Citation: Pisani v. Aviva General Insurance, 2023 ONLAT 21-010826/AABS

Licence Appeal Tribunal File Number: 21-010826/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:

Katrina Pisani

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Peter Denton, Counsel

For the Respondent: James Brown, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Katrina Pisani, the applicant, was involved in an automobile accident on November 22, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by 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:

i. Is the Applicant entitled to $1,017 for an occupational therapy assessment?

ii. Is the Applicant entitled to $6,429.06 for assistive devices?

iii. Is the Applicant entitled to $1,114.25 for chiropractic treatments?

iv. Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payment of benefits?

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

RESULT

3The applicant is not entitled to an occupational therapy assessment, nor assistive devices.

4The applicant is not entitled to the payment of three expense claims for chiropractic treatment.

5The applicant is not entitled to interest.

6The respondent is not liable to pay an award.

ANALYSIS

7To 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.

Occupational Therapy Assessment

8The applicant submits that Pain Assessment dated July 27, 2020 of Dr. Lionel Marks de Chabris, pain and addiction specialist, recommends an occupational therapy assessment. The respondent denied this treatment plan based on a report dated September 23, 2020 by Dr. Jacqueline Auguste, orthopaedic surgeon. However, Dr. Auguste is not a pain specialist. Moreover, she did not review any medical documentation before completing her report and is unaware of the applicant’s chronic pain diagnosis. According to the applicant, no weight should be given to her report because she is less qualified than Dr. Marks de Chabris to assess the need for this treatment plan and her report is not properly informed.

9The applicant further disputes the respondent’s position that an occupational therapy assessment would duplicative. An in-home assessment dated April 7, 2021 was completed for the applicant by Ms. Jane Gobbo, registered nurse. She is not an occupational therapist, and therefore, is less qualified to assess the occupational therapy needs of the applicant. Moreover, Ms. Gobbo’s assessment is incomplete. She did not assess the applicant’s work situation or make comments on it. As such, the treatment plan in dispute does not duplicate the work of Ms. Gobbo and is reasonable and necessary.

10The respondent submits that the in-home assessment of Ms. Gobbo is detailed, well-informed, and makes numerous recommendations for treatment. For these reasons, a second in-home assessment is not justified.

11I find that the applicant is not entitled to an occupational therapy assessment.

12Ms. Gobbo is a registered nurse and not an occupational therapist. However, this does not mean that she unable to properly assess the treatment needs of the applicant. She is a rehabilitation specialist with experience in preparing assessments and providing case management services for people who sustained brain injuries and severe impairments in motor vehicle accidents. She examined the applicant at the applicant’s home on April 5, 2021 and prepared a comprehensive assessment of the applicant’s pain complaints and functional limitations.

13Ms. Gobbo provides summaries of range of motion testing, physical tolerances, a description of the applicant’s home, recommendations to assist the applicant with the activities of daily living and housekeeping and home maintenance, assistive devices, and therapy recommendations. This includes recommendation for occupational therapy to address cognitive strategies, sleep hygiene, pacing techniques and energy conservation.

14The applicant also submits that Ms. Gobbo’s assessment is incomplete because no assessment was made of the applicant’s working conditions. I disagree. Part 8(a) of the disputed treatment plan states that the applicant’s injuries affect her tasks of employment. Part 8(b) of the treatment plan provides specific details on the applicant’s functional limitations with respect to her work. In particular, the treatment notes that the applicant has returned to work with some accommodations and modifications but struggles with lifting overhead, lifting more than 10 pounds, has difficulty bending, and has activity intolerances. The same section also states that she struggles with anxiety and sleep and cognitive deficits. All of these functional limitations are addressed in Ms. Gobbo’s report. A further assessment in the workplace would result in a second assessment of the same functional limitations. In my view, this is duplicative.

15The applicant further submits that Ms. Gobbo also recommended an occupational therapy assessment. This is incorrect. Ms. Gobbo only recommends occupational therapy.

16The assessment of Ms. Gobbo addresses the applicant’s occupational therapy needs and a further occupational therapy assessment would duplicate services already provided. Consequently, I find that the applicant is not entitled to this treatment plan because the plan is not reasonable and necessary.

Assistive Devices

17The applicant submits that she has chronic pain and the assistive devices recommended in Ms. Gobbo’s report will assist her in completing the activities of daily living safely and effectively.

18The respondent submits that these assistive devices are not reasonable and necessary. The applicant has a gym membership and a robust exercise program. She also has exercise and yoga equipment at home. As such, she does not require assistive devices for exercise. The applicant already has a stand mixer and there is no demonstrable need to purchase another. The respondent further submits that the remaining assistive devices are not reasonable and necessary because the applicant has managed to live without them since the accident.

19I find that the applicant is not entitled to assistive devices.

20The following 21 assistive devices are listed in Ms. Gobbo’s report:

• Heating Pad
• Mesh laundry bags
• Long handled loofa
• Tub scrub
• Long handled duster
• Swiffer dry mop
• Swiffer wet jet
• Roomba
• Hair dry holder
• Reacher
• Cutting board with prongs
• Stand mixer
• Food processor
• Rocker knife
• Yoga mat x2
• Yoga ball x2
• Foam roller
• Power cage
• Set of therabands
• Exercise ball
• Stationary bike

21Ms. Gobbo recommends these assistive devices to promote the applicant’s participation in the activities of daily living (“ADLs”), to minimize strain, and to ensure comfort and safety. No other explanation is provided.

22The treatment plan states that the assistive devices are recommended in the report of Ms. Gobbo. No further insight is provided in the treatment plan as to why these assistive devices are needed.

23In my view, more explanation is needed to justify a finding that these items are reasonable and necessary. For example, there may be a reason why mesh laundry bags and swiffer products will promote the participation in ADLs, minimize strain, and ensure comfort and safety. However, this cannot be known without an explanation.

24The intended use of many items is obvious. For example, the use of the knife, cutting board, and food processor would be for cooking. However, Ms. Gobbo’s brief recommendation does not establish a clear link between these items and accident related injuries.

25Additionally, the respondent submits that some of these assistive devices are not reasonable and necessary because the applicant already has the requested item or the applicant’s needs have already been satisfied in some other way. For example, the applicant has a gym membership, a robust exercise program, and yoga and exercise equipment. She does not require further yoga and exercise equipment to address her rehabilitative needs.

26The applicant submits that there is no guarantee that the respondent will continue to pay for a gym membership. The applicant also submits that a new, Covid-19 style pandemic would prevent the applicant from exercising at her gym. I am not persuaded by either submission as they are speculative.

27The applicant submits that bad weather or fatigue could also prevent the applicant from exercising. These submissions are also not persuasive. If the applicant is fatigued, then it is unlikely she would exercise at home. Secondly, it is possible that bad weather could prevent the applicant from accessing the gym. This would be temporary and would not prevent continued and meaningful participation in her current exercise program.

28For these reasons, I find, on a balance of probabilities, that the applicant is not entitled to assistive devices because she has not established that these devices are reasonable and necessary.

Chiropractic Treatments

29I find that that the applicant is not entitled to payment for services listed in three expense claims OCF-6 Expense Claims related to chiropractic treatment that totals $1,114.25.

30These expense claims relate to the treatment plan of Dr. Andre Senechal, chiropractor, dated February 7, 2020. The respondent initially denied the treatment plan. This forced the applicant so seek the treatment on her own. The plan was subsequently approved. The applicant submits that she should be reimbursed for the cost of treatment that was improperly denied.

31The respondent submits the OCF-6 Expense Claims are for services not listed on Dr. Senechal’s OCF-18. Additionally, if the services are linked to the OCF-18, then they are not payable because payment of these invoices would result in a double recovery of benefits.

32The respondent further submits that section 38(2) of the Schedule applies. This section states that an insurer is not liable to pay a medical or rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan. All of the disputed services were incurred before the expense claims were submitted to the respondent. As such, the applicant cannot be entitled to the invoiced services.

33I agree with the respondent. Section 38(2) is clear. The applicant cannot be entitled to services that were incurred before being submitted to the respondent.

34The applicant also submits that Dr. Senechal’s approved treatment plan is for chiropractic services. The expense claims are for chiropractic treatment. Thus, this treatment is approved and the expense claims should be paid.

35I disagree. The treatment in the approved plan cannot be reconciled with the expense claims.

36Dr. Senechal’s treatment plan calls for a one hour assessment at a cost of $150.00, 16 one hour sessions of exercise to multiple body sites at a rate of $65.00 per hour, two one hour sessions of therapy at a rate of $90.00 per hour, and a one hour session of therapy at a rate of $65.00 per hour. The rates on the invoices do not match the rates on the treatment plan. Moreover, many of the treatments on the invoices are for less than an hour. Based on this evidence, it is not possible to reconcile the invoiced treatment to the approved treatment plan. Therefore, I find that the applicant has not proven, on a balance of probabilities, that the expense claims represent treatment from the approved treatment plan.

37For all these reasons, I find that the applicant has not established that she is entitled to the treatment noted in the expense claims.

Interest

38As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

Award

39As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664. Therefore, no award is payable.

ORDER

40I order the following:

i. The applicant is not entitled to two treatment plans.

ii. The applicant is not entitled to the payment of three expense claims.

iii. The applicant is not entitled to interest.

iv. The respondent is not liable to pay an award.