Citation: Arnott v. Aviva General Insurance, 2024 ONLAT 22-012136/AABS

Licence Appeal Tribunal File Number: 22-012136/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:

Hannah Arnott Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Rebbecca Phillips, Counsel

For the Respondent: Geoffrey Keating, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hannah Arnott, the applicant, was involved in an automobile accident on October 25, 2020, 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, Aviva General Insurance, 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 $947.63 for occupational therapy services, proposed by Sydney Thomas OT, Rehab First in a treatment plan ("OCF-18") dated November 9, 2020?

ii. Is the applicant entitled to $1,108.94 for other assistive devices, proposed by Melissa Jamieson OT, Rehab First in a treatment plan ("OCF-18") dated November 19, 2020?

iii. Is the applicant entitled to $2,189.98 for physiotherapy services, proposed by Carol Smith PT, Rehab First in a treatment plan ("OCF-18") dated March 25, 2021?

iv. Is the applicant entitled to $2,460.00 for a Driving Rehabilitation Assessment, proposed by Melissa Jamieson OT, Rehab First in a treatment plan ("OCF-18") dated November 19, 2020?

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

3The applicant withdrew her claim for attendant care benefits and an award which were included in the August 22, 2023 Case Conference Report and Order.

RESULT

4The applicant is partially entitled to the proposed occupational therapy services and assistive devices, plus interest.

5The applicant is not entitled to the physiotherapy services or a driving rehabilitation assessment.

ANALYSIS

The applicant is partially entitled to the OCF-18 for occupational therapy services

6I find that the applicant has proven, on a balance of probabilities, that the treatment plan for occupational therapy services is partially reasonable and necessary.

7To receive payment for a treatment and assessment plan under sections 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.

8The OCF-18 completed by occupational therapist ("OT") Lauren Schwalm, dated November 9, 2020, seeks the following:

i. Line 1: Med/Rehab – initial assessment in the amount of $200.00;

ii. Line 2: Assessment, environment (15 hours) in the amount of $1,496.25;

iii. Line 3: Travel time (1 hour) in the amount of $99.75; and

iv. Line 4: Assessment, environment (1.5 hours) in the amount of $149.63.

9The November 24, 2024 explanation of benefits ("EOB"), indicates that the respondent approved Line 1 and Line 3, in full. The respondent partially approved Line 2, in the amount of $698.25, and denied Line 4.

10The goals of the treatment plan were to assess the applicant's current level of functioning, safety, and independence with her pre-collision activities of normal living within her home and community environment.

11The applicant submits that the respondent denied the portion of the treatment plan in relation to the assessment for attendant care needs to be conducted by the occupational therapist. The applicant submits that the respondent only approved seven hours at $99.75/hour ($698.25). The applicant submits that this denial was improper pursuant to s. 25(5)(a) of the Schedule, in that an insurer is not required to pay over $2,000.00 for any assessment. The applicant argues that the proposed assessment fell well below the maximum threshold.

12The respondent submits that the treatment was partially approved in the amount of $698.25 because an insurer is not required to pay for services that exceed the maximum rate under the Guidelines. The respondent argues that the proposed time that was spent by occupational therapist, Sydney Thomas, on the assessment totalled six hours, and the additional time spent was on ancillary tasks, and are therefore not payable. The respondent also submits that the item listed at Line 4, in the amount of $149.30 for "supervision costs" are not payable.

13While the respondent directs me to email correspondence of occupational therapist, Sydney Thomas and insurer representative, Christine Raon, between January 12, 2021, and January 14, 2021, I am not pointed to a clear breakdown of Sydney Thomas's services. I appreciate that the Guidelines prescribe the maximum fee for occupational therapists at $99.75 for non-catastrophic impairments, however, the Guideline does not speak to maximum amount of time that an occupational therapist can spend on assessment or services of an insured. The Guideline does refer to s. 25(5) of the Schedule, which prescribe a maximum fee of up to $2,000.00 for any one assessment or examination.

14The applicant argues that the assessment was treated as if it was for occupational services, rather than a fulsome in-home assessment to determine attendant care needs. The OCF-18 indicates in the additional comments section that "the completion of an occupation therapy assessment is required to identify occupation performance and participation issues related to [the applicant's] injuries." I agree with the applicant's position and find that the OCF-18 is clear in its language of the treatment goals that it sought to assess the applicant's level of functioning, rather than provide occupational services, at that time. The respondent does not make submissions with respect to why the ancillary fees would not payable. As such, I find that the total cost of the assessment falls short of the maximum payable pursuant to s. 25(5) of the Schedule, and as such, I find that the total amount of $1,496.25 for the time spent completing the occupational therapy assessment to be reasonable and necessary.

15However, it is unclear what is meant by "Line 4: Assessment, environment". The OCF-18 does not provide a clear explanation for this line item. The EOB, however, states that it is for "supervision by a Senior OT for questions & answer with assessor, report review, etc." The applicant does not make submissions with respect to the reasonableness or necessity of this line item, and I am not pointed to evidence that would confirm the purpose of this line item. As such, I find that there is insufficient information to make a determination with respect to whether this good or service is reasonable or necessary.

16Given the above, I find that the applicant has proven, on a balance of probabilities, certain portions of the unapproved OCF-18 for occupational services is partially reasonable and necessary. The applicant is entitled to the full amount of the goods and services listed at Line 2: "Assessment, environment," but is not entitled to the goods and services listed at Line 4: "Assessment, environment."

The applicant is partially entitled to assistive devices

17I find that the applicant has proven, on a balance of probabilities, that the treatment plan for assistive devices is partially reasonable and necessary.

18The OCF-18 completed by OT, Sydney Thomas, dated November 19, 2020, sought the following:

Line Number	Description	Proposed Amount	Amount Approved	Balance
1	Education, promoting health and preventing disease (1.5 hours)	$149.63	$0.00	$149.63
2	Sammons Sure hand rocker knife	$29.99	$0.00	$29.99
3	Electric can opener	$34.99	$34.99	$0.00
4	VitaCare full length body posture pillow	$69.99	$69.99	$0.00
5	Long handled bath brush	$14.99	$0.00	$14.99
6	Cast protector - arm	$16.99	$0.00	$16.99
7	Long handled rake and pan poop scoop	$49.99	$0.00	$49.99
8	Delivery to Grimsby	$35.00	$35.00	$0.00
9	PPE for provider	$27.00	$0.00	$27.00
10	PPE for client	$27.00	$0.00	$27.00
11	Cutting board – Guide with spikes	$41.99	$0.00	$41.99
12	Long handled metal shoe horn	$11.99	$0.00	$11.99
13	Long handled reacher	$14.99	$0.00	$14.99
14	Provider travel time	$448.86	$448.86	$0.00
15	Education, promoting health and preventing disease (21 hours)	$2,094.75	$1,396.50	$698.25
16	Med/Rehab – initial assessments for OCF-23 and OCF-18	$200.00	$200.00	$0.00

19The treatment plan identifies goals of providing psychoeducation related to the applicant's "OPIs," as well as the provision of assistive devices to promote a return to active living.

20The applicant submits that the s. 44 OT report of Lisa Slapinski, dated February 17, 2021, which was relied upon by the respondent in making its determination with respect to the proposed assistive devices contains several inconsistencies. The applicant argues that the unapproved devices are mainly denied based on remarks made by the applicant, and the assessor failed to consider how repeated tasks, or the use of the applicant's wrist and hand over time, would become increasingly difficult. As such, the applicant submits that the assistive devices are reasonable and necessary to avoid increased strain on her injuries and to assist with her right hand/wrist impaired level of functioning.

21The respondent submits that the applicant has failed to prove that these items are reasonable and necessary. The respondent argues that the onus is on the applicant, and she has not provided expert evidence to contradict Ms. Slapinski's opinion.

22In the s. 44 OT report dated February 17, 2021, Ms. Lisa Slapinksi indicates that the additional comments for the explanation of Line 1: education, promoting health and preventing disease, are unclear and therefore cannot be reasonable and necessary. The OCF-18 described Line 1 as "consultation and collaboration of clinical practices and activities." I agree with the respondent and find that this is a vague and undescriptive statement of services. The applicant does not make any specific submissions with respect to Line 1, or how it would support in the overall treatment goals of the proposed plan. As such, I find that Line 1: education, promoting health and preventing disease to not be reasonable and necessary.

23With respect to the goods listed as Line 2: the rocker knife, and Line 11: cutting board, the report of s. 44 OT, Lisa Slapinski, indicates that the applicant may have benefited from this when she was casted, however, the applicant reported that she does not think they are something she will use at this time. Moreover, Ms. Slapinski notes that Line 6: cast protector, is no longer needed as the cast has been removed. It is clear from Ms. Slapinski's report that at or around the time the proposed OCF-18 was completed, the applicant was wearing a cast. While I can appreciate that the respondent argues that these items are no longer needed, due to the fact the applicant is no longer casted, the reasonableness and necessity of medical/rehabilitation benefits are to be considered at the time that they were submitted for consideration by the respondent. In the present case, the respondent requested that the applicant undergo an insurer's examination in order to make a determination for these proposed benefits. The applicant subsequently attended the insurer's examination months later, on February 17, 2021, with OT, Lisa Slapinski. Between the submission of the treatment plan and the s. 44 assessment, the applicant's cast was removed. The applicant having her cast removed before the s. 44 OT assessment does not negate her need for the listed goods and services at the time the proposed items were requested. As such, I find that the proposed goods listed as Line 2, Line 11, and Line 6, are reasonable and necessary.

24Ms. Slapinski's report indicates that the applicant already possessed a long handled bath brush. The applicant does not make any submissions with respect to this line item, or the need for an additional long handled bath brush. I agree with the respondent and find that the Line 5: long handled bath brush would therefore be duplicative, and the applicant is not entitled to this amount.

25Ms. Slapinski further reported that the applicant presented with the necessary range of motion, strength and tolerance, to complete tasks that would require a long-handled rake and pan poop scoop as requested at Line 7. The applicant was also observed to put on her shoes without difficulty (with respect to Line 12: long handled metal shoe horn), and the applicant was observed to perform high and low access (with respect to the Line 13: long handled reacher). Section 25 OT assessment report of Sydney Thomas dated November 24, 2020, reports that the applicant was able to reach overhead with both arms, albeit with pain in the right shoulder. The applicant was observed to adequately reach into high and low cupboards with her left arm and hand, as she was advised to keep her right casted arm in a sling and only use for light activities. As such, I find that the goods listed as Line 7, long handled rake and pan poop scoop, at Line 12, long handles metal shoe horn, and at Line 13, long handled reacher, are not reasonable and necessary because even if provided, the applicant would likely only be using this assistive device with her left-hand, of which she was observed to have functional ability.

26The respondent argues that Line 9/10: PPE should be incurred by the provider to maximize available medical and rehabilitation funds. I agree with the respondent's position and refer to the Guideline which state that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms. While the applicant argues that it was the height of the COVID-19 pandemic at the time of the assessment, I find that PPE was an "expense related to professional services" as referred to in the Schedule, and, therefore, is not reasonable and necessary.

27Lastly, with respect to Line 15: education, promoting health and preventing disease, Mr. Slapinksi recommended six OT sessions at 90 minutes each, in the amount of $897.75, and five hours for documentation, research, and consultation in the amount of $498.75, for a total of $1,396.50. Ms. Slapinski rationalizes the partial approval by indicating that her "assessment was done on Feb. 8, 2021 and the examinee has had some time to recover and adjust to her MVA related injuries." Ms. Slapinski further noted that at the time of the s. 44 assessment, the applicant has had some improvement in her engagement with self-care, pain, sleep, dog walking, and household tasks, however, the applicant has not returned to her pre-accident level of function. As stated above, the reasonableness and necessity of medical/rehabilitation benefits are to be considered at the time that they were submitted for consideration by the respondent. At the time that the assistive devices were proposed, Ms. Slapinski notes that the applicant's injuries were "very acute." As such, I find that it is more probable than not that the full amount of the proposed services are reasonable and necessary, given the applicant's limitations and injuries at the time that the proposed treatment was requested.

28Given the above, I find that the applicant has proven, on a balance of probabilities, that the treatment plan for assistive devices is partially reasonable and necessary. The applicant is entitled to the full amount of the goods and services listed as Line 2: the rocker knife, Line 6: cast protector, Line 11: cutting board, and Line 15: education, promoting health and preventing disease, however, is not entitled to the goods and services listed as Line 1: education, promoting health and preventing disease, Line 5: long handled bath brush, Line 7: long handled rake and pan poop scoop, Line 9/10: PPE, Line 12: long handled metal shoe horn, and Line 13: long handled reacher.

The applicant is not entitled to physiotherapy services

29I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan for physiotherapy services is reasonable and necessary.

30The OCF-18 for physiotherapy services, completed by OT Sydney Thomas, dated March 25, 2021, seeks funding for the following:

Line Number	Description	Proposed Amount	Amount Approved	Balance
1	Exercise, multiple body sites (3 hours) Described as: initial report writing	$299.25	$0.00	$299.25
2	Exercise, multiple body sites (3 hours) Described as: medical documentation review, planning research, and communication	$299.25	$0.00	$299.25
3	Provider travel time (8 hours) Described as: provider time to and from clients home	$798.00	$0.00	$798.00
4	Exercise, multiple body sites (8 hours) Described as: physiotherapy assessment, treatment, preparation, screening, documentation	$1,396.48	$798.00	$598.48
5	Med/Rehab – includes initial assessment for OCF-23 and OCF-18 Described as: OCF-18 completion, review, certification, and approval	$200.00	$200.00	$0.00
6	Exercise, multiple body sites (1.5 hours) Described as: consultation and collaboration of clinical activities	$195.00	$0.00	$195.00

31The OCF-18 identifies treatment goals of pain reduction, increased range of motion, increase in strength, and to return to activities of daily living. The OCF-18 also indicates that physiotherapy services are recommended to evaluate the applicant's physical function and to facilitate the recovery of her right wrist.

32The respondent approved Line 5 in full, partially approved Line 4, in the amount of $798.00, and denied Lines 1, 2, 3, and 6.

33The applicant submits that physiotherapy is important for her ongoing function and pain relief and the number of sessions are reasonable and necessary to recuperate the use of her hand. The applicant submits that the denied items (both in full and in part) at Lines 1, 2, 3, 4, and 6 are reasonable and necessary as they are required elements of the "associated colleges" for provision of the proposed services. The applicant further argues that the Tribunal has found documentation and brokerage fees to be reasonable and necessary, citing H.R v Intact Insurance Company, 2023 CanLII 56030 (ON LAT) ("H.R.").

34The respondent submits that the Tribunal has concluded ancillary items such as "dispensing service" should not be payable, citing Almasalmah v Travelers Insurance, 2024 CanLII 2645 (ON LAT). The respondent further submits the amounts in excess of the applicable hourly rate are not payable and provider time is not payable, relying on Zhu v The Co-operators General Insurance Company, 2023 CanLII 139 (ON LAT).

35Given the further explanation of the proposed goods and services, I agree with the respondent's position with respect to Line 4 and find that amounts in excess of the rates determined by the Guideline are not reasonable and necessary. The respondent partially approved eight one-hour sessions of physiotherapy services at $99.75/hour in accordance with the maximum hourly rate for non-catastrophic impairments for occupational therapists pursuant to the Guideline. Moreover, the Guideline also stipulate that the maximum fees payable for the completion of an OCF-18 such as services provided by the health practitioner in order the complete said form, including any assessment or examination necessary for the purpose of that review and approval by the heath practitioner, to be $200.00. As such, I find that the 'assessment, preparation screening, and documentation' services of Line 4 to duplicative of the approved item in Line 5: completion of the OCF-18. Accordingly, the item listed at Line 4 is not reasonable and necessary.

36While both parties rely upon several Tribunal decisions, I am not bound by those decisions. I am not persuaded by the applicant's reliance on H.R. where it was found that brokerage fees are payable. H.R. is distinguishable from the present case as the applicant in H.R. was catastrophically impaired whereas the applicant in this matter has no such designation.

37I also find that the language used to describe the services listed in Lines 1, 2, and 6, to be vague. These services are listed as "report writing, medical documentation review, planning research, and communication, and consultation, and collaboration of clinical activities." Without further explanation, I find Lines 1, 2, and 6 to be "expenses related to professional services" as referred to in the Schedule, and therefore not reasonable and necessary. I refer to the Guideline of which states that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms. While the applicant argues that these services are required elements in preparing the proposed services, I find that these services are duplicative of the services required to complete the OCF-18, which has been already approved by the respondent.

38Lastly, I am not persuaded by the applicant's position that transportation fees at the hourly rate of a physiotherapist pursuant to the Guidelines are reasonable and necessary. While I appreciate that the applicant has argued that she is unable to drive due to her accident-related injuries, there is no requirement in the Schedule for an insurer to pay for the travel time of treatment providers. Section 25(4) of the Schedule states that the insurer shall pay reasonable expenses incurred by or on behalf of an insured person for authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination. There is no obligation for the respondent to pay for the treating practitioners travel expense.

39Given the above, the applicant has not proven, on a balance of probabilities, that she is entitled to the denied portions of the treatment plan for physiotherapy services.

The applicant is not entitled to a driving rehabilitation assessment

40I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for driving rehabilitation is reasonable and necessary.

41The OCF-18 completed by OT Sydney Thomas, dated November 19, 2020, seeks funding for a driving rehabilitation assessment and the OCF-18 form completion. The goals of the OCF-18 are to identify and evaluate driving concerns and make treatment recommendations to remediate the identified concerns.

42The applicant submits that the applicant experienced passenger and driver anxiety, identified in the OT report of Sydney Thomas, dated November 24, 2020. The applicant argues that driving rehabilitation is reasonable and necessary where medical practitioners are consistent in showing the applicant experienced symptoms of driving anxiety overtime, citing 17-006108 v Unifund Insurance Company, 2018 CanLII 110931 ("17-006108").

43The respondent submits that the evidence indicates that the applicant's inability to drive was due to her right wrist fracture, rather than an 'emotional' impairment, relying on the s. 44 psychology assessment report of Dr. Mohammad Nikkhou, dated March 9, 2021.

44The report of Dr. Nikkhou, dated March 9, 2021, states that the applicant "has not driven mainly due to her right wrist limitation, but she does not feel any emotional or cognitive difficulties with driving anymore." Dr. Nikkhou further reports that the applicant stated that she does not need driving rehabilitation. I acknowledge that s. 25 OT, Sydney Thomas, in her report dated November 24, 2020, reported the applicant experiences driver and passenger anxiety. However, there must be compelling and contemporaneous evidence around the date that the proposed plan was submitted to the respondent for consideration that substantiates the need for the driving assessment. The applicant has not pointed me to any compelling evidence, other than the report and subsequent OCF-18 of OT Sydney Thomas, that comments on psychological impairment with respect to driving.

45Moreover, 17-006108 is distinguishable from this matter, as the applicant has not directed me to evidence that substantiates symptoms of driving anxiety over a period of time that would require a driving rehabilitation assessment, as there was in 17-006108. The respondent points me to a CNR of physiotherapist, Emily Rijgersberg, which indicates on May 5, 2021, that the applicant "denied any anxiety with driving at this time – other than the odd time a car comes towards her quickly." Together with the report of s. 44 psychologist, Dr. Nikkhou, I am not persuaded that the applicant has displayed symptoms of psychological impairment over time that would warrant the proposed driving rehabilitation assessment.

46As such, I find that that applicant has not proven, on a balance of probabilities, that the proposed treatment plan for driving rehabilitation assessment is reasonable and necessary.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As such, the applicant is entitled to interest for the amounts found reasonable and necessary within the treatment plans for occupational services and assistive devices.

ORDER

48I find that:

i. The applicant is partially entitled to the occupational therapy services, plus interest;

ii. The applicant is partially entitled to the assistive devices, plus interest;

iii. The applicant is not entitled to the physiotherapy services; and

iv. The applicant is not entitled to the driving rehabilitation assessment.