Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-004101/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:
Nicole Lefebvre
Applicant
and
Traders General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Paul Auerbach, Counsel
For the Respondent: Hussein Pirani, Counsel; Keisha Tucker, Counsel
HEARD: In Writing
By written submissions
OVERVIEW
1Nicole Lefebvre, the applicant, was involved in an automobile accident on July 30, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Traders General Insurance Company, Insurer, 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 $1,420.00 for physiotherapy services, proposed by Amanda Bellefeur in a treatment plan/OCF-18 ("plan") submitted September 10, 2021, and denied October 4, 2021?
ii. Is the applicant entitled to $3,719.95 for an in-home yoga treatment, proposed by Tori McQuat in a treatment plan submitted September 2, 2021, and denied October 4, 2021?
iii. Is the applicant entitled to $1,594.65 for assistive devices, proposed by Stephanie Venema in a treatment plan submitted February 4, 2021, and denied June 28, 2021?
iv. Is the applicant entitled to $1,838.50 for handrails, proposed by Stephanie Venema in a treatment plan submitted March 9, 2021, and denied Jun 28, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to physiotherapy.
4The applicant is not entitled to in-home yoga therapy.
5The applicant is not entitled to assistive devices.
6The applicant is not entitled to handrails.
7The applicant is not entitled to interest.
ANALYSIS
8To 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.
Physiotherapy
9The applicant argues that physiotherapy is necessary for the applicant's rehabilitation. In particular, to address her ongoing pain, decreased rage of motion, decreased strength, altered gait, and muscle soreness. According to the applicant, her position is supported by the report of Dr. Markus Besemann, physiatrist, dated August 27, 2021 and the Physiotherapy Commitment Plan of Amanda Clement, physiotherapist, dated September 10, 2021. Consequently, the applicant submits that she is entitled to this treatment plan.
10The respondent submits that the applicant is not entitled to this treatment plan because the two insurer examinations (IE) of Dr. Michael Aiello, physician, concluded that she has reached maximal medical recovery and that her accident related injuries require no further physical treatment.
11Dr. Besemann diagnosed the applicant with Whiplash Associated Disorder type II cervical spine and a lumbosacral sprain/strain, as well as an aggravation of pre-existing right hip pain and the delayed onset of a left S1 radiculopathy.
12According to Dr. Besemann, the applicant experienced "very little in terms of pain" after the accident, but this gradually changed as she developed fibromyalgia and rheumatoid arthritis by April, 2019. These two conditions, at least initially, caused her to experience debilitating pain. She stopped working and has not returned to work since then. Her physical and psychological disorders apparently ended her career with the Federal public service. The exact details are not in evidence, but the Neuropsychological Assessment Report of Dr. Erin O'Farrell, psychologist, dated September 14, 2021 states that the applicant, then 54 years old, is retired.
13The applicant has since improved. She reported to Dr. Besemann that she is now "pretty much back to her usual functional abilities, other than work."
14Dr. Besemann's physical examination revealed no tenderness on palpitation of her entire spine. The range of motion for her entire spine was also within normal limits, with stiffness at the end range of motion. Since the accident, the applicant has also developed left-sided sciatica and left S1 radiculopathy which effects her gait and causes a right sided limp.
15According to the applicant, Dr. Besemann attributes the development of fibromyalgia and rheumatoid arthritis to the psychological stresses experienced by the applicant as a result of the accident. I note that in regard to arthritis, Dr. Besemann states "rheumatologic diagnoses are not directly imputed to the accident, but may be a consequence of the stresses imparted by the accident." This suggests that it is possible that the accident contributed to the development of applicant's arthritis. In my view, the balance of probabilities test for causation cannot be met by mere possibility of arthritis being a consequence of the accident.
16The mechanism of how the accident contributed to the development of arthritis and fibromyalgia over the course of nine months after the accident is described by Dr. Besemann as being related to psychological rather than physical injuries:
The long delay in symptom apparition likely is on the basis of psychological stress as opposed to structural injury from the accident itself. Furthermore, given her past history of trauma and the fact that the accident, as is often seen was the catalyst to unleash the somatic and psychological symptomatology that is often stored for decades in the context of childhood trauma in particular.
17According to Dr. Besemann, the accident likely caused the applicant's pre-existing childhood trauma to develop into a somatic and some other type of psychological disorder that triggered arthritis and fibromyalgia symptoms. I find that this opinion is not persuasive because it relies on psychological expertise which Dr. Besemann, a physiatrist, does not have.
18Dr. Besemann links the development of left-sided sciatica and left S1 radiculopathy to the accident but does not explain how he reached this conclusion. He states that the accident "grafted onto pre-existing musculoskeletal conditions" of chronic neck and back pain, and chronic right-sided hip pain, but does not mention pre-existing conditions on the applicant's left side. As such, I give little weight to this part of his diagnosis because he provides no nexus between the accident and the development of the applicant's left-sided sciatica and S1 radiculopathy.
19I prefer the opinion in the insurer examination of Dr. Michael Aiello, physician, dated December 21, 2021. He found that the accident caused a mild impairment in the applicant's spine. He further found that the applicant had reached maximum medical recovery and that the post-accident development of arthritis and fibromyalgia would significantly impact her ability to return to her pre-accident baseline.
20Dr. Aiello and Dr. Besemann agree that the applicant's accident-related injuries to her spine have largely resolved. For reasons already stated above, I have found that the remaining conditions that cause pain, namely arthritis, fibromyalgia, and left sided nerve pain, were not caused by the accident. Consequently, there is little medical evidence which shows that there are therapeutic benefits to physiotherapy for any accident-related condition. For this reason, I find that physiotherapy is not reasonable and necessary.
Yoga
21The only evidence lead by the applicant to support in-home yoga treatment is the Yoga Therapy Progress Report by Christine Nye, registered yoga teacher, and Tori McQuat, occupational therapist, dated August 30, 2021. The report states that yoga practices support the management of pain and emotional stress. The report also states that yoga helps increase the applicant's strength, flexibility, and overall fitness. The applicant submits that this treatment is reasonable and necessary to maintain the applicant's ongoing physical rehabilitation and emotional well-being.
22The respondent submits that it already approved a treatment plan (OCF-18) for $4,231.45 of in-home yoga treatment from January to May 2021, and relies on the two IEs of Dr. Aiello to argue that further yoga treatment is not reasonable and necessary.
23The applicant's accident related physical injuries have largely resolved. The applicant continues to experience pain from arthritis, fibromyalgia, and nerve pain on her left side and may benefit from yoga to treat these conditions. However, these conditions are not accident related, and therefore, not covered under the Schedule.
24In regard to ensuring the applicant's emotional well-being through yoga, neither the applicant nor the respondent have submitted any medical reports that confirm whether or not the applicant sustained a psychological injury as a result of the accident. The report of Dr. O'Farrell diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood but does not state that these conditions were caused by the accident. This is significant because the applicant has a history of pre-existing psychological disorders which are noted in the clinical notes and records Dr. Yves Lefebvre, her family doctor. Given these circumstances, the evidence before me is not sufficient enough to establish, on a balance of probabilities, that the applicant sustained a psychological injury in the accident.
25There is insufficient evidence to show a therapeutic benefit would be derived from in-home yoga treatment of an accident related physical or psychological injury. For this reason, I find that this treatment plan is not reasonable and necessary.
Assistive Devices
26The applicant submits that the Equipment Rationale, completed by Stephanie Venema, occupational therapist, dated February 9, 2021, supports the treatment plan for assistive devices. The Rationale explains how the impairments of chronic pain, reduced balance, fatigue, and cognitive issues impact her ability to engage in essential tasks such as self care, meal preparation, and housekeeping. The assistive devices are practical solutions to mitigate the impact of her impairments and provide her with greater ease, comfort, and independence in her activities of daily living.
27The respondent relies on the Occupational Therapy Assessment by Sherry Mosher-Taillefer, occupational therapist, dated June 17, 2021. Based on the recommendation of Dr. Aiello for the applicant to continue with self-directed exercises, Ms. Mosher Taillefer recommended the yoga mat and blocks listed on the OCF-18. She did not recommend the remaining items on the treatment plan because Dr. Aiello's diagnosis indicated that the applicant's functional impairments are not accident related. The respondent submits that the remaining items were properly denied.
28I note that Ms. Venema makes the following recommendations:
(a) Pot and plant organizer, spice rack/organizer, countertop spice turntable are recommended due to report of pain and fatigue when bending and reaching.
(b) Food processor, electric can opener, and electric peeler are meant to mitigate the pain in the applicant's hands, shoulders, neck and back, reduced grip strength, reduced balance, reduced physical tolerances, fatigue, low mood and reduced initiation.
(c) Cuisinart stand mixer is recommended because the applicant cannot mix post-accident due to fatigue and hand, shoulder, and neck pain.
(d) Anti-fatigue mat to reduce pressure on the applicant's feet when she is in the kitchen, increase blood flow to her feet and reduce pain and fatigue to maximize completion of functional standing tasks
(e) Long-handled electric bath scrubber to mitigate back pain associated with bending and fatigue.
(f) Dyson V7 Motorhead Origin vacuum is lightweight and using it causes less strain, and consequently, less pain to her neck, shoulder, and back, as well as less fatigue.
29Both Dr. Aiello and Dr. Besemann found that the applicant sustained a mild impairment in her spine as a result of the accident. However, there is no clear evidence in their reports that the applicant has ongoing back pain caused by the accident. As noted by Dr. Besemann, "Following the accident, she had very little in terms of pain but this gradually progressed to the point where she had a significant flare of polyarthritis in the spring of 2019..." Once again, arthritis is not an accident-related injury. I would also note that the applicant reported no pain along her entire spine during the palpitations performed by Dr. Besemann. This appears to be an improvement over her pre-accident condition, described by the applicant to Dr. Besemann as having "significant amounts of pain in her neck, her back..." In light of this, the evidence does not support the need for assistive devices due to pain caused by the accident related injuries to the applicant's spine.
30Ms. Venema's recommendations are also meant to mitigate pain in the applicant's hands, reduced balance, reduced grip strength, and reduced physical tolerances. There is no evidence which indicates that the accident caused these impairments.
31Dr. Besemann notes an improvement over the applicant's pre-accident condition largely due to her success in weight loss and leaving an unhealthy romantic relationship. He describes her post-accident improvement in this way:
She is no longer fatigued to the extent that she used to be. She does not require daytime naps. She feels that she is essentially back to where she was prior to the accident in question in many respects; or in other respects even better.
32As such, Dr. Besemann's report cannot support the premise that the applicant requires assistive devices to offset accident related fatigue because the applicant's level of fatigue has decreased since the accident.
33Consequently, I find that the assistive devices in dispute are not reasonable and necessary because the evidence does not show that these devices will help the applicant deal with accident related impairments.
Handrails
34The applicant relies on the Rationale for Railings for Safety completed by Ms. Stephanie Venema, occupational therapist, dated March 9, 2021. The Rationale states that since the accident the applicant feels unsteady with stair mobility and fears falling due to fatigue, pain, dizziness, reduced balance, and reduced feeling in her left foot. The applicant reported to Ms. Venema that she did not experience a fall prior to the accident, but detailed a number of falls that occurred after the accident. The applicant submits that handrails are crucial to ensuring her safety and well being.
35According to the respondent, the applicant has a significant pre-accident history of falls which contradicts what she said to Ms. Venema. It submits that the treatment plan is not supported by objective medical evidence and that was properly denied.
36I agree with the respondent. The clinical notes and records of the applicant's family doctor and the report of Dr. O'Farrell document a pre-accident history of falls. In particular, I note the clinical note dated August 27, 2014 of Dr. Lefebvre which documents the applicant's fear of losing her balance. This appears to be the earliest specific reference to the applicant having issues with balance. The report of Dr. O'Farrell also documents a history of falling which started around the year 1994. There is no pre-accident or post-accident diagnosis that explains why the applicant has difficulty maintaining her balance. Consequently, there is no evidence which shows that the applicant's balance issues are accident related.
37As noted above in paragraph 31, the report of Dr. Besemann notes a post-accident improvement in the applicant's fatigue. I have also found that the applicant's ongoing pain symptoms, including nerve pain on her left side, are not caused by the accident. As such, I disagree with the applicant in regard to her having fatigue and pain issues that necessitate handrails.
38Consequently, I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan for handrails because there is little evidence to show that the handrails will assist her with accident related impairments.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because there are no overdue benefits.
ORDER
40The applicant is not entitled to physiotherapy.
41The applicant is not entitled to in-home yoga therapy.
42The applicant is not entitled to assistive devices.
43The applicant is not entitled to handrails.
44The applicant is not entitled to interest.
45The application is dismissed.
Released: January 27, 2025
Harry Adamidis
Adjudicator