Livesey-Morton v. Aviva Insurance Company of Canada, 2024 CanLII 28825

Citation: Livesey-Morton v. Aviva Insurance Company of Canada, 2024 ONLAT 22-003058/AABS

Licence Appeal Tribunal File Number: 22-003058/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:

Karen Livesey-Morton

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Raymond Selbie

APPEARANCES:

For the Applicant:

Rebbecca Phillips, Counsel

For the Respondent:

Andrea Bandow, Counsel

HEARD:

In writing

OVERVIEW

1Karen Livesey-Morton, the applicant, was involved in an automobile accident on November 26, 2019, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute are:

i. Is the applicant entitled to $4,619.44 ($6,714.69 less $2,095.25 approved) for occupational therapy services, proposed by Asma Malik OT at Ross Rehabilitation in treatment plan/OCF-18 (“plan”) dated March 12, 2021?

ii. Is the applicant entitled to $22,376.45 for other goods and services, proposed by Ross Rehabilitation in a plan dated September 27, 2021?

iii. Is the applicant entitled to $3,965.11 for other goods and services proposed by Ross Rehabilitation in a plan dated November 17th, 2021?

iv. Is the applicant entitled to $65.63 for other goods in an expense claim form//OCF-6 dated December 22, 2021?

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

RESULT

3I find that the applicant is entitled to the occupational therapy services described in paragraph 2(i) above and the goods and services in paragraphs 2(iii), 2(iv) above together with interest pursuant to s. 51 of the Schedule.

The applicant is not entitled to the goods and services in paragraph 2(ii) above.

ANALYSIS

Medical and Rehabilitation Benefits

4Sections 14, 15 and 16 of the Schedule provide that an insurer is liable to pay for incurred medical and rehabilitation expenses that are reasonable and necessary as a result of the accident.

The applicant is not entitled to $22,376.45 for other goods and services proposed by Ross Rehabilitation

5The applicant submitted a treatment plan (OCF-18) dated September 27, 2021, and prepared by Natalie Heath of Ross Rehabilitation in the amount of $22,376.45 for replacement household services and labour left incomplete as a result of the death of the applicant’s husband. This request was for activities and tasks that the applicant’s husband would have completed; the goal being a return to normal living. The applicant was diagnosed in the insurer examination as having a major depressive disorder and the unfinished work of her late husband is a constant reminder of his death thus furthering her acute grief. The respondent submits that the disputed expenses for home property maintenance and renovations as well as other labour are not provided under s.15 or s.16 of the Schedule. Further, home maintenance benefits are only available under s. 23 of the Schedule for persons who are catastrophically impaired or under s. 28 of he Schedule as optional benefits that must be purchased in an insurance policy. The respondent submits the applicant is not catastrophically impaired and did not purchase optional benefits, and is therefore not entitled to the benefit.

6The onus on the applicant requires proof on the balance of probabilities that the home modifications fall under s.16(3)(i) of the Schedule. I find the home renovation expenses are part of the regular replacement and upgrade of fixtures associated with maintaining a house/property. The applicant did not provide an opinion from a treating professional recommending the disputed expenses because of the accident. The applicant has not presented evidence that the disputed expenses were incurred within the definition of s. 3(7)(e) of the Schedule and I therefore I find that these expenses do not meet the criteria and are to be denied.

The applicant is entitled to $4,619.44 for occupational therapy proposed by Asma Malik OT of Ross Rehabilitation

7The applicant submitted a treatment plan (OCF-18) completed by Asma Malik of Ross Rehabilitation dated March 12, 2021, for occupational therapy planning and documentation time, travel time, exercise equipment, delivery and installation of exercise equipment and an exercise app to assist the applicant in returning to her activities of normal living. The respondent sent the applicant for an Insurer’s Examination and partially approved the treatment plan. The respondent relied upon the opinion of Lisa Slapinski, an occupational therapist to partly approve the treatment plan but denied that portion that included expenses for exercise equipment which the disputed plan indicates is a treadmill as well as delivery and installation fee for the equipment and exercise app/online membership.

8Lisa Slapinski agreed that exercise is an important component for mental health but that the treadmill would promote increased isolation which was counterproductive to the applicant’s recovery. Lisa Slapinski further pointed out that the applicant possessed similar equipment that she was not using at the time of her assessment and opined that the treadmill would receive the same use.

9Sections15(1) (f) and (h) of the Schedule approve assistive devices which are reasonable and necessary for treatment of injuries sustained by the applicant in the accident. These include recovery from mental health issues resulting from the accident. The treatment plan from Asma Malik of Ross Rehabilitation as well as the findings of the insurer’s examination by Lisa Slapinski confirm the benefit of physical exercise in the applicant’s recovery therapy.

10Sections 14-16 of the Schedule provide that an insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as a result of the accident and the expense of the incurred benefit is reasonable and necessary. I find these expenses meet these criteria.

The applicant is entitled to $3,965.11 for other goods and services proposed by Ross Rehabilitation

11The applicant submitted a treatment plan (OCF-18) completed by Natalie Heath of Ross Rehabilitation dated November 17, 2021, for a computer and printer to facilitate the applicant’s completion of her web design certification. The applicant submitted that the computer and printer were required to complete the previously approved web design course. The applicant’s printer no longer worked and her computer was too slow to properly facilitate the completion of the course. The respondents denied the treatment plan on the basis that the applicant had failed to meet the onus to prove that the expenses are reasonable and necessary. The respondents however paid for the 5th and final course which had been commenced by the applicant prior to the accident. The respondent’s insurer examiner Lisa Slapinski OT confirmed that the applicant required occupational therapy to facilitate function including building a new routine to help identify her personal strengths, support for meaningful activity, goal setting, sleep hygiene and healthy coping strategies.

12I find that given the respondent’s approval of the applicant finishing the course and the applicant’s evidence showing that a workable printer and up to date computer would be required to complete the course, it would be contrary to reason and necessity to expect the completion without the tools required. I find that the pursuant to s. 14-16 of the Schedule, the plan was reasonable and necessary.

The applicant is entitled to $65.63 for other goods and services n an OCF-6 dated December 22, 2021

13An OCF-6 dated December 22, 2021, was submitted by Natalie Heath for reimbursement of the applicant’s payment for a textbook relating to the web design course that the respondent had approved. The applicant submitted that the textbook is required to complete the approved 5^th and final course in the web design course and as such, it is part and parcel of the approval as it is an essential requirement of the course. The respondent submitted that the textbook is not provided for under s.15 or s.16 of the Schedule and the applicant has not adduced evidence that it is reasonable or necessary.

14I find that given the approval by the respondent of the 5^th and final course of the web design course, and the applicant’s evidence that the textbook is an integral part of that completion, it is reasonable and necessary for the applicant to be reimbursed for the textbook required to complete the approved course.

Interest

15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the approved plans.

ORDER

16I find and order that:

i. The applicant is entitled to $4,619.44 ($6,714.69 less $2,095.25 approved) for occupational therapy services proposed by Asma Malik OT at Ross Rehabilitation in treatment and assessment plan/OCF-18 (“plan”) dated March 12, 2021.

ii. The applicant is not entitled to $22,376.45 for other goods and services proposed by Ross Rehabilitation in a plan dated September 27, 2021

iii. The applicant is entitled to $3,965.11 for other goods and services proposed by Ross Rehabilitation in a plan dated November 17, 2021.

iv. The applicant is entitled to $65.63 for other goods and services in an OCF-6 dated December 22, 2021.

v. The applicant is entitled to interest on any overdue payments of benefits.