16-004500 v RBC General Insurance Company, 2017 CanLII 85732

16-004500 v RBC General Insurance Company

Date: 2017-12-06

Tribunal File Number: 16-004500/AABS

Case Name: 16-004500 v RBC General Insurance Company

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:

Applicant

Applicant

and

RBC General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Basil F. McDonald, Counsel

For the Respondent: Michael Vrantsidis, Counsel

HEARD: In writing on August 9, 2017

OVERVIEW

1The applicant, [the applicant], was injured in an automobile accident on December 3, 2010 and sought benefits from the respondent, RBC General Insurance Company, pursuant to O. Reg. 34/10 Statutory Accident Benefits Schedule (the “Schedule”). The respondent refused to pay for certain medical benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

a. Is the applicant entitled to receive a non-earner benefit (NEB) in the amount of $185.00 per week for the time period from December 21, 2014 to present and ongoing?

b. Is the applicant entitled to receive a medical benefit in the amount of $731.25 ($1,762.26 less $1,031.01 approved) for occupational therapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 1, 2015?

c. Is the applicant entitled to receive a medical benefit in the amount of $1,608.06 ($2,908.06 less $1,300.00 approved) for occupational therapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated February 13, 2015?

d. Is the applicant entitled to receive a rehabilitation benefit in the amount of $5,753.62 for social rehabilitation counselling pursuant to a Treatment and Assessment Plan (OCF-18) dated February 25, 2015?

e. Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,079.15 for vocational training pursuant to a Treatment and Assessment Plan (OCF-18) dated September 16, 2016?

RESULT

3The applicant is not entitled to a non-earner benefit.

4The applicant is not entitled to the medical or rehabilitation benefits under the treatment plans dated February 13, 2015, February 25, 2015, and September 16, 2016 because the associated expenses are not reasonable and necessary.

5The applicant is entitled to receive the balance of $731.25 for a medical benefit for occuptional therapy services in the treatment plan dated April 1, 2015 because the expenses are reasonable and necessary.

BACKGROUND

6The applicant was a rear seat passenger in a car which was rear-ended by another car, pushed into the oncoming traffic lane, and struck by an oncoming van. The applicant suffered from a dislocated hip with superior displacement of the left femur, chest and knee pain, and was hospitalized for 2 days as a result of the collisions.

ENTITLEMENT TO A NON-EARNER BENEFIT

7Pursuant to section 12 of the Schedule, an insured person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for a NEB. The test for a NEB is outlined in Heath v. Economical Mutual Insurance Company;¹

… the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

8Heath also holds that, in order to qualify for a NEB, the changes in an insured’s life must be of such significance to continuously prevent them from engaging in substantially all activities in which they engaged before the accident.²

9The position of the applicant is that the injuries suffered as a result of the accident completely impair their ability to carry on a normal life. The applicant relies on the following medical evidence:

a) a disability certificate completed by Dr. J. Leone, orthopaedic surgeon, dated March 5, 2012;

b) the report of Dr. H. Weinberg, orthopaedic surgeon, in a Multidisciplinary Assessment Report, dated April 8, 2014;

c) an orthopaedic assessment report by Dr. R. Zarnett, orthopaedic surgeon, dated May 1, 2015; and

d) a medical/legal psychological assessment report by Dr. J. Cole, psychologist, dated August 31, 2016.

10The disability certificate indicates the applicant qualifies for non-earner benefits. Dr. Weinberg’s report provides more detail and confirms the applicant qualifies as late as April 2014. However, the reports of Dr. Zarnett and Dr. Cole do not confirm the applicant qualifies for non-earner benefits. The reports focus on the applicant’s injuries and complaints. The Zarnett and Cole reports pay little attention to the applicant’s limitations, if any, as a result of the injuries. Specifically, Dr. Zarnett’s report notes that the applicant does have some limitations but the limitations are not enough to put formal restrictions on the applicant.

11The respondent submits that the applicant has failed to meet their evidentiary burden by not providing sufficient information to determine a substantial change in pre-accident activities and life circumstances as a result of the accident. The respondent refers to decisions by Adjudicators Sewrattan and Truong to show that it is the applicant’s obligation to provide detailed accounts and evidence that they qualify for a non-earner benefit³.

12Additionally, the respondent relies on the following medical evidence:

a) a psychological assessment report by Dr. M. Costa El-Hague, psychologist, dated June 4, 2012;

b) an occupational therapy in-home assessment report by S. Elliott, occupational therapist, dated May 15, 2015;

c) a multidisciplinary assessment report by Dr. Weinberg, orthopaedic surgeon, Dr. I. Derby, neurologist, and Dr. M Watson, psychologist dated April 8, 2014; and

d) a follow-up assessment report by Dr. Weinberg dated December 11, 2014.

13The applicant’s evidence identifies the injuries as a result of the accident. The injuries identified are consistent with the injuries outlined above – a dislocated hip, medial meniscus tear of the left knee, myofascial pain in the back, hip, and legs, and psychological impairments such as post-traumatic stress disorder, depression, anxiety, and specific phobia (driver and passenger type). Unfortunately and more important for the consideration of NEB, the applicant’s evidence provides minimal information regarding the applicant’s day-to-day life before the subject accident. This makes it extremely difficult to gauge the impact the impairments have on the applicant’s ability to carry on a normal life.

14From a psychological perspective, the respondent submits that Dr. Costa El-Hague’s June 4, 2012 report indicates that the applicant does not meet the substantial inability test:

“social interaction (the applicant) appears to be engaging in is not deemed to be sufficiently restricted. (The applicant) continues to maintain a long-term relationship, which (the applicant) reported has improved since the accident and (the applicant) is able to have friends over, go out for coffee with friends and go shopping to the extent (the applicant) is physically able to manage these activities.”

15From an occupational therapy perspective, the respondent submits that the report of Shelley Elliott dated May 15, 2015 indicates the applicant does not meet the substantial inability test:

“(the applicant) actually reports being and appears quite functional. (the applicant) reports being able and appears capable of completing routine activities of daily living, including self-care, child care, light house hold tasks, and driving independently. As well, during this assessment, (the applicant) demonstrated sufficient strength, mobility, tolerance and range of motion to complete (the applicants) routine activities of daily living.”

16Lastly, the respondent submits that, from an orthopaedic perspective and according to the report of Dr. Weinberg, dated December 11, 2014, the applicant did not exhibit a complete inability to carry on a normal life.

17The respondent’s evidence highlights the activities that the applicant is able to participate in. It confirms that, after the accident the applicant had moved out of the family home and into a residence of their own, is able to care for a child, and is independent with personal care.

18The applicant did not expressly outline their pre-accident activities and life circumstances. From the applicant’s self-reporting in the evidence provided, I have determined that the applicant was 16 years old at the time of the accident and was not regularly working or attending school. It appears, but it is not confirmed, that the applicant participated in sports to some extent and occasionally modelled.

19Since the accident, according to the self-reports in the evidence, the applicant has established a long-term relationship, has become a parent and caregiver to the child, is independent with all personal care, and has moved out of the childhood home and is now living independently while caring for a child. The on-going physical limitations as a result of the knee and hip injuries do not continuously impede the applicant’s ability to participate in substantially all of the activities of daily living.

20Considering all the evidence presented and upon review of the subjective changes in the applicant’s life pre and post-accident, I find that the applicant has not established that they suffer a complete inability to carry on a normal life.

ENTITLEMENT TO MEDICAL AND REHABILITATION BENEFITS

21In addition to a non-earner benefit, the applicant seeks payment of the four treatment and assessment plans mentioned above.

22Entitlement to medical and rehabilitation benefits are addressed in sections 15 and 16 of the Schedule, respectively. In plain terms, an insurer shall pay for reasonable and necessary medical and rehabilitation benefits on behalf of an insured person who sustains an impairment as a result of an accident.

23In order to determine if a medical or rehabilitation benefit is reasonable and necessary, the applicant must show adequate medical reasons supporting the plan and the effectiveness of the treatment⁴.

24The bulk of the denied treatment is for counselling and vocational and social rehabilitation with a focus on assisting the applicant to obtain a General Education Diploma (GED). The goals of the treatment plans are as follows:

a) Treatment plan dated February 13, 2015: For the occupational therapist to support the (applicant) in reaching (the) academic goal of acquiring (a) GED;

b) Treatment plan dated February 25, 2015: to provide (applicant) with rehabilitation counselling to assist in improving (the applicant’s) functional and cognitive status as well as reintegrating (the applicant) within the school environment;

c) Treatment plan dated April 1, 2015: To provide (occupational therapy) intervention for stress and anxiety and to make further recommendations as necessary. To return to occupational goals i.e. returning to school to complete GED; and

d) Treatment plan dated September 16, 2016; Goals are unknown – the treatment plan was not provided.

25The applicant’s submissions direct me to several documents. I find the following documents to be the most relevant:

a) Initial Educational and Social Rehabilitation Report by Stephanie D’Cunha dated January 30, 2015;

b) A letter/Report from Advanced Therapy Support Services dated September 30, 2016;

c) A Physiatry Medico-Legal Evaluation by Dr. R. A. Williams, dated June 5, 2017;

d) An Orthopaedic Examination Report by Dr. R. Zarnett, dated May 1, 2015;

e) A Medical Legal Psychological Assessment by Dr. J. Cole, dated August 31, 2016; and

f) Occupational Therapy Assessments and Records by Bayshore Therapy & Rehab dated September 3, 2012, January 13, 2013, September 9, 2013, and April 12, 2016.

26Although not expressly stated in the submissions, it is clear that obtaining a GED is one of the applicant’s goals for recovery and reintegration into the community. I agree that obtaining a GED would benefit the applicant. However, I do not believe that the respondent has an obligation to ensure that the applicant is successful in obtaining a GED. The respondent’s obligation is to return the applicant to their pre-accident status. At the time of the accident, the applicant had stopped attending high school and it is unknown if or when the applicant would have returned to and completed high school, or if the accident impacted the applicant’s plans to do so.

27The applicant’s position on the treatment plans is that they are critical to the applicant’s ongoing recovery and the denial of treatment has negatively impacted the applicant. The applicant submits that they are suffering from chronic pain as a result of the accident and that they are limited by psycho-emotional concerns with difficulty focusing on completing high school credits due to stress and anxiety.

28I find the applicant’s submissions do not clearly address the impairments outlined in the proposed treatment plans. Specifically, there is a lack of evidence outlining any cognitive impairment, which is the core of the bulk of the proposed treatment.

29The evidence presented by the applicant confirms that the applicant has the psychological injuries I listed earlier. The medical consensus is that the applicant’s psychological injuries require treatment in the form of counselling. Of the treatment plans in dispute, only the April 1, 2015 occupational therapy treatment plan is focused solely on addressing the applicant’s psychological injuries and how to overcome those injuries to achieve occupational goals of returning to and completing high school or obtaining a GED.

30The respondent takes the position that the April 1, 2015 and February 13, 2015 treatment plans are only partly reasonable and necessary. The respondent notes that the applicant could benefit from further training sessions to help meet the goal of obtaining a GED. The respondent submits that the applicant has already had the benefit of previous training and that each plan should have the number of meetings with the applicant reduced and has approved the treatment plans to reflect same. The respondent’s position is based on the recommendations in the occupational therapy in-home assessment report by Shelley Elliott, occupational therapist, dated May 15, 2015.

31With respect to the February 25, 2015 treatment plan, the respondent relies on the Elliott report dated May 15, 2015. The report concludes that the February 25, 2015 occupational therapy treatment plan is focused on improving functional and cognitive status and proposes case management services, which the respondent submits are unnecessary.

32Case management services are addressed in s.17 of the Schedule. Case management services are restricted to insured persons who suffer a catastrophic impairment or who have purchased optional increased medical and rehabilitation benefits. There is no evidence to suggest the applicant has access to optional benefits or has suffered a catastrophic impairment.

33The Elliott report also notes that the goal of the February 25, 2015 treatment plan – “to assist in improving (the applicant’s) functional and cognitive status…” is not reflective of the impairments diagnosed in the medical records of the applicant. Specifically, Elliott finds that the applicant “demonstrated no cognitive deficits and there is no such diagnosis found within the file material”.

34Lastly, with respect to the treatment plan dated September 16, 2016, the respondent relied on the findings of Shelley Elliott contained in the addendum report dated July 13, 2015 as the basis for denying the proposed treatment. I am unable to consider the evidence referenced by the respondent as they did not submit the addendum report with their materials. My finding that the treatment plan dated September 16, 2016 is not reasonable and necessary as a result of the accident is based on the fact that I do not have the treatment plan as evidence before me. The applicant has failed to establish the treatment plan is reasonable and necessary as they have not provided evidence of the disputed treatment plan.

35In summary, I find the Elliott assessment report dated May 15, 2015 compelling as it provides data with respect to the applicant’s impairments in the form of standardized testing results. It also provides supporting analysis to complement the data.

CONCLUSION

36Upon review of the evidence and submissions of the parties and for the reasons outlined above, I find that the treatment plan dated April 1, 2015 is reasonable and necessary. I find that the plans dated February 13, 2015, February 25, 2015, and September 16, 2016 are neither reasonable nor necessary.

37I do not have evidence of the treatment plan dated September 16, 2016 before me. I am not presented with the goals of the treatment plan, nor do I have evidence of how the treatment will meet those goals. The applicant has failed to meet their evidentiary burden with respect to this treatment plan.

38I do not have the treatment plan dated February 13, 2015 before me. I was able to review the goals of the treatment plan from the respondent’s insurer examination report. I was unable to review the specific services proposed or the way in which the clinician will evaluate the applicant’s progress. The applicant has failed to meet their evidentiary burden with respect to this treatment plan.

39I find that the February 25, 2015 treatment plan is not reasonable considering the lack of diagnosis of a cognitive impairment. The treatment plan addresses a cognitive impairment that is not evidenced in the medical records. I have no evidence before me to indicate that the applicant qualifies for case management services under section 17 of the Schedule. Furthermore, the evidence before me expressly states that the applicant demonstrates no cognitive deficits.

40I find the treatment plan dated April 1, 2015 to be reasonable and necessary. The evidence before me indicates that the applicant suffers from psychological impairments. Although there is no obligation for the respondent to ensure the applicant is successful in obtaining a GED, I find that assisting the applicant with this goal is reasonable and necessary and would improve the applicant’s psychological state. Reducing stress and anxiety would bring the applicant closer to the goal of obtaining a GED. In addition, obtaining the GED would significantly improve the applicant’s ability to participate in and reintegrate into the community.

ORDER

41The application for a non-earner benefit is dismissed. The applications for the treatment plans dated February 13, 2015, February 25, 2015, and September 16, 2016 are dismissed.

42The applicant is entitled to a medical benefit for occupational therapy services as outlined in the treatment and assessment plan dated April 1, 2015.

Footnotes

1. 1Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
2. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
3. 316-000879 v Unifund Assurance Company, 2017 CanLII 9811 (ON LAT), 16-000714 v Co-operators General Insurance Company, 2017 CanLII 1554 (ON LAT)
4. 417-000208 v The Personal Insurance Company, 2017 CanLII 46353 (ON LAT)