Citation: Bowyer v. Allstate Insurance, 2024 ONLAT 22-008092/AABS
Licence Appeal Tribunal File Number: 22-008092/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:
Andre Bowyer
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Dayana Soto Santana, Paralegal
For the Respondent: Kristen Slaney, Counsel
HEARD: By way of written submissions
OVERVIEW
1Andre Bowyer, the applicant, was involved in an automobile accident on January 18, 2022, 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, Allstate Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Buried in the applicant’s submissions is a request for an award under s. 10 of O. Reg. 664. This was not listed as an issue in dispute in the Case Conference Report and Order of this Tribunal from March 28, 2023. In fact, the applicant wrote at the outset of his submissions that the issues in dispute are the ones listed in the Tribunal’s Order. The respondent did not make any submissions with respect to the request for an award.
3Section 10 of Regulation 664 states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum up to 50 percent of the amount to which the person was entitled to at the time of the award together with interest. As such, an adjudicator has the inherent jurisdiction to add an award at any point in the hearing process.
4Given that the threshold for adding the issue of an award is low, the Tribunal routinely adds it to hearings, and that the respondent did not make any objections, I will consider an award as an issue in dispute for this written hearing.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 15, 2022 to date and ongoing, subject to s. 12(3)(c) of the Schedule?
ii. Is the applicant entitled to $1,149.97 for physiotherapy services, proposed by 101 Physio in a treatment plan submitted June 29, 2022?
iii. Is the applicant entitled to attendant care benefits in the amount of $1,789.14 per month from July 22, 2022, to date and ongoing?
iv. Is the applicant entitled to $6,811.18 for assistive devices proposed by 101 Assessment Centre in a treatment plan dated July 27, 2022?
v. Is the applicant entitled to $2,460.00 for the cost of a functional abilities evaluation proposed by 101 Assessment Centre in a treatment plan dated February 14, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant entitled to an award under section 10 of Reg. 664 for unreasonably withheld payments?
RESULT
6The applicant is not entitled to a non-earner benefit.
7The applicant is not entitled to $1,149.97 for physiotherapy services.
8The applicant is not entitled to attendant care benefits.
9The applicant is entitled to $355.28 for assistive devices, plus $200.00 for the completion of the OCF-18 dated July 27, 2022.
10The applicant is not entitled to a functional abilities evaluation.
11The applicant is entitled to interest in accordance with s. 51 of the Schedule for any overdue payments.
12The applicant is not entitled to an award under s. 10 of Reg. 664.
ANALYSIS
Background
13The applicant was involved in two accidents within approximately two years of each other. The accident in 2022 appears to have exacerbated his pre-existing injuries.
Pre-Accident Medical History
14In the years prior to the accident, the applicant complained to his physicians of left shoulder pain, pain in both hands for many years, anxiety, and depression. On December 18, 2019, he was involved in an accident which left him with neck, left shoulder, and lower back pain, as well as headaches. He had worsening pain and swelling in a finger on his right hand, was initially referred for surgery, and then was referred to a hand specialist instead. His index finger was unable to bend and it was extremely painful, and a note from October 2020 indicated that he was unable to use his right hand. He received physiotherapy and massage therapy. After the 2019 accident, the applicant was unable to return to work.
15The applicant underwent a psychological assessment on July 24, 2020 with Lital Grinberg, psychological associate. The applicant described having his sleep interrupted every 1-2 hours, difficulties with concentration and memory, a decreased appetite, and flashbacks of the accident. He had pain in his left shoulder, intermittent low back pain, intermittent shooting pain radiating into his legs, and headaches that occurred every 3 days. He was unable to engage in any physical activities, such as kicking a ball or holding his children up on a bicycle. He was socially withdrawn. He was unable to complete household duties, although he attempted to help. He had general anxiety and vehicular anxiety. The applicant met the criteria for Posttraumatic Stress Disorder, Somatic Symptom Disorder with Predominant Pain – Severe, and Specific Phobia: Situational: Vehicular. Psychotherapy was recommended, as well as a cognitive assessment and driving evaluation.
16On September 18, 2020, the applicant underwent a chronic pain assessment with Dr. Tajedin Getahun, orthopaedic surgeon. He reported constant back pain with radiation into both legs, left shoulder pain primarily aggravated by reaching overhead, and pain and stiffness in his right finger. He was experiencing ongoing anxiety, depression, sleep disturbances, and persistent headaches. The applicant was attending physical treatment sessions twice a week, as well as psychological treatments. He was using Tylenol for his pain. He had difficulty doing household chores, primarily due to back pain. Dr. Getahun diagnosed him with chronic myofascial strain of the lumbosacral spine, chronic left shoulder strain, right index finger MCP strain chronic, and chronic pain syndrome. He recommended enrolment in a multidisciplinary chronic pain program, physiotherapy, an in-home occupational therapy assessment for assistive devices, and an MRI of the lumbosacral spine.
17The applicant reported a swollen right hand and finger to his family physician, Dr. Law, on November 13, 2020, as well as anxiety, depression, and decreased appetite. On February 11, 2021, he complained to Dr. Law of pain and swelling in his right hand. On February 18, 2021, he advised that his right hand was still painful and would wake him up at night. He reported left foot pain on April 29, 2021 to Dr. Law.
Post-Accident Medical History
18After the 2022 accident, the applicant visited various general practitioners at the Midland Eglinton Medical Clinic. I note that it is difficult to determine the author of each of the medical entries.
19On January 20, 2022, the applicant reported to a physician at the Midland Eglinton Medical Clinic that he did not initially feel pain at the site of the accident in 2022. He was not taken to the hospital. He reported that he began feeling pain the day after the accident in his low back, neck, and right hand, as well as headaches. He was unable to sleep. On February 1, 2022, he advised a physician that his right hand and low back pain was worse, and he was still experiencing left shoulder pain. He was also very nervous since the accident, was only sleeping 2-3 hours, and was depressed. He started physiotherapy on February 3, and was advised by a physician to continue with physiotherapy on February 8. The applicant underwent ultrasounds to his left shoulder and right hand, as well as x-rays to his left shoulder, right hand, and lumbar spine. The results of the examinations were normal, except for transient joint fluid in the second finger.
20An OCF-3 form was completed by Bill Nikols, chiropractor, on February 3, 2022. It listed injuries to the applicant’s lumbar spine and pelvis, shoulder girdle, thoracic spine, shoulder, hand, and finger. It also noted sleep disorder and adjustment disorder. Dr. Nikols indicated that the applicant suffered a complete inability to carry on a normal life, explaining: “physical capacity and active lifestyle limited due to pain, apprehension”. Dr. Nikols noted that this was expected to last for 9-12 weeks.
21On March 22, 2022, the applicant advised one of his physicians that he was experiencing pain in both ankles, both elbows, both hands, and both hips. He was unable to purchase the prescribed prescription drugs and did not have a drug plan, so he was taking Advil and using Epsom salts. He indicated that sometimes his right hand was swollen, but it was not swollen during that appointment.
22The applicant was assessed by Dr. Konstantinos Papazoglou, psychologist, on March 29, 2022. He reported that, although he was experiencing anxiety prior to the 2022 accident, he attended psychotherapy for about one year and his mental health was improving. After the 2022 accident, his anxiety relapsed and aggravated. Prior to the 2022 accident, the applicant smoked one cigarette per day, but afterwards smoked a pack every 3-4 days. He described pain to his back, right index finger, right shoulder, and headaches. He was attending physiotherapy sessions twice weekly, which was helping with the pain, although it was not sufficient such that he could return to his normal lifestyle. His appetite had reduced and he lost weight as a result. Dr. Papazoglou wrote that prior to the 2022 accident, the applicant was able to maintain 8-9 hours of uninterrupted sleep per night, but afterwards he was only getting 3 hours of interrupted sleep. He described mild to moderate changes to his memory and concentration since the 2022 accident. He was able to drive for essential purposes, but had elevated anxiety in a vehicle.
23The applicant reported to Dr. Papazoglou that although he was unemployed before the 2022 accident, he was looking for work. Afterwards, he was unable to work due to physical pain and mental health reactions. Prior to the 2022 accident, he was reportedly able to cook, clean, do laundry, and get groceries. After, he either had not resumed some tasks or needed substantially more time to complete them. He was independent with self-care, although required more time to get dressed/undressed and shower. He reportedly avoided social interactions.
24Dr. Papazoglou diagnosed the applicant with Adjustment Disorder (with mixed anxiety and depressed mood), Specific (Isolated) Phobia (Driver/Passenger), and Somatic Symptom Disorder with predominant pain. He recommended psychological treatment and a driving evaluation.
25On June 2, 2022, the applicant underwent a s. 44 assessment with Dr. Godwin Lau, psychologist. He reported that prior to the 2022 accident, he was still having intermittent pain in his low back and right index finger, and he was emotionally stable. Immediately after the 2022 accident, he reportedly felt pain in his right index finger, and was in shock and felt panicky. He reported to Dr. Lau that he had been going to physiotherapy twice a week, but he had not made any progress. He was experiencing pain in his lower back and right finger, as well as occasional headaches and dizziness. His sleep was disturbed due to pain and nightmares, and his energy level and appetite was reduced. He reported that his memory was fine. He indicated that he had anxiety in a vehicle, and that his mood fluctuated.
26The applicant advised Dr. Lau that he was able to look after his self-care tasks, but sometimes he needed his children to help him set up the shower or tub. He could only carry light items and could not walk, sit, or stand for long. Before the 2022 accident, he was not doing much housework, and his family was taking care of the groceries, cooking, laundry, and cleaning; after the 2022 accident he was not doing any housework. Before the 2022 accident he did not see friends, and this had not changed after. He did not take his children to the park as often as he would like.
27Dr. Lau diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident. He opined that the applicant’s symptoms warranted 12 sessions of psychological treatment, but that he had no psychological disability in terms of performing his activities of daily living.
28The applicant also underwent a s. 44 physiatry assessment with Dr. Mohammed Abdul Wahab Khan on June 9, 2022. He advised Dr. Khan that he was experiencing constant neck and bilateral trapezius pain, which went from a 3/10 on the pain scale before the 2022 accident to an 8/10. He was experiencing constant right index finger pain, which went from a 5/10 to an 8/10 after the 2022 accident. He also reported constant lower back pain, which went from a 9/10 to a 10/10 after the 2022 accident. The applicant advised Dr. Khan that since the 2022 accident, he was able to perform most of his activities of daily life independently, but occasionally requires assistance from his children to put on his socks due to back pain. He reported that prior to the 2022 accident, he performed some general housekeeping tasks, such as cooking, cleaning, and laundry, but had not performed any housekeeping tasks since.
29Dr. Khan diagnosed the applicant with cervical spine sprain/strain, bilateral trapezius posterior shoulder girdle sprain/strain (left worse than right), right index finger contusion/sprain/strain, and thoracolumbar spine sprain/strain. Dr. Khan opined that the applicant did not require any assistive devices, further assessments, or further treatment or rehabilitation services. He recommended that the applicant engage in an active home exercise program on a self-directed basis. He indicated that the prognosis for the applicant’s sprains/strains was good, but acknowledged that pain may persist even after the structural healing has completed. He opined that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.
30The applicant was re-assessed by Dr. Getahun on July 7, 2022. He reported attending physiotherapy twice a week, but only noted transient improvement in his symptoms with the treatments provided. He was receiving psychotherapy once per week. The applicant complained of back pain, and that his pre-accident symptoms increased in severity by 40%, and were more intense and more frequent. He reported developing neck pain as a result of the 2022 accident. His left shoulder symptoms increased in severity and intensity by 20%, and his right finger injury was worsened by 100%. He had difficulty writing and driving as a result. The applicant was using Advil and Tylenol for his physical pain, which he started using after the 2019 accident. The applicant relied on his girlfriend for the majority of the cooking, cleaning, laundry, shopping, and garbage removal.
31Dr. Getahun diagnosed the applicant with myofascial strain of the cervical spine, myofascial strain of the lumbosacral spine and aggravation of pre-existing pathology, left shoulder strain and aggravation of pre-existing pathology, and right finger likely tenosynovitis aggravation. He opined that the applicant suffered a substantial inability to perform the essential tasks of his pre-accident employment as a forklift operator and order picker, as he would be unable to tolerate the standing, walking, bending, lifting, carrying, or reaching required for those positions. Dr. Getahun recommended physiotherapy and chiropractic interventions, an in-home occupational therapy assessment for assistive devices, and a left shoulder corticosteroid injection.
32On July 22, 2022, the applicant also underwent an attendant care needs assessment by Natalya Khramtsova, registered nurse. He was experiencing pain in his neck, left shoulder, right arm, left wrist, right index finger, upper/middle back, low back and bilateral lower limbs, as well as periodic headaches 1-2 times per week. The applicant reported that headaches did not affect him prior to the accident. He was unable to make a fist with his right hand, as the knuckle on his right index finger was swollen and dislocated. He identified issues of anxiety (especially in a vehicle), depression, flashbacks, nightmares, poor sleep, and social withdrawal. Certain physical activities aggravated his symptoms, such as prolonged or sustained postural holds, extended periods of ambulation, squatting, bending, crouching, heavy pushing and pulling, repetitive or prolonged pushing and pulling, heavy lifting and carrying, and repetitive or prolonged lifting and carrying.
33Ms. Khramtsova noted that prior to the 2022 accident, he was independent with all of his self-care tasks. Afterwards, she indicated that he needed assistance with shaving, washing/drying hair, cutting his fingernails and toenails, preparing and serving meals, cleaning the bathroom after use, changing bedding and cleaning his room, ensuring bedroom safety and comfort, hanging clothes and sorting clothes to be laundered, doing prescribed exercises and stretching, maintaining and controlling his oral medication supply, and bathing and drying. Ms. Khramtsova noted that she observed physical limitations for each of these tasks, although she did not specify what limitations she observed. She recommended assistance with each one of these tasks.
34Ms. Khramtsova recommended $1,789.14 in monthly attendant care assistance, vitamin infusion therapy, and a number of assistive devices. She also recommended that the applicant participate in an appropriate physical rehabilitation and pain program, and undergo physiatry, neurological, chronic pain, and orthopaedic assessments.
35On August 31, 2022, the applicant underwent a s. 44 assessment with Dr. Davar Nikneshan, neurologist. He advised Dr. Nikneshan that before the 2022 accident, his neck, right shoulder, and back pain were resolving, and that he had pre-existing headaches from the 2019 accident. He reported lower back pain which developed between 1-2 days after the 2022 accident. This pain was lessened with heat and physiotherapy. He reported that the pain in his right index finger had worsened following the 2022 accident. His headaches worsened in frequency and intensity after the 2022 accident, occurring 3-4 days per week as opposed to 1-2 times per month. His anxiety had also worsened since the 2022 accident. He was having difficulties with getting dressed and bathing, and received assistance from his girlfriend and children. He was not cooking or cleaning prior to the 2022 accident, and his girlfriend still handled those duties. The applicant reported to Dr. Nikneshan that he had returned to school, and was graduating the next day.
36Dr. Nikneshan opined that the applicant met the diagnostic criteria for persistent headache secondary to whiplash, and that this was a pre-existing issue that was exacerbated by the accident. He also noted that there was an element of medication-overuse headache. He was advised to limit his use of Tylenol and Advil, and recommended other medications. He did not comment further on the applicant’s back and right index finger pain as he felt they were musculoskeletal in nature. Dr. Nikneshan noted that the applicant’s headaches were nondisabling, and he did not need any assistive devices in that regard. It was his opinion that the applicant did not suffer a complete inability to carry on a normal life, from a neurological standpoint.
37The applicant underwent a s. 44 occupational therapy assessment with Bhoomi Kalyani on November 10, 2022. Mr. Kalyani noted that, at the time of the assessment, the applicant was living with his cousin. He wrote that, prior to the 2022 accident, the applicant’s girlfriend assisted him with meal preparation and he was unable to participate in housekeeping activities. After the accident, his cousin assisted him with meal preparation. He was able to complete his own personal care tasks.
38Mr. Kalyani observed that the applicant’s range of motion was generally within normal limits, except for in his left shoulder. The applicant declined to demonstrate trunk flexion due to lower back pain. Mr. Kalyani opined that the applicant was able to complete light-natured daily activities in a functional manner, using pacing and activity modifications as needed. He demonstrated functional grip strength to complete 90% of activities of daily living, and although he demonstrated some weakness in his right hand for fine motor tasks, he was able to manage bilateral tasks such as the zipper on his jacket. He was noted to have decreased sitting tolerance, and was able to walk for short distances. He had functional tolerance for transfers, balance, and pushing and pulling.
39Mr. Kalyani noted that the applicant was able to reach his head to imitate hair washing, but he was not able to reach his toes. His family assisted with his nail care after the accident in 2019. Mr. Kalyani recommended a long-handled toenail clipper. The applicant demonstrated the range of motion, functional grip, and fine motor skills during functional testing to be able to manage light meal preparation. He was not able to demonstrate a functional ability for bathroom cleaning and changing his bed linen, but he demonstrated sufficient range of motion to put away his clothes. It was recommended that he use a long-handled toilet brush and long-handled cleaning sponge to assist with light bathroom cleaning tasks. The applicant reported being able to manage his medication. He reported being able to take a shower with a telephonic showerhead and long-handled loofah.
40Mr. Kalyani opined that the applicant did not require assistance from an attendant care aide for personal care activities. He recommended four sessions of occupational therapy for pacing, energy conservation techniques, activity modifications, and education on the safe use of adaptive equipment. From an occupational therapy perspective, Mr. Kalyani opined that the applicant did not suffer a complete inability to carry on a normal life. It was recommended that he continue with facility-based rehabilitation as directed by his treating professionals.
41The applicant was assessed by a neurologist, Dr. Vincenzo Basile, on March 15, 2023. The applicant described taking Advil at a rate of 4 pills per day, and receiving cortisone injections every 6 weeks to his right finger. He also had a cast on his right arm as his third finger could not extend. The applicant reported having immediate pain to his neck, left shoulder, right hand, and lower back after the 2022 accident, followed by a headache, as well as immediate symptoms of concentration, memory and balance issues. The applicant was still attending physical therapy, and felt that his symptoms worsened if sessions were missed. The applicant was experiencing bilateral neck and shoulder pain, occurring transiently but for most parts of the day, bilateral lower back pain with radicular symptoms down both legs, and headaches. He reported that he did not have significant headaches prior to the accident. Dr. Basile indicated that the applicant described some of the features of postconcussive syndrome. He was only able to get about 2-3 hours of sleep per night due to pain and anxiety.
42Dr. Basile noted that the applicant was unable to perform housekeeping activities independently, although he would fight through the pain and struggle to complete the tasks he needed to complete. He was independent with respect to his activities of daily living, but relied on his cousin for assistance with shopping, cooking, housework, and laundry. He reported a change to his mood, and that he had not returned to any of his pre-accident recreational activities.
43Dr. Basile stated that the applicant’s “current symptoms of posttraumatic headaches and postconcussive syndrome are a direct result of the motor vehicle accident of January 18, 2022, as he had not had any of the symptoms prior.” He opined that the applicant met the criteria for postconcussive syndrome and that this was consistent with a traumatic brain injury. He noted that his pre-accident symptoms of anxiety and depression could account for some of the symptoms, but there was evidence of convergence retraction nystagmus that argued more towards postconcussive syndrome as a cause of the symptoms. Dr. Basile also diagnosed the applicant with posttraumatic headaches including tension type headaches, chronic daily medication overuse headaches, and migrainous features. He opined that the applicant had musculoskeletal soft tissue injuries which were causing neck and back pain, and that he has likely converted to a chronic pain syndrome. Dr. Basile made a number of recommendations, including meditation, a neuropsychological assessment, a referral to a concussion program, exercise, neuropsychiatric and psychiatry assessments, an MRI scan of his brain and spine, EMG studies to rule out radiculopathy, cognitive behavioural therapy, a graded return to cognitive and physical activity, a neuro-opthalmological consultation, a sleep study, and massage, physical therapy, and chiropractic therapy 2-3 times per week. He also recommended a functional assessment to establish his current abilities and see if there are any coping strategies that could help.
Non-Earner Benefit
44I find that the applicant has not established his entitlement to a non-earner benefit.
45Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 [Heath], which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
46It is difficult to discern what exactly the applicant was able to do before the 2022 accident, and what activities were impacted afterwards. I have no doubt that the 2022 accident exacerbated the applicant’s injuries. However, as it pertains to the applicant’s ability to function, there is different evidence scattered throughout the various reports, which is sometimes contradictory.
47The applicant reported to Dr. Papazoglou and Dr. Khan that prior to the 2022 accident, he was able to cook, clean, do laundry, and get groceries. However, he reported to Dr. Lau that his family was taking care of most of the groceries, cooking, laundry, and cleaning. He also reported to Dr. Nikneshan and Mr. Kalyani that his girlfriend was responsible for the cooking and cleaning prior to 2022. Although the applicant reported requiring assistance with these tasks, there is a lack of evidence as to whether that was as a result of the 2022 accident or his pre-existing difficulties.
48The applicant was not able to work before the 2022 accident, but he was reportedly looking for work. I accept that the 2022 accident worsened the applicant’s injuries to a degree, and he may not have been able to return to work as a result; however, this is not sufficient to satisfy the test for non-earner benefits. Further, Dr. Nikneshan noted that the applicant was able to return to school and graduate after the 2022 accident. This does not lead me to believe that the applicant was completely unable to carry on a normal life.
49The evidence suggests that the applicant was largely independent with respect to his self-care tasks before the 2022 accident. While the applicant may have some difficulties with certain tasks afterwards, such as dressing himself, it appears that he is still able to complete the vast majority of his self-care tasks. I prefer the occupational therapy report of Mr. Kalyani to that of Ms. Khramtsova, as Mr. Kalyani goes into detail about the extent of the applicant’s abilities, whereas Ms. Khramtsova does not. She essentially repeats the same general thing for each task that she identified the applicant having difficulty with. I am also not convinced that the applicant requires assistance with his medication, as Ms. Khramtsova suggests, when he reported the opposite to Mr. Kalyani. The applicant also reported being able to shower independently with a long-handled loofah and telephonic showerhead, but Ms. Khramtsova recommended attendant care assistance with bathing and shampooing, without further comment.
50I note that none of the practitioners relied upon by the applicant stated that he had a complete inability to carry on a normal life, except for the chiropractor who initially filled out the OCF-3 form. Dr. Getahun noted that the applicant suffered a substantial inability to return to his pre-accident job, but did not make any comment with respect to a “complete inability”. On the other hand, Dr. Khan, Dr. Nikneshan, and Mr. Kalyani opined that the applicant did not suffer a complete inability to carry on a normal life.
51Around the time the OCF-3 form was completed, there is a lack of evidence regarding the applicant’s functional status. In the OCF-3 itself, there is no further detail with respect to the tasks the applicant was not able to complete, and certainly no comparison with his abilities before the accident. There is no information contained within the notes of the applicant’s treating physicians regarding his activities of daily life. A checked box in an OCF-3 is not, by itself, sufficient evidence to establish the applicant’s entitlement to this benefit.
52I find that the applicant has not met his burden to prove that he sustained a complete inability to carry on a normal life as a result of the 2022 accident.
Physiotherapy
53I find that the applicant is not entitled to $1,149.97 for physiotherapy.
54Neither party has provided me with a copy of the treatment plan in dispute, and neither party has explained the circumstances surrounding this denial. From what I can piece together, an OCF-21 was submitted on June 29, 2022 in the amount of $1,149.97, relating to a previously approved treatment plan from February 3, 2022 in the amount of $2,862.48. It appears that the OCF-21 was denied on June 30, 2022 as a result of missing or incorrect collateral insurance information.
55I have no information before me to determine whether this OCF-21 is payable. The applicant’s only submissions were with respect to a treatment plan being reasonable and necessary. If the denial pertains to some other treatment plan, the applicant has not provided me with a copy so that I can assess whether it is reasonable and necessary. The applicant has not met his onus in proving entitlement to the $1,149.97 in dispute.
Attendant Care
56I find that the applicant has not proven that he is entitled to the proposed attendant care services as a result of the 2022 accident.
57The Form-1 prepared by Ms. Khramtsova requests attendant care for the following tasks:
| Task | Number of minutes | Times per week | Total minutes per week |
|---|---|---|---|
| Shaving: shaves applicant using electric/safety razor | 30 | 1 | 30 |
| Shampoos, blow/towel dries | 5 | 3 | 15 |
| Fingernails: cleans and manicures as required | 10 | 1 | 10 |
| Toenails: cleans and manicures as required | 10 | 1 | 10 |
| Provides assistance, either in whole or in part, in preparing, serving and feeding meals | 60 | 7 | 420 |
| Cleans tub/shower/sink/toilet after applicant’s use | 10 | 7 | 70 |
| Changes applicant’s bedding, makes bed, cleans bedroom, including Hoyer lifts, overhead bars, bedside tables | 10 | 7 | 70 |
| Ensures comfort, safety and security in this environment | 20 | 7 | 140 |
| Hangs clothes and sorts clothing to be laundered/cleaned | 60 | 2 | 120 |
| Assists applicant with prescribed exercise/stretching program | 60 | 7 | 420 |
| Maintains and controls medication supply | 15 | 1 | 15 |
| Bathes and dries client | 20 | 7 | 140 |
58The evidence suggests that the applicant required assistance with laundry, cleaning, and cooking prior to the 2022 accident. The applicant has not provided specifics in this regard. Further, although Mr. Kalyani indicated that the applicant was not able to demonstrate his functional ability for bathroom cleaning and changing his bed linens, there is no information as to whether he was able to do so before the 2022 accident. The applicant has not met his burden of proving that laundry, bathroom and bedroom cleaning, and meal preparation assistance is required as a result of the 2022 accident.
59Aside from Ms. Khramtsova’s report, there is no evidence that the applicant requires assistance with completing home-based exercises, maintaining and controlling his medication supply, and shaving. As indicated above, I generally prefer the report of Mr. Kalyani to that of Ms. Khramtsova. The applicant reported to Mr. Kalyani that he did not require assistance with medication, and that he did not have a prescribed home-based exercise program. He was able to brush his teeth independently, and had the functional range of motion to be able to wash his hair. I am accordingly not convinced that he requires assistance with shaving, which would require similar movements. He has not met his burden in proving that he requires assistance with these tasks as a result of the 2022 accident.
60The applicant reported to Mr. Kalyani that his family assisted with nail care after the 2019 accident. Accordingly, I find that he does not require assistance with nail care as a result of the 2022 accident.
61Although there is some evidence that the applicant has difficulty with overhead reaching, he reported being able to take showers using a telephonic showerhead and long-handled loofah. He also demonstrated the appropriate range of motion to be able to wash his hair. There is a lack of evidence that he requires assistance with shampooing his hair, bathing, or drying himself as a result of the 2022 accident.
62There is no evidence before me as to why the applicant requires someone to ensure comfort, safety, and security in his environment. I do not know what specifically this pertains to as Ms. Khramtsova did not provide any details. She simply wrote, like she did for all of the other items: “observed physical abilities limitations and reported injury aggravating factors would impede the patient from ensuring their bedroom safety and comfort independently.” The applicant is accordingly not entitled to this line item.
Assistive Devices
63I find that the applicant is entitled to $555.28 for certain assistive devices and the completion of the treatment plan dated July 27, 2022.
64The treatment plan recommends the following assistive devices: BioFreeze, ice pack, back support belt, orthopaedic mattress, Obus Forme back support, wheeled laundry basket, robotic vacuum, steam mop, long handled dustpan, long handled duster, anti-slip bath mat, shower chair with back support, electric shaver, 24” grab bar, installation of grab bars, long handled bath sponge, handheld showerhead, TENS unit, electric heating pad, and antifatigue mat.
65Ms. Khramtsova did not provide any explanation for the purpose of each of these items. She also did not identify whether these items were recommended as a result of the 2022 accident specifically. The applicant has not provided any additional details in his submissions, and only states that “some of the devices provide safety while others provide convenience when Andre needs to perform certain housekeeping activities.”
66Mr. Kalyani recommended that the applicant use a long-handled toenail clipper, long-handled toilet brush, and long-handled cleaning sponge. As he did not conduct his assessment at the applicant’s home, Mr. Kalyani was unable to comment on the need for a wheeled laundry basket, robotic vacuum, steam mop, or dusting devices. It was also outside of the scope of his practice to comment on the orthopaedic devices, namely hyperthermy, back support belt, mattress, Obus Forme back support, TENS unit, and heat pad.
67I find that the handheld showerhead and long-handled bath sponge are reasonable and necessary items. According to Mr. Kalyani, the applicant was using these items to assist him with showering. The applicant also had a reduced range of motion to his left shoulder, and Mr. Kalyani recommended the use of long-handled items to assist the applicant with light household cleaning. It follows that these items may assist the applicant in completing his more physically demanding self-care tasks.
68There is no evidence that the applicant was able to complete the heavier housekeeping tasks prior to the 2022 accident, such as vacuuming, mopping, or laundry. If anything, the evidence suggests otherwise. I find that the wheeled laundry basket, robotic vacuum, and steam mop are not reasonable and necessary.
69I am left in the dark as to why the applicant would need grab bars, an anti-slip bath mat, an electric shaver, BioFreeze gel, an ice pack, an antifatigue mat, or a shower chair as a result of the 2022 accident. Ms. Khramtsova provided no explanation, and neither did the applicant in his submissions. There is no evidence that these items were recommended by other practitioners. I accordingly find that these items are not reasonable and necessary.
70I note that Dr. Getahun, orthopaedic surgeon, did not recommend the usage of any orthopaedic devices. He only stated that an occupational therapy assessment should be conducted with regards to the applicant’s housekeeping and home maintenance tasks. I find that without further explanation from Ms. Khramtsova, and without further recommendations from the applicant’s other assessors or treatment providers, there is not enough evidence to find that the orthopaedic devices are reasonable and necessary.
71There is evidence in the report of Dr. Nikneshan that the applicant found that heat helped relieve his pain. As the applicant’s pain appears to have increased as a result of the 2022 accident, I find that the heating pad is reasonable and necessary.
72Mr. Kalyani recommended long-handled supplies for light cleaning, which corroborates the request for the long-handled dustpan and long-handled duster. I therefore find that these items are reasonable and necessary.
73Ms. Khramtsova included a line item for delivery of the proposed devices, in the amount of $85.00. Neither party made any specific submissions regarding this item. I have not been provided with any information as to where these items are coming from, or why $85.00 is an appropriate amount for delivery. I find that the applicant has not met his onus to prove that this item is reasonable and necessary.
74I find that the $200 cost of completing the treatment plan was reasonable and is payable. The respondent did not make any submissions regarding this cost, and it does not exceed the maximum fee allowable under Superintendent’s Guideline No. 03/14.
75To summarize, I find that the following items are reasonable and necessary, for the total amount of $555.28: long-handled dustpan, long-handled duster, long-handled bath sponge, handheld showerhead, heating pad, and the completion of the OCF-18 form.
Functional Abilities Evaluation
76I find that the proposed functional abilities evaluation is not reasonable and necessary.
77The treatment plan for this assessment was submitted by Dr. Salehoun, chiropractor. The goals of the treatment plan were noted to be pain reduction, increase range of motion, increase strength, compare the applicant’s pre-accident and post-accident levels of function to determine the degree of impairment, and allow him to return to activities of normal living. Under the section for additional comments, Dr. Salehoun wrote that the applicant’s handgrip and range of motion would be assessed, and his results would be compared to population norms to determine the degree of impairment.
78The applicant submits that the purpose of this assessment is to compare the applicant’s pre-accident and post-accident levels of function to determine the degree of impairment that would help address the question of attendant care.
79I do not know what a functional abilities evaluation will be able to assess that applicant’s other assessors were unable to do. In fact, Ms. Khramtsova stated that she conducted objective testing of the applicant’s functional abilities. I have not been provided with evidence as to why additional testing is required. Even Ms. Khramtsova did not recommend a functional abilities evaluation, despite recommending other assessments.
80I have difficulty understanding how this particular assessment will lead to pain reduction, increased range of motion, or increased strength. No explanation has been provided as to how determining the degree of the applicant’s impairment will assist in his recovery.
81The applicant has failed to explain why it believes this assessment is required for the purposes of addressing the question of attendant care, when that has already been assessed. There is no reason why Ms. Khramtsova could not have compared the applicant’s pre-accident and post-accident levels of function, and in fact she should have done so to obtain an accurate picture of the applicant’s attendant care needs stemming from the 2022 accident.
82Aside from Dr. Salehoun, the only other practitioner that recommended this evaluation was Dr. Basile. However, I am inclined to give less weight to the report of Dr. Basile, and do not accept his recommendation for this assessment on its own. He diagnosed the applicant with a concussion approximately one year and two months after the accident, despite there being no other evidence that he sustained one. Dr. Basile appears to have based his opinion on the applicant’s self-report, which differed from all of the other reports he made to various assessors and physicians (specifically, the symptoms the applicant felt at the scene of the accident, as well as his pre-accident headache complaints). Further, despite having reviewed the neurological report of Dr. Nikneshan, Dr. Basile did not make any comment with respect to his findings, or lack of concussion diagnosis.
83In addition, Dr. Basile recommended the assessment in order to determine if there were any coping mechanisms that could help the applicant. I am not convinced that a functional abilities evaluation is the appropriate way to determine or implement any coping mechanisms. Mr. Kalyani recommended occupational therapy to further this goal, which would perhaps be a more appropriate form of treatment, especially since testing has already been completed by Ms. Khramtsova.
84I accordingly find that the applicant has not met his burden in proving that this assessment is reasonable and necessary.
Interest
85The applicant is entitled to interest in accordance with s. 51 of the Schedule for any overdue payments.
Award
86The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant is not entitled to an award.
87The applicant’s only submission in this regard is that the respondent unreasonably withheld payments. No other particulars have been provided.
88The bar for an award is high. Although I have found that the applicant is entitled to certain assistive devices, this does not automatically entitle him to an award. He has the onus in proving that the respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The applicant has not established that the respondent acted unreasonably in withholding the benefits, and is therefore not entitled to an award.
ORDER
89The applicant is not entitled to a non-earner benefit.
90The applicant is not entitled to $1,149.97 for physiotherapy services.
91The applicant is not entitled to attendant care benefits.
92The applicant is entitled to $355.28 for assistive devices, plus $200.00 for the completion of the OCF-18 dated July 27, 2022.
93The applicant is not entitled to a functional abilities evaluation.
94The applicant is entitled to interest in accordance with s. 51 of the Schedule for any overdue payments.
95The applicant is not entitled to an award under s. 10 of Reg. 664.
Released: August 14, 2024
Rachel Levitsky
Adjudicator