Licence Appeal Tribunal File Number: 23-003168/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:
Jennnifer Seupersaud
Applicant
and
CUMIS General Insurance Company
Respondent
DECISION
ADJUDICATOR: Nathan Prince
APPEARANCES:
For the Applicant: Alana C. Crugnale, Counsel
For the Respondent: Hooman Zadegan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jennnifer Seupersaud, the applicant, was involved in an automobile accident on November 3, 2020, 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, CUMIS 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 $17,095.00 for hot tub, proposed by IMOVE Clinic in a treatment plan/OCF-18 (“plan”) dated May 25, 2022?
ii. Is the applicant entitled to $3,251.55 for physiotherapy services, proposed by IMOVE Clinic in a plan dated December 15, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the proposed plans or interest.
ANALYSIS
The applicant is not entitled to the plan for a hot tub
4I find that the applicant has not demonstrated on a balance of probabilities that the plan for a hot tub is reasonable and necessary.
5To receive payment for a treatment and assessment plan under section 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.
6The applicant notes in her submissions that the plan for a hot tub was completed by Joseph Thomas, physiotherapist; however, the applicant did not point me to a copy of the plan. In the absence of a copy of the plan, I am unable to ascertain the goals of treatment as indicated therein nor am I able to determine whether the proposed cost of the hot tub is reasonable.
7The applicant relies upon a note dated May 2, 2022 from her family doctor, Dr. Nadia Mercante, in which she prescribes a hot tub. In the note, Dr. Mercante states that the applicant suffers from chronic neck and lower back pain and receives benefit from heat treatment and hot baths; however, the applicant advised Dr. Mercante that her bathtub is narrow and very difficult to settle into due to the nature of her chronic pain. Dr. Mercante further states that the applicant responds well to heat and that a hot tub would be beneficial for obtaining relief in multiple joints simultaneously and would also allow for gentle hydrotherapy.
8While I appreciate that Dr. Mercante has opined that a hot tub would be beneficial, I find that this does not equate to a hot tub being reasonable and necessary. By her own submissions, the applicant appears to be obtaining some relief from her current modalities such as heat treatment and hot baths, notwithstanding some limitations regarding the size and accessibility of her bathtub. In any event, the note from Dr. Mercante does not address the overall cost of the proposed hot tub and why $17,095.00 is a reasonable amount for the item.
9The applicant further relies on Morrissey v Wawanesa Mutual Insurance Company, 2023 CanLII 58522 (ON LAT) (“Morrissey”) in which the adjudicator found that a hot tub is reasonable and necessary. I note that I am not bound by prior decisions of this Tribunal. Furthermore, I find that the facts specific to Morrisey do not mirror the facts in this case and do not speak to why a hot tub in the amount of $17,095.00 is reasonable and necessary in the matter before me. In addition, the adjudicator in Morrissey had the benefit of the OCF-18 which outlined the cost of the hot tub and associated services including the installation of a concrete pad and electrical work. There is no such evidence before me in this matter. As such, I am not persuaded by Morrisey that the plan for a hot tub in this case is reasonable and necessary.
10The respondent points me to several readily available hot tubs from numerous retailers with advertised prices below $4,000.00. The respondent submits that these hot tubs would achieve the same goals of treatment in that they would provide full-body heat for the applicant and allow her to obtain relief in multiple joints simultaneously as well as providing enough space to allow for gentle hydrotherapy. I agree with the respondent that there are many hot tub options available for significantly less than the amount of $17,095.00 proposed in the plan and am persuaded that a hot tub costing significantly less than $17.095.00 would achieve the same therapeutic benefits.
11In denying the plan, the respondent relied upon the s. 44 assessments of Dr. Mohamed Khaled, general practitioner, and Ms. Angela Bertolo, occupational therapist. Dr. Khaled opined that a hot tub was not reasonable and necessary because the applicant already had appropriate and adequate treatment including physiotherapy, treatments at a pain management clinic, medications, and ongoing active rehabilitation exercises. Furthermore, Dr. Khaled was of the opinion that a hot tub will provide temporary comfort but will not aid in functional rehabilitation. Ms. Bertolo’s occupational therapy report corroborates Dr. Khaled’s finding that a hot tub is not reasonable and necessary, and Ms. Bertolo opines that typically one can manage pain through exercising, pacing and relaxation techniques, the use of heat packs, and a hot bath/shower.
12I am persuaded by Dr. Khaled’s and Ms. Bertolo’s opinion that the proposed hot tub is not reasonable and necessary. The opinions of Dr. Khaled and Ms. Bertolo align with the applicant’s medical records which indicate that the applicant obtains relief from her current therapies. While I am alive to the fact that there are several medical records which indicate that the applicant’s impairments are improved by heat, none of these records indicate that a hot tub is required as the source of heat. I agree with Dr. Khaled and Ms. Bertolo that there are alternative modalities which would provide relief for the applicant, and which are available at significantly less cost than the cost of the proposed hot tub.
13Based on the foregoing, I find that the applicant has not demonstrated on a balance of probabilities that a hot tub is reasonable and necessary.
The applicant is not entitled to the plan for physiotherapy services
14I find that the applicant has not demonstrated on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
15Again, the applicant did not point me to a copy of the plan. In the absence of a copy of the plan, I am unable to ascertain the goals of treatment as indicated therein nor am I able to determine whether the proposed cost of the treatment plan is reasonable.
16Furthermore, even if I was provided with a copy of the plan, I find that there is minimal contemporaneous medical evidence to support the proposed treatment plan which was submitted December 15, 2022.
17The applicant points me to a letter from Dr. Ali Ghouse, physiatrist, who recommended physiotherapy in a letter dated March 18, 2021. In addition, the applicant points me to a clinical note from Dr. Mercante dated February 5, 2021 which suggests that the applicant continue physiotherapy. As these records pre-date the plan by approximately 21 and 22 months respectively, I find that they do not support the reasonableness and necessity of the proposed plan.
18The applicant also points me to the July 2, 2021 consultation report of Dr. Simran Basi, physical medicine and rehabilitation specialist, who conducted trigger point injections on the applicant. Again, this record pre-dates the plan by approximately 17 months and therefore I find that it does not speak to the plan in dispute. In any event, I find that the consultation report does not actually support the plan as Dr. Basi’s recommendation is that physiotherapy exercises should continue with home-based therapy being the focus for active self-directed rehabilitation.
19The only contemporaneous record I was pointed to by the applicant was a psychological progress report completed by Dr. Agnieszka Krupski, psychologist, dated January 20, 2023. I am not persuaded by Dr. Krupski’s report as it does not suggest that physiotherapy is reasonable and necessary. While the report alludes to the fact that the applicant reported to Dr. Krupski that physiotherapy had a very beneficial impact on her coping, Dr. Krupski does not make any recommendation or finding with respect to ongoing physiotherapy.
20As a result of the foregoing, I find that the applicant has not demonstrated on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no payments owed, the applicant is not entitled to interest.
ORDER
22For the above reasons, I find that:
i. The applicant is not entitled to the proposed plans;
ii. As no benefits are payable, no interest is due; and
iii. The application is dismissed.
Released: January 22, 2025
Nathan Prince
Adjudicator