Licence Appeal Tribunal File Number: 20-013238/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Isaiah Hall
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Vicki Edgar, Counsel
For the Respondent:
Robert Bowman, Counsel
Court Reporter:
Bruce Porter and Graeme Peto
HEARD: by Videoconference:
November 10-11, and November 14-18, 2022
OVERVIEW
1Isaiah Hall, the applicant, was involved in an automobile accident on August 20, 2017, and sought benefits per the Statutory Accident Benefits Schedule1 (the “Schedule”). The applicant was denied benefits and catastrophic designation by the Unifund Insurance Company, the respondent, and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”)—for resolution of the dispute.
ISSUES
2The issues in dispute are:
a. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
b. Is the applicant entitled to devices and services recommended by St. Joseph’s Healthcare, as follows:
i. A computer in the amount of $1,439.75, in a treatment plan dated November 9, 2018;
ii. Occupational therapy in the amount of $5,686.16, in a treatment plan dated March 13, 2019; and
iii. Occupational therapy in the amount of $4,823.56, in a treatment plan dated May 13, 2019?
c. Is the applicant entitled to optometric services recommended by Dr. Maciej Suwala (optometrist) as follows:
i. $635.40 in a treatment plan dated December 5, 2018; and
ii. $850.00 ($2,686.75 less $1,836.75 approved) in a treatment plan dated July 9, 2019?
d. Is the applicant entitled to services and devices recommended by Ms. Susan Gauvin (occupational therapist) as follows:
i. Psychological therapy in the amount of $2,343.70, in a treatment plan dated December 14, 2018; and
ii. A cellular phone and subscription plan in the amount of $4,285.31, in a treatment plan dated January 25, 2019?
e. Is the applicant entitled to physiotherapy services, in the amount of $1,626.03, recommended by Archway Health in a treatment plan dated May 6, 2019?
f. Is the applicant entitled to audiometric and speech-language pathology services, in the amount of $4,497.56, recommended by Ms. Sabine Goldburg (speech pathologist) in a treatment plan dated May 24, 2019?
g. Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
3The applicant is not catastrophically impaired.
4The applicant is entitled to the treatment plan dated May 13, 2019, and any interest that may be owing on this plan.
5The applicant is entitled to the treatment plan dated December 14, 2018, and any interest owing on this plan.
6The applicant is entitled to the treatment plan dated January 25, 2019—with exclusions detailed later in this decision—and any interest owing on this plan.
7The applicant is not entitled to the remaining benefits in dispute.
ANALYSIS
Catastrophic impairment
8The applicant must satisfy the test for catastrophic impairment as set out in Section 3.1(1)8 of the Schedule, and per Criterion 8 of the 4th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (the “Guides”). The applicant must prove the accident caused a Class 4 (“marked”) impairment—which is one that significantly impedes useful functioning in three or more areas of function—or a Class 5 (“extreme”) impairment, which is one that precludes useful functioning in just one area of function. The four areas of function contemplated by the Guides are: activities of daily living; social functioning; concentration, pace, and persistence; and adaptation to work or work-like settings. As well, the impairment(s) must result from a mental or behavioural disorder caused by the accident.
9The evidence concerning catastrophic impairment focuses largely on two reports. The first—submitted by the applicant and dated January 4, 2021—is a determination assessment conducted by Dr. Nadia Brown (family physician), and assisted by Ms. Laura Wilkie (occupational therapist). Dr. Brown concluded the applicant has a marked impairment in all four areas of function. The second report, submitted by the respondent, is a determination assessment (dated November 5, 2021) conducted by Dr. Kehinde Adekunle Aladetoyinbo (psychiatrist) and assisted by Ms. Serene Abraham (occupational therapist). Dr. Aladetoyinbo concluded the applicant has a marked impairment in adaptation to work and work-like settings, and a moderate level of impairment—defined as being compatible with some but not all useful functioning—in the other three areas of function specified in the Guides.
10As such, there is no dispute concerning the applicant’s adaptation functioning, as both parties agree the applicant is markedly impaired in this area. Further, neither the applicant, nor the respondent, are arguing the applicant is extremely impaired in any of the other three areas of function. As such, my analysis focuses on whether the applicant is markedly impaired in at least two of the three disputed areas of function—activities of daily living; social functioning; and concentration, pace, and persistence.
Activities of daily living (“ADL”)
11The Guides describe ADL as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. According to the Guides, limitations in these activities should be related to the mental disorder, and the quality of ADL is judged by their independence (i.e., the extent to which the individual can initiate and participate in these activities independent of supervision or direction), appropriateness, effectiveness, and sustainability.
12I find the applicant’s ADL are impaired, albeit moderately. My reasons for this weigh heavily on the evidence obtained during the situational assessments conducted by Ms. Wilkie and Ms. Abraham. This is because I prefer the objectivity of situational assessments that provide real-life performance data under the observation of a regulated medical professional who is trained to assess and document function in the context of catastrophic determination.
13During the in-home assessment—conducted by Ms. Wilkie on July 13 and 16, 2020—the applicant was asked to complete two tasks: a kitchen task and a homemaking task. The applicant was unable to select a food or drink item to prepare for the kitchen task; he needed Ms. Sherry Hall (the applicant’s mother) to help him decide. This initial need for cueing and direction was repeated during the homemaking task. However, once both tasks had been selected, the applicant was able to sustain the activities and complete them independently.
14While preparing the food item, Ms. Wilkie notes the applicant read instructions and used self-talk to move through the steps; there is no mention of the applicant requesting assistance from others or receiving direction in her report of November 30, 2020. The homemaking task was to take out the recycling for curbside collection, and, again, there is no mention of direction being needed or offered to complete this task once initiated.
15Considering the applicant’s documented performance, I disagree with Ms. Wilkie’s clinical observation—on which Dr. Brown’s opinion of marked impairment weighs heavily—that basic kitchen roles and repetitive weekly chores needed “provision of clear and specific instructions (repeated), redirection to task, reminder for steps and guiding. (The applicant) failed to move to next steps without prompting …”. Rather, the evidence shows that after receiving initial direction, cueing or reminders to initiate the task, the applicant was able to sustain his activities and independently complete his selected tasks appropriately (i.e., following most instructions) with a reasonable degree of accuracy. In fact, in Ms. Wilkie’s analysis of the applicant’s concentration, persistence, and pace functioning, she reports “completion of household tasks were (sic) completed with minimal cueing once the task was initiated…”.
16The applicant achieved a similar outcome during Ms. Abraham’s assessment—conducted on June 16, 2021, almost a year after Ms. Wilkie’s assessment—where he was able to make a simple dinner by following the manufacturer’s written instructions and without requiring direction from others. In fact, Ms. Abraham’s report shows the applicant required no cueing to initiate a meal selection and, with self-talk and action rehearsals, was able to complete the task in the same methodical manner observed by Ms. Wilkie.
17I am similarly persuaded the applicant demonstrated a moderate level of impairment during the community-based situational assessment—called a Multiple Errands Test (MET)—which occurred on August 13, 2020, under Ms. Wilkie’s supervision. The applicant was able to meet or partially meet eight of 11 tasks set out for him, which, in my view, is indicative of compatibility with some, but not all useful functioning. Further, even the applicant’s task errors showed some useful functioning, in that he was able to locate the potato chips on his list (although he selected the wrong size); and he substituted a seemingly appropriate item (plastic flossers) for the wooden toothpicks he was unable to find on the store shelves.
18It is evident, however, that these community-based tasks—when compared to the home-based tasks—presented more pronounced cognitive challenges relating to the planning, organization and sequencing of tasks (i.e., executive functioning). Ms. Wilkie’s report notes a slow pace—the applicant took an hour longer than the 40 minutes budgeted to complete the tasks—owing to inefficiencies (i.e., backtracking) caused by the methodical way he worked through his list. As well, Ms. Wilkie indicated the applicant “engaged in numerous requests for clarification during this assessment, seeking reassurance on steps, selections, process.” My own review of the MET performance documented by Ms. Wilkie shows a total of only five questions were posed by the applicant throughout the 100-minute exercise, including two at the start of the assessment, two while searching for newspaper headlines, and one to determine a suitable location to check winning lottery numbers.
19These limitations on how effectively the applicant can perform his ADL are consistent with collateral evidence, the applicant’s self-reports, and witness testimony, in that he cannot always complete his ADL as fast as others. Further, it is clear the applicant struggles to do ADL when there are no clear steps or lists to follow, and often talks himself through a task. The situational assessments show he sometimes needs direction to initiate action, remember what to do, or stay on track. But these deficits, in my view, do not render the applicant to be so ineffective that all useful ADL functioning is impeded in a significant way.
20In fact, both the in-home and community-based assessments show the applicant, was able to complete or partially complete most of the tasks set out for him in situational assessments, only some of which requiring prompting at various stages that varied in frequency. I accept that these tasks, selected and observed by occupational therapy professionals for the purposes of functional assessment, are globally representative of his overall ADL functioning.
21I therefore conclude these situational assessments—taken together on a balance of probabilities and to the degree they are corroborated by file evidence and witness testimony—show the independence, sustainability, effectiveness, and appropriateness of the applicant’s ADL task performance is more akin to a moderate impairment that is compatible with some, but not all useful functioning. In fact, the applicant was able to initiate, sustain, and somewhat effectively complete some tasks in a largely appropriate manner—albeit with the assistance of lists and written instructions—despite his methodical tendencies and the distractions along the way that slowed him down.
Social functioning
22The Guides describe social functioning as an individual’s capacity to interact appropriately and communicate effectively with other individuals, which includes the ability to get along with others, such as family members, friends, neighbours, etc. The Guides direct assessors to measure not just the number of impaired aspects, but also the overall degree of interference.
23I find the applicant’s social functioning is markedly impaired. This is because the evidence shows the applicant is significantly impeded by his depressed mood and anxiety. Notably, these symptoms relate to the accident-related diagnoses offered in Dr. Brown’s report, and particularly the persistent depressive disorder and generalized anxiety disorder.
24Although Dr. Aladetoyinbo suggests the applicant’s prior history of childhood abuse is a predisposing factor related to the applicant’s post-accident symptomology, he notes only that “these diagnostic entities cannot be solely (emphasis added) attributed to the subject accident in view of the (applicant’s history).” I agree, on a balance of probabilities, that the applicant’s diagnoses likely have a pre-accident origin with recurrent symptomology and are not solely accident-related. However, I am mindful too, that the accident need not be the sole cause of the applicant’s mental disorder, only a necessary cause. Prior to the accident, the applicant was reportedly doing things that would require a high level of social functioning, such as making and sustaining friendships, engaging in academic pursuits, and pursuing and sustaining an employment contract. Considering the post-accident impairment evidence in this area of functioning—which is detailed below—I believe that, but for the accident, the applicant most likely would have continued to perform at a high level of social functioning.
25The applicant’s depression significantly affects his motivation to engage with others. The file evidence and witness testimony consistently portray the applicant as having “no self-drive or desire to initiate and maintain engagement.” For example, he does not reach out to friends without prompting from family members, and even then, only interacts with these friends for an hour each week. During the community situational assessment supervised by Ms. Wilkie, he deliberately selected the smallest stores with the least amount of customer traffic and was reluctant to engage with store staff to help locate items on his shopping list. During a situational assessment with Ms. Abraham, the applicant performed a phone call to a service provider and demonstrated his apprehensiveness with this interaction by failing to initiate or end the conversation appropriately with standard greetings or endings to the conversation. The applicant has altogether discontinued going to church, which was reportedly a regular pre-accident activity.
26The applicant—in both his testimony and in file evidence—describes his anxiety in terms of fear that he will lose control of his anger. Dr. Brown’s report references the applicant’s struggles with “frequent, unpredictable and intense bouts of anger” that cause him to remove himself from the situation by self-isolating in his room, or be directed by a family member to do so when he is unaware of his elevated emotional state. Ms. Wilkie’s report notes the applicant’s family members are “cautious” and “guarded” around the applicant because of his “unpredictable” anger, which the applicant describes as “often irrational and unprovoked.” That report goes on to say that Ms. Hall is “at times fearful around her son, and navigates conversations in such a way as to minimize the risk of eliciting anger,” adding “though he has not been violent toward a person to date, (Ms. Hall) has been afraid of … the potential for violence.”
27In fact, the applicant acknowledges, in Dr. Brown’s report, that while he “has not been violent towards someone … (he) … has thrown and broken items.” Indeed, Ms. Abraham testified that, during her assessment visit, she directly observed the applicant become angry with Ms. Hall when she corrected him. Although this outburst was limited to raising his voice and did not give rise to violence or physical harm, it nevertheless corroborates the applicant’s incapacity to interact appropriately and communicate effectively when emotionally aroused, which reportedly happens frequently.
28Given the applicant’s lack of motivation to engage with virtually everyone in his social circle, his demonstrated aversion to initiating discussion with others in the community, and the negative impact his frequent and unpredictable bouts of anger have on the appropriateness and effectiveness of his interactions with others—as well as on his enduring reluctance to seek out social interaction—I conclude the overall degree of interference on the applicant’s social functioning is significantly impeded by the psychological impairment he sustained as a result of his accident.
29The respondent’s evidence did not persuade me otherwise. This is because the social functioning analysis conducted by Dr. Aladetoyinbo struck me as deficient. It placed weight on the applicant’s “excellent relationship with his mother and brother” without addressing their “guarded” and “cautious” interactions, or the fact that Ms. Abraham’s report notes the applicant’s relationship with his mother and brother devolved from “very good” and “very close” pre-accident to “close but more strained” and “far more distant,” respectively, post-accident. It credits the applicant with having a “couple of friends” without exploring the applicant’s reported lack of desire to interact with them. It mentions no “current history or objective observations suggesting a pervasive lack of empathy or a lack of awareness of the sensitivity of others” despite repeated claims of angry outbursts towards family members that result in voluntary and involuntary self-isolation.
30In short, it does not appear Dr. Aladetoyinbo considered any of the information provided by Dr. Brown or Ms. Wilkie in his analysis, instead preferring to rely only on clinical impressions of his interview with the applicant as well as select information from Ms. Abraham’s report. In fact, although the reports of Dr. Brown and Ms. Wilkie are listed as “documents received” in Dr. Aladetoyinbo’s assessment, they are not mentioned in the “documents reviewed” section, save to highlight the diagnoses offered by Dr. Brown. As such, I gave little weight to the findings of Dr. Aladetoyinbo because the information he relied on to analyze his findings was narrow and, in my opinion, insufficient.
31I therefore conclude the applicant has met the burden of proof here. His depressed mood and anxiety—which are symptomatic of the accident-related diagnoses made by Dr. Brown and characterized by bouts of anger, little motivation to initiate interactions, an aversion to social encounters (whether by phone, virtually or in-person) and a tendency to withdraw completely from the company of others—have significantly impeded his social functioning (i.e., the applicant’s ability to get along, interact appropriately, and communicate effectively with other individuals) and thereby constitute a marked impairment.
Concentration, persistence, and pace (“CPP”)
32Dr. Brown reports, in her January 2021 assessment, that the Guides describe CPP as the ability to sustain focused attention log enough to permit the timely completion of tasks commonly found in work settings, and the ability to complete everyday household tasks. The frequency of errors, time it takes to complete tasks, and the assistance required to complete the task, are all considerations when assessing CPP strengths and weaknesses.
33I find the applicant’s CPP functionality is moderately impaired. In saying so, I do recognize there is evidence in this case that is more consistent with marked impairment than moderate impairment. The strongest evidence of this was the applicant’s failure to complete his community MET test—supervised by Ms. Wilkie—within the established timelines. In fact, the applicant took an hour longer than budgeted for this assessment and his concentration was reportedly easily distracted during that time.
34However, thinking broadly on CPP, I see more evidence of some, but not all useful functioning, which is consistent with a moderate level of impairment.
35For example, I disagree with Ms. Wilkie’s assertion that the applicant’s MET was completed with numerous errors resulting from CPP deficits. In fact, the applicant met or partially met eight of 11 tasks set out for him. To me, this evidences a level of concentration and persistence that is compatible with some useful functioning. As well, the applicant can concentrate and persist in role-playing games with his friends for up to 1.5 hours at a time, with a break halfway and in a less complicated player role that does not involve the higher-order executive function required by the game master. This, again, is evidence of some, but not all, useful functioning. The applicant also acknowledges he can operate a motor vehicle in familiar areas on short drives with the help of a passenger navigator. This too, is a clear example of some, but not all useful functioning in the areas of concentration and persistence.
36Ms. Wilkie administered a Toglia assessment to “examine how subtle cognitive difficulties in executive function influence the ability to perform multi-step activities in daily life.” I did not put full weight on the Toglia calendar assessment because I note only the Level 3 version was administered. This is the most complicated version, and I question whether it gives the most accurate and appropriate indication of the applicant’s CPP functioning in light of his highly methodical approach to task completion. Ms. Wilkie acknowledges in her report, that “when provided an open-ended option/choice (the applicant) was noted to be unable to identify what to do or how to initiate.” But this is not a new insight derived exclusively from the calendar exercise. It was well documented in earlier reports available to Ms. Wilkie, and notably the assessment dated March 31, 2020, by Ms. Jackie Toman (occupational therapist) that Ms. Wilkie references in her report. Ms. Toman observed “... (the applicant) was identified to need assistance with problem-solving, planning, prioritizing, decision making, sequencing tasks and organization.” All these features were emphasized in the Level 3 version of the Toglia. And not surprisingly, the applicant’s completion of the Toglia calendar task had a high frequency of error pertaining particularly to compliance with multiple rules that created scheduling variability.
37However, the applicant was nevertheless able to demonstrate some useful CPP functioning during the Toglia. More than half the appointments he entered were correct. He was able to apply logic and incorporate some problem-solving to achieve some correct responses. In my view, he essentially confirmed that, with written instructions, he can concentrate and persist to accurately complete tasks that follow a linear step-by-step progression devoid of variability or open-endedness. This is useful functioning.
38In short, it is evident the applicant usually completes tasks at a slow pace. There is also evidence of some difficulty concentrating and persisting with certain tasks, and notably those that require decisions or involve ambiguity. But this is not to say his concentration, persistence, and pace is always significantly impeded. Rather, the evidence points to some, but not all useful functioning. His limited ability to drive, make simple meals, engage in role-playing games, schedule the majority of his calendar appointments correctly with written instructions, and complete—largely accurately—a small shopping trip with a written list are all examples of this. As such, I conclude that the applicant’s CPP is indeed impaired, but at a moderate level where some but not all useful functioning is evident.
39To sum it up, the applicant’s claim for catastrophic impairment required marked impairment in three areas of function under the Guides. He has met this burden of proof in only two areas of function: social functioning and adaptation. As such, I cannot find the applicant to be catastrophically impaired.
40The applicant’s closing submission relating to treatment plans indicated “in fact, the limits are gone,” and explained that this was the basis for several treatment plans being denied. However, my review did not reveal any treatment plans were denied because the threshold limit of $65,000.00 had been exhausted, and the respondent did not confirm this either. As such, I have considered each of the plans based on their reasonableness and necessity per Section 15 (1) of the Schedule.
41I do not find the treatment plan (dated November 9, 2018) for a computer in the amount of $1,439.75 to be reasonable and necessary. This is because the mindfulness activities, therapeutic activities, and alarms—all cited as reasons to justify the computer by Ms. Gauvin—can also be provided on the mobile phone2 determined to be reasonable and necessary later in this decision. In fact, Ms. Gauvin seems to prefer a mobile phone to achieve the goal of this treatment plan (i.e., returning to activities of normal living by maintaining involvement in therapy in a meaningful fashion) because she notes “the computer is the best option for him since he does not have a phone.”
42As such, I believe the goal for this treatment plan—which is the same goal specified for the mobile phone treatment plan—can be otherwise pursued and achieved with a mobile phone device as opposed to a computer.
43There are two treatment plans in dispute for occupational therapy. The first treatment plan is dated March 13, 2019, in the amount of $5,686.16. The goal of this plan is to return the applicant to his activities of normal living by obtaining improved stamina and attention through participation in treatment. The second is dated May 13, 2019, in the amount of $4,823.56. The goal of this plan is to return the applicant to his activities of normal living by reducing psychosocial barriers to rehabilitation progress, promoting re-integration into life-role activities, and increasing quality of life. The provider for both plans is Ms. Toman.
44I find the March 2019 treatment plan is not reasonable or necessary. Although the goal is clear and aligned to the applicant’s Criterion 8 impairments, I cannot conclude the description of goods and services to be provided are relevant. There is simply not enough detail in the treatment plan to discern this. The annotation in the additional comments section says only “see OT progress report sent by fax,” with no further identifiers, such as a date, to confirm which document, if any, this refers to in the applicant’s 705-page evidence brief. As such, the applicant has not met his burden of proof here.
45However, I do find the May 2019 treatment plan to be reasonable and necessary. The goal is clear and aligned to the applicant’s Criterion 8 impairments. There is a robust explanation of the listed goods and services in the additional comments section that persuades me as to the relevance of the treatment. There are also clear evaluation plans that are suitable to the proposed treatment. No barriers to recovery were identified.
46The explanation for denial, provided by Mr. Edward Njoroge (adjuster) on May 24, 2019, was not persuasive. The first reason for the decision was “based on review of your accident related (sic) injuries against treatment provided and time since the accident.” This is not an insightful explanation, as it provides no details of the injuries or treatment considered by Mr. Njoroge.
47The second reason offered was “we have also taken note of Dr. Trevor Hjertaas (sic) Neuropsychology report dated April 26, 2019, in which he stated that at this point in time, the negative neurocognitive effects of your mild traumatic brain injury should have fully resolved and that any further cognitive rehabilitation (and) occupational therapy treatment is unnecessary.” This reason is unconvincing because the medical evidence shows that most of the injuries documented in the treatment plan—such as problems related to life management, limitation of activities due to disability, other symptoms and signs involving cognitive function and awareness, malaise, and fatigue—are due to mental disorders resulting from the accident. As such, the treatment implications arising from a brain injury are not helpful in this context and do not inform the reasonableness and necessity of this treatment plan.
48I find the applicant is entitled to the treatment plan dated December 14, 2018, in the amount of $2,343.70. The plan, proposed to be executed by Ms. Barbara Ibbiton (social worker), strikes me as highly relevant to the applicant’s functional impairments in his ADL and identifies no barriers to recovery. Its overarching goal—to return the applicant to activities of normal living—is planned to be achieved by assisting with community integration, meal preparation, participation in physical activity, and increasing independence of ADL. Considering the applicant can demonstrate only some useful functioning in his ADL, experiences a higher degree of functional difficulty in the community, and has room to improve several aspects of his independent functioning, I find the applicant has met the burden of proving this plan to be reasonable and necessary.
49The respondent’s Section 44 examination report on this treatment plan—conducted as a paper review by Mr. Danny Horban (occupational therapist)—does not persuade me otherwise. That report, dated February 5, 2019, finds the treatment plan is not reasonable or necessary, and largely relies on a neuropsychological and physiatry opinion regarding the test for a non-earner benefit. That test is a complete inability to carry on a normal life as a result of accident-related injuries, which is far different from establishing whether a treatment plan is reasonable and necessary. None of the fees are disputed, and while Mr. Horban notes little-to-no improvement in the applicant’s condition despite his participation in extensive rehabilitative services post-accident, Mr. Horban does not point me to any evidence of such.
50Pertaining to the treatment plan dated January 25, 2019, in the amount of $4,285.31, I find the applicant is entitled to the mobile phone—but not the subscription plan, associated fees or accessories—proposed in the treatment plan dated January 25, 2019. This is because the plan’s goal (i.e., returning to activities of normal living by maintaining involvement in therapy in a meaningful fashion) is relevant to the applicant’s accident-related functional difficulties, which, for example, include a moderate impairment in his ADL and CPP owing partially to memory and concentration issues that require reminders and cueing from others. In fact, Ms. Gauvin characterizes the phone as a “memory and therapy aid” in her occupational therapy progress report (dated March 14, 2019). She goes on to say:
“With the phone he can set prospective alarms to assist with memory and gain independence. He can begin to manage their (sic) own schedule with the reminders and use of calendar applications. He would be able to complete rehabilitation activities using various applications that would work on word retrieval, memory, and attention. He would be able to use alarms to help pace himself' when involved in activities as he has a tendency to get overly focused and lose track of time until his symptoms are such that he is required to stop. The audio recording application already on the phone can assist with recall for details for example to summarize information they have previously read verbally. He can use the phone to make notes for doctors (sic) appointments and other pertinent rehab appointments to increase independence and assist with recall at a later time. The notes application can also be used for questions they have for health care providers, to assist with their memory in higher pressured situations where there is a significant amount of information they are required to attend to.”
51I find this explanation to well-substantiate the reasonableness of this treatment plan in the context of the applicant’s Criterion 8 impairments and treatment goals. Although the respondent’s closing submission challenged the necessity of the treatment plan by mentioning more cost-effective solutions—such as a clock—are available to set reminder appointments, I am mindful that Ms. Gauvin recommends the phone for many more reasons that do, in fact, require a device capable of running multiple online applications. As such, I conclude the applicant has met his burden of proof here.
52I do not, however, agree that the mobile phone plan or its associated fees are reasonable and necessary. There are several reasons for this. Although Ms. Gauvin refers to instances of the applicant needing to call home for assistance while he is out with the car, this rationale presents more as a safety or convenience feature that does not directly align with treatment plan goals as they relate to the applicant’s impairments. I am mindful too, of evidence that affirms the applicant never drives alone, and that the evidence shows the applicant strongly dislikes talking on the phone and strives to avoid doing so; this was also evident during the situational assessment conducted by Ms. Abraham. Further, all the therapeutic features described by Ms. Gauvin will function with Wi-Fi connectivity and therefore do not need a cellular signal. I also do not agree the accessories are necessary because they are not needed to achieve the treatment goal.
53On January 29, 2019, Mr. Horban completed a Section 44 paper review to examine the reasonableness and necessity of the treatment plan. I am not persuaded by the rationale offered by Mr. Horban to justify denial of the treatment plan because he simply repeats the specialists’ opinions on eligibility for a non-earner benefit as justification, which are not relevant to establishing reasonableness or necessity of a treatment plan. Further, Mr. Horban did not dispute the proposed costs and fees.
54Mr. Horban also submitted that no medical documentation or prescription was provided to merit a need for a mobile phone. I disagree with this finding because the recommendation and substantiation for the mobile phone appears in at least two reports by regulated health professionals in evidence, including Ms. Gauvin’s and another completed in April 2019 by Ms. Goldberg.
55This treatment plan did not provide a cost for the phone because it was included as part of the phone plan. Given the considerable time that has passed since this treatment plan was proposed, and the pace of technological change in the mobile device market, my order reflects a comparable phone cost that is reasonable in the current market.
56I cannot find that the two treatment plans recommended by Dr. Suwala—one dated December 5, 2018, and the other dated July 9, 2019—are reasonable and necessary. Dr. Suwala diagnosed post traumatic vision syndrome in his report, dated November 17, 2018. In that report, he also referenced vision-related symptoms the applicant started experiencing after the accident. However, Dr. Suwala does not establish any relationship between the applicant’s visual impairments and the accident. That is to say, I cannot conclude, based on Dr. Suwala’s report or treatment plan, that the applicant’s vision difficulties were caused by the accident just because they started after the accident. I note intercranial injury is listed as one of several accident-related injuries in the treatment plan. I also note that Dr. Suwala’s report included a list of peer-reviewed references that address general vision considerations in the acquired brain injury population. However, without me making an improper inference to connect the dots, I cannot arrive at a factual finding that the applicant’s diagnosis and symptoms are the result of a brain injury he suffered in the accident. Therefore, the applicant has not met the burden of proof on this plan.
57I cannot find the treatment plan—dated May 6, 2019, in the amount of $1,626.03 for physiotherapy services—is reasonable and necessary. This is because the applicant failed to point me to medical evidence in support of this plan. I agree with the respondent’s closing submissions on this matter, which referenced the dearth of evidence about physical function during the hearing. In fact, the applicant made only a broad reference to Dr. Brown believing more treatment would be helpful and could assist him when globally addressing treatment plans in closing submissions. This is inadequate to meet the applicant’s burden of proof for this treatment plan.
58For essentially the same reasons pertaining to the treatment plan recommended by Archway Health, I conclude this treatment plan (i.e., speech-language pathology services in the amount of $4,497.56) is neither reasonable, nor necessary. No evidence was put forward on this matter during the hearing and the treatment plan itself is insufficient to meet the applicant’s burden of proof.
Interest
59The applicant is entitled to interest that may be owing on any incurred or outstanding costs pertaining to treatment plans found to be reasonable and necessary.
ORDER
60I find the applicant has not met his evidentiary onus on the issue of catastrophic determination and several of the treatment plans in dispute.
61I make the following orders for those treatment plans I found to be reasonable and necessary:
a. The respondent shall pay the costs associated with the treatment plan for occupational therapy (dated May 13, 2019) in the amount of $4,823.56 plus any interest owing.
b. The respondent shall pay $300.00 (including tax) for a Samsung Galaxy A8 mobile phone—or a more contemporary but comparable model—in relation to the treatment plan for a cellular phone and subscription plan dated January 25, 2019.
c. The respondent shall pay the costs associated with the treatment plan for psychological therapy (dated December 14, 2018) in the amount of $2,343.70, plus any interest owing.
Released: June 28, 2023
Michael Beauchesne
Adjudicator