N.N. v. Certas Direct Insurance Company, 2017 CanLII 87552

Licence Appeal Tribunal

Date: 2017-12-19 Tribunal File Number: 17-001002/AABS Case Name: 17-001002 v Certas Direct 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:

N.N. Applicant

and

Certas Direct Insurance Company Respondent

DECISION

Adjudicator: Billeh Hamud

Appearances: Applicant: N.N. For the Applicant: George Malakassiotis, Paralegal For the Respondent: Caralee Berseth, Claims Adjuster For the Respondent: Stanford Cummings, Counsel

Heard in writing: July 4, 2017

BACKGROUND:

1The applicant was injured in an automobile accident on November 15, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). The respondent denied attendant care benefits and two treatment plans.

2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES TO BE DETERMINED:

[3] The following are issues to be determined: i. Is the applicant entitled to attendant care benefits in the monthly amount of $1,143.79 as submitted on December 17, 2015 by Excel Medical Diagnostic Inc. and denied by the respondent on March 18, 2016? ii. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for an orthopaedic assessment as recommended and submitted by All Health Medical Centre in a Treatment and Assessment Plan (OCF-18) on May 28, 2016 and denied by the respondent on June 8, 2016? iii. Is the applicant entitled to a medical benefit in the amount of $2,220.85 for assistive devices and occupational therapist ("OT") services as recommended in an OCF-18 submitted on January 25, 2016 and denied by the respondent on March 15, 2016? iv. Is the applicant entitled to interest for the overdue payment of benefits?

RESULT:

4I find on all of the evidence that the applicant is not entitled to attendant care benefits.

5I find that the applicant is not entitled to a medical benefit in the amount of $2,460.00 for an orthopedic assessment recommended by All Health Medical Centre.

6I find the applicant is not entitled to a medical benefit in the amount of $2,220.85 for assistive devices and OT services.

7I find that the applicant is not entitled to interest.

ANALYSIS:

1) Is the Applicant is entitled to Attendant Care Benefits?

Attendant Care Benefits

8I find the applicant is not entitled to attendant care benefits since I found that he was independent with his activities of daily living or that he was functionally capable of doing them and that he has failed to establish any economic loss by the person providing attendant care services.

9In order to qualify for attendant care benefits the applicant must meet the test under s. 19(1) and (2) of the Schedule which states:

(1) Attendant care benefits shall pay for all reasonable and necessary expenses, a. that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility… (2) …the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled "Assessment of Attendant Care Needs"…

10On December 15, 2015, one month after the accident, Ms. Kyla Man, the applicant's occupational therapist, completed a Form 1 "Assessment of Attendant Care Needs" and determined that the applicant's monthly need for attendant care amounted to $1,580.85. In his submissions, the applicant is claiming attendant care for a one month period. I note that this amount and time period is different from the appeal application and that set out in Adjudicator White's case conference order dated May 16, 2016.

11Ms. Man also attached an assessment report dated November 26, 2015, along with the Form 1. In her report, Ms. Man notes that the applicant requires assistance with dressing and undressing his upper body, grooming his toenails, preparing meals, cleaning the bathroom, changing his bed linens, doing the laundry and bathing. Ms. Man also cited the applicant's main functional barriers as the applicant's fractured rib and pain in the applicant's ribcage. Ms. Man also noted the applicant's pain in the left shoulder and left knee regarding his ability to carry laundry, changing bedding or cleaning the bathroom. However, Ms. Man also found that the applicant's range of motion was normal with respect to his neck, shoulders, arms, wrist/hand, and legs. The applicant also admitted that his wife and father were responsible for all housekeeping and home maintenance pre-accident tasks with the exception of garbage removal.

12On March 2, 2016, Rasul Kassam, the respondent's occupational therapist, assessed the applicant and determined that the applicant was currently independent to participate in all of his pre-accident day-to-day self-care activities using activity modification, pacing and energy conservation strategies. Mr. Kassam acknowledged that although the applicant reported residual pain with task performance, his evaluation revealed that the applicant nevertheless displayed the necessary strength, joint range of motion and physical tolerance to perform his pre-accident self-care activities. As a result, Mr. Kassam stated that the applicant did not require any attendant care assistance.

13In the circumstances, I find that attendant care benefits are not reasonable and necessary. I find the applicant is independent with his day to day activities and the housekeeping and home maintenance tasks were not performed by him before the accident. With respect to his personal care, Ms. Man, the applicant's occupational therapist, acknowledged that the applicant displayed normal range of motion with respect to his neck, shoulders, arms, wrist/hand, and legs. Besides the applicant's self-reports of pain with respect to his ribcage, there is no objective medical evidence to suggest that the applicant's pain would limit his ability to participate in all of his pre-accident day to day activities. As a result, I find there is sufficient evidence to establish that the applicant was independent with his activities of daily living or that he was functionally capable of doing them.

Economic Loss

14In addition, even if I found the attendant care services to be reasonable and necessary, the applicant would still be ineligible for attendant care benefits since there is no evidence they were incurred.

[15] Section 3(7)(e) of the Schedule sets out that an expense is not incurred unless: i. The insured person has received the goods or service to which the expense relates, ii. The insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and iii. The person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the person.

16The applicant submits, in his initial submissions, that he is entitled to attendant care benefits and had to hire an assistant to help him kneel and bend on a daily basis.

17The respondent submits that the applicant failed to establish any economic loss in accordance with the Schedule.

18In his reply submissions, the applicant clarifies that his assistant is actually his wife and that she suffered an economic loss as a result of providing attendant care benefits to him.

19I have been provided with no evidence from the applicant to establish that his wife suffered an economic loss while providing attendant care benefits to the applicant in accordance with s. 3(7)(e) of the Schedule. The applicant simply stated that his wife suffered an economic loss without providing any evidence to corroborate those submissions. Submissions are not evidence, and I will have to make an adverse inference that there was no economic loss. I agree with the respondent that it is the applicant's burden to prove that he is entitled to attendant care benefits, and I find the applicant failed to do so.

Medical Benefits

2) Is the Applicant entitled to a medical benefit for an orthopaedic assessment?

20I find the applicant is not entitled to the cost of an orthopaedic assessment because the medical evidence does not establish that it is reasonable and necessary.

21Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.² I find the applicant failed to do so.

22The applicant simply states in his submissions that he is entitled to the orthopedic assessment on the basis that the assessment itself was "reasonably required for…assessing the extent of his orthopedic related injuries (torn meniscus of the left knee etc…)" which was sustained as a result of the accident. I also note that the OCF-18 in dispute was not re-submitted by the applicant to the Tribunal.

23The applicant also relies on Dr. Michael West's orthopedic assessment report dated November 11, 2016, submitted on behalf of the applicant. Dr. West's report notes that the applicant reported pain with his left knee, pain with his left chest/rib, occasional neck pain, headaches, overall decrease in energy with fatigue, nervousness and anxiety when driving and anxiety when travelling as a passenger. Dr. West's physical examination of the applicant's left knee noted no joint effusion, no restriction in range of motion and no gross ligament instability. Dr. West also noted no obvious deformities and full range of motion with the applicant's cervical spine and no obvious deformities with the applicant's left chest/ribs.

24The respondent submits that an orthopedic assessment was not reasonable and necessary based on the applicant's injuries. On June 28, 2016, the applicant met with Dr. Jose Guerra, the respondent's orthopedic surgeon, for an insurer medical assessment. Specifically, the respondent refers to Dr. Guerra's report which stated that the applicant's only complaints were of occasional sharp pain with his left knee and occasional pain with his left ribcage. Dr. Guerra explained that there was no swelling associated or instability associated with the applicant's left knee. The applicant also told Dr. Guerra that all of his ribs were healed with the exception of the occasional pain with his left ribcage.

25First, I cannot rely on Dr. West's report of November 11, 2016 since it is based on incomplete medical information. More specifically, Dr. West's report states that he was not provided with any diagnostic imaging at the time of his report and that "it may be necessary to provide an appropriate addendum report or revision to the current report." However, as noted by the respondent, an x-ray of the applicant's left knee was actually completed by Med Image Diagnostic Centre on March 9, 2016, approximately six months before Dr. West's report. In the diagnostic report, Dr. E. Carvalho noted that the left knee was congruent, there was no evidence of fracture and soft tissues were unremarkable. Dr. Carvalho noted that although there is a small left knee effusion, it is otherwise "a normal left knee". Considering this deficiency, I cannot rely on Dr. West's report.

26Therefore, I prefer to rely on Dr. Guerra's report since it was based on the applicant's complete medical documentation. In fact, I find that Dr. West's assessment of the applicant was mainly based on the applicant's self-reports, and I find the omission of Dr. Carvalho's diagnostic report in Dr. West's report to be significant.

27In conclusion, I find the applicant failed to adduce sufficient evidence to convince me that an orthopedic assessment was reasonable and necessary.

3) Is the Applicant entitled to a medical benefit for assistive devices and OT services?

28I find that the applicant is not entitled to assistive devices and OT services because there is insufficient medical evidence to convince me that the assistive devices and OT services are reasonable and necessary.

29The applicant submits that he is entitled to the cost of the OT in-home assessment on the basis that he had difficulty with his daily activities of normal life as well as his personal care following the accident.

30Since the applicant failed to provide the Tribunal with the OCF-18 in dispute, I had to rely on the respondent's submissions and assessment report dated March 16, 2016 to determine the list of assistive devices claimed by the applicant.

[31] Ms. Man, the applicant's occupational therapist, recommended the following assistive devices:

• Long handle shoe horn
• One point cane
• Long Handled Bath Scrubber
• Non-Slip bathmat
• Raised toilet seat
• Raised seat cushion
• Long Handled Reacher

32Ms. Man's report notes that the recommended assistive devices will aid the applicant with reducing the need for hip flexion, reducing the risk of slip and falls when taking a shower, assisting with the transfer from the low toilet seat and low chairs and providing stability when ambulating in home. Ms. Man also recommended six (6) OT sessions for the applicant to provide education for assistive devices, pain management strategies, effective pacing/energy conservation, relaxation strategies and proper biomechanics.

33The respondent submits that the applicant has failed to present any evidence to suggest that the treatment plan is reasonable and necessary. Furthermore, the respondent relies on Rasul Kassam's OT assessment report concluding that the OT services and assistive devices sought by the applicant were not reasonable and necessary.

34I find that the applicant has failed to provide sufficient medical evidence to establish that the OT services and assistive devices sought are reasonable and necessary for the reasons discussed below.

35First, Ms. Man's functional assessment of the applicant contradicts her own recommendations for assistive devices and OT services. Specifically, at page 2 of the report, Ms. Man notes that the applicant is currently independent with effort with upper and lower body dressing, grooming tasks and bathing. In addition, Ms. Man notes that the applicant is able to independently ambulate throughout his house without gait aids. These findings directly contradict her own recommendation for assistive devices, such as the need of a "one point cane" to "provide [the applicant] with stability when ambulating in home" or a "long handed reacher" to "assist [the applicant] with dressing". Therefore, I find the assistive devices not to be reasonable and necessary. Similarly, I find the OT sessions are not reasonable and necessary for the same reason.

36Second, Mr. Kassam's OT assessment report states that the applicant was able to move around his home without any functional difficulties with respect to balance or coordination, and he was independent in all transfers. Mr. Kassam also found that the applicant could access all parts of his body independently. As a result, Mr. Kassam found that he did not require any assistive devices. Mr. Kassam also noted that the applicant was independent to participate in his pre-accident self-care activities using activity modification, pacing and energy conservation strategies. In terms of the OT treatment sessions, Mr. Kassam found that it was not reasonable and necessary because the applicant reported that he was receiving education from the rehabilitation facility he was attending. I prefer Mr. Kassam's report since it is consistent and reliable as opposed to Ms. Man's contradictory findings and recommendations.

37Third, Dr. Michael West, the applicant's own orthopedic surgeon, did not recommend the assistive devices nor OT services claimed by the applicant. I note the OCF-18 in dispute was not listed as a document reviewed by Dr. West. The assistive devices claimed by the applicant were listed as follows: Long handle shoe horn, one point cane, long handled bath scrubber, non-slip bathmat, raised toilet seat, raised seat cushion and long handled reacher.³ By contrast, Dr. West recommended that the applicant would benefit from a cervical pillow, firm mattress, heating pad and an open patella brace. None of these assistive devices were listed in the OCF-18 in dispute, as evidenced in the respondent's submissions. Dr. West also did not recommend any OT sessions.

38Accordingly, I find that the applicant has failed to provide sufficient and compelling evidence that the assistive devices and OT services are reasonable and necessary.

Interest

4) Is the Applicant entitled to interest for the overdue payment of benefits?

39Since the applicant is not entitled to any benefit, he is not entitled to any interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635.
3. 3Since the applicant failed to re-submit this OCF-18 in dispute to the Tribunal, I had to refer to paragraph 28 of the respondent's submissions and Mr. Kassam's assessment report.