Woods v. Primmum Insurance Company, 2025 CanLII 20830

Woods v. Primmum Insurance Company

Citation: Woods v. Primmum Insurance Company, 2025 CanLII 20830 Licence Appeal Tribunal File Number: 23-005157/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:

Julie Woods

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Rebbecca Phillips, Counsel

For the Respondent: Katherine Dempsey, Counsel

HEARD: By way of written submissions

OVERVIEW

1Julie Woods, the applicant, was involved in an automobile accident on December 15, 2021, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference held on January 3, 2024, two separate applications with file numbers 23-012497/AABS and 23-005157/AABS were combined. File number 23-012497/AABS was closed, and the application proceeded under file number 23-005157/AABS.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $1,737.44 ($2,117.44 less $380.00 approved) for chiropractic and massage therapy treatments proposed by Dr. A. Lombardi of Hamilton Back Clinic in a treatment plan submitted on May 27, 2022?

ii. Is the applicant entitled to $2,117.44 for chiropractic and massage therapy treatments proposed by Dr. A. Lombardi of Hamilton Back Clinic in a treatment plan submitted on September 8, 2022?

iii. Is the applicant entitled to $3,316.47 for assistive devices and occupational therapy services proposed by Carol Smith of Rehab First in a treatment plan submitted on March 28, 2023?

iv. Is the applicant entitled to $2,268.35 for occupational therapy treatment proposed by Robyn Carter of Rehab First in a treatment plan submitted on June 12, 2023?

v. Is the applicant entitled to $2,739.11 for assistive devices proposed by Robyn Carter of Rehab First in a treatment plan submitted on June 12, 2023?

vi. Is the applicant entitled to $2,889.95 for speech language pathology treatments proposed by Robyn Carter of Rehab First in a treatment plan submitted on June 12, 2023?

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

RESULT

4The applicant is entitled to the $1,737.44 in dispute with respect to the treatment plan submitted on May 27, 2022, plus applicable interest.

5The applicant is entitled to $22.99 for the long-handled tub scrubber proposed in the treatment plan submitted March 28, 2023, plus applicable H.S.T. and interest. She is not entitled to the remainder of the treatment plan.

6The applicant is not entitled to the other treatment plans in dispute.

ANALYSIS

$1,737.44 ($2,117.44 less $380.00 approved) for chiropractic and massage therapy treatments proposed by Dr. A. Lombardi of Hamilton Back Clinic in a treatment plan submitted on May 27, 2022

7I find that the applicant is entitled to the denied portion of this treatment plan.

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.

9This treatment plan proposed acupuncture, exercise, and massage therapy. The goals of the treatment were pain reduction, return to pre-accident work activities, and a return to activities of normal living. The treatment plan indicated that the applicant was at home recovering under her doctor’s orders and was progressing well, but her walking was limited. It was partially approved by the respondent to the monetary limits of the Minor Injury Guideline (“MIG”). The applicant was subsequently removed from the MIG.

10The applicant had pre-existing osteoarthritis in her right hip prior to the accident. A few months after the accident, on March 3, 2022, she underwent a right total hip replacement. The respondent submits that the applicant cannot prove that but for the accident, she would not have required a hip replacement and ongoing treatment.

11For the following reasons, I find that, on a balance of probabilities, the applicant would not have required hip replacement surgery but for the accident.

12An x-ray of September 18, 2021, showed mild degenerative changes to the applicant’s right hip. She underwent an MRI on December 21, 2021, after the accident. On December 28, 2021, her family physician, Dr. Brenda Copps, indicated that the MRI was worse than the x-ray due to an inflammatory component. In a note from April 21, 2022, Dr. Copps also indicated that the accident caused her hip pain to flare. I am accordingly persuaded that the accident caused an inflammation and flare-up of her pre-existing condition. Further, both s. 44 assessors, Dr. David Berbrayer (physiatrist) and Dr. Alexander Rabinovich (orthopaedic surgeon), diagnosed the applicant with an exacerbation of her right hip arthritis as a result of the accident. Dr. Berbrayer stated that this “went on to require a right total hip replacement”. Dr. Rabinovich indicated that the applicant’s total hip replacement was in line with the standard of care for her condition. Neither assessor opined that the surgery would have been required even if the accident did not occur.

13Despite the respondent’s submission that the applicant considered scheduling a hip replacement surgery prior to the accident, it did not point me to any evidence of that fact. Based on the records before me, she was only referred to a surgeon after a visit with Dr. Copps on December 28, 2021, which was after the accident.

14Given the exacerbation of the applicant’s pre-accident condition as a result of the accident, and the fact that surgery was only contemplated after this exacerbation, I am persuaded, on a balance of probabilities, that the applicant would not have required the surgery she underwent but for the accident.

15Contrary to the respondent’s submissions, Dr. Berbrayer did not address this treatment plan in his report from an assessment on November 11, 2022, or in his subsequent paper review report. He addressed the treatment plan for $2,117.44 in dispute. Dr. Berbrayer did not opine that the applicant did not require any physical treatment as a result of her injuries, just that no further physical treatment was required because she had stabilized. Considering Dr. Berbrayer’s assessment took place almost seven months after this treatment plan was submitted, I find that his opinion is not compelling with respect to it.

16This treatment plan was submitted only a few months after the applicant’s surgery. The records from around that time indicate that she was progressing well, but still had some pain, and had stiffness in her spine from overcompensation. I find that, on a balance of probabilities, it was reasonable and necessary for the applicant to continue with her treatment regimen given that her surgery was only a few months prior, she was seeing improvement with treatment, and she still had pain and stiffness. As such, I find that the applicant is entitled to the denied portion of this treatment plan.

$2,117.44 for chiropractic and massage therapy treatments proposed by Dr. A. Lombardi of Hamilton Back Clinic in a treatment plan submitted on September 8, 2022

17I find that the applicant is not entitled to this treatment plan.

18The treatment plan proposed acupuncture, exercise, and massage therapy. The treatment goals were pain reduction, a return to activities of normal living, and a return to pre-accident work activities.

19The applicant relies on records from the Hamilton Back Clinic from February and April 2022, but I am not compelled by those notes as they do not necessarily reflect the applicant’s condition at the time the treatment plan was submitted. There are no records from Dr. Copps or the applicant’s surgeon before me from around the time this treatment plan was submitted. The records from the Hamilton Back Clinic from around that time are quite difficult to read, and it is not clear from those records the extent of the applicant’s difficulties or whether treatment was helpful. While I agree with the applicant that Dr. Berbreyer’s report did not address the efficacy of treatment provided to date, the applicant bears the onus of proving that the treatment plan is reasonable and necessary, and it is not enough to simply discount the opinions of s. 44 assessors. I find that there is a lack of compelling evidence before me regarding the necessity of the proposed treatment, or how effective it would be in order to justify the cost.

20I accordingly find that, on a balance of probabilities, the applicant has not met her onus in proving that the treatment plan is reasonable and necessary.

$3,316.47 for assistive devices and occupational therapy services proposed by Carol Smith of Rehab First in a treatment plan submitted on March 28, 2023

21I find that the applicant is entitled to $22.99 for the long-handled tub scrubber proposed in this treatment plan, plus applicable H.S.T. She is not entitled to the remaining amount in dispute.

22The treatment plan proposed a cervical pillow, anti-fatigue mat, perching stool, long-handled bath scrubber, lightweight vacuum cleaner, delivery of these products, occupational therapy, occupational therapy assistant services, and travel time for the occupational therapy assistant.

23The applicant relies on the report of Carol Smith, occupational therapist, from an assessment on March 27, 2023. Ms. Smith’s report contains recommendations for the items in the treatment plan. In response, the respondent obtained a s. 44 report from Lisa Slapinski, occupational therapist, from an assessment on August 17, 2023.

24My findings with respect to the assistive devices outlined in the treatment plan are as follows:

i. Cervical pillow – Ms. Smith indicated that the applicant often wakes up with neck tightness and pain and has to adjust her pillow throughout the night. Ms. Slapinski noted that the applicant already has various pillows, including a cervical pillow, and does not prefer it. Neither Ms. Smith nor the applicant explained how this type of pillow would have been able to assist her with the issue she was experiencing. As such, I find that she has not met her burden to prove that this item is reasonable and necessary on a balance of probabilities.

ii. Anti-fatigue mat – Ms. Smith recommended anti-fatigue mats for the kitchen, as she developed a leg length discrepancy as a result of her surgery, and she reported that this has limited her standing tolerances as she bears more weight through her left leg. However, Ms. Slapinski pointed out that the applicant wears quality cushioned footwear in her home, and that this negates the need for a mat. The applicant has not explained how a mat would assist her if she was already wearing supportive and cushioned footwear, or why she bears more weight on her left leg if her height discrepancy is corrected through this footwear. I find that she has not met her burden to prove that this item is reasonable and necessary on a balance of probabilities.

iii. Perching stool – Ms. Smith recommended a perching stool for the kitchen, presumably due to her standing tolerance as described elsewhere in her report. However, although Ms. Smith noted that the applicant required moderate assistance with her share of the cooking and cleaning, she did not go into detail about why she was limited in this regard. Conversely, the applicant reported to Ms. Slapinski that she was not doing a lot of cooking because she felt exhausted after her work day, and that her barriers to meal preparation were time, decreased energy, and decreased motivation. Further, Ms. Slapinski explained that the applicant’s spouse completed most of the dishwashing due to the bending, twisting, and standing involved. I am not persuaded that a perching stool would allow the applicant to better participate in these tasks considering that most of the reported barriers are unrelated to her standing tolerance. I find that the applicant has not proven, on a balance of probabilities, that this item is reasonable and necessary.

iv. Long-handled tub scrubber – Ms. Smith noted that the applicant required moderate assistance with bathroom cleaning, and recommended a long-handled bathtub scrubber. Further, the applicant reported to Dr. Berbrayer that her major difficulty in terms of housekeeping was cleaning the bathtub. At the time of her assessment, Ms. Slapinski acknowledged that the applicant was using this item to clean the bathtub and shower areas. Although she opined that it was not reasonable and necessary, she did not explain why. I find that since the applicant was initially restricted in completing this task, but the item is allowing her to complete it, the long-handled scrubber is reasonable and necessary.

v. Lightweight vacuum cleaner – Ms. Smith indicated that the applicant needed total assistance with vacuuming using her current 17 pound upright Dyson, and recommended a lightweight vacuum that was less than 8 pounds. Conversely, the applicant advised Ms. Slapinski that she is able to vacuum the main floor carpet using the upright Dyson and that she requires assistance with vacuuming the carpeted steps. However, she also advised that she already shared the vacuuming tasks with her husband pre-accident. Given the discrepancies in Ms. Smith and Ms. Slapinski’s reports, and the lack of information on this issue from other assessor or treatment providers, I find that there is a lack of compelling evidence before me regarding what the applicant’s pre-accident vacuuming responsibilities were and how they changed after the accident. As such, I find that the applicant has not met her burden of proving, on a balance of probabilities, that a lightweight vacuum is reasonable and necessary.

25The applicant submits that a subsequent treatment plan for occupational therapy was approved on December 8, 2023, and therefore this was an acknowledgement by the respondent that the proposed occupational therapy is reasonable and necessary. She relies on Schroter v. Economical Insurance, 2023 CanLII 62904 (“Schroter”), where an insurer approved a treatment plan and the Tribunal held that a similar previously denied treatment plan was reasonable and necessary. For the following reasons, I do not accept this argument, and in fact I find this to be evidence that the treatment plan is duplicative and therefore not reasonable and necessary.

26Firstly, I am not bound by Schroter, and find that it is distinguishable. In that case, the insured incurred the first treatment plan that was denied, and she was able to demonstrate the impact of those treatment sessions with respect to her functional abilities. That was one of the reasons for the Tribunal’s finding that the treatment plan was reasonable and necessary; it was not solely because a subsequent similar treatment plan was approved.

27Secondly, I have not been provided with compelling evidence or an explanation as to why the applicant would require the occupational therapy in dispute in addition to the therapy that has already been approved by the respondent. She has not explained whether she received the approved therapy, whether it was helpful, or whether further therapy would be required. As I have no compelling evidence before me in that regard, I find that the applicant has not met her burden in proving, on a balance of probabilities, that further occupational therapy in addition to what has already been approved is reasonable and necessary.

$2,268.35 for occupational therapy treatment proposed by Robyn Carter of Rehab First in a treatment plan submitted on June 12, 2023

28I find that the applicant is not entitled to this treatment plan.

29This treatment plan proposes exercise sessions with a kinesiologist. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, increase in activity tolerance and re-engagement, and a return to activities of normal living.

30Dr. Rabinovich and Dr. Berbrayer both opined that the applicant should continue with self-directed exercises. The applicant submits that this is inconsistent and contradictory, because they acknowledge that exercise is required but do not believe it is reasonable to have that exercise be directed by someone with knowledge of how to conduct them. However, the treatment notes from the Hamilton Back Clinic mention a number of exercises, for example step-ups and squats. Further, on May 20, 2022, the note from the Hamilton Back Clinic indicates that the applicant was doing exercises at the gym. It appears that the applicant has already been provided with information on how to complete various exercises, and has not provided an explanation as to what further information she requires. I find that the applicant has not provided compelling evidence that she requires further assistance from a kinesiologist with respect to exercise.

31I accordingly find that the applicant has not met her burden to prove, on a balance of probabilities, that this treatment plan is reasonable and necessary.

$2,739.11 for assistive devices proposed by Robyn Carter of Rehab First in a treatment plan submitted on June 12, 2023

32I find that the applicant is not entitled to this treatment plan.

33This treatment plan proposed an orthopaedic mattress, mattress protector, and an adjustable base. The evidence before me is that this bed was purchased in June 2022, and the applicant is seeking reimbursement for this purchase. Although neither party directed me to s. 38(2) of the Schedule, I am bound by it. Pursuant to s. 38(2), an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that is incurred before the insured person submits a treatment plan unless certain criteria are met. The evidence before me is that the exceptional criteria under s. 38(2) are not applicable in this instance. As such, I find that the respondent is not liable to pay this expense.

$2,889.95 for speech language pathology treatments proposed by Robyn Carter of Rehab First in a treatment plan submitted on June 12, 2023

34I find that the applicant is not entitled to this treatment plan.

35The treatment plan proposes speech language pathology services. The goal of the treatment was to evaluate the applicant’s cognitive communication difficulties and provide strategies to improve her cognitive communication skills.

36The applicant submits that since no s. 44 assessor addressed this treatment plan specifically, the respondent does not have any basis to deny it and accordingly it is payable in full. The applicant has not pointed to any authority or section of the Schedule to support this submission. The applicant has the onus of proving that the treatment plan is reasonable and necessary; it is not sufficient to point to the absence of a s. 44 report as the sole basis for her entitlement to this treatment plan.

37In her report, Ms. Smith recommended that the applicant receive speech-language pathology services. However, she did not explain why this would have been due to any injuries the applicant sustained in the accident. Although Ms. Smith reported that during the assessment the applicant spoke tangentially and her answers lacked the required level of detail, she did not explore whether this pre-dated the accident or how it would have been accident-related. Further, she wrote that the applicant did not report any difficulties with word finding or speech. I am accordingly not persuaded by this recommendation. In addition, there is no compelling corroborative evidence from other practitioners that this type of treatment is warranted as a result of the accident. I find that the applicant has not proven, on a balance of probabilities, that this treatment plan is reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest with respect to the treatment plan submitted on May 27, 2022, and the long-handled tub scrubber.

ORDER

39The applicant is entitled to the $1,737.44 in dispute with respect to the treatment plan submitted on May 27, 2022, plus applicable interest.

40The applicant is entitled to $22.99 for the long-handled tub scrubber proposed in the treatment plan submitted March 28, 2023, plus applicable H.S.T. and interest. She is not entitled to the remainder of the treatment plan.

41The applicant is not entitled to the other treatment plans in dispute.