Boucher v. Co-operators General Insurance Company, 2024 CanLII 99651

Citation: Boucher v. The Co-operators General Insurance Company, 2024 ONLAT 22-009997/AABS

Licence Appeal Tribunal File Number: 22-009997/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:

Jerry Boucher

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Gregory C. Gilhooly, Counsel

For the Respondent: David Raposo, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jerry Boucher, the applicant, was involved in an automobile accident on June 7, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Co-Operators General Insurance Company, 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 $7,315.59 for a sleep system, proposed by Yanni Reklitis of TRAC Group, in a treatment plan submitted November 25, 2021 and denied December 2, 2021?

ii. Is the applicant entitled to $449.00 for a scuba diving course, proposed by Yanni Reklitis of TRAC Group, in a treatment plan submitted July 13, 2022, and denied September 15, 2022?

iii. Is the applicant entitled to $6,697.21 for a rehabilitation assistant proposed by Yanni Reklitis of TRAC Group, in a treatment plan submitted July 13, 2022, and denied September 15, 2022?

iv. Is the applicant entitled to $741.44 for chiropractic services, proposed by Dr. Chris Payner, in a treatment plan submitted September 9, 2022 and denied September 20, 2022?

v. Is the applicant entitled to $1,954.61 for massage and physiotherapy services, proposed by CBI Health Centre – Kanata Palladium, in a treatment plan submitted September 9, 2022, and denied September 22, 2022?

vi. Is the applicant entitled to $741.44 for chiropractic services, proposed by Dr. Chris Payner, in a treatment plan submitted December 14, 2022 and denied December 14, 2022?

3The applicant has withdrawn the issue of whether he is entitled to $653.70 for a veterinary procedure for a dog, proposed in a treatment plan submitted July 13, 2022.

RESULT

4The applicant is entitled to $6,697.21 for a rehabilitation assistant proposed by Yanni Reklitis of TRAC Group, in a treatment plan submitted July 13, 2022.

5The applicant is entitled to $741.44 for chiropractic services, proposed by Dr. Chris Payner, in a treatment plan submitted September 9, 2022.

6The applicant is entitled to $1,954.61 for massage and physiotherapy services, proposed by CBI Health Centre – Kanata Palladium, in a treatment plan submitted September 9, 2022.

7The applicant is not entitled to the remainder of the treatment plans in dispute.

ANALYSIS

8By way of background, the applicant has been deemed catastrophically impaired. He has been diagnosed with, amongst other things, Major Depressive Disorder, and Somatic Symptom Disorder with Predominant Pain. He also has chronic pain in his back.

9In order 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.

Sleep System

10I find that the applicant is not entitled to the treatment plan for the proposed sleep system.

11The applicant's treating occupational therapist, Yanni Reklitis, recommended that the applicant receive a new bed and frame. The goals indicated in the treatment plan for this sleep system were to provide the applicant with a supportive mattress to decrease his lower back pain, provide proper positioning for his spine, and optimize overall sleep quality and quantity.

12In a letter dated November 23, 2021, Mr. Reklitis explained that the applicant struggles with bed transfers due to pain in his back radiating into his lower extremities, chronic pain, and decreased mood. The quality of his sleep and his ability to fall asleep were decreased. A joint letter in support of this sleep system was also prepared by Mr. Reklitis and the applicant's social worker, Jaden Bailey, on March 23, 2022. They indicated that the applicant had tried to improve his sleep quality through sleep hygiene interventions, but that was not successful. They also stated that the applicant's sleep setup was a major concern to his care providers.

13Mr. Reklitis and Mr. Bailey indicated that the applicant's mattress and hydraulic bed frame were over 30 years old. The frame was broken and irreparable. The applicant tried four different mattresses in store and brought home the recommended mattress as a trial. According to Mr. Reklitis, the mattress increased the ease of transferring/repositioning in bed with the adjustable frame and decreased overall pain levels.

14The respondent submits that the sleep system is not reasonable and necessary. It relies on Kucheran-Grenier v. The Co-Operators, 2023 CanLII 96326, and argues that the replacement of household items that are replaced relatively regularly (such as a computer and phone) is not reasonable and necessary. The respondent also relies on the s. 44 occupational therapy report of Sherry Mosher Taillefer, dated June 17, 2022. Ms. Taillefer opined that the requirement for the bed replacement was unrelated to the accident.

15Based on the evidence before me, it appears that this sleep system is similar to something that the applicant already had prior to the accident and requires replacing due to its age and state of disrepair. There is little evidence before me as to how this sleep system differs from his current one, aside from it being a smaller size.

16I find that the applicant has not proven on a balance of probabilities that the need for a replacement of his current sleep system is due to the accident.

Scuba Diving Course

17I find that the applicant is not entitled to the treatment plan for the scuba diving course.

18The applicant submits that he has not worked in any capacity since 2016. He lives in a rural area and does not have many friends or family. In order to involve him in leisure pursuits for a sense of community, belonging, and personal satisfaction in order to increase his mood and activity levels, Mr. Reklitis recommended a scuba diving course. This would also provide the applicant with some structure to his day and allow him to meet new people. The applicant had never tried scuba diving before.

19The applicant's psychologist, Dr. Duong, wrote a letter in support of the scuba diving course on January 25, 2022. He opined that exercise would be significantly beneficial in terms of coping with low mood and anxiety, and that the applicant would benefit from the additional social engagement and structure to his daily routine.

20Since the denial of this treatment plan, the respondent has provided the applicant with funding for an annual gym membership. The respondent submits that this assists with his participation in the community and exercise. In Mr. Reklitis' progress report of July 26, 2023, he noted that the applicant went to the gym on average 4 days per week, spending approximately 30 minutes doing light swimming/aquatic-based exercises, and 1 hour in the hot tub and sauna. Further, Mr. Reklitis indicated that the applicant had begun volunteering with a junior B hockey team, which he would participate in 2-3 evenings per week after completing certain certifications. The applicant reported to Mr. Reklitis that he experienced satisfaction and engagement in volunteering, it got him out of the house, and he had a connection to the head coach and players from a social standpoint. The respondent submits that it has approved funding for various hockey training/coaching courses for the applicant to meet the goals indicated above.

21I find that the applicant is engaging in other activities that have supplanted the need for a scuba diving course. I also note that although Dr. Duong made general recommendations with respect to social engagement, structure, and exercise, he did not specify that a scuba diving course was the only way to achieve these goals. The evidence suggests that the applicant is achieving them through his attendance at the gym and volunteering with a hockey team, and I accordingly find that the scuba diving course is accordingly not reasonable and necessary.

Rehabilitation Assistant

22I find that the applicant is entitled to this treatment plan.

23The applicant submits that his landlord has sold the house that he rents, and he is expected to move out at an unknown date. He submits that he does not have the capacity to plan and execute such a big task due to his physical, cognitive, and emotional impairments. The applicant submits that he does not have available family or social supports to help with this.

24Mr. Reklitis submitted a treatment plan on July 13, 2022, for a rehabilitation assistant to assist him with his move. The goal of the treatment plan is to instruct and support him in the use of planning, pacing, and executive function to manage pain and depressive symptoms to prepare him for the move. A total of 24 two-hour sessions were proposed, in addition to provider travel time, documentation, and preparation.

25The respondent argues that the fact that the applicant's landlord sold his house is in no way related to the motor vehicle accident and there is therefore no coverage for this treatment plan. For the following reasons, I disagree.

26In a progress note from Dr. Duong from June 28, 2023, he indicated that the applicant had worked on gradually packing up his possessions, but he had been significantly limited by his pain, fatigue, and mood. His pain had worsened since his cessation of his physical therapies, and his depression symptoms had worsened. This resulted in a decreased motivation for daily activities. Dr. Duong also indicated that traveling to appointments could be difficult for him, which indicates to me that traveling to look for new homes could also be difficult.

27Further, in a progress report from July 26, 2023, Mr. Reklitis indicated that the applicant was past the initial move-out date and was at risk of being displaced from his home. He noted that the treatment plan was submitted so that a rehabilitation assistant could help him with packing up his belongings, and to support the execution of functional tasks supporting behaviour activation goals. In addition to his pain and psychological impairments, Mr. Reklitis also indicated that the applicant has issues with memory and attention. Mr. Reklitis also communicated with a moving company and with the City of Ottawa regarding eligibility for moving assistance. I find that, on a balance of probabilities, the applicant has demonstrated that his accident-related impairments are hindering his ability to move homes on his own, and he therefore requires assistance with this task.

28The respondent also submits that the applicant continues to independently participate in the community including operating a motor vehicle, volunteering as a hockey trainer, and participating in a gym program. Given the information above from Dr. Duong and Mr. Reklitis above, I do not agree that this means he is also necessarily able to move homes independently. The respondent has acknowledged that it continues to approve case manager services, social work services, psychological services, and occupational services. It appears that the applicant is struggling with packing up his possessions and finding a place to live, and since the denial of the treatment plan, is relying on his occupational therapist for assistance with this task.

29In addition, the respondent argues that the applicant was able to move residences previously without the use of a rehabilitation assistant. In reply, the applicant argues that he was only able to move homes in 2017 and 2018 because his ex-spouse was still alive then and was able to assist him. He was also receiving help from his daughter, who is now critically ill and unable to assist. I find that the applicant's ability to move homes in 2017 and 2018 is not necessarily evidence of his ability to move homes now, considering the diminishment of his support system.

30The respondent submits that the professionals working with the applicant could assist him with the stated goal of preparing to move, and that the addition of a rehabilitation assistant is not reasonable and necessary. In fact, this was the basis for the respondent's denial. I do not accept that a social worker, psychologist, or case manager are the appropriate professionals to help the applicant with this task. Further, the addition of a rehabilitation assistant does not mean that there is now an overlap of work being done; the rehabilitation assistant would be taking on a new task, and once that task is complete, the need for a rehabilitation assistant would cease. If an occupational therapist were to complete this work, they would still request payment from the respondent for the time spent on it.

31In that regard, the applicant submits that a rehabilitation assistant's hourly rate is $69.50, much less than that of a psychologist ($179.29), case manager ($134.17), or occupational therapist ($119.92). I agree with the applicant that it would be more economical for a rehabilitation assistant to compete this work.

32The respondent argues that the cost of the proposed treatment plan is excessive. However, aside from noting the amount of hours proposed in the plan, it does not explain why the amount of time is excessive. I do not agree with the respondent. The applicant has to pack up his five-bedroom home and find a new place to live, which presumably also involves traveling to different properties. The treatment plan was prepared by Mr. Reklitis, who has been working very closely with the applicant and knows his needs, including the extent of belongings that need to be packed. Ultimately, if the applicant is able to pack and find a place to live faster than the time proposed in this plan, the respondent will not be billed for the unused time. The amount of assistance proposed is a ceiling, not a floor.

33I find that the applicant has demonstrated on a balance of probabilities that this treatment plan is reasonable and necessary, and he is accordingly entitled to it.

Chiropractic, Massage, and Physiotherapy

34I find that the applicant is entitled to this first treatment plan for chiropractic services, and the treatment plan for massage and physiotherapy services. He is not entitled to the second treatment plan for chiropractic services.

35There are two treatment plans in dispute that each propose 8 sessions of chiropractic treatments. Another treatment plan proposes 24 sessions of massage therapy and 2 sessions of physiotherapy. The goals of the treatment plans are pain reduction.

36The applicant submits that he regularly participated in chiropractic, massage, and physiotherapy treatments prior to these treatment plans being denied. This helped him to manage his pain and maintain his level of function.

37The respondent submits that the applicant's physical injuries are soft tissue in nature. It argues that there is no medical evidence from a physical perspective speaking to the reasonableness of chiropractic, massage, and physiotherapy more than eight years post-accident.

38Dr. Abdul-Wahab Khan, physiatrist, conducted a s. 44 assessment on June 2, 2022. He opined that the applicant sustained a cervical spine and bilateral trapezius sprain/strain, and a lumbar spine sprain/strain. He noted that the applicant had reduced range of motion in the cervical spine, lumbar spine, and bilateral shoulders. Dr. Khan stated that there were no significant objective accident-related physical impairments or objective ongoing musculoskeletal pathology identified during his examination which would necessitate further facility-based therapy.

39The applicant submits that Dr. Khan did not take into account his long-standing Somatic Symptom Disorder or Major Depressive Disorder, which cause him to suffer from pain and low mood. The applicant submits that his low mood impacts his motivation for completing his activities of daily living, and it is not reasonable for someone with such severe psychiatric symptoms to have the ability to create and perform his own exercise program at home.

40I find that Dr. Khan did not take into account the applicant's pain when considering whether facility-based treatment was reasonable and necessary. He appears to have based his denial on whether the applicant had significant objective physical impairments or musculoskeletal pathology, but not on whether the applicant experienced pain or how to alleviate it. I accordingly give his report less weight.

41Similarly, the respondent relies on the physiatry reports of Dr. Joshua Muhlstock and Dr. Ryan Williams to indicate that the applicant's physical injuries were soft-tissue in nature. Neither of the reports address the applicant's need for facility-based treatment or address how his pain can be relieved. Further, Dr. Muhlstock's report is from 2015 and has limited value in determining the applicant's current condition or his treatment needs. I accordingly do not find these reports to be persuasive with respect to this analysis.

42The respondent also relies on one page from the s. 25 catastrophic impairment report of Dr. Patel, psychiatrist, from December 12, 2018. It submits that the applicant reported that chiropractic and massage therapy was only "a little bit" helpful. However, the rest of the paragraph states that after funding was discontinued by the respondent, his pain had worsened such that he could no longer drive, and the funding was reinstated. The applicant also reported finding pain relief through medication, massage therapy, and chiropractic treatments. I find that this document depicts the opposite of what the respondent purported it to show, and these therapies were helpful in reducing the applicant's pain.

43As indicated above, Dr. Duong also noted that the applicant's pain had worsened with the cessation of his physical therapies, and this limited his engagement in activities. This had also contributed to a worsening of his depression symptoms.

44I find that the applicant is entitled to receive further chiropractic treatments, massage therapy, and physiotherapy. Pain relief is an appropriate therapeutic goal, and there is evidence that these therapies provide the applicant with pain relief that allows him to participate in more of his daily activities.

45However, I note that the two treatment plans for chiropractic services are virtually identical. I have not been provided with evidence that either of them have been incurred. Without an explanation, I find that it is not reasonable for the respondent to fund two identical treatment plans simultaneously. As such, I find that only one of the chiropractic treatment plans are payable.

46The respondent does not take issue with any of the line items in the treatment plans, or the cost or length of the treatment sessions. I find that the overall cost of one of the chiropractic treatment plans and the physiotherapy and massage therapy treatment plan are reasonable.

47The applicant argues that in denying the treatment plans, the respondent did not meet its obligation to provide the applicant with medical reasons pursuant to s. 38(8) and submits that the denials were boilerplate. As I have found that one of the chiropractic treatment plans are not payable, I must consider whether the treatment plan should be payable as a result of the alleged breach of s. 38(8).

48S. 38(8) of the Schedule states that within 10 business days after it receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments, and examinations that it does not agree to pay for, and the "medical reasons and all of the other reasons" why the insurer does not consider them to be reasonable and necessary. The consequences of failing to comply with the notice requirements for each treatment plan are indicated in s. 38(11): the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and the insurer shall pay for the goods and services in the treatment plan starting on the 11th business day after the insurer received the application, and ending when proper notice is provided.

49It is trite law that the respondent does not have to be correct in its denials in order to satisfy its obligations under s. 38(8). The respondent referred in its letter of December 14, 2022, to Dr. Khan's opinion that the applicant no longer required facility-based treatment, and also acknowledged that they had recently funded a gym membership to assist with active treatment. I find that the letter provided clear medical and other reasons for the denial. While the respondent included some boilerplate language regarding the passage of time and amount of treatment incurred, that does not take away from the other reasons it provided. I accordingly find that the denial letter for the chiropractic treatment plan was sufficient.

50The applicant is entitled to $741.44 for chiropractic services in a treatment plan submitted September 9, 2022. He is also entitled to $1,954.61 for massage and physiotherapy services in a treatment plan submitted September 9, 2022. He is not entitled to the other treatment plan for chiropractic services in dispute.

ORDER

51The applicant is entitled to $6,697.21 for a rehabilitation assistant proposed by Yanni Reklitis of TRAC Group, in a treatment plan submitted July 13, 2022.

52The applicant is entitled to $741.44 for chiropractic services, proposed by Dr. Chris Payner, in a treatment plan submitted September 9, 2022.

53The applicant is entitled to $1,954.61 for massage and physiotherapy services, proposed by CBI Health Centre – Kanata Palladium, in a treatment plan submitted September 9, 2022.

54The applicant is not entitled to the remainder of the treatment plans in dispute.