Samuels v. The Dominion of Canada General Insurance Company
Licence Appeal Tribunal File Number: 24-003837/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:
Jacqueline C Samuels
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Jamie Fox, Counsel
For the Respondent:
Jason L. Hepburn, Counsel
HEARD:
In Writing
OVERVIEW
1Jacqueline Samuels, the applicant, was involved in an automobile accident on October 31, 2019, 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, The Dominion of Canada 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:
Is the applicant entitled to assessments proposed by Omega Medical Assessments in a treatment plan/OCF-18 ("plan"), submitted on May 16, 2023, and denied May 29, 2023, as follows:
i. $2,000.00 for an intake assessment?
ii. $2,000.00 for a neurological assessment?
iii. $2,000.00 for an electromyography (EMG) test?
Is the applicant entitled to attendant care benefits in the amount of $2,126.07 per month from January 5, 2024, to date and ongoing?
Is the applicant entitled to services proposed by FunctionAbility Rehabilitation Services LP, submitted in plans as follows:
i. $8,962.58 for rehabilitation services, submitted March 19, 2024, and denied April 16, 2024?
ii. $2,185.72 for a speech language pathology assessment, submitted March 18, 2024, and denied April 17, 2024?
iii. $5,970.12 (Update: changed to $5,960.12), for fitness classes and a meal program, submitted April 15, 2024, and denied April 30, 2024?
Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $447.48 per month, submitted on invoices/OCF-21s from Advanta Healthcare Services Inc., for the months of February and March 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
3The amount of attendant care in dispute was $2,168.14. The Applicant's entitlement to attendant care was subsequently partially approved in the amount of $42.07 monthly. Therefore, the amount in dispute is $2,126.07 monthly, as set out above.
4The original case conference report and order ("CCRO") was amended, and the remaining issues as listed in the original CCRO have been resolved/withdrawn. The following issues as set out in the CCRO were withdrawn by the Applicant in their submissions: issues number 1(ii), 2, 4(iv) 5, 7 and 8 on consent of all parties as the Respondent agreed to fund these benefits recently.
RESULT
5I find that the assessments from Omega Medical Assessments, are payable.
6I find that the ACBs are payable in the amount of $2,126.07 $2,168.14 per month from January 5, 2024, to date and ongoing.
7I find that the other plans in dispute are not payable.
8I find interest is owing on the payable treatment plans.
1. The Applicant is entitled to assessments proposed by Omega Medical Assessments in a treatment plan, submitted on May 16, 2023
9I find that these plans are payable.
10To 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.
11The Applicant submits that they have been deemed by the Respondent to have suffered a Catastrophic Impairment ("CAT") pursuant to criterion 8 of the Schedule.
$2,000.00 for an intake assessment:
12I find that this plan is payable.
13The Applicant submits that the Respondent denied the Applicant's need for an intake assessment, which was instead incurred through a file review by physiotherapist Erin Schaeffer during their CAT assessments. In a case involving numerous clinical records spanning more than four years (at the time of the CAT reports), it was essential to conduct a thorough review of the medical records to ensure an accurate assessment of the impairment. Further, that this file review was necessary for each assessor to ensure they did not overlook any documents while performing their own reviews.
14The Respondent submits that the intake assessment is no longer necessary and was never incurred. Additionally, that the OCF-18 does not provides details of what an intake assessment would entail.
15I considered the parties submissions. I agree with the Applicant that it is reasonable and necessary to conduct a thorough review of the medical records to ensure an accurate assessment of the impairment and ensure the assessors were not overlooking any documents. I find the Applicant has met their onus to establish that this plan is reasonable and necessary.
16Therefore, on a balance of probabilities, I find this is payable.
$2,000.00 for a neurological assessment:
17I find that this plan is payable.
18The Applicant submits that her need for a neurological assessment should have been clear to the Respondent.
19The Applicant relies on her previous neurological assessment, performed on July 31, 2020, by Dr. Vincenzo Basile, which diagnosed the Applicant with post-concussive syndrome consistent with traumatic brain injury, post-traumatic headaches, cervical radiculopathy, vertigo, and other related conditions Neurological Assessment. She also received a similar diagnosis from concussion clinic iScope CNRs. Even an assessor neurologist hired by the Respondent, Dr. Schepmyer, on April 26, 2023, commented that the Applicant had likely suffered from a concussion IE Neurology Assessment.
20The Applicant further relies on an Oculo-Visual Report dated August 7, 2024, by Dr. Angela Peddle. This report reiterates the Applicant is suffering from issues relating to head trauma including eye straining, photophobia, reduced balance, dizziness etc., which she submits further bolsters the necessity of an updated neurological assessment.
21The Respondent submits that the intake, neurology and EMG assessments are no longer necessary. Further, that these assessments were never incurred. Additionally, the OCF-18 does not provides details of what an intake assessment would entail.
22I considered the parties submissions. Given the Applicant's catastrophic impairments, I found the Applicant has met their onus to establish the reasonableness and necessity of a neurological assessment. I acknowledge the Respondent's point that neurological assessments are no longer necessary. However, I find it is reasonable to acknowledge Dr. Peddle's 2024 recommendation for further assessments even after the Applicant's CAT determination. The Applicant has clarified that these additional assessments are to address something that has not yet been assessed.
23Therefore, on a balance of probabilities I find that this plan is payable.
$2,000.00 for an electromyography (EMG) test:
24I find that this plan is payable.
25The Applicant submits that her need for EMG testing is supported by neurologist Dr. Basile, who recommended she receive EMG testing for her right side to rule out cervical and lumbar radiculopathy
26The Respondent's assessing neurologist Dr. Schepmyer, on November 28, 2022, also commented on the possibility that she was suffering from right sided radiculopathy. Considering a lack of certainty over whether she is suffering from radiculopathy, an EMG Test, as recommended by Dr. Basile, is reasonable and necessary.
27The Respondent submits that the intake, EMG assessments are no longer necessary, were never incurred, and the OCF-18 does not provides details of what an intake assessment would entail.
28The Applicant further submits that this assessment was incurred through a Speech-Language Pathology Report by Ms. Katie Scollard on July 26, 2024.
29I considered the parties submissions. I I find that the Applicant has met their burden to establish the reasonableness and necessity of this plan. As the goal of this assessment was to establish whether the Applicant is suffering from radiculopathy, I find this is a reasonable and necessary assessment and goal of treatment.
30Therefore, on a balance of probabilities, I find this plan is payable.
2. Is the applicant entitled to attendant care benefits in the amount of $2,126.07 $2,168.14 per month from January 5, 2024, to date and ongoing?
31I find that the ACBs are payable.
32Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs ("Form-1").
33The Applicant submits that there is considerable evidence showing that these injuries resulted in impairments as a result of the accident and, therefore, the benefits at issue are required.
34The Applicant first relies on an in-home functional assessment from November 29 and December 6, 2023, by OT Mubeena Rahman. This report states the Applicant is experiencing difficulties with getting into bed, climbing in and out of her bathtub, rising from the toilet, repositioning herself in bed, reaching for objects in cabinets, and problems with her balance and walking.
35Second, an in-home functional assessment dated January 9, 2024, also by Ms. Rahman, which identifies the Applicant's challenges with:
i. getting into bed, climbing in and out of her bathtub, rising from the toilet, repositioning herself in bed, reaching for objects in cabinets, problems with balance, walking, requiring assistance with personal care needs such as dressing, undressing, grooming, meal preparation, mobility, toileting, bedding, medication management, and bathing.
36Third, psychologists Dr. Giselle Braganza and Paniccia, noted that the Applicant's chronic headaches, chronic pain, and mood dysfunction have led to activity avoidance and withdrawal from everyday tasks, such as personal grooming. She also struggled with basic meal preparation due to pain and low mood. Overall, Dr. Braganza noted the Applicant's deteriorated psychological health and cognitive difficulties had left her unable to cope with repetitive, sustained or dynamic movement. Further, that she is suffering from a preoccupation with pain, which restricted her ability to take care of her needs.
37The Applicant also refers to a case management progress report from May 30, 2024, from caseworker, Ms. Yasmine Maila, which states "it appears that the subject accident has contributed to a multitude of psychological symptoms and impairments that preclude useful functioning for this woman who is not only unable to manage what she did pre-accident, but also what would be expected of a woman of her age."
38The Respondent submits that The Applicant's Form 1 is not reasonable or necessary.
39The Respondent relies on the assessment by Famida Kanji (occupational therapist) from March 8, 2024. The Respondent submits that pursuant to section 44 of the Schedule, Ms. Kanji stated that the Applicant requires assistance for 30 minutes a week with hair styling and 10 minutes a week for with changing bedding. However, Ms. Kanji noted that the Applicant reported she is independent in all areas of self-care. Ms. Kanji's report indicates that the Applicant largely presented with "WFL" (i.e. within functional limits) range of motion during the range of motion assessment. She added that the Applicant presented with the functional strength to engage in her transfers, mobility and light lifting independently. This report also notes inconsistencies between the Applicant's reported limitations with sitting, standing, squatting and balance.
40The Respondent further submits that in her in-home functional assessment report dated January 9, 2024, the Applicant's assessor, Ms. Rahman did not conduct any objective physical testing in contrast to IE assessor, Ms. Kanji's assessment which included a functional range of motion test and muscle manual test. Ms. Rahman's findings and conclusions were based solely on the Applicant's self-reporting and her observations of the Applicant.
41The Respondent submits the form 1 is not reasonable or necessary because:
i. The Applicant demonstrated that she could independently dress and undress during her assessment with IE assessor, Ms. Kanji.
ii. The Applicant did not present with the functional inability to apply makeup during her assessment with IE assessor, Ms Kanji.
iii. The Applicant presented with the functional range of motion and ability to wash her hair during her assessment with IE assessor, Ms. Kanji.
iv. The Applicant has continued to attend the nail salon since the accident, assistance with toenail care is not required.
v. The Applicant was observed to have the functional range of motion, strength, and activity tolerance to prepare meals independently with modifications as necessary, by IE assessor, Ms. Kanji.
vi. The Applicant was observed walking independently with a steady, reciprocal pattern and good pace during her assessment with IE assessor, Ms. Kanji.
42I considered both parties submissions. I find that the Applicant has met their onus in establishing sufficient evidence to determine the reasonableness and necessity of the ACBs. The Applicant has been determined to be catastrophically impaired and multiple ongoing assessors have agreed that the injuries as a result of the subject accident warrant the need for ACBs.
43Therefore, on a balance of probabilities I find that the ACBs are payable.
3. Is the Applicant entitled to services proposed by FunctionAbility Rehabilitation Services LP, submitted in plans as follows:
iv. $8,962.58 for rehabilitation services, submitted March 19, 2024, and denied April 16, 2024?
44I find that this plan is not payable.
45The Applicant did not specifically address this plan in her written submissions or reply submissions. They do not point me to the specific evidence to support the reasonableness or necessity of this plan.
46Therefore, I find that the Applicant has not met her onus. On a balance of probabilities, I find that the Applicant is not entitled to this treatment plan for rehabilitation services.
v. $2,185.72 for a speech language pathology assessment, submitted March 18, 2024, and denied April 17, 2024?
47I find that this plan is not payable.
48The Applicant relies on a speech-language pathology report by Ms. Katie Scollard on July 26, 2024. After thorough testing, Ms. Scollard, determined that the Applicant exhibited difficulties with verbal expression, written expression and social communication, caused by issues with auditory and reading comprehension, information processing, word-finding, memory, attention and concentration, and executive functions speech language pathology report.
49The Respondent submits that it declined to pay for the assessment because Ms. Kanji's March 22 report states that she spoke in an articulate manner, she was able to maintain focus during the assessment, was alert and oriented to person, place, time and situation. The Respondent added that the clinical notes and records of Dr. Forbes and Dr. Kerwin did not include any ongoing report of concern regarding her verbal expression, word finding difficulties, or reduced attention.
50I considered the parties submissions. I do not find that the Applicant has met their onus to demonstrate the reasonableness or necessity of this plan.
51Therefore, on a balance of probabilities, I find that this plan is not payable.
vi. $5,960.12 for fitness classes and a meal program, submitted April 15, 2024, and denied April 30, 2024?
52I find that this plan is not payable.
53The Applicant submits that these denials concern her ability to deal with maintaining a healthy diet through a health-conscious and focused meal program, it also included a plan for group fitness classes with her granddaughter, to encourage her participation and engagement.
54The Respondent submits that it declined to pay for the fitness classes and meal program because:
i. Ms. Kanji's report dated March 22, 2024, states that the Applicant reported using an air fryer to make quick meals and that using the stove top to make food such as pasts, fish and steamed broccoli.
ii. The Applicant was already receiving personal training at Suzy Mari Fitness and various modalities of physical treatment at Balance Physiotherapy.
iii. The Respondent added that she was receiving sufficient physical treatment to aid in promoting strength, endurance and pain management and that group fitness classes would not provide any additional strength, endurance, and pain management.
iv. Also, the subject OCF-18 includes the cost of group classes for the Applicant's granddaughter. The Respondent submits that there is no evidence that group classes for her granddaughter is reasonable and necessary.
55I considered the parties submissions. I do not find the Applicant has met their onus to establish why this treatment plan specifically is reasonable and necessary.
56Therefore, on a balance of probabilities I find that this is not payable.
4. Is the Applicant entitled to housekeeping and home maintenance benefits in the amount of $447.48 per month, submitted on invoices/OCF-21s from Advanta Healthcare Services Inc., for the months of February and March 2024?
57I find that this plan is not payable.
58S. 23(1) of the Schedule states that the insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
59The Applicant submits that it is important to note that Housekeeping is confirmed to be approved by the Respondent on an ongoing basis, which is why issue number 8 is withdrawn. The denial at issue concerns only two months of housekeeping and home maintenance services that she received in February and March of 2024. Further, that the Respondent denied these benefits based on due to her not informing the Respondent that she had moved to a new home. Specifically, the Respondent claimed that during the months of February and March of 2024, the Applicant was billed for housekeeping at a different address than the one she was residing at. In their denial. the Respondent states that it believes she was living at a different apartment since before October 2023.
60The Applicant submits that she attended an examination under oath on June 17, 2024, where she explained to the Respondent that she permanently moved into a new apartment at some point in late February of 2024. The Respondent did not ask further questions at the EUO regarding when she first leased this apartment, or whether she stayed at that apartment before February of 2024.
61The Respondent submits that the surveillance over a period of 15 days indicates that she was more likely than not living at the correct address permanently as opposed to intermittently. Further, that evidence about the Applicant's alleged living arrangements provided at paragraphs 40, 41, 42, and 43 should not be admissible given that it is unknown who provided this information and that it was not disclosed in accordance with the Amended Case Conference Report and Order. For the above reasons, the Respondent submits that the subject invoices are not payable given that they indicate the Applicant's address in February and March 2024 was a different address.
62I considered the parties submissions. I acknowledge the Applicant submitted in their written submissions and examination under oath that they did not move until February. However, as the Respondent has surveillance evidence to substantiate its claim that the Applicant was not at the correct address for the two months in question, I do not find this payable.
63Therefore, on a balance of probabilities, this is not payable.
5. Interest
64Pursuant to s. 51 of the Schedule, I find that interest is owing on the payable treatment plans.
ORDER
65I find that the plans from Omega Medical Assessments are payable.
66I find that the ACBs are payable in the amount of $2,126.07 $2,168.14 per month from January 5, 2024, to date and ongoing.
67I find that the remaining plans are not payable.
68I find interest is owing on the payable treatment plans.
Released: February 5, 2025
Sarah Guergis
Adjudicator