Zurbrigg v. Definity Insurance Company
Licence Appeal Tribunal File Number: 24-011856/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:
Craig Zurbrigg
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jim Zotalis
APPEARANCES:
For the Applicant:
Kimberely Munro, Counsel
For the Respondent:
Stephen Whibbs, Counsel
HEARD:
In Writing
OVERVIEW
1Craig Zurbrigg, the applicant, was involved in an automobile accident on June 20, 2023, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant suffered the following impairments (although not an exhaustive list) as a result of the accident:
a. Severe traumatic brain injury including subarachnoid hemorrhage, subdural hemorrhage, pneumocephalus, bilateral temporal bone and sphenoid bone fractures;
b. Complex pelvic fracture with associated significant hematoma;
c. Right rib fractures;
d. Splenic laceration;
e. Left adrenal traumatic injury;
f. Left renal collecting system injury;
g. L1-L3 transverse process fracture;
h. Left side pneumothorax;
i. Open fracture left olecranon;
j. Abnormality of taste and smell;
k. Mood and sleep dysfunction;
l. Vision impairment and blurriness with cranial nerve IV left lesion;
m. Hearing dysfunction; and
n. Cognitive impairment.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $904.94 ($9,845.13 less $8,940.19 approved) for a laptop and related accessories proposed by DMA Rehability in a treatment plan/OCF-18 (“treatment plan”) dated May 8, 2024, and denied May 8, 2024?
ii. Is the applicant entitled to $4,767.88 for an iPhone, iPad, keyboard, and stand proposed by DMA Rehability in a treatment plan dated September 11, 2024, and denied September 12, 2024?
iii. Is the applicant entitled to $2,450.00 for a Phonak Roger system proposed by MedEar in a treatment plan dated May 16, 2024, and denied May 16, 2024?
iv. Is the applicant entitled to $1,898.40 for a trial/demonstration of a Phonak Roger system proposed by MedEar in a treatment plan dated August 13, 2024, and denied August 14, 2024?
RESULT
4I find that:
i. The applicant is entitled to the cost of a laptop and related accessories proposed by DMA Rehability, plus interest.
ii. The applicant is entitled to the cost of an iPhone, iPad, keyboard and stand proposed by DMA Rehability, plus interest.
iii. The applicant is entitled to the cost of a Phonak Roger system proposed by MedEar, plus interest.
iv. The applicant is not entitled to a trial/demonstration of a Phonak Roger system proposed by MedEar.
ANALYSIS
The legal test to meet for a treatment and assessment plan (OCF-18) under s. 15 and 16 of the Schedule
5To 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.
Is the applicant entitled to a laptop and related accessories proposed by DMA Rehability?
6I find, on a balance of probabilities, that the applicant has demonstrated that he is entitled to the treatment plan for a laptop and related accessories due to impairments suffered as a result of the accident.
7The respondent approved every item in the OCF-18 except a laptop, the carrying case for the computer and the time required to purchase the laptop. The respondent approved the plan for occupational therapy treatment, costs for travel to and from treatment, collaboration and team meeting time expenses and completion of an OCF-18. The amount still in dispute is $904.94.
8The applicant submitted that, prior to the accident, he did not require a laptop computer as he accessed a desktop computer in a home office shared with his wife. The applicant also argued that, post-accident, a laptop computer was recommended to him because the existing desktop computer was not suitable. This is because it was not portable and could not be moved into another location, other than the shared office. Further, the applicant argued that his wife’s use of the shared office was a distraction for him, he could not focus and the noise generated from his wife’s regular use of the shared home office interfered with him carrying out rehabilitation tasks on the desktop computer. Finally, the applicant made submissions that he lacked privacy in the shared home office when engaging with his therapist on the desktop computer.
9The respondent submitted that there has been no explanation as to why either the applicant’s or wife’s desktop computer could not be relocated to another location. The respondent also noted that the applicant was using a desktop computer to attend therapy sessions. Further, the respondent made submissions that the request for a laptop computer most closely appears to be a request under s.16(3)(i) of the Schedule, that is home modifications and home devices, including communication aids, to accommodate the needs of the insured person. The respondent argued that the recommended laptop does not fit this definition as it is not being used as a communication aid but rather has been proposed out of convenience, more than any other reason.
10The applicant, on the other hand, argues that he would use the laptop to communicate with his social worker during sessions and thus it would be used as a communication aid.
11The respondent directed me to Kucheran-Grenier v. The Co-Operators, 2023 CanLII 96326 (ON LAT) (Kucheran-Grenier), wherein the adjudicator there found that computers and cell phones are devices that households go through relatively regularly. In that case, the applicant sought entitlement to technology (including a cell phone and laptop) to aid in his recovery. He already had access to a desktop computer and had attended treatment without the need for either device. Adjudicator Fogarty found there was no reason the applicant would be better served by technological exercises when he already had access to a computer and was engaging in therapy without the need for a laptop.
12Tribunal decisions are not binding on me, and I do not find Kucheran-Grenier to be helpful for several reasons. First, in that case, the applicant made admissions that looking at a screen caused him headaches. Second, the applicant was able to physically undertake all the tasks that the proposed devices would be described to supplement. Finally, the applicant did not lead evidence from his medical practitioners that they supported the proposed devices sought in the treatment plans. For these reasons, I respectfully decline to follow the reasoning in that case.
13I note that the applicant has led evidence from his medical practitioners that he requires the use of a laptop. Specifically, Dr. Susan Pigott, neuropsychologist, states in a letter dated September 10, 2024, in part:
…at this meeting, among other issues, I highlighted his significant difficulties with working memory and the impact this weakness appears to be having on his ability to perform basic tasks, such as keeping track of medical and rehabilitation appointments. Functionally, he reported that he cannot keep information in mind (e.g. maintain in his working memory buffer) long enough to perform a task (e.g. putting information/ appointment times in his calendar following a phone call). This results in decreasing his level of independence, necessitating greater supervision, and increases in his level of frustration. I stressed to him the importance of taking advantage of technology to compensate for such difficulties…He will need consistent access to a computer and will be unable to share one with somebody else so that he can compensate for his difficulties in the here and now…
14I find this evidence persuasive of the applicant’s need for immediate access to a device such as a laptop for such things as keeping track of medical and rehabilitation appointments, which Dr. Pigott indicates is needed because of his memory difficulties which are a result of his accident-related impairments.
15Further, although I am alive to the respondent’s argument that households routinely need to replace aging devices such as laptops and cellphones, the facts of this case speak to issues that go beyond merely replacing old devices. In the case before me, the applicant’s pre-accident life was tied to activities in public spaces whereby he played music as part of a group and regularly attended church suppers. The parties agree that the applicant has hearing loss as a result of the accident. The applicant submits that the recommended devices help him to hear, participate and communicate. Thus, the proposed devices are both reasonable and necessary as a result of the accident.
16For the reasons stated above, I find on a balance of probabilities that the applicant is entitled to the remaining balance of the treatment plan. Specifically, the proposed laptop, carrying case and time required to purchase the items above are reasonable and necessary.
Is the applicant entitled to an iPhone, iPad, keyboard and stand proposed by DMA Rehability?
17I find, on a balance of probabilities, that the applicant has demonstrated that he is entitled to the treatment plan for an iPhone, iPad, keyboard and stand due to impairments suffered as a result of the accident.
18The applicant submits that the proposed devices will meet the goals of reducing the impacts of his impairments as a result of the accident by providing the applicant with more engagement with his therapists, a larger screen surface to accommodate for visual deficits, technology and applications that are more current to compensate for significant deficits in working memory, integration allowing ease of access and app and data sharing between devices, engagement in his pre-accident activity of playing music which has been significantly impaired since the accident, portability and promotion of independence and safety.
19The respondent argued that the applicant’s existing devices were reaching their lifespan and that the respondent is not responsible for replacing devices that were not functioning due to wear and tear. It also submitted that the screen size difference in the proposed tablet was negligible and would not likely result in improved viewing for the applicant.
20The respondent directed me to the case of C.S. v. Co-Operators General Insurance Company, 2020 CanLII 51287 (ON LAT) and argued in that case Adjudicator Boyce found that the purchase of a cell phone was a discretionary expense under s. 16 of the Schedule regardless of a motor vehicle accident and that it did not constitute a “communication aid” under that section. The respondent further submits that C.S. is on all fours with the current matter and suggests I should follow the reasoning in that case here, even though the Tribunal is not bound to follow previous decisions.
21I disagree with the respondent and distinguish the case of C.S. for the following reasons.
22The applicant has led evidence in the case before me that he was having difficulty singing with his band because he could not retrieve the words from the beginning of the songs that he knew and had to be cued from his band mates. This was not a tenable solution because it was too disruptive for his band mates to be cuing him. The applicant’s medical team proposed that he could use an iPad application such as Paperless Music to compensate for such difficulties. Further, the applicant would require consistent access to a computer to update his musical selections on a regular basis as well as require support from his medical team to learn this technology.
23I find the proposed goods being an iPhone, iPad, keyboard and stand to be reasonable and necessary as the applicant has demonstrated the need for such devices through medical evidence provided by his neurologist, Dr. Susan Pigott. I find this evidence persuasive because it addresses the applicant’s pre-accident functioning (i.e. his ability to read music/play in band) and his post-accident limitations because of the accident and how the proposed devices are reasonable and necessary considering his accident-related impairments.
24Under the facts of this case, the reason I find the iPhone and iPad to be reasonable and necessary is because they in fact do act as communicative aids for the applicant and serve to assist him in restoring some of his pre-accident functioning lost and attributable as a direct cause of the subject accident.
25For the reasons stated above, I find that the applicant has demonstrated, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.
Is the applicant entitled to a Phonak Roger system proposed by MedEar?
26I find the applicant has, on a balance of probabilities, demonstrated that the treatment plan for a Phonak Roger system is reasonable and necessary and the applicant is therefore entitled to this benefit.
27The OCF-18 prepared by Paige Pierozynski, audiologist, dated May 16, 2024, identifies the goals of the plan as treating bilateral hearing loss and a return to activities of normal living. The plan proposes the Roger FM system at a cost of $3,600.00, documentation at $200.00, with a reduction of $1,350.00 from the Ministry of Health, for a total of $2,450.00.
28The applicant submits that, prior to the accident, he had no hearing impairments and did not require hearing aids or devices. After the accident, the applicant submits that although he was provided with hearing aides to allow him to hear in quiet environments and in one-on-one conversations, he still has difficulty hearing when in a group setting, or when trying to plan music with his band, and when there is background noise causing him listening fatigue.
29The applicant also contends that the proposed Phonak Roger system is distinct from a hearing aid in that it isolates speech from background noise in a group setting, reduces cognitive fatigue and enhances engagement in social activities.
30The respondent submits that although the applicant reported some reduced hearing in both ears post-accident, he was fitted with temporary hearing devices until the longer-term items were received. Once the applicant was provided with a set of permanent hearing aids, the respondent approved such devices in the amount of $6,985.00, minus $1,000.00 withheld due to payments available through the Ontario Assistive Device Program.
31The respondent further submits that the applicant has reported to his audiologist, Paige Pierozynski, that his hearing aids were working well for him and that he was enjoying the sound quality. The respondent contends that the applicant has never reported any issues with using his hearing aid devices or limitations to his ability to hear when using the device. The respondent further argued that on follow-up visits with the Ear Nose and Throat specialist, Dr. Barnes and Paige Pierozynski, audiologist, on April 17, 2024, the applicant reported that he was pleased with the hearing amplification the devices provided and that he was experiencing improved binaural hearing as a result of the devices. Further, the respondent argued that in multiple other visits with his health care providers the applicant reported no issues with his hearing aid and that, in fact he derived great benefits from the hearing aids already provided and there was mention in the records that the applicant continued to function in high-noise environments.
32I am persuaded on a balance of probabilities that the applicant has demonstrated that the Phonak Roger system is reasonable and necessary as a result of the accident for the following reasons.
33The applicant did not have a hearing impairment prior to the accident and did not require hearing aids or devices prior to same. Although the applicant was provided hearing aids post-accident and they have been helpful in amplifying sounds, the limitations include the inability to isolate speech from background noise. It is this limitation which is the reason why the applicant would benefit from such a device as the Phonak Roger system given the importance to the applicant of being able to do things he previously enjoyed pre-accident, such as playing guitar or attending church suppers. It is within this context that the traditional hearing devices are of limited value to the applicant. Within the chart notes of Paige Pierozynski, audiologist, dated April 24, 2024, the applicant endorses he has experienced communication breakdowns, such as when attending church suppers and at large gatherings as well as when playing in his band. He expressed frustrations with limitations of current hearing aid technology and communicated a desire to his audiologist to pursue the option of the Phonak Roger system, which I find persuasive evidence of the need for this treatment plan.
34I find that the proposed devices provide an opportunity for the applicant to avoid the fatigue he experiences when he is out in public and cannot follow along with conversations. As a result, the applicant asserts he resorts to taking lengthy naps to combat the fatigue.
35For the reasons stated above, I find on a balance of probabilities the treatment plan for a Phonak Roger system to be reasonable and necessary.
Is the applicant entitled to a trial/demonstration of a Phonak Roger system proposed by MedEar?
36I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a trial/demonstration of a Phonak Roger system is reasonable and necessary as a result of the accident.
37The applicant made submissions that the cost to trial the system prior to purchase, along with training on its use, amounts to $1,898.40. The applicant made further submissions that had the plan proposing the system been approved by the respondent at the outset, the cost to trial/demonstrate the system would have been deducted from the purchase cost.
38The respondent made submissions that the system itself is not reasonable and necessary and made further arguments that if the Tribunal were to find that the system itself is found to be reasonable and necessary, the amount of the trial/demonstration cost should be deducted from the cost of the system.
39The OCF-18 for the trial/demonstration of the Phonak Roger system lists the goals of the plan as follows: treat bilateral hearing loss and improve signal to background noise in challenging acoustic environments with a functional goal of a return to activities of normal living. The cost of the plan includes $200.00 for completing the OCF-18 form, $148.40 for mileage to travel to the applicant’s house to perform auditory rehabilitation, $400.00 towards provider travel time to the applicant’s house, $750.00 to demonstrate the system and trial the devices, and $400.00 for training on the devices, for a total of $1,898.40.
40The applicant has not made submissions specific to the cost of a trial and demonstration of the Phonak Roger system. Without such submissions, the Tribunal cannot assess whether the proposed cost is reasonable under the circumstances. It is notable that the applicant indicated in his submissions that the cost of a trial and demonstration would have been deductible from the cost of the system if it was approved at the time of submission of the treatment plan but otherwise does not address the issue of cost.
41Since the onus is on the applicant to discharge his burden of proof to demonstrate whether a treatment plan is reasonable and necessary, I find the applicant has not met his burden on this treatment plan.
42The applicant has not demonstrated, on a balance of probabilities, that the trial/demonstration of the Phonak Roger system is reasonable and necessary.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that some of the disputed treatment plans as indicated above, are overdue, interest applies to those plans in accordance with s.51 of the Schedule.
ORDER
44The Order of the Tribunal is as follows:
i. The applicant is entitled to a laptop and related accessories proposed by DMA Rehability, plus interest.
ii. The applicant is entitled to an iPhone, iPad, keyboard and stand proposed by DMA Rehability, plus interest.
iii. The applicant is entitled to a Phonak Roger system proposed by MedEar, plus interest.
iv. The applicant is not entitled to a trial/demonstration of a Phonak Roger system proposed by MedEar.
Released: May 8, 2026
Jim Zotalis
Adjudicator