Citation: Capone v. Wawanesa Mutual Insurance Company, 2024 ONLAT 21-015066/AABS

Licence Appeal Tribunal File Number: 21-015066/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:

Annamaria Capone

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Michelle Jorge, Counsel

For the Respondent: Michael Kennedy, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Annamaria Capone, the applicant, was involved in an automobile accident on July 19, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual 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:

1. Is the applicant entitled to $6,651.51 for home modifications proposed by My Accessible Daily Living in a treatment plan/OCF-18 (“plan”) dated November 26, 2020?

2. Is the applicant entitled to $3,961.62 for yoga therapy proposed by Empowering Mind and Body Ltd. in a plan dated September 29, 2021?

3. Is the applicant entitled to medical cannabis proposed by Apollo Applied Research Inc., as follows:

(i) $3,622.00 ($10,622.00 less $7,000.00 approved) in a plan dated January 14, 2021, and;

(ii) $10,644.60 in a plan dated September 16, 2021?

4. Is the applicant entitled to the following acupuncture, massage and chiropractic services proposed by The Rehab Centre of Maple Inc.

(i) $4,050.00 in a plan dated September 15, 2021;

(ii) $3,600.00 in a plan dated July 6, 2022;

(iii) $3,600.00 in a plan dated April 1, 2022;

(iv) $2,779.28 in a plan dated July 6, 2022; and

(v) $2,700.00 in a plan dated October 12, 2022?

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

RESULT

3I find that the applicant has not demonstrated that the proposed treatment plans (OCF-18’s) are reasonable and necessary for her accident-related injuries. As a result, the OCF-18’s in dispute are not payable. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

4The application is dismissed.

PROCEDURAL ISSUES

5The respondent indicates in its submissions that the OCF-18 dated January 14, 2021 for $10,622.00 was partially approved on February 19, 2021, in the amount of $7,000.00 for medical cannabis from Apollo Applied Research and not as listed in issue 3(i) of the Case Conference Report and Summary (“CCRO”) dated January 25, 2023. The respondent submits the correct amount in dispute is $3,622.00.

6The applicant argues in her submissions that the full amount of the OCF-18 dated January 14, 2021 is in dispute. The applicant has not filed a reply to the respondent’s submissions.

7I find the issue in dispute before me for the OCF-18 dated January 14, 2021 for medical cannabis from Apollo Applied Research is for the amount over and above the $7,000.00 approved of the $10,622.00 listed in the OCF-18, and not as listed in issue 3(i) of the CCRO.

ANALYSIS

8To receive payment for a treatment plan (OCF-18) under 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. 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 same are reasonable.

The applicant is not entitled to the home modifications assessment

9I find that the applicant has not demonstrated that the OCF-18 in dispute for a home modifications assessment is reasonable and necessary.

10Section 16(1) of the Schedule states that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person that are reasonable and necessary to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the person’s reintegrate into their family, society and the labour market. Section 16(3)(i) of the Schedule states that these activities include home modifications and home devices that accommodate the needs of the insured person.

11The applicant submits that the OCF-18 for a home modification assessment consists of a professional trade review, assessment of the applicant’s home, documentation, administrative fee, planning and brokerage services, and travel expenses to ensure that the applicant’s home is safe and accessible. The applicant submits that despite the respondent’s denial of this benefit, it has been incurred.

12The applicant relies on the OCF-18 in dispute dated November 26, 2020 and the report dated January 26, 2021 by Kim Teggelove, occupational therapist. Ms. Teggelove stated in her report that the applicant requires the requested treatment to address the applicant’s injuries, including chronic pain, sleep disorder, mixed anxiety and depressive disorder and post-traumatic stress disorder. The applicant submits that the assessment is necessary to determine the type of home modifications required to provide a dedicated space to accommodate her therapeutic goals under restricted living conditions. The treatment goals listed in the OCF-18 are to provide a safe and accessible living environment, return to activities of daily living and increase independence and access of pre-accident living environment.

13As such, the applicant submits that the disputed OCF-18 is reasonable and necessary to address the applicant’s accident-related impairments.

14The respondent submits that the housing modifications assessment was incurred during COVID when school restrictions kept the applicant’s children at home. The respondent argues that the restrictions during the pandemic are not representative of the applicant’s accident-related concerns. In addition, the respondent argues that the cost of the examination is excessive, given the $2,000 limit on examinations pursuant to s.25(5)(a) of the Schedule.

15I find there is insufficient evidence in support of the OCF-18 dated November 26, 2020 by Ms. Teggelove in the amount of $6,651.51 for a home modification assessment. Ms. Teggelove states in her report that the applicant receives assistance from her parents in their home, however, there is limited space. Ms. Teggelove suggests that there are concerns regarding the applicant’s balanced lifestyle and safety in her parents’ home. Other than difficulties regarding a dedicated space for privacy, Ms. Teggelove does not explain how this creates a safety concern for the applicant.

16The applicant argues that the assessment is reasonable and necessary to create an adequate space for the applicant’s yoga, exercise, counselling and quality time with her children. In an Insurer’s Examination (“IE”) report dated December 16, 2021, occupational therapist, Kathryn Blaney does not mention any difficulties or accommodations required for the applicant’s videoconferencing appointments, yoga exercises, pre-pandemic occupational therapy sessions and psychotherapy sessions as a result of the accident.

17Although Ms. Teggelove indicates the common areas of the home are crowded and the applicant lacks a dedicated space for privacy, Ms. Blaney notes the applicant occupies the main bedroom and spends most of the day sleeping. Ms. Blaney further indicates that the applicant frequently utilizes the enclosed sunroom patio for smoking and Ms. Teggelove confirms that applicant completes her occupational therapy sessions on the back porch area.

18The applicant has not explained how the home modifications assessment and a private living space will facilitate her reintegration into her family, society and the labour market. Therefore, the applicant has not demonstrated that the assessment is reasonable and necessary pursuant to s. 16 of the Schedule. In addition, the cost of the proposed assessment exceeds the statutory maximum amount of $2,000.00 pursuant to s. 25(5)(a) of the Schedule.

19I find that the applicant is not entitled to the amount of $6,651.51 for a home modifications assessment dated November 26, 2020, from My Accessible Daily Living.

The applicant is not entitled to yoga therapy

20I find that the applicant has not demonstrated that the treatment plan for one-to-one yoga therapy is reasonable and necessary as a result of her accident-related impairments.

21The applicant seeks payment for an OCF-18 dated October 4, 2021 in the amount of $3,961.92 for yoga therapy for pain reduction, relaxation, to control anxiety and improve functional abilities. Kristina Borho, occupational and yoga therapist, owner of Empowering Mind & Body Yoga, indicates in the OCF-18 that the applicant requires one-to-one yoga therapy to encourage her participation. The applicant relies on the recommendations by her family physician, Dr. Cheryl Wein, dated June 8, 2018 for yoga and naturopath therapy to manage her chronic pain and anxiety. However, Dr. Wein does not indicate that these are accident-related conditions. There are no updated reports of Dr. Wein addressing the effectiveness of the treatment which was incurred in the amount of $2,252.19.

22The applicant also relies on a report dated September 30, 2021 of treatment provider, Nicole Aylwin, yoga therapist which indicates that yoga therapy incorporates breathing techniques to elevate mood and manage pain. I give less weight to Ms. Aylwin’s report in the absence of medical evidence from a treating psychologist or psychiatrist in support of yoga therapy for the applicant’s accident-related psychological impairments.

23The respondent relies on the IE report dated September 11, 2018 by general practitioner, Dr. Eric Silver who found the applicant’s musculoskeletal injuries have resolved. The respondent also relies on an IE report dated December 16, 2021 by Kathryn Blaney, occupational therapist, recommending attendant care to prompt the applicant to engage in her home-based yoga routine. The respondent submits the OCF-18 for yoga therapy is a duplication of the approved attendant care.

24I find that the applicant has not established that one-to-one yoga therapy is reasonable and necessary for her accident-related physical and psychological impairments. I am not persuaded that one-to-one yoga treatment will provide further encouragement for the applicant’s participation in addition to the approved attendant care. The applicant has not met the burden of proof that the OCF-18 for yoga therapy is reasonable and necessary as a result of the accident.

The applicant is not entitled to treatment plans for medical cannabis

25The applicant seeks payment for OCF-18’s dated January 14, 2021 in the remaining amount and dated September 16, 2021 in the amount of $10,644.00 for medical cannabis. In the OCF-18 dated January 14, 2021, Dr. Mandeep Singh, psychiatrist indicates that medical cannabis is required for the applicant’s injuries which are identified as chronic pain, sleep disturbance, anxiety, depression and posttraumatic stress disorder (“PTSD”). The applicant relies on the consultation report of Dr. Singh dated August 27, 2021 suggesting the applicant participate in a medical cannabis treatment plan rather than purchasing marijuana off the street for her anxiety, decreased appetite and muscular pain. However, the applicant is not satisfied with the medical cannabis program which was partially approved because she uses more cannabis daily than what is prescribed.

26The applicant relies on catastrophic impairment reports listing her injuries as myofascial strain of the neck and back, back pain, right arm impairment and right shoulder tendinopathy. The applicant further submits the treatment is necessary for her psychological impairments. The applicant relies on the clinical notes of Dr. Wein dated March 17, 2021. Dr. Wein indicates that the applicant is sleeping well and she has recently consulted with a psychiatrist at CAMH, Dr. Lamba, but the consultation report has not been produced. On March 17, 2021 and October 6, 2021, Dr. Wein lists the applicant’s medications for chronic pain and anxiety to include Celexa, Imovane, Gabapentin, Naproxen, Ativan and Flexeril. Dr. Wein does not mention medical cannabis. The applicant does not point to any medical evidence from a treating physician which conclude that medical cannabis is reasonable and necessary a result of the accident.

27The respondent relies on the IE reports of Dr. John Castiglione, Dr. Rod Day, psychologist, Dr. Alborz Oshidari, physiatrist, Dr. Wein, Dr. Dory Becker, psychologist and Dr. Singh. Dr. Day indicates in his report dated June 16, 2015 that the applicant used cannabis before the accident and continues to use it on a daily basis after the accident. The applicant advised Dr. Day that she has a dependency on cannabis and smokes 7-10 marijuana cigars in addition to 15-20 cigarettes, on a daily basis. Dr. Day indicates that the applicant has not received any psychotherapy since the accident. In consultation reports dated October 19, 2020 and August 27, 2021, Dr. Singh indicates the applicant is not satisfied with her cannabis prescription and prefers to purchase cannabis off the street. Dr. Singh indicates that medical cannabis is only partially successful as the applicant continues to experience severe anxiety and depression, pain symptoms and does not sleep well. In finding that medical cannabis is not reasonable and necessary, Dr. Oshidari notes in his report of November 25, 2021 that the applicant has no physiological cause of pain that would require treatment with cannabis. Dr. Oshidari found inconsistencies in the applicant’s complaints and her actual functional abilities.

28The applicant has not demonstrated that her dependency on cannabis is related to the accident. The applicant reports minimal improvement with medical cannabis and she advised Dr. Singh she is not satisfied with the treatment that was approved. Since the applicant admits she derives no benefit from medical cannabis, she has not met her burden of proof that the plan for medical cannabis is reasonable and necessary as result of the accident because the treatment has not been beneficial.

The applicant is not entitled to treatment plans for acupuncture, massage and chiropractic services at The Rehab Centre

29I find that the applicant is not entitled to further acupuncture, massage and chiropractic treatment since she reported that her accident-related pain symptoms resolved within a year after the accident. The applicant seeks payment for OCF-18’s for acupuncture, massage and chiropractic treatment submitted by Dr. Pasqualino Macairo, chiropractor to address the applicant’s injuries including whiplash, cervical disc disorder, radiculopathy, sprain and strain type injuries of the shoulder and back, as follows:

a) OCF-18 dated September 15, 2021, in the amount of $4,050.00;

b) OCF-18 dated April 1, 2022 in the amount of $3,600.00;

c) OCF-18 dated July 6, 2022 in the amount of $3,6009.00;

d) OCF-18 dated July 6, 2022 in the amount of $2,779.28, and;

e) OCF-18 dated October 12, 2022 in the amount of $2,700.00.

30The applicant relies on the clinical notes of Dr. Wein in diagnosing chronic pain. However, Dr. Wein does not indicate whether the treatment is alleviating the applicant’s pain symptoms. There are no independent reports from the applicant’s physicians recommending the proposed treatment other than the treatment providers themselves. There is insufficient medical information provided by the applicant in support of the proposed treatment for physical rehabilitation. The applicant has not offered evidence stating that the goal of pain relief is being achieved.

31In contrast, the respondent points to the reports of Dr. Cameron Bruce Paitich, orthopaedic surgeon and Dr. Oshidari. In reports dated January 12, 2018 and March 21, 2018, Dr. Paitich indicates the applicant’s physical pain complaints are not accident-related. Similarly, Dr. Oshidari found inconsistencies in the applicant’s reported symptoms and her functional abilities. The applicant advised Dr. Oshidari she has no major pain in the neck and right shoulder and her back pain has improved. Dr. Oshidari found no physiological abnormalities and physical rehabilitation has not alleviated her symptoms. Dr. Oshidari defers to a psychological opinion regarding the applicant’s pain complaints. Dr. Lisa Becker indicates in report dated June 27, 2017 that the applicant’s back pain has resolved. In IE report dated March 19, 2018, Dr. Verity John, neurologist found no neuropathy or radiculopathy to explain the applicant’s symptoms. The applicant advised Dr. Day that physical treatments have been ineffective in reducing her pain which has contributed to her depressed mood. Dr. Day strongly recommends immediate psychotherapy.

32The applicant has not provided medical evidence that she has achieved the goal of pain relief through the proposed physical rehabilitation. Further, the applicant she advised Dr. Day that physical treatments have been ineffective and in fact, have worsened her psychological condition. Therefore, the applicant has not demonstrated that the OCF-18’s for acupuncture, chiropractic services and massage are reasonable and necessary as a result of the accident.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since, I have found the applicant is not entitled to the OCF-18’s in dispute, no benefits are owing and interest does not apply.

ORDER

34The application is dismissed, and I find that the applicant is not entitled to any of the benefits in dispute.