Citation: See-Lyons v. Security National Insurance Company, 2025 ONLAT 24-003198/AABS

Licence Appeal Tribunal File Number: 24-003198/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:

Meagan See-Lyons

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Ian Drong, Counsel

For the Respondent:

Ashley Dunkley, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Meagan See-Lyons, the applicant, was involved in an automobile accident on December 15, 2017, 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, TD 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 $10,979.06 ($20,210.48 less $9,231.42 approved) for assistive devices, proposed by Skill Builders Physiotherapy and Rehab Centre in a treatment plan dated December 20, 2021?

ii. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from September 28, 2021 to present and ongoing?

RESULT

3I find that the applicant is entitled to the balance of the treatment plan dated December 20, 2021 in the amount of $10,979.06.

4I find that the applicant is not entitled to attendant care benefits.

ANALYSIS

Entitlement to the balance of the treatment plan for a hot tub, dated December 20, 2021

5I find on a balance of probabilities that the applicant is entitled to the balance of the treatment plan proposing a hot tub, dated December 20, 2021.

6To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

7The applicant claims entitlement to $10,979.06 ($20,210.48 less $9,231.42 approved) for assistive devices, proposed by Skill Builders Physiotherapy and Rehab Centre in a treatment plan dated December 20, 2021. Specifically, she claims entitlement to the cost of a hot tub with start-up package/chemicals, delivery fee and walk-in custom stairs.

8The applicant submits that following the accident, she complained of pain in her neck, back, shoulders, right arm, bilateral knees, and right foot. She also complained of headaches, vision issues, dizziness, nausea, sleep issues, depression and anger issues. Following the accident she gained 100 pounds. On July 11, 2019, she was diagnosed as suffering from a pseudotumor cerebri and began a course of Diamox 500mg to address her dizziness and headaches. She was advised that her significant weight gain following the accident may be the cause of these issues. In April of 2021, she was diagnosed with suffering from end-stage kidney failure and placed on dialysis. Her kidney failure was causally linked to her usage of Diamox.

9The applicant submits that the hot tub is reasonable and necessary to assist her in her recovery and pain management, given not just her symptomatology, but also the specific limitations that she has in addressing her recovery needs. She submits that her kidney condition makes her ability to rehabilitate from her injuries highly complicated and accordingly, her occupational therapist recommended a hot tub to assist with her chronic back pain, as more active therapeutic means are medically unavailable to her. The recommendation for the hot tub was supported by her family physician, Dr. Mofolasade Sam-Ogunbiyi, in a letter dated October 28, 2021, and Darlene Gillanders, occupational therapist, in an occupational therapy report dated December 17, 2021.

10The respondent submits that the applicant’s current kidney failure is not an accident-related diagnosis. It notes that the clinical note from her hospital visit in April 2021 notes that she had proteinuria dating back as far as 2011 and 2012 which is an indication that her kidneys were not working properly. The respondent argues that this is further emphasized by the applicant’s family doctor on June 21, 2021, when he stated that the applicant is, “completely refusing to accept that she had hypertensive nephrosclerosis which is not related to a MVA.”

11The respondent submits that the treatment plan dated December 20, 2021, indicates that the goal of treatment was for pain reduction and return to activities of normal living. The accompanying report dated December 17, 2021, indicates that the applicant requires a mattress, a nest outdoor camera, a hot tub, stairs and railing. The explanation of the hot tub was that the applicant was not able to get into her bathtub to benefit from sitting in hot water, and as such a 6-person hot tub is required, specifically a gold 35 platinum hot tub, with custom built in steps. The respondent submits that this is an overreaching treatment plan and there are far more reasonable options available, and more cost-effective treatment avenues rather than a 6-person hot tub.

12The respondent relies upon the paper review report of Dr. Joel Maser, internal medicine, dated April 6, 2022, which concluded that the diagnosis of end stage renal failure secondary to biopsy confirmed glomerulosclerosis with HTN, is not accident related. The respondent further relies upon the report of Sarah Macrae, occupational therapist, dated April 6, 2022, who opined that the hot tub was not reasonable and necessary as her current related symptoms are not accident related.

13I find that while there is a dispute between the parties as to whether the applicant’s kidney failure is accident-related, the respondent has not made any submissions that the applicant’s chronic back pain is not accident-related. I find that the treatment plan in dispute was prepared to address the applicant’s chronic back problems which is the focus of my decision.

14I find upon review of the occupational therapy report, prepared by Ms. Gillanders, dated December 17, 2021, that this report confirms the need for the hot tub to address the applicant’s chronic back pain that was accident-related and sets out the reasons why such a large hot tub with stairs, is justified. I find that the hot tub was recommended because the applicant “is confined to her bed much of the time and is experiencing chronic back pain as well as generalized aching from long periods of time in bed.” The report notes that the applicant’s family doctor prescribed and recommended the hot tub. It notes that the applicant is unable to get into her bathtub to benefit from sitting in hot water. The recommended 6-person tub is required as it has steps down into it where the smaller ones do not.

15I find the letter from Dr. Sam-Ogunbiyi, dated October 28, 2021, supports the recommendation for the hot tub, namely that the applicant is morbidly obese and struggles to get in and out of her conventional bath. It notes that she suffers from chronic back pain and limited mobility.

16I therefore find that both the report of Ms. Gillanders and the letter from Dr. Sam-Ogunbiyi, support that the hot tub is reasonable and necessary to assist her in her recovery and pain management, given not just her symptomatology, but also the specific limitations that she has in addressing her recovery needs. I further find that the goals of the treatment plan to reduce pain and return to her activities of normal living would be met by the provision of the hot tub.

17I give little weight to the IE report of Dr. Maser where he concluded that the hot tub was not reasonable and necessary. I find that Dr. Maser based his report on a review of several medical reports and concluded that the applicant suffered uncomplicated injuries of a soft tissue nature. However, I note that the report of Ms. Gillanders is not summarized or referred to in his conclusions and the letter of the family doctor is not listed as a document reviewed, both of which formed the basis of the recommendation for the hot tub. I find that other than concluding that the hot tub was not reasonable and necessary, no particulars were provided as to how Dr. Maser reached his conclusion other than stating that the applicant suffered uncomplicated soft tissue injuries. I do not find that an actual analysis of the reasonableness and necessity of the hot tub was made by Dr. Maser.

18I also give little weight to the report of Ms. Macrae as she provides a short summary of the report of Ms. Gillanders, yet she leaves out the portion of the report that discusses the hot tub which is the balance of the treatment plan being disputed. I find that there is no discussion or even mention of the hot tub within her analysis, which is the issue in dispute.

19I therefore place more weight on Ms. Gillanders’ report and the family doctor’s letter, than those of the IE assessors. As the applicant’s treating practitioners, I find that they were in a better position to address the applicant’s level of need and provide her with recommendations that would assist in her recovery. I find that the explanation for the need for the hot tub is supported by the medical evidence that supports her ongoing chronic back pain and limitations with mobility.

20With respect to the cost of the hot tub, while the respondent submits that there are more reasonable options available, and more cost-effective treatment avenues rather than a 6-person hot tub, there is no indication that alternative options were put before the applicant. In the Tribunal decision referred to by the respondent in Seupersaud v. Cumis General Insurance Company, 2025 ONLAT 23-003168/AABS, the respondent pointed the Tribunal to several readily available hot tubs from numerous retailers with lower costs of the hot tub. The Tribunal agreed with the respondent that there are many hot tub options available for significantly less than the amount proposed in the treatment plan. In this matter, the respondent has not provided any evidence that it provided alternative hot tubs that would achieve the same therapeutic options to the applicant as they simply denied the balance of the treatment plan. As such, I have no evidence before me to suggest that the cost of the proposed hot tub is not reasonable. I therefore accept that the applicant has proven on a balance of probabilities, that the cost of the hot tub proposed is reasonable. I further find that the applicant has proven on a balance of probabilities that due to her obesity and limited mobility, that she requires a large hot tub with stairs.

21For the reasons outlined above, I find that the applicant has proven on a balance of probabilities, that the balance of the treatment plan recommending a hot tub, is reasonable and necessary.

Entitlement to Attendant Care Benefits

22I find on a balance of probabilities that the applicant has not proven entitlement to attendant care benefits.

23Pursuant to section 19(1) of the Schedule, an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aid or attendant or by a long-term care facility. Section 19(3) of the Schedule limits attendant care payable to a maximum of $3,000.00 per month if the injury is not a catastrophic impairment.

24Pursuant to s. 20 of the Schedule, no attendant care benefit is payable for expenses incurred after 260 weeks after the accident if the person did not sustain a catastrophic impairment as a result of the accident.

25Pursuant to s. 3(7)(2) of the Schedule, an expense, including the cost of an aide or attendant, is not incurred unless the applicant received the goods and services to which the expense relates, the applicant has paid the expense or promised to pay it, and the person who provided the services did so in their course of employment, occupation or profession, or sustained an economic loss as a result of providing the services to the insured person.

26The applicant claims entitlement to attendant care benefits in the amount of $3,000.00 per month from September 28, 2021 to present and ongoing. She relies upon the occupational therapy assessment report prepared by Ms. Gillanders, dated September 24, 2021, where it was found that the applicant had significant functional limitations and recommended attendant care services in the amount of $9,259.40. The report identified areas of need for the applicant as limited endurance for mobility and activity participation, severe limitations with self-care and meal preparation, and decreased engagement in some activities of self-care, including dressing, grooming and bathing. The sources of these restrictions are noted as including back pain, dizziness, headaches, high blood pressure and shortness of breath.

27The respondent submits that the applicant has not been deemed to have sustained a catastrophic impairment, and as such, 260 weeks following her December 15, 2017 accident would have lapsed on December 15, 2022. It therefore submits that the period in dispute is only from submission of the Form 1 on September 28, 2021 to December 17, 2022, being the maximum 260-week period.

28The respondent further submits that the applicant must have incurred the attendant care benefit, and no evidence has been adduced to prove that she did in fact incur such expenses.

29The respondent further submits that the applicant does not require attendant care benefits for her accident-related injuries. The respondent submits that the assessment by Ms. Gillanders that the applicant is relying upon is based solely on her subjective reporting and there is no indication of any document review and/or fact checking of the applicant’s reporting.

30The respondent relies upon the IE report of Ms. MacRae, dated April 6, 2022, which opined that the applicant does not require any attendant care benefits. It submits that an adverse inference should be drawn from the applicant’s unwillingness to participate in the examination as she declined to move from the couch and compete any formal testing. In addition, the applicant did not make any subjective complaints to the assessor about an inability to get in and out of her bathtub and she was well groomed at the assessment.

31I find that pursuant to s. 20 of the Schedule, that the applicant is only entitled to attendant care benefits from the date of submission of her Form 1, dated September 28, 2021 to the 260-week mark of December 17, 2022. There is no evidence that the applicant suffers a catastrophic impairment as a result of the accident or that an OCF-19 has been submitted.

32I find that the Form 1 and occupational therapy report of Ms. Gillanders, supports the applicant’s entitlement to attendant care benefits. Ms. Gillanders provided a comprehensive assessment of the applicant’s needs and limitations as a result of the injuries suffered in the accident. I find that the Form 1 was based on the applicant’s self-reporting as well as the observations and conclusions made by Ms. Gillanders in her assessment. However, the applicant has not tendered any evidence or submissions that attendant care services were incurred. While the applicant claims entitlement to attendant care benefits on the basis that they were recommended by Ms. Gillanders, she has not provided any evidence indicating that she incurred the expenses, despite it being a requirement pursuant to s. 3(7)(e) of the Schedule.

33For the reasons outlined above, I find on a balance of probabilities, that the applicant is not entitled to attendant care benefits from September 28, 2021 to December 17, 2022.

ORDER

34For the reasons outlined above, I find,

i. The applicant is entitled to the balance of the treatment plan for a hot tub dated December 20, 2021, in the amount of $10,979.06;

ii. The applicant is not entitled to attendant care benefits.