Licence Appeal Tribunal File Number: 25-000531/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:
Alcinda Douglas
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Jacob Aitcheson, Counsel
For the Respondent:
Catherine Korte, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Alcinda Douglas, the applicant, was involved in an automobile accident on August 11, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent deemed the applicant to be catastrophically impaired (“CAT”) under Criterion 7, by way of a letter dated November 18, 2021.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $1,083.23 for other goods and services, proposed by Justyne Russell in a treatment plan/OCF-18 (“plan”) dated May 4, 2023?
ii. Is the applicant entitled to $16,686.70 for other goods and services, proposed by Justyne Russell in a treatment plan dated February 6, 2023?
iii. Is the applicant entitled to $2,080.00 for medical services, proposed by Justyne Russell in a treatment plan dated September 6, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
i. The applicant is not entitled to the treatment plan dated May 4, 2023 for other goods and services;
ii. The applicant is entitled to the treatment plan dated February 6, 2023 for other goods and services (the standby generator);
iii. The applicant is entitled to the treatment plan dated September 6, 2023 for medical services (massage therapy);
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The applicant is entitled to interest on the overdue benefits.
ANALYSIS
The applicant is not entitled to the treatment plan dated May 4, 2023 for $1,083.23
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.
6Neither party made submissions with respect to this treatment plan or directed me to evidence relating to this treatment plan. The applicant has not withdrawn this issue.
7Therefore, I find that the applicant has not met her burden of proving, on a balance of probabilities, that the treatment plan is reasonable and necessary.
The applicant is entitled to the treatment plan dated February 6, 2023 for a standby generator system
8Entitlement to rehabilitation benefits is determined under s. 16 of the Schedule. The applicant has the onus of proving, on a balance of probabilities, that the rehabilitation expenses listed in a treatment plan are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment. Pursuant to s. 16(3)(i), the activities and measures referred to may include home modifications and home devices to accommodate the needs of the insured person.
9The treatment plan in question was submitted by Justyne Russell, Occupational Therapist, on February 6, 2023 and proposes the purchase and installation of a standby gas generator system in the applicant’s home at a cost of $16,686.70.
10The applicant submits that she underwent a number of surgeries to her leg after the accident and continues to rely on a walker or quad cane for all ambulation. She suffers from constant pain in her leg, walks with a pronounced limp and has significant mobility limitations. The applicant submits that she lives alone on a rural property in an area of Ontario that is prone to severe winter storms and power outages. She submits that she is not capable of manipulating a portable generator in a power outage due to her mobility limitations. The proposed generator would directly reduce the effects of her impairment by eliminating the physical tasks that she is unable to perform by preserving the power-dependent accessibility devices being installed in her home at the suggestion of the respondent, such as the porch lift, automated door and stair lift. Maintaining power in a storm also maintains heat, lighting and communications in the home, which are basic conditions for safety. The applicant further submits that she was trapped in her home without power for 50 hours in the winter of 2022, which exacerbated her symptoms of accident-related post-traumatic stress disorder (“PTSD”) and anxiety.
11In support of her position, the applicant relies on the treatment plan and the Multi-disciplinary Team Progress Report dated March 8, 2024, prepared by Ms. Russell, Carolyn Phillips, social worker, and Corrie Asberg, case manager. She further relies on two Tribunal decisions in which similar standby generator systems were found to be reasonable and necessary for CAT applicants: M.C. and M.C. v. Pembridge Insurance Company, 2020 CanLII 80291 (ON LAT) (“M.C.”); and D.K.M. v. Motor Vehicle Accident Claims Fund, 2017 CanLII 82020 (ON LAT) (“D.K.M.”).
12The respondent submits that the proposed cost of the generator, which would be used only in the rare event of a power outage, is excessive. The respondent further submits that the battery packs included with the porch lift are sufficient to ensure that the applicant can safely egress the home in the event of a power failure. The respondent relies on the surveillance report dated July 15, 2022; the Insurer’s Examination (“IE”) paper review report of Dan Gauthier, Occupational Therapist, dated January 17, 2023; and the Tribunal decision of Hathaway-Warner v. TD General Insurance Company, 2023 CanLII 23611 (ON LAT) (“Hathaway”), in which the Tribunal found that a backup generator was not reasonable and necessary as the applicant in that case was independent with respect to her mobility.
13I note that I am not bound by Tribunal decisions. In any event, I find that each of the decisions cited by the applicant and the respondent are based on facts that are significantly different than those before me. In M.C., the Tribunal was considering whether the respondent owed the applicant an award for failing to agree to pay for a generator and therefore was considering a different legal test. In D.K.M., the Tribunal found that the generator was a reasonable and necessary renovation cost as it may be required to assist the applicant, who relied on a powered wheelchair for his mobility, to exit the residence in an emergency situation involving a power outage. Neither the applicant’s level of mobility impairment nor her living situation is similar to the applicant in D.K.M. Therefore, I give little weight to either of these Tribunal decisions.
14In Hathaway, the applicant had been found to be CAT under Criterion 8, due to largely mental and behavioural disorders. The Tribunal found that in that context, her physical impairments were not sufficient to require the proposed renovations, which included a back-up generator. In this case, the applicant was deemed CAT under Criterion 7, due to her whole body impairments, which include extensive injuries to her leg that impair her mobility. Therefore, I find that the Hathaway decision does not provide me with meaningful guidance in the dispute before me.
15The multidisciplinary report of March 8, 2024 sets out the details of the applicant’s living situation. Specifically, she lives alone in a rural home where access to services is limited. As a result of her mobility limitations and the lack of commercially available snow removal services, she relies on an elderly neighbour to clear the snow from her driveway in the winter, which he does “when he can.” The report also states that the applicant’s home is located in Ontario’s snow belt region, where winter storms and power outages are common.
16The report also indicates that in the winter of 2022, the applicant was without power for 50 hours, with no access to heat, hydro or telephone communication. She was unable to leave her home or even contact neighbours during this time. The applicant reported to her social worker that this experience made her feel unsafe in her home during the winter and exacerbated her symptoms of PTSD and anxiety. As a result, she has since rented a room in Mexico for the winter months.
17I find that the applicant has proven, on a balance of probabilities, that a back-up generator system is reasonable and necessary to allow her to continue to live independently in her home despite her impairments.
18Because of the location of her home and her reliance on a neighbour for snow removal, combined with her mobility limitations, the applicant cannot rely on getting in her car and leaving for a safe location if she loses power, particularly if the power loss is caused by a winter storm. In the case of a severe winter storm that causes power loss, the applicant is likely to be stuck in her home for some time due to the lack of reliable snow removal services and her inability to remove snow herself. Therefore, I find the applicant’s safety would be at risk during a winter power outage due to the effects of her impairments. The proposed generator would reduce the effects of the applicant’s mobility impairments on her safety in the event of a power outage by permitting her to safely remain in her home.
19I give significant weight to the observations of Ms. Russell, set out in the multidisciplinary report of March 8, 2024, which were confirmed by the reports of Ms. Asberg and Ms. Phillips. Ms. Russell observed that the applicant continues to require a rollator or four-point cane for mobility and, while she can lift lighter objects, is unable to perform any snow removal or carry heavier objects. I find that the applicant’s mobility limitations make her unable to use a portable generator, which must be stored indoors and moved outdoors for use. I find that the applicant’s impairments make her unable to manipulate a portable generator, gas tanks and extension cords, which are heavy, awkwardly large items that require a significant amount of strength and dexterity to move.
20While I reviewed the report of Mr. Gauthier, I give it little weight as he did not turn his mind to whether the applicant’s mobility limitations would allow her to use a portable generator or clear snow. He did acknowledge that she was unable to independently manage her lawn prior to the purchase of a ride-on hand-controlled lawn mower, which is consistent with the observations of Ms. Russell in the multidisciplinary report.
21I find that the surveillance report confirms that the applicant uses a walker or a four-point cane for mobility. I further find that the surveillance was conducted in fair weather and does not address the applicant’s mobility in winter conditions or her ability to clear snow. I further find that the activities the applicant was observed doing during the surveillance, specifically setting up a shelter with assistance from others, and carrying items such as a small box with a handle and a folding chair, while also using her cane for support, do not lead me to the conclusion that the applicant is physically capable of clearing snow or carrying a portable generator and gas cans.
22I accept that battery back-ups have been proposed for each of the powered accessibility devices that will be installed in the applicant’s home (the porch lift, automated door and stair lift), and I find that those battery back-ups would likely sufficiently address the need to maintain power to those mobility devices during a power outage. However, the battery back-ups power only the devices to which they are attached and will not maintain heat and communication to the applicant’s home during an outage, which I have found are necessary for the applicant’s general safety.
23In addition, I give little weight to the respondent’s submission that the cost of the generator is excessive given it is only used in the rare event of a power outage. While power outages are not everyday occurrences, they are a reality of life in many parts of Ontario, including where the applicant lives. In addition, when a power outage does occur, it can seriously compromise the safety of a home’s occupant, particularly if it lasts more than a few hours. Homes in rural locations are more likely to be subjected to longer wait-times for power re-instatement than homes in urban settings, as evidenced by the 50-hour power outage the applicant experienced in 2022. I find that the serious safety concerns associated with a power outage, in the applicant’s circumstances and with the applicant’s impairments, make the cost of the back-up generator reasonable.
24Therefore, I find that the applicant has proven, on a balance of probabilities, that the proposed generator is reasonable and necessary to reduce the effects of the applicant’s impairments by allowing her to remain safely in her home during a power outage.
The applicant is entitled to the treatment plan dated September 6, 2023 for massage therapy
25The treatment plan in question, which was completed by Ms. Russell on February 6, 2023, proposes 20 massage therapy sessions to take place over 40 weeks at a total cost of $2,008.00. The goals of the treatment plan are pain reduction, reduced inflammation in her lower extremity, improved emotional well being and improved mobility.
26The applicant submits that the treatment plan is reasonable and necessary as massage therapy helps manage her pain and that pain relief, even if temporary, is recognized by the Tribunal as a valid treatment goal. The applicant relies on the CNRs of her massage therapy treatment provider, whose name is not included on the records, the paper review IE report of Dr. David Stevens, Orthopedic Surgeon, dated October 17, 2023, and the multi-disciplinary team progress report of March 8, 2024.
27The respondent submits that the applicant has reached maximal medical recovery for her accident-related impairments and that ongoing massage therapy is not reasonable and necessary. The respondent relies on the IE report of Dr. Stevens. The respondent further submits that the applicant has developed an inappropriate and indefinite dependency on massage therapy, following years of treatment.
28In support of their submissions, the parties each referred me to various Tribunal decisions. In some of the decisions, the Tribunal found that temporary pain relief was a valid treatment goal in the circumstances. In other decisions, the Tribunal determined that it was not. As noted above, I am not bound by Tribunal decisions. I found that the cases cited were all based on the specific facts in front of the Tribunal at the time and are not helpful to me as general precedents. However, I agree in principle that pain relief, even if only temporary and not accompanied by any additional benefits, can be a valid treatment goal.
29In this case, given the length of time that the applicant has undergone massage therapy treatment, it is her responsibility to prove that the recommended continuing treatment was reasonable and necessary at the time the treatment plan was submitted. The applicant’s treatment records indicate that she reports feeling “good” or “better” after each massage therapy session that she attended between February 2022 and December 2023.
30Dr. Stevens’ report confirms that the applicant continues, as of October 2023, to feel pain in her leg, neck, shoulders and back due to the accident, the subsequent gait changes and her reliance on mobility aids.
31I note that Dr. Stevens opined that the proposed massage therapy was not reasonable and necessary in the applicant’s circumstances. However, I give his opinion less weight as he does not appear to have considered whether massage therapy could provide the applicant with pain relief, even if temporary.
32The multi-disciplinary report recommended ongoing massage therapy as one strategy to combat the identified challenges to the client’s progress within rehabilitation, which included issues with mobility, sleep, mental health and chronic pain. In the report, the applicant’s social worker, Ms. Phillips, notes that the applicant relied on massage therapy treatment as a method of maintaining her mobility and managing pain and that the denial of the treatment plan for massage therapy has heightened the applicant’s fears relating to her impairments. The report further notes that the applicant self-funded massage therapy for time after the treatment plan was denied and found it continued to provide pain relief, albeit temporary. I give significant weight to the multi-disciplinary report because it is consistent with the CNRs of the massage therapist. I find that the multi-disciplinary report, together with the CNRs of the massage therapist, support the applicant’s claim that the proposed treatment can reasonably be expected to provide her with pain relief.
33The multi-disciplinary report recommends massage therapy as one of many strategies to help the applicant with her ongoing challenges. I find that it is one aspect of the treatment that has been recommended by her treatment team to specifically address the need for pain relief and maintaining the applicant’s mobility. I therefore find that this is not a situation, as alleged by the respondent, where the applicant is relying inappropriately and indefinitely on massage therapy.
34As a result, I find that the applicant has proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the treatment plan for the generator and the treatment plan for the massage therapy.
Award
36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
The treatment plan for the generator
37The applicant submits that the respondent’s refusal to fund the generator, despite the obvious safety risk to the applicant, was unreasonable. She relies on the Tribunal decision of M.C. in support. I find that the decision in M.C. was dependant on the particular facts of that appeal and is not helpful to me in my analysis.
38I find that the applicant has not proven that the respondent’s reliance on the existing OT report of Mr. Gauthier and the surveillance report, rather than obtaining an independent opinion as to the necessity of the generator, amounted to unreasonable behaviour on the part of the respondent. The respondent is not required to obtain an independent examination for each treatment plan that is submitted. I find that in this case the respondent based its denial of the proposed treatment plan on the information before it at the time. The observations of Mr. Gauthier and the investigators suggested to the respondent that the applicant retains some independent mobility, which led to the respondent’s decision that the treatment plan was not reasonable and necessary in the circumstances. While I disagree with the respondent’s decision, I do not find that it rises to the level of unreasonableness.
The treatment plan for massage therapy
39Similarly, I find that the applicant has not proven that the respondent behaved unreasonably when it relied on the report of Dr. Stevens and denied the treatment plan for massage therapy. The applicant submits that the report is contrary to well established law that pain relief, even if temporary, is a valid goal of treatment. The applicant submits that the respondent’s reliance on Dr. Stevens’ report was therefore unreasonable. However, I find that the applicant has overstated the law in this respect. While I accept that pain management can be a valid goal of treatment, that does not mean that every treatment plan that proposes treatment for pain management purposes will be reasonable and necessary.
40In this case, I find that the respondent based its decision in the medical report of Dr. Stevens, who opined that the applicant would receive no medical benefit from continuing massage therapy treatment. The Tribunal decisions on which the applicant relies are fact-specific, as were the decisions on which the respondent relied, where the Tribunal denied treatment plans for physiotherapy and massage where maximal medical recovery was found to have been reached. These decisions, collectively, do not prove that the report of Dr. Stevens was contrary to “well established law” or that the respondent was therefore unreasonable in relying on it.
41Therefore, I find that the respondent is not liable to pay an award pursuant to s. 10 of Reg. 664.
ORDER
42I find that:
i. The applicant is not entitled to the treatment plan dated May 4, 2023 for other goods and services;
ii. The applicant is entitled to the treatment plan dated February 6, 2023 for other goods and services (the standby generator);
iii. The applicant is entitled to the treatment plan dated September 6, 2023 for massage therapy;
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The applicant is entitled to interest on the overdue benefits.
Released: May 15, 2026
Caley Howard
Adjudicator