Terrio v. Aviva Insurance Company, 2024 CanLII 41013

Citation: Terrio v. Aviva Insurance Company, 2024 ONLAT 21-011711/AABS

Licence Appeal Tribunal File Number: 21-011711/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:

Miranda Terrio

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Sabrina Seibel, Counsel

For the Respondent: Cara Boddy, Counsel

HEARD: By way of written submissions

OVERVIEW

1Miranda Terrio, the applicant, was involved in an automobile accident on January 28, 2018, 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 Aviva 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:

i. Is the applicant entitled to $5,420.00 for psychological services, proposed by Helen Leimonis, Occupational Therapist, in a treatment plan/OCF-18 (“plan”) dated November 17, 2020?

ii. Is the applicant entitled to $1,571.31 for assistive devices (laptop and office chair, pillows), proposed by Michelle Hayes, Occupational Therapist, in a plan dated November 30, 2020?

iii. Is the applicant entitled to $3,142.31 ($5,576.75 less $2,434.44 approved) for assistive devices (mattress), proposed by Michelle Hayes, Occupational Therapist, in a plan dated March 24, 2021?

iv. Is the applicant entitled to $897.75 ($3,332.19 less $2,434.44 approved), for occupational therapy, proposed by Michelle Hayes, Occupational Therapist, in a plan dated April 16, 2021?

v. Is the applicant entitled to $2,200.00 for an occupational therapy functional assessment, proposed by Michelle Hayes, Occupational Therapist, in a plan dated April 14, 2022?

vi. Is the applicant entitled to $4,130.19 for occupational therapy treatment and services, proposed by Michelle Hayes, Occupational Therapist, in a plan dated April 14, 2022?

vii. Is the applicant entitled to $2,941.57 for a chronic pain assessment, proposed by Michael DeGroote Pain Clinic, in a plan dated June 22, 2022?

viii. Is the applicant entitled to $7,765.76 for psychological treatment, proposed by Helen Leimonis, Occupational Therapist, in a plan dated July 26, 2022?

ix. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to $5,420.00 for psychological services, proposed in a treatment plan/OCF-18 (“plan”) dated November 17, 2020.

4The applicant is not entitled to $1,571.31 for assistive devices.

5The applicant is not entitled to $3,142.31 for assistive devices (a Tempur-Pedic mattress).

6The applicant is not entitled to $897.75 ($3,332.19 less $2,434.44 approved), for occupational therapy.

7The applicant is not entitled to $2,200.00 for an occupational therapy functional assessment.

8The applicant is not entitled to $4,130.19 for occupational therapy treatment and services.

9The applicant is not entitled to $2,941.57 for a chronic pain assessment.

10The applicant is not entitled to $7,765.76 for psychological treatment.

11The applicant is not entitled to interest on overdue payments of benefits pursuant to s. 51 of the Schedule.

12The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

13The application is dismissed.

ANALYSIS

Are the Treatment Plans for psychological services, proposed by Helen Leimonis, in a treatment plan/OCF-18 (“plan”) dated November 17, 2020, and July 28, 2022, a reasonable and necessary expense?

14I find that the applicant has failed to meet her burden which is proving that her psychological impairments were caused by the accident or that her pre-existing psychological conditions were exacerbated by the accident. The treatment plans proposing psychological services are not reasonable and necessary, as a result of the accident, because the evidence shows that the applicant’s psychological impairments were pre-existing and were not caused by the accident nor exacerbated by it. Having reviewed the pre-accident clinical notes and records (“CNRs”) of the applicant’s Family Physician, Dr. Allison J. MacTavish, and the Insurance Examination (IE) Psychiatric Examination report of Dr. Bruce Ballon and the IE Psychological Examination report of Dr. T. Semple, I find that the applicant has not provided sufficient evidence that her pre-existing psychological conditions were exacerbated by the accident. By reason of the applicant failing to show that the accident affected her pre-accident psychological condition, I find that the two treatment plans recommending psychological therapy are not reasonable and necessary.

15To 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.

16The Tribunal has held that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment: See SY and Aviva, 2017 CanLII 63263 (ON LAT), at paragraph 19.

17The applicant is entitled to the medical and rehabilitation benefits recommended by a treatment plan only in the event that the accident caused the impairments to which the plan is directed. Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878 confirm that the default test for determining causation in accident benefit cases is the “but for” test. In this case, the parties agree that the applicant bears the onus of establishing, on a balance of probabilities, that she has met the “but for” test.

18There are two treatment plans directed at Critical Trauma therapy, recommended by Helen Leimonis, dated November 17, 2020, and July 28, 2022. The treatment plan dated November 17, 2020, has as its goals, addressing psycho-social and psycho-emotional impairments caused by the accident, the establishment of coping strategies and a return to the activities of normal living. The OCF-18 recommending Critical Trauma Therapy, dated July 28, 2022, in the amount of $7,765.76, has similar goals to the OCF-18 dated November 17, 2020.

19The applicant argues that she developed psychological impairments as a result of the accident including her cognitive impairment, depression and anxiety. The applicant relies on the CNR’s of Dr. A. MacTavish where she submits that she is diagnosed with anxiety and depression. The applicant also relies on the Occupational Therapy Functional Assessment of Michelle Hayes, Occupational Therapist, dated March 16, 2018. The respondent submits, and I agree, that the applicant’s statements that the accident caused her psychological impairments, are otherwise contradicted by pre-accident documentary evidence and during the course of the IE examinations of Dr. Bruce Ballon and by Dr. T. Semple. In addition, the applicant made statements to Dr. Bruce Ballon, elsewhere contradicted in her Ontario Support Disability Plan (ODSP) file.

20The applicant stated to Dr. Bruce Ballon that she did not take any medication to address psychological impairments before the accident which is elsewhere contradicted in the medical evidence. The applicant described to Psychiatrist, Dr. Ballon, for the purpose of his Insurance Examination, that she was prescribed Percocet and Oxycontin to address back pain following an injury on August 16, 2016. However, the applicant denied to Dr. Ballon being prescribed any medication to address mental health issues pre-accident. In addition, the applicant stated to Occupational Therapist, Ms. Michelle Hayes, in the occupational therapy functional assessment, that she had been prescribed the mood stabilizer Effexor to address anxiety before the motor vehicle accident. Significantly the applicant’s statements made on February 24, 2017, to Community and Social Services, describe her suffering severe depression and being psychiatrically hospitalized for one to three weeks pre-accident. She represented to Community and Social Services that she has taken “lots of different drugs for depression.”

21The respondent submits that the available evidence overwhelmingly supports that the applicant had psychological impairments pre-accident and that the accident did not aggravate her pre-existing conditions. The respondent relies on the IE Psychiatry Assessment of Dr. Bruce Ballon, where Dr. Ballon opines that the applicant’s psychological impairments pre-existed the accident. Dr. Ballon opines that previous to the accident, from a psychiatric perspective, the applicant was unable to work because of chronic pain. Dr. Ballon describes that Med file relates pre-accident stressors including an abusive relationship with the applicant’s partner, in addition to opiate use to address chronic pain.

22As stated, before the accident, the applicant experienced general anxiety disorder for which she received prescriptions of Effexor and Benzodiazepines. Psychologist, Dr. T. Semple notes in his IE psychological assessment that the applicant’s pre-accident history includes degenerative spine conditions, chronic pain, substance abuse, depression, and anxiety, in addition to the applicant’s reported pre-accident memory difficulties which resulted in inconsistencies in the applicant’s account of events to Dr. Semple, both before and after the accident. Based on the applicant’s pre-accident history of psychiatric and psychological impairments, Dr. Semple was unable to opine that the accident caused or in any way aggravated the applicant’s psychological condition.

23Having reviewed the evidence, I agree with the respondent that the evidence does not support a finding that the applicant’s psychological conditions extant pre-accident, were exacerbated by the accident. The respondent submits that considering both Dr. Ballon’s opinion and the opinion of Dr. Semple, as set forth in their IE reports, there is insufficient evidence that the accident caused or exacerbated the applicant’s psychological condition or that the treatment plans for psychological services are reasonable and necessary.

24I agree with the respondent’s submission that neither of the two treatment plans acknowledge or address the applicant’s pre-existing medical history. The evidence shows the applicant prescribed medication to address psychological and psychiatric impairments pre-accident. Dr. Ballon and Dr. Semple found no basis for any diagnoses of a psychiatric or psychological impairment caused or exacerbated by the accident. The respondent submits, and I agree, that the evidence shows that by reason of pain, the applicant was unable to work pre-accident, in addition that the applicant was being actively treated for depression and anxiety, within one month before the accident, as stated in the CNRs of Dr. MacTavish, despite the applicant’s statements to the contrary. The applicant has provided insufficient evidence to meet her burden to show that the accident aggravated her psychiatric or psychological condition or that the two treatment plans for psychological services are reasonable and necessary.

25As stated, I find that the applicant has failed to meet her burden to show that the treatment plans proposing psychological services are reasonable and necessary, because the applicant was unable to demonstrate that the accident exacerbated or caused any changes to her psychological condition. I find that the evidence submitted does not support the applicant’s position with respect to causation by reference to the CNR’s of Dr. MacTavish. The CNRs of Dr. MacTavish describe pre-accident psychological and psychiatric conditions treated with medication to address depression and anxiety, in addition the documentary evidence in the applicant’s ODSP file shows evidence of significant psychological and psychiatric impairments as submitted to Community and Social Services. By reason of the applicant failing to show that the accident affected her pre-accident psychological condition, I find that the two treatment plans recommending psychological services are not reasonable and necessary and I find that the applicant is not entitled to payment of the two treatment plans.

Is the Treatment Plan in the amount of $2,941.57 for a chronic pain assessment, proposed by Michael DeGroote Pain Clinic, in a plan dated June 22, 2022, a reasonable and necessary expense?

26I find that the applicant has failed to meet her burden proving that her chronic pain or the exacerbation of her chronic pain, resulted from the accident. The treatment plan proposing a chronic pain assessment is not reasonable and necessary, by reason of the applicant failing to show that the accident was a cause of her chronic pain. The applicant’s chronic pain was reported pre-accident in the Ontario Disability Support Program benefits record. In addition, I agree with the opinion of Dr. A. Oshidari, in his August 3, 2022, Insurance Examination, where he opines that a further chronic pain assessment is redundant following the assessment and recommendation of two specialists, Dr. Nadir Aljazrawi and Dr. Ubendranauth Kalicharran. By reason of the applicant failing to show that the accident affected her existing chronic pain, I find that the treatment plan recommending a chronic pain assessment is not reasonable and necessary.

27I agree with Dr. A. Oshidari that a further interdisciplinary assessment would be unnecessarily repetitive without an additional diagnosis by a psychologist or psychiatrist, showing that the applicant’s pre-accident chronic pain was aggravated from a psychological perspective. As stated, in the previous section there is no psychological or psychiatric diagnosis post-accident showing an aggravation of the applicant’s psychological and psychiatric pre-accident symptoms.

28To 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.

29The applicant is entitled to the medical and rehabilitation benefits recommended by a treatment plan only in the event that the accident caused the impairments to which the plan is directed. Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878 confirm that the default test for determining causation in accident benefit cases is the “but for” test. In this case, the parties agree that the applicant bears the onus of establishing, on a balance of probabilities, that she has met the “but for” test.

30The applicant relies on the CNR’s of her family physician Dr. MacTavish, in addition to the OCF-3 completed by Dr. MacTavish, and a chronic pain assessment by Dr. Kalicharran, who the applicant contends offers the opinion that she developed chronic pain because of the accident. The applicant submits that the treatment plan dated June 22, 2022, in the amount of $2,941.57, is reasonable and necessary by reason of the applicant experiencing a worsening of her mental health, in addition to new pain symptoms following the accident and resulting concussion. She submits that the proposed chronic pain assessment offered by the DeGroote Pain Clinic will assist in developing a pain management program with the goal of supporting the applicant.

31I find based on the diagnostic test results and the findings of Dr. Jamsheed Desai, Neurologist, in his IE Assessment, that the applicant’s concussion was low-grade and resolved following the accident within the span of one year as described in the CNRs of Dr. MacTavish. The applicant submits that she was diagnosed with a concussion caused by the accident, verified in the CNRs of Dr. MacTavish, and by Neurologist Dr. Donald Chew. The OCF-3 dated April 4, 2018, by Dr. MacTavish, offers the diagnosis of a concussion resulting in cognitive impairment projected to affect the applicant for three months to potentially a year or more. On September 29, 2019, Dr. MacTavish comments in the CNRs, that the applicant’s concussion symptoms have shown gradual improvement. I note that the CNRs of Dr. MacTavish do not include reference to concussion symptoms affecting the applicant post-accident when she discusses her accident-related symptoms. In addition, a CT scan of the applicant’s lumbar spine and head, dated January 28, 2018, showed no acute fracture. An MRI of the applicant’s brain on March 13, 2018, showed no intracranial abnormality. Dr. Jamsheed Desai, Neurologist, in his IE Assessment, opines that the applicant likely had a low-grade concussion based on her described complaints of ongoing headaches but that her neurological examination was normal.

32As stated, I find based on the diagnostic test results and the findings of Dr. Desai that the applicant’s concussion was low-grade and resolved following the accident within the span of one year as described in the CNRs of Dr. MacTavish. Dr. Donald Chew states the symptoms which the applicant describes, are consistent with a concussion, however, his opinion is based on the applicant’s reported symptoms as opposed to objective diagnostic testing showing the existence of a concussion. As described, diagnostic testing did not reveal a head injury caused by the accident, therefore, beyond the applicant’s description of experiencing headaches, there is insufficient evidence to the effect that the concussion symptoms were anything other than temporary and low-grade as described by Dr. Desai and as set forth in the CNRs of Dr. MacTavish. Dr. Chew describes reservations relating to the applicant’s lifestyle possibly interfering with her recovery from concussion-related symptoms. A CNR by Dr. R. Kimavoch, dated March 20, 2017, describes pre-accident, the applicant addicted to cocaine from the age of thirty-eight, in addition to opiate use for chronic pain.

33The respondent relies on the IE assessment of Dr. A. Oshidari, submitting that it demonstrates that the applicant’s functionality did not change to any measurable extent from her pre-accident level because of the accident. The respondent submits that the clinical notes and records (CNRs) document the applicant’s pre-accident substance abuse, chronic pain, and pre-accident limitations to her functionality. The applicant has pre-existing medical and psychological conditions, that prefigured the accident and which the applicant has failed to demonstrate were exacerbated because of the accident.

34There is considerable pre-accident evidence in the applicant’s file with the Ontario Disability Support Plan, showing the severity of the applicant’s pre-accident chronic pain, physical injuries, psychiatric and psychological impairment. A medical review completed in February 2017, for the purposes of the Ontario Ministry of Community and Social Services, describes the applicant with an impairment of severe pain treated since 2007 with narcotic medication; in addition, the medical review describes the applicant with an addiction to “pain killers” to treat severe back damage. The applicant reports to the Ministry of Community and Social Services, that she can not walk for half a block without her leg giving out. In an ambulatory care report, dated January 12, 2017, the applicant is stated as having a disability with severe radicular pain down her left leg with accompanying back issues, causing the applicant to be unable to work since 2004. In 2017, the applicant describes to Community and Social Services that, by reason of back damage, she can not stand, walk, or sit for long periods of time as a result of broken bones and fractures.

35The CNRs of Dr. MacTavish, diagnostic test results, and the file from Community and Social Services, show the applicant pre-accident addicted to pain medication to address her chronic pain syndrome, and suffering severe psychiatric and psychological impairments. An MRI described by Dr. Charles McCormick, on January 12, 2017, shows the applicant experiencing severe L5-S1 facet joint disease and severe narrowing of the neural foramina. On March 20, 2017, the applicant is described, in a mental health outpatient clinic report, as prescribed opiates for her chronic pain conditions including low back pain, bilateral knee pain, neck and right shoulder pain. The family physician, Dr. MacTavish states pre-accident in the CNRs that the applicant is agitated without Percocet and Clonazepam, with recent drug tests being positive for cocaine use in February of 2017.

36I accord Dr. MacTavish’s correspondence dated September 29, 2019, less probative weight because Dr. MacTavish fails to address how the accident affected the applicant’s pre-accident condition, including her chronic pain. Dr. MacTavish describes in correspondence dated September 29, 2019, that her diagnosis following the accident was whiplash associated disorder of the neck and shoulder with contusions and strain. In her letter dated September 29, 2019, Dr. MacTavish diagnoses the applicant with a concussion, but Dr. MacTavish does not address the applicant’s pre-existing medical history for the purpose of describing how, the accident affected the applicant’s medical condition. For that reason, I place limited weight on the medical opinion offered in the correspondence of Dr. MacTavish. Based on the CNRs, OCF-3, and IE reports, it is accepted that the applicant did experience a low-grade concussion at the time of the accident, however, the low-grade concussion is considered together with the normal neurologic examination by Neurologist Dr. Desai.

37I find that the applicant’s misstatement of the originating cause and source of her chronic pain to Dr. Aljazrawi, results in less evidentiary weight being applied to Dr. Aljazrawi’s findings of causation of the applicant’s chronic pain. Dr. Nadir Aljazrawi describes that the applicant reported chronic back pain because of the accident without referencing the back injury in August 2016, which historically, the applicant describes as triggering her chronic pain. The applicant offers information to Dr. Aljazrawi that her chronic pain originated with the motor vehicle accident, when it is clear from the CNR’s of Dr MacTavish and the records related to the applicant’s Ontario Disability Support Plan benefits, that the chronic pain experienced by the applicant existed for a lengthy period and was treated by opiates and narcotics pre-accident.

38Because Dr. Kalicharran does not opine relating to the role that the accident played in the applicant’s fifteen-year history of chronic pain, for that reason, I place little evidentiary weight on Dr. Kalicharran’s findings. A consultation report and chronic pain assessment by Dr. Ubendranauth Kalicharran, includes mention of the applicant’s fifteen-year history of neck, mid-back, and lower back pain. However, again the applicant attributes her chronic pain exclusively to the motor vehicle accident. Dr. Kalicharran diagnoses the applicant with chronic pain syndrome, but the report is of limited probative value because it fails to address causation, by explaining how the accident may or may not have aggravated the applicant’s self-described severe chronic pain, which the evidence shows was experienced before the accident.

39As stated, I find that the applicant has failed to meet her burden to show that the treatment plan proposing a chronic pain assessment is reasonable and necessary and would not be repetitive following two previous chronic pain assessments; nor has the applicant showed how the treatment plan itself identifies the manner in which the goals of treatment would be met to a reasonable degree or that the overall costs of achieving the goals are reasonable considering that it was not sufficiently established that the accident caused or aggravated the applicant’s existing chronic pain.

40I find that the applicant has failed to meet her burden to show that the treatment plan proposing a chronic pain assessment is reasonable and necessary, because the applicant was unable to demonstrate that the accident was a cause of her chronic pain post-accident. The applicant has not demonstrated that the accident was a necessary cause of her pre-accident condition of chronic pain, which was treated pre-accident with opiate medication. In addition, I agree with the submission of the respondent and the opinion of Dr. Oshidari in his August 3, 2022, Insurance Examination, that a further chronic pain assessment following the assessment and recommendation of two specialists is redundant. Further, I agree with Dr. Oshidari that the request for a further interdisciplinary assessment is not reasonable and necessary because there is no diagnosis by a psychologist or psychiatrist showing that the applicant’s mental health was aggravated, which would be relevant to the question of the applicant’s pre-accident chronic pain condition being affected by the accident. Finally, as stated, the applicant has experienced chronic pain well before the accident treated with opiate pain medication following pre-accident injuries.

Is the Treatment Plan for an occupational therapy functional assessment, proposed in a plan dated April 14, 2022; Treatment Plan for occupational therapy treatment and services dated April 14, 2022; Treatment Plan for occupational therapy, dated April 16, 2021, a reasonable and necessary expense?

41I find that the applicant has failed to meet her burden proving that the two treatment plans dated April 14, 2022, for an occupational therapy assessment and occupational therapy services, would be reasonable and necessary for the purpose of addressing injuries and functional limitations caused by the accident. I am persuaded by the opinion of Dr. Robert G. Josefchak, who opines in his IE Orthopaedic Surgery assessment report dated July 29, 2021, that the applicant has reached maximal medical recovery without any physical impairment caused by injuries sustained in the collision that would result in the services of an occupational therapist being reasonable and necessary. As stated earlier, in the IE assessment of Dr. A. Oshidari, he opines, and I accept, that the evidence clearly demonstrates that the applicant’s functionality did not change to any measurable extent from her pre-accident level because of the accident. Because the applicant’s evidence does not support that the two treatment plans’ methodology and goals are causatively linked to the accident, the two treatment plans are not reasonable and necessary.

42The applicant’s evidence is not sufficiently probative that the accident caused her injuries or functional limitations, rendering the two treatment plans dated April 14, 2022, reasonable and necessary. The evidence in the insurance examinations of Orthopaedic Surgeon, Dr. Victor Naumetz, and Occupational Therapist, Mr. Robert Tyndall, is that the accident had a negligible effect on the applicant’s functionality, cognitive and psychosocial functioning. Orthopaedic Surgeon, Dr. Victor Naumetz, in his IE assessment report dated June 6, 2018, opined that regardless of the accident, the applicant’s level of impaired function existing at the time of the assessment would be the same as it was pre-accident. Dr. Naumetz found that from an orthopaedic perspective that no assistance with personal care activities was warranted for the applicant post-accident. Mr. Robert Tyndall, Occupational Therapist, completed an IE occupational therapy in home assessment in June 2018, where he opines that the accident did not affect the applicant’s range of motion, mobility, strength as well as cognitive and psychosocial functioning nor did the accident affect the applicant’s ability to complete her self-care tasks.

43As previously stated, to 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.

44With reference to the plan dated April 16, 2021, I am not persuaded by the applicant’s submissions and evidence challenging the partial approval by the respondent of the treatment plan, nor the indication that it would be reasonable and necessary to approve the entirety of the plan. The treatment plan for OT services, in the amount of $3332.19, was approved by the respondent in the amount of $2,434.44, following an Insurance Examination by Ms. Lisa Stapinski, Occupational Therapist. Ms. Slapinski determined that the plan’s proposed OT sessions were reasonable and necessary limited to 30 minutes per session, offered remotely, inclusive of documentation and report writing, as opposed to the proposed one-hour sessions to be held as proposed in person. As stated, the respondent approved the plan in the amount of $2,434.44, leaving $897.75 in dispute.

45I am not persuaded by the applicant’s submission because there is no evidence that the applicant’s functioning personal computer, would be inadequate for the purpose of remote sessions, only as submitted, that the applicant would prefer the use of a new lap top computer. The applicant submits that the plan should have been approved in its entirety, as originally proposed with one-hour in person sessions, since remote sessions require access to a computer and the applicant only has the use of her personal computer as opposed to a new replacement lap top computer, which assistive device expense was denied by the respondent; in addition, the applicant submits that her pre-existing conditions complicate her case to such an extent that she requires in person OT services as opposed to remote sessions. In addition, the applicant fails to explain how her pre-existing conditions render remote OT sessions overly complicated and inadequate.

46I find that the respondent partial approval of the plan opined by Occupational Therapist, Lisa Stapinski, is reasonable and necessary since the applicant already references access to a functioning computer available for her use, as referenced in the OT report of Ms. Hayes dated December 2, 2020. In addition, the applicant does not explain in her submissions why the alleged complexity of her pre-existing conditions renders remote sessions unacceptable.

47The applicant submits that the two treatment plans for occupational therapy dated April 14, 2022, are both reasonable and necessary, based on information in the plans identifying goals and methodology for achieving those goals. On April 14, 2022, Ms. Michelle Hayes recommended an OCF-18 proposing an Occupational Therapy Functional Assessment in the amount of $2200.00, and an OCF-18 for occupational services in the amount of $4,130.19. The treatment plans describe that the applicant has issues carrying out her normal activities by reason of chronic neck and back pain in addition to cognitive issues affecting the applicant’s memory and concentration as proposed by Michelle Hayes, to be a result of the accident.

48The applicant relies on the Occupational Therapy Functional Assessment conducted by OT Michelle Hayes, dated March 16, 2018, and the CNRs of Family Physician Dr. MacTavish to prove that she experienced persistent physical, cognitive, and psycho-emotional impairments caused by the accident. The applicant submits in her June 21, 2018, accident benefits statutory declaration that because of the accident, she sustained a concussion, cracked rib, blurred vision, dislocated hip, neck injury, shoulder injury, back injury, hand injury, sleep disturbance, mood changes, sleep walking, vertigo, and memory loss. The applicant submits that post-accident, she has challenges dressing, undressing, grooming, and performing her household chores independently.

49I place less weight on the OT assessment dated March 16, 2018, by Ms. Hayes because it considers only post-accident diagnostic tests and it does not compare, for the purpose of an analysis of causation, the applicant’s pre-accident medical condition. Ms. Hayes states for the purpose of causation that she relied on the applicant’s reporting of her pre-accident condition as opposed to considering diagnostic tests and the pre-accident CNR’s of Dr. MacTavish. In addition, Ms. Hayes opines that the applicant suffered a severe concussion without reference to diagnostic tests which test results do not indicate post-accident head injury.

50The respondent submits that Aviva denied the two treatment plans dated April 14, 2022, based on the findings in the Insurance Examinations of Neurologist, Dr. Jamsheed Desai, and Orthopaedic Surgeon, Dr. Victor Naumetz, and in addition, based on a review of medical records in the Community and Social Services file and the CNRs of the Family Physician, Dr. MacTavish. Dr. Naumetz determined that the applicant’s current level of impaired function at the time of assessment would exist regardless of the accident on January 28, 2018. In addition, Orthopaedic Surgeon, Dr. Robert G. Josefchak opined that no specific physical impairment, resulting from the accident, would make occupational therapy reasonable because, at the time of his assessment, the applicant had reached maximal medical recovery.

51The respondent submits that the two treatment plans dated April 14, 2022, addressing an occupational functional assessment and OT services, fail to consider the applicant’s pre-existing conditions by identifying any pre-existing conditions in Part Seven of the two plans. The respondent submits that the applicant’s medical issues and functionality were unaffected by the accident, in addition, that the two plans’ failure to address the relevant and necessary information regarding the applicant’s pre-existing conditions is a significant omission. In addition, the respondent submits that the applicant has led insufficient evidence to suggest that she progressed because of treatment received from Ms. Hayes and Innovative Occupational Therapy, to warrant further occupational therapy, approximately four years following the accident.

52I agree with the respondent’s submissions based on the findings in the IE examinations of Neurologist, Dr. Jamsheed Desai, and Orthopaedic Surgeon, Dr. Victor Naumetz, which do not support the two treatment plans dated April 14, 2022, being reasonable and necessary. Both the IE assessment of Neurologist, Dr. Jamsheed Desai, and the IE assessment of Orthopaedic Surgeon, Dr. Victor Naumetz, opine that the applicant has failed to show the OT services proposed would be addressing functional limitations caused by the accident. Mr. Robert Tyndall, Occupational Therapist, completed an occupational therapy in home assessment but he deferred findings of causation by reason of the applicant’s pre-existing conditions pending further medical assessment. He opines that the accident did not affect the applicant’s range of motion, mobility, strength, as well as cognitive and psychosocial functioning nor did the accident affect the applicant’s ability to complete her self-care tasks. Mr. Tyndall was of the opinion during the assessment that the applicant was self-limiting, and she is capable of performing, all her self-care activities independently.

53The insurance examinations of Orthopaedic Surgeon, Dr. Victor Naumetz, by Neurologist, Dr Jamsheed Desai and Orthopaedic Surgeon, Dr. Robert George Josefchak, found that the applicant’s level of functionality was unaffected by the accident. Orthopaedic Surgeon Dr. Victor Naumetz, in his IE assessment opined that regardless of the accident the applicant’s current level of impaired function would be the same. Dr. Naumetz, found no clinical indication imposing any restriction on the applicant’s normal activities. Neurologist, Dr Jamsheed Desai in his IE assessment opines that the applicant experienced a low-grade concussion because of the accident. Dr. Desai describes in his assessment that the applicant had a normal neurologic examination, and no neurologic restrictions were discovered in the course of his IE examination. As stated, Dr. Robert George Josefchak opines in his IE assessment that the applicant has reached maximal medical recovery and that from an orthopaedic perspective, Dr. Josefchak was unable to identify any physical impairment as a direct result of the injuries sustained in the collision which would result in the services of an occupational therapist being reasonable and necessary.

54I find that the applicant has failed to meet her burden to show that the two treatment plans dated April 14, 2022, proposing an occupational therapy functional assessment and occupational therapy treatment are reasonable and necessary. In addition, I find that the partial approval in the amount of $2,434.44 of the treatment plan dated April 16, 2021, which was proposed in the amount of $3332.19, is reasonable and necessary as partially approved. Dr. Robert George Josefchak opines in his IE orthopaedic assessment that the applicant has reached maximal medical recovery and Dr. Josefchak was unable to identify any physical impairment as a direct result of the injuries sustained in the collision that would result in the services of an occupational therapist being reasonable and necessary. Orthopaedic Surgeon Dr. Victor Naumetz, in his assessment opined that regardless of the accident the applicant’s current level of impaired function would be the same.

55I find that the medical evidence does not support that the two treatment plans dated April 14, 2022, for an occupational therapy functional assessment and occupational therapy treatment, are reasonable and necessary. I find that the applicant has not provided sufficient evidence demonstrating that the two treatment plans dated April 14, 2022, are reasonable and necessary for the purpose of addressing injuries and limitations necessarily caused by the accident; in addition, I find that the partial approval of the treatment plan dated April 16, 2021, in the amount of $2,434.44, is reasonable and necessary with the partial approval determination, as opined by Occupational Therapist, Lisa Stapinski, in her IE OT assessment.

Is the Treatment Plan for assistive devices (laptop and office chair, pillows), proposed in a plan dated November 30, 2020; and the Treatment Plan for assistive devices (mattress), proposed in a plan dated March 24, 2021, reasonable and necessary?

56I find that the applicant has failed to prove that the treatment plan proposing assistive devices dated November 30, 2020, is reasonable and necessary because the applicant has not demonstrated that the assistive devices are addressing injuries and functional limitations caused by the accident. I find that the partial approval by the respondent, of the treatment plan dated March 24, 2021, is reasonable and necessary, as approved by the respondent, based on the findings in the orthopaedic surgery assessment of Dr. Josefchak, dated July 5, 2021. Dr. Robert G. Josefchak opines in his IE assessment that the applicant has reached maximal medical recovery, in addition, that he is unable to identify any physical impairment as a direct result of injuries sustained in the collision. Orthopaedic Surgeon Dr. Victor Naumetz, in his assessment opined that regardless of the accident the applicant’s current level of impaired function would be the same as it had been before the accident.

57To 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.

58Michelle Hayes, an Occupational Therapist, proposed an OCF-18 for assistive devices (laptop, Head/neck support pillow for the car, cervical pillows, and a high back-office chair) in the amount of $1,581.31. On March 24, 2021, Ms. Hayes proposed an OCF-18/ treatment plan for a Tempur-Pedic mattress in the amount of $5,576.75. The applicant submits that the lap top computer, head/neck support pillow, cervical pillows, high-back-office chair and Tempur-Pedic mattress are reasonable and necessary expenses to address impairments caused by the accident.

59I find that the applicant has not provided sufficient evidence demonstrating that the two treatment plans for assistive devices are reasonable and necessary by addressing injuries caused by the accident or functional limitations which are a result of the accident. The EOB dated May 19, 2021, denies the treatment plan for a lap top computer as not a reasonable and necessary expense based on the findings of Dr. Desai’s neurologic assessment report that the cognitive impairments which the applicant experiences were pre-existing and not caused by the accident. Dr. Naumetz noted that even if the accident had not occurred the level of the applicant’s impaired function would be the same.

60I am persuaded that the Tempur-Pedic mattress proposed by Ms. Hayes is not a reasonable and necessary expense based on the applicant’s stated preference for a less expensive memory foam mattress and in consideration of the IE assessments of Robert G. Josefchak and Dr. Jamsheed Desai. Dr. Josefchak opined that the mattress was not a reasonable and necessary expense because there was no objective physical impairment that the mattress would address caused by the accident. Dr Josefchak opines that the applicant experienced soft tissue injuries as a result of the accident which, following two years of appropriate active therapies and rehabilitation, constituted pre-accident chronic pain as opposed to a chronic pain condition caused by the accident.

61The applicant has not presented sufficient evidence to show that the more expensive Tempur-Pedic mattress is a reasonable and necessary in comparison to what the applicant personally stated to Dr. Josefchak was preferrable, which is a less expensive memory foam mattress. Although, I find that the mattress is not a reasonable and necessary expense based on the medical evidence in the IE assessment of Orthopaedic Surgeon, Dr. Josefchak, and based on the IE report of Neurologist, Dr. Desai, the respondent partially funded the cost of a memory foam mattress as the preferred option expressed by the applicant during Dr. Josefchak’s IE assessment. The applicant stated to Dr. Josefchak that a memory foam mattress was a preferred option that would be suitable to improve her sleep, which insomnia symptom she said developed after the accident. The treatment plan received partial approval by the respondent in the amount of $2,434.44 as opposed to the amount of $5576.75 for the Tempur-Pedic mattress, which was proposed by Michelle Hayes in her plan dated March 24, 2021. Dr. Josefchak opines that the plan by Ms. Hayes is not directly related to orthopaedic injuries sustained in the accident. Dr. Josefchak states in his assessment that the orthopaedic and physical diagnoses in the treatment plan do not justify the need for a special bed because the physical symptoms the applicant is experiencing are not accident related.

62The respondent denied the Tempur-Pedic mattress as a reasonable and necessary expense, however, the respondent offered funding for the less expensive memory foam mattress requested by the applicant during the assessment by Dr. Josefchak. By reason of cognitive diagnoses, as stated and set forth in the plan by the occupational therapist Ms. Hayes, including concussion and sleep disorders, Dr. Josefchak could not offer an opinion pertaining to cognitive issues which are outside his expertise as an Orthopaedic Surgeon. Therefore, Dr. Josefchak was unable to comment on the proposal for the mattress based on the cognitive symptoms beyond stating that from an orthopaedic perspective the mattress would not be capable of addressing an accident-related injury or symptom. I am persuaded by the IE Assessment of Neurologist, Dr Jamsheed Desai, where he opines that the applicant experienced a low-grade concussion as a result of the accident, in addition to her having a normal neurologic examination, with no neurologic restrictions noted in the course of Dr. Desai’s examination.

63The applicant stated that the goals and methodology of the treatment plan for the Tempur-Pedic mattress would be met by a memory foam mattress, and Neurologist, Dr. Desai opines that the applicant did not experience any cognitive impairments caused by the accident which would, therefore, make the use of a mattress to address cognitive effects, reasonable and necessary as proposed by occupational therapist Michelle Hayes. Therefore, as stated, although I find that the mattress is not a reasonable and necessary expense based on the medical evidence in the IE reports, the respondent chose to partially fund the cost of a memory foam mattress which was the preferred option of the applicant. However, because I find the mattress is not a reasonable and necessary expense as it does not address an accident-related injury, I find that the respondent was not required to fund any part of the treatment plan for the Tempur-Pedic mattress.

64The respondent submits that the applicant’s medical condition was not exacerbated by the accident, resulting in the determination that the proposed assistive devices are not reasonable and necessary. The respondent submits that the denial of the November 30, 2021, treatment plan with various assistive devices to support the applicant’s “cognitive issues” are neither reasonable nor necessary in view of Dr. Desai’s opinion that although the applicant sustained a low-grade concussion, her neurologic examination was normal, and the applicant did not demonstrate cognitive limitations as a result of a concussion. The respondent further submits that the purpose of the various devices is to improve the applicant’s quality of life, and the CNRs of Dr. MacTavish do not support any change in the applicant’s function.

65The Explanation of Benefits (EOB) dated May 19, 2021, sets forth as the basis for the denial that Dr. Desai offered in his neurological assessment report, the opinion that the applicant’s cognitive impairments and cognitive issues were pre-existing and were not caused by the accident. Dr. Naumetz opined in his orthopaedic IE report that even if the motor vehicle accident had not occurred that the applicant’s level of impaired function would exist.

66I find that the applicant has failed to prove that the two treatment plans proposing assistive devices dated November 30, 2020, and dated March 24, 2021, are reasonable and necessary by demonstrating that they address injuries and functional limitations caused by the accident. Therefore, as stated, although I find that the mattress is not a reasonable and necessary expense based on the medical evidence in the IE reports, the respondent chose to partially fund the cost of a memory foam mattress which was the preferred option of the applicant. However, because I find the mattress is not a reasonable and necessary expense as it does not address an accident-related injury, I find that the respondent was not required to fund any part of the treatment plan for the Tempur-Pedic mattress. I make my findings based on the IE assessment by Dr. Robert G. Josefchak and based on the IE assessment of Dr. Desai. I find that the applicant has not provided sufficient evidence demonstrating that the two treatment plans for assistive devices are reasonable and necessary in addressing injuries caused by the accident.

Interest

67Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.

Award

68The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to fifty percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. In this case, the respondent did not unreasonably withhold or delay the payment of benefits. Therefore, no award is owing to the applicant.

ORDER

69The applicant is not entitled to $5,420.00 for psychological services, proposed in a treatment plan/OCF-18 (“plan”) dated November 17, 2020

70The applicant is not entitled to $1,571.31 for assistive devices (laptop and office chair, pillows), proposed in a plan dated November 30, 2020.

71The applicant is not entitled to $3,142.31 ($5,576.75 less $2,434.44 approved) for assistive devices (mattress), proposed in a plan dated March 24, 2021.

72The applicant is not entitled to $897.75 ($3,332.19 less $2,434.44 approved), for occupational therapy.

73The applicant is not entitled to $2,200.00 for an occupational therapy functional assessment, proposed in a plan dated April 14, 2022.

74The applicant is not entitled to $4,130.19 for an occupational therapy treatment and services, proposed in a plan dated April 14, 2022.

75The applicant is not entitled to $2,941.57 for a chronic pain assessment, proposed in a plan dated June 22, 2022.

76The applicant is not entitled to $7,765.76 for psychological treatment, proposed by Helen Leimonis, Occupational Therapist, in a plan dated July 26, 2022.

77The applicant is not entitled to interest on overdue payments of benefits pursuant to s. 51 of the Schedule.

78The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

79The application is dismissed.