Licence Appeal Tribunal File Number: 22-011950/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:
EMILY BURDETT
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Hande Bilhan
APPEARANCES:
For the Applicant: William C. Goldstein, Counsel
For the Respondent: Ken Yip, Counsel
HEARD: By way of written submissions
OVERVIEW
1Emily Burdett, the applicant, was involved in an automobile accident on March 17, 2007, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual 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 $226,200.00 for a Recreational Vehicle (“RV”), proposed by Dr. R. Schnayer in a treatment plan dated February 23, 2021?
ii. Is the applicant entitled to $14,443.65 for Home Modifications proposed by DMA Rehab Ability in a treatment plan dated May 7, 2021?
iii. Is the applicant entitled to $8,239.84 for airplane tickets proposed by Dr. R. Schnayer in a treatment plan dated July 27, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to:
i. $226,200.00 for a Recreational Vehicle;
ii. $14,443.65 for Home Modifications; or
iii. $8,239.84 for business class airplane tickets, and
iv. Interest.
ANALYSIS
The applicant is not entitled to $226,200.00 for a Recreational Vehicle (“RV”) proposed in an OCF-18 (“plan”) dated February 23, 2021
4The applicant’s claim for an RV is denied because the applicant has not demonstrated on a balance of probabilities that the RV is reasonable and necessary.
5The applicant was involved in an automobile accident on March 17, 2007, and she submits that she suffers from anxiety, chronic pain, and significant mobility issues as a result. The parties had agreed in November 2013 that she had suffered a catastrophic impairment as a result of the accident.
6The treatment plan (“plan”) dated February 12, 2021, for $226,200.00 for a Recreational Vehicle proposed by Psychologist Dr. R. Schnayer, listed the goal of treatment as promoting the applicant’s participation in her daily activities, particularly with spending time with family.
7To receive payment for a plan under 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.
8The applicant submits that the plan is reasonable and necessary for the following reasons:
I. Two of three of the applicant’s children, who are now adults, live far away from her home. She has to travel in order to spend time with them.
II. Spending time with her family is one of the most important activities in her life and is essential to her well-being and quality of life.
III. Transportation involving many other people (i.e., by train or plane) is a significant problem for her as a result of her pain, psychological conditions, and impairments as she is confined to uncomfortable spaces.
IV. An RV would allow her to remain in a known, comfortable environment that would feel relatively safer than any other mode of transportation, including in her truck. She would be able to travel without significant anxiety and fear of danger.
V. An RV would provide her with a greater sense of independence and promote her ability to engage with and spend time with her family.
9The applicant further submits that the following reports detail her ongoing physical and psychological symptoms, impairments, and limitations resulting from the accident:
I. The Physiatry Independent Medical Examination Report of Dr. Brad Burke dated June 24, 2014,
II. Psychiatry Assessment Report of Dr. Zohar Waisman dated August 14, 2015,
III. Physiatry Independent Medical Examination Report of Dr. Brad Burke dated August 7, 2017,
IV. The Psychotherapy Summary Report of Psychologist Dr. Reuben Schnayer dated July 7, 2017,
V. Psychiatry Assessment Report of Dr. Zohar Waisman dated August 14, 2017,
VI. Occupational Therapy Progress Report of Ms. Rouffer dated June 30, 2020, and,
VII. In-Home Occupational Therapy Reassessment/Re-assessment of Attendant Care Needs (Form 1) Report of Ms. Rouffer dated September 14, 2020.
10In denying the benefit, the respondent relies in part on the Insurer Examination (“IE”) report of Dr. Bacchiochi, Psychiatrist, dated May 13, 2021, who diagnosed the applicant with Major Depressive Disorder and other Specified Trauma and Stressor-Related Disorder. In his report he states that it is not felt that her Major Depressive Disorder or her trauma-related symptoms would suggest the need for a recreational vehicle. He concludes that her trauma related symptoms would suggest that road-based travel may increase her distress.
11The respondent further relies on the applicant’s own statements during the IE assessment conducted by Dr. Bacchiochi on April 22, 2021, where the applicant reported that when she is out in a car she is reminded of the accident, that she will experience significant anxiety and panic attacks, and that she does not like driving or being a passenger in a vehicle.
12I agree that the applicant suffers from physical and psychological symptoms, impairments, and limitations resulting from the accident, as clearly evidenced by the various medical reports. However, I put weight on the IE report by Dr. Bacchiochi that the applicant’s anxiety related to driving and travel, as well as her chronic pain and limited mobility, would impair her ability to utilize an RV effectively for travel. These limitations are also corroborated in the various medical reports submitted by the applicant as listed in paragraph 4. I also put significant weight on the applicant’s own statement that she suffers significant anxiety when travelling in a vehicle both as a driver and as a passenger, leading to panic attacks.
13While I sympathize with the applicant’s condition and appreciate Dr. Schnayer’s goals of positively impacting the applicant’s mental well-being by promoting engagement in social activities and reducing isolation from her children, I have not been provided with evidence that the applicant can use an RV for travel given her physical and psychological limitations as outlined above.
14The cost of an RV is significant. Without clear evidence that the RV would be a practical, effective, and necessary component of the applicant’s rehabilitation, approving such an expense cannot be justified under the Schedule, which prioritizes reasonableness and necessity in benefit allocation.
15The request for an RV is denied because the expense is not reasonable and necessary, as required by the Schedule.
The applicant is not entitled to $14,443.65 for Home Modifications proposed by DMA Rehab Ability in an OCF-18 (“plan”) date May 7, 2021
16The applicant’s claim for $14,443.65 for home modifications is denied.
17The plan dated May 7, 2021, was submitted by Occupational Therapist (“OT”) Jennifer Rouffer, seeking $14,443.65 for home renovations, including concrete work to create walkway/ramp areas in the backyard of the applicant’s home, installation of a pool heater, and refinishing pool stairs with slip resistance coating, with the following breakdown of costs:
a. Cost of concrete work to create required walkway/ramp areas to improve safety and functional access within the back of the home for the client to safely spend time outside with her family - $5,500.00 + tax,
b. Cost to install a pool heater - Total cost: $5,605 + tax (breakdown as follows: pool heater $3,125.00 (installed); gas line $2,330.00; and locates $150.00), and,
c. Cost to refinish the in-ground pool stairs with slip resistant coating - $1,500.00 + tax.
18The plan submitted that additional concrete walkways/ramps would allow the applicant to safely access a gate leading to the backyard area, the back building where she likes to spend her time with her spouse, and the fire pit area where her family spends time.
19It also stated that the pool heater and non-slip pool stairs would help the applicant utilize the pool for aqua therapy in the summer months.
20I have outlined my decisions regarding the home modification requests below.
Cement Work
21I find that the applicant is not entitled to $5,500.00 plus HST for cement work because she has not proven on a balance of probabilities that the proposed plan is reasonable and necessary to achieve the stated goals of improving the applicant’s safety, functional mobility, and quality of life and provide her with an opportunity to share meaningful time with her family.
22In support of the treatment plan, the applicant relied on an In-Home Occupational Therapy Reassessment Report dated September 14, 2020, and a rebuttal report dated January 9, 2023, both by her OT Ms. Rouffer. She submits that completing the cement work would achieve the goals of improving the applicant’s safety, functional mobility, and quality of life and provide her with an opportunity to share meaningful time with her family.
23In denying the plan, the respondent relies on the IE report by OT Jackie Auger dated July 12, 2021. The respondent submits that the applicant was previously provided with funding for a cemented pathway along the side of the home which allows the client greater access to the areas outside of her home. The parties agree that this pathway ended up having a higher drop than was originally expected (4") due to drainage issues and as a result there is a large drop from the end of the cemented pathway to the lawn area which the applicant is not able to access without assistance. The report states that, based on the applicant’s demonstrated lack of mobility during her assessment and the observations made of the current cemented pathway in place, the addition of the proposed cement ramp connecting the pathway to the lawn would not increase the applicant’s safety or functioning when mobilizing in the backyard. As such, the respondent maintains that the provision of this cemented ramp is not reasonable or necessary as a result of the accident.
24While I sympathize with and appreciate the goals of the treatment plan, including the desire for the applicant to join her family in backyard activities independently, the evidence does not substantiate that the requested cement work meets the reasonable and necessary standard to achieve these objectives for the following reasons.
25The applicant’s submissions, including the rebuttal provided by the applicant’s OT Ms. Rouffer, indicate that additional modifications would be necessary to achieve the intended accessibility as outlined in the current plan but are not included in the plan as it stands. Specifically, the addition of a cement pathway through the lawn leading to the fire pit area would be required, which is beyond the scope of what was included in the plan at hand. The IE report of July 12, 2021, by OT examiner Ms. Auger highlights that an extended cement addition and further adjustments would need to be quoted and assessed to meet the applicant’s stated goals. Ms. Rouffer’s report confirms this.
26The applicant has acknowledged that these additional elements were not included in the original quote accompanying the current plan under dispute. Moreover, she noted that the area would need a reassessment and a new quote for the proposed full project.
27I reviewed the reports of both OTs as indicated above, the case management reports of Heidi Petro dated August 21, 2020, May 31, 2021, and August 19, 2022. The reports point to the applicant’s significant mobility limitations as well as an increase in falls, including those occurring inside her home as corroborated by statements from the applicant, her husband, and her current treatment providers. On a balance of probabilities, I agree with the respondent that the applicant would not be able to access the backyard areas in question independently and safely with the proposed cement upgrades.
28While I acknowledge and understand the applicant’s aspirations for greater participation in outdoor family activities, the evidence does not demonstrate that the requested backyard modifications will meet the intended goals safely or sufficiently. Therefore, the request for approval of these modifications is denied as it is not reasonable and necessary.
Pool modifications and pool heater
29The proposed modifications to the pool are denied as the applicant has not met their burden of proof in meeting the reasonable or necessary test in the Schedule.
30The applicant submits that the pool heater and non-slip coating for the in-ground outdoor pool steps would allow the applicant to utilize the pool in the summer months for aqua therapy and to recreationally enjoy quality time with her family. The applicant further states that she has avoided using the outdoor pool due to ongoing barriers related to her safety as she is at a high risk for slip and falls and sensitivity to the water temperature.
31The respondent submits that the applicant has access to an indoor hot tub that can be used for aqua therapy, that the outdoor in-ground pool would presumably not be usable during the winter months even with these upgrades and that therefore, the cost associated with using the outdoor in-ground pool for therapy is redundant and excessive given the comparable alternative. The respondent further submits that the applicant is receiving the full amount of Attendant Care Benefits among other things for supervision of the applicant. As such, the respondent maintains that the provision of a pool heater and non-slip stairs is considered not reasonable and necessary.
32The plan outlines that the applicant was attending weekly to biweekly water therapy using the therapy pool located in her garage however, this treatment was put on hold due to the COVID-19 pandemic. The plan noted that these sessions have not yet resumed as per the applicant’s request due to COVID-19 exposure concerns and that her goal is to use the outdoor pool, after improving the safety of the stairs and installation of a heater.
33I am not convinced that the desire to conduct outdoor pool therapy is the equivalent of necessity. I also note that COVID-19 restrictions have been lifted and indoor water therapy (referred to as hydrotherapy, water therapy and aqua therapy interchangeably in various parts of the applicant’s documents) in the applicant’s therapy pool should be a reasonable alternative. I agree with the respondent that the pool, even with such modifications, could only be used in the summer months and the only year-round therapy option is the indoor therapy pool.
34In the plan, Ms. Rouffer states that the applicant relies on others including family for everyday functions. She states that lack of hydrotherapy in more than a year, reduced craniosacral therapy and OT. have resulted in the applicant experiencing an increase in her symptoms and regression in her strength and physical abilities. She states that reduced mobility and history of frequent falls have caused setbacks in her progress/functioning due to increased symptoms. To overcome these, she recommends resumption of hydrotherapy, and ongoing craniosacral therapy, psychological counselling, and OT.
35On a balance of probabilities, I do not believe that the disputed pool heater and non-slip steps will fulfill the stated treatment goals because the outdoor pool will not be usable for treatment year-round. I find that the indoor therapy pool that is available to her to be a reasonable alternative to address the recommended course of action in the plan.
36I further note that Ms. Augers in her assessment observed that the client's three inground pool steps had been refinished to improve the safety of the pool steps to help her with negotiating the pool steps. She also noted that due to limitations in mobility, the applicant has had significant difficulty negotiating the pool steps when she has attempted to utilize the pool.
37I am not convinced further non-slip enhancement and heating will improve independent safe access to the pool for the applicant. While heating may make the pool more enjoyable to use, I am not convinced that the request for a heated pool is reasonable and necessary as a result of the accident.
38The request is denied as it is not reasonable and necessary.
The applicant is not entitled to $8,239.84 for air tickets proposed by Dr. R. Schnayer in a plan dated July 27, 2021
39The applicant is not entitled to the business class airline tickets requested through an OCF-18 as they are not reasonable and necessary.
40The applicant submits that seeing her children and in this case her son who lives in Alberta is of utmost importance to her. She submits that the last time she travelled by air, she suffered a great deal of distress, both physically and psychologically. She submits that the business class cabin provides spacious room and adjustable seats that would provide her with comfort while flying and alleviate some of her pain and psychological stress. She submits that access to a more private washroom would cause the applicant less embarrassment and stress while her husband provides her with required assistance. She concludes that these features would provide the applicant with a much-improved travel experience in contrast to economy class air travel and allow the applicant to visit her children and spend time with her family, which is an important pre-accident activity, with less stress and pain.
41The respondent denied the proposed air tickets on the basis of IE Psychological paper assessment report prepared by Dr. Bacchiochi dated September 10, 2021. Dr. Bacchiochi concluded the air tickets are not reasonable and necessary as "concerns associated with flying appear to be primarily physical in nature…”
42The respondent further relies on the applicant’s own statements where she reported that she previously took a plane to Alberta to visit her son and she reported that she struggled to use the washroom on the plane. She also reported that take-offs and landings caused her a lot of pain.
43I am not convinced that business class tickets would alleviate the pain caused by take-offs and landing, nor that that the comparable size of the business cabin bathroom would offer a better experience and privacy as desired by the applicant. While the reclining and larger seats may offer some physical comfort, on a balance of probabilities the physical and psychological discomforts of flying described by the applicant, including navigating the confinement to a small space with other people, would not be alleviated.
44Dr. Schnayer in the plan dated February 23, 2021, requesting funding for an RV, indicated that “any type of transportation involving many other people (i.e., train or plane) would pose a significant problem for Ms. Burdett, as she would likely not go”. I am not presented with evidence that this obstacle can be overcome with business class seats.
45For the above reasons, the request is denied as it is not reasonable or necessary under the Schedule as a result of the accident.
Interest
46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no overdue payments no interest applies.
ORDER
i. The applicant is not entitled to $226,200.00 for a Recreational Vehicle, proposed by Dr. R. Schnayer in a treatment plan dated February 23, 2021.
ii. The applicant is not entitled to $14,443.65 for Home Modifications proposed by DMA Rehab Ability in a treatment plan dated May 7, 2021.
iii. The applicant is not entitled to $8,239.84 for Air Tickets proposed by Dr. R. Schnayer in a treatment plan dated July 27, 2021.
iv. As there are not treatment plans outstanding, the applicant not entitled to interest.
v. The application is dismissed.
Released: February 3, 2025
Hande Bilhan
Vice-Chair