the stated goals of the treatment plan will be met to a reasonable degree by the proposed treatment and that the time and cost expended to achieve these goals is proportional to the benefit. The stated goals of the OCF-18 are to assist the applicant in increasing her daily function and participation in daily activities, to provide noise-blocking of external noise and environmental sounds to manage her noise sensitivity and improve productivity and sleep quality. I find that the applicant has not led sufficient evidence to establish that the earplugs or window inserts would meet these stated goals.

14While I agree with the applicant’s submissions that she has consistently listed noise sensitivity as one of her many post-concussion symptoms, the applicant’s medical assessors have not identified noise sensitivity as the cause of her limited productivity or her sleep disruption, nor have they recommended noise-blocking measures.

15Dr. Kekosz, the applicant’s physiatrist, noted the applicant’s major psychological impairment, and identified frequent nightmares and negative dreams, as the reason that the applicant wakes at night, noting that the applicant reported that acupuncture helped her to relax and sleep. In terms of productivity at work, the applicant reported that her main difficulties were poor memory, poor concentration, being easily overwhelmed, fatigue and inability to focus. There was no reference in Dr. Kekosz’ report of a need to minimize noise.

16Similarly, Dr. Kurzman, the applicant’s neuropsychologist noted the applicant’s frequent nightmares as the cause for her nighttime waking, leading to her fatigue. The applicant reported to Dr. Kurzman that with respect to her cognitive function, she becomes distracted by negative thoughts, her attention and concentration are poor, she is forgetful and distractible, her mind wanders, her speed of thinking is slower and that she has difficulties with decision-making. While Dr. Kurzman noted that the applicant reported that bright light or loud noise bothers her, there was no reference to her productivity or sleep being affected by mild noises.

17Finally, Dr. Waisman in his psychiatric report noted the applicant’s major depressive disorder and somatic symptom disorder with respect to chronic pain. Dr. Waisman noted that the applicant reported severe pain causing spasms, cognitive deficits, depression, fatigue and sleep disturbances. He noted that there was no evidence that these problems will not continue in the long term. As such, Dr. Waisman focused on psychological factors and chronic pain complaints as the reason for the applicant’s diminished productivity and sleep quality.

18Therefore, although the applicant relies on the assessments of Dr. Kekosz, Dr. Kurzman and Dr. Waisman to support her claim for noise blocking window inserts and ear plugs, it does not appear that her medical assessors identify noise sensitivity as a significant factor in her lack of productivity or sleeplessness.

19The applicant relies in large part on the OT Status Report of Ms. Jahagirdar, which noted that the applicant was observed frequently yawning and demonstrating low energy and impaired memory. Ms. Jahagirdar linked these impairments to the applicant’s reports of increased noise disturbance. However, these same complaints of fatigue, low energy and cognitive limitations were reported to the applicant’s medical assessors both prior to and after the date of the OT Status Report, but the medical assessors did not identify noise sensitivity as the cause of the impairments. In particular, I note that the applicant was assessed by her psychiatrist Dr. Waisman on July 3, 2019, around the time the OCF-18 in dispute was submitted. However, in his report, Dr. Waisman did not list noise sensitivity as one of the applicant’s current symptoms or identify it a factor in her insomnia, fatigue or inability to concentrate.

20Further, the applicant has not led sufficient evidence to establish that the window inserts and earplugs would be effective in alleviating the reported noise. With respect to the soft foam ear plugs, the applicant reported to the respondent’s OT assessor that she already used noise cancelling headphones and soft foam earplugs, but that she can still “hear everything”.¹⁰ She also reported to Ms. Jahagirdar, her OT, that she received “some” relief from noise cancelling headphones, but that it has not been sufficient.¹¹ The applicant has not provided any submissions or evidence as to why the specific earplugs proposed in the OCF-18 would be effective in alleviating her noise complaints, when other earplugs and headphones have not.

21With respect to the proposed window inserts, the applicant claims that they are reasonable and necessary to block out external noise to help her sleep. However, as noted by Mr. Duong during his assessment, when the white noise machine was turned off, the outdoor noise was minimal in the living room, and negligible in the applicant’s bedroom, as the bedroom faced other buildings rather than the street. The applicant disputes Mr. Duong’s findings, arguing that Mr. Duong did not use a noise meter to register the noise level in her apartment. However, the applicant does not lead any evidence of noise meter readings conducted by her own OT, in order to refute Mr. Duong’s observations.

22In addition, I note that the window inserts would only minimize external noise, but would not be helpful for a number the applicant’s noise complaints. The applicant reported to Mr. Duong that the “city is too loud” and that all noises bother her, including the sound of water from washing dishes and the sound of her portable air conditioning unit.¹² She reported to Ms. Jahagirdar that the noise of the neighbours in her building bothers her as well.¹³ As such, the proposed window inserts would be of limited value for a number of the applicant’s noise complaints.

23Finally, I agree with the respondent’s submissions that the applicant did not provide any submissions as to whether the cost of the window inserts was reasonable and proportionate. No description of the window inserts, their efficacy, or alternative prices were provided. The onus is on the applicant to establish that the cost of the OCF-18 is proportionate to the goals set out in the treatment plan. The applicant did not submit any evidence to justify that the cost of the OCF-18 is reasonable.

24As a result, I find that the applicant has not met her burden of proof to establish that the goods proposed in the OCF-18 are reasonable and necessary pursuant to the Schedule.

INTEREST

25Section 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.

26As no benefits are overdue, no interest is payable under s.51.

CONCLUSION AND ORDER

27For the reasons outlined above, I find that the applicant is not entitled to the treatment plan in dispute. No award is made. No interest is payable. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The Case Conference Report and Order dated August 24, 2020 listed three additional treatment plans, an award and income replacement benefits, as additional issues in dispute. In her written submissions, the applicant confirmed that she was only proceeding with issues 2(i) and (ii) as listed above.
3. 3Applicant’s Submissions at para 8.
4. 4Applicant’s Submissions, Tab 1-B, OT Status Report dated June 21, 2019
5. 5Applicant’s Submissions, Tab 1-D, Physiatry Report of Dr. Kekosz dated November 5, 2018 at pg.16
6. 6Applicant’s Submissions, Tab 1-E, Neuropsychology Report of Dr. Kurzman dated December 7, 2018 at pg. 24
7. 7Applicant’s Submissions, Tab 1-F, Psychiatry Report of Dr. Waisman dated September 20, 2019 at pgs. 9-10
8. 8Respondent’s Submissions, Tab 6, S.44 OT Assessment of John Duong dated November 11, 2019 at pgs.14 and 17
9. 9Respondent’s Submissions, Tab 7, S.44 Neurological Assessment of Dr. Desai dated November 11, 2019 at pgs. 9 and 11
10. 10Respondent’s Submissions, Tab 6, S.44 OT Assessment of John Duong dated November 11, 2019 at pg. 8
11. 11Applicant’s Submissions, Tab 1-B, OT Status Report dated June 21, 2019 at p.2
12. 12Respondent’s Submissions, Tab 6, S.44 OT Assessment of John Duong dated November 11, 2019 at pg. 8
13. 13Applicant’s Submissions, Tab 1-B, OT Status Report dated June 21, 2019 at p.2