Licence Appeal Tribunal
Date: 2018-03-01 Tribunal File Number: 17-003641/AABS Case Name: R. J. v. Certas Direct Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
R. J. Applicant
and
Certas Direct Insurance Company Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES: For the Applicant: Swetlana Vinokur, representative For the Respondent: Rupinder K. Tatla, counsel
HEARD: Written Hearing: November 30, 2017
Overview
1The applicant was injured in a motor vehicle accident on November 27, 2015. She sought payment for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Certas Direct Insurance Company has denied payment for a number of the benefits. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.
Issues in Dispute:
2The following issues are in dispute:
- Is the applicant entitled to attendant care benefits in the amount of $1,313.27 per month for the period November 27, 2015 to May 27, 2016, and $994.38 per month for the period May 28, 2016 to April 4, 2017?
- Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period May 27, 2016 to the date of this hearing?
- Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by Toronto Central Diagnostics in a treatment plan submitted September 16, 2016?
- Is the applicant entitled to payment for the cost of two Assessments of Attendant Care Needs (Form 1), each of which cost $575 and was prepared by Remik Zakrewski, an occupational therapist?
- Is the applicant entitled to interest on any overdue payment of benefits?
Result:
3The applicant is not entitled to an attendant care benefit. I am unable to conclude that the expense is reasonable and necessary on a balance of probabilities.
4The applicant is not entitled to a non-earner benefit. She has failed to prove that she is continuously prevented from engaging in substantially all of her pre-accident activities. There is a dearth of evidence on the extent to which she is restricted in performing some of her most important pre-accident activities.
5The applicant is entitled to payment for the chronic pain assessment. It is reasonable and necessary that the applicant assess whether she suffers from chronic pain. This is fundamentally based on the evidence provided in the chronic pain assessment report.
6The applicant is entitled to each of the $575 Assessments of Attendant Care Needs. The documents are reasonable expenses within the meaning of s. 25(1) of the Schedule.
7The applicant is entitled to interest on payment of the $2,000.00 chronic pain assessment and $575 Assessments of Attendant Care Needs in accordance with s. 51 of the Schedule.
Discussion:
1. Attendant Care
8The applicant has failed to prove that an attendant care benefit is reasonable and necessary; as a result, the applicant is not entitled to an attendant care benefit between November 27, 2015 and April 4, 2017.
9The basis of the applicant’s claim is two Assessments of Attendant Care Needs (Form 1). Each assessment was completed by Remik Zakrzewski, an occupational therapist and dated November 29, 2016. Mr. Zakrzewski recommended attendant care to assist the applicant with her personal chores, including:
- Dressing/Undressing
- Hair care
- Toenail care
- Preparing & serving meals
- Cleaning bathroom
- Changing bedding, preparing daily wearing apparel
- Cream, painkilling & other lotions application
- Bathing
10Certas provides two examination reports in response. The first report, produced by Mr. Jag Dhirayain, an occupational therapist, is dated March 8, 2017. Mr. Dhirayain comments that the applicant is independent with the following:
- Dressing/Undressing
- Grooming
- Feeding
- Mobility
- Hygiene
- Bathing
Mr. Dhirayain produced an addendum dated May 31, 2017 after reviewing additional documentation which included a chronic pain assessment. Both documents produced by Mr. Dhirayain conclude that the applicant does not require an attendant care service.
11The second report, produced by Dr. Michael Lang, a physiatrist, is dated March 22, 2017. According to the report, the applicant advised Dr. Lang that she was completely independent with all housekeeping and caregiving activities at the time of the assessment, which was January 25, 2017.
12The applicant submits that Mr. Dhirayain and Dr. Lang’s reports demonstrate the applicant’s improved condition in 2017. The reports shed no light on the applicant’s condition in throughout 2016, which is the bulk of time for which attendant care is claimed. The applicant submits that during 2016 she was not independent with her personal care.
13I would be satisfied that attendant care is reasonable and necessary but for the remarks about the applicant’s independent care Mr. Dhirayain’s and Dr. Lang’s reports. While I accept the possibility that Mr. Dhirayain and Dr. Lang’s reports demonstrate the applicant’s improved condition in 2017, I do not accept that it is probable. In this circumstance, the applicant has failed to prove on a balance of probabilities that attendant care is reasonable and necessary.
14The parties debated the date on which an attendant care benefit could become payable as well as whether the expense was incurred. Given my decision that attendant care between November 27, 2015 and April 4, 2017 is not reasonable and necessary, these debates are moot.
2. Non-Earner Benefit
15The applicant is not entitled to a non-earner benefit because she has failed to prove that she is continuously prevented from engaging in substantially all of her pre-accident activities.
16A non-earner benefit is only payable if, among other requirements, the applicant suffers a complete inability to carry on a normal life: see s. 12 of the Schedule. In determining the extent of the applicant’s inability to carry on a normal life, the law requires me to consider whether the accident-related injuries continuously prevent the applicant from engaging in substantially all of her pre-accident activities. “Engaging in" an activity is interpreted from a qualitative perspective; the applicant may not “engage in” an activity if she encounters restrictions while performing it.
17The critical issue in this case is the extent to which the applicant experiences restrictions when performing pre-accident activities. Because this is the critical issue, I will not exhaustively articulate the other considerations in the non-earner benefit test: see Heath v. Economical Mutual Insurance Company, 2009 ONCA 391. I will also forgo describing all details of the applicant’s pre-accident tasks and accident-related injuries.
18The applicant was a homemaker before and after the accident. The applicant’s submissions detail her most important pre-accident tasks:
- personal care
- taking care of her children
- performing everyday multiple housekeeping chores
- occasional hair styling activities for pleasure
- preparing for further education to obtain a high school certificate and then further professional education
- going out
- socializing in an extended circle of family members & friends
19The applicant submits that the combination of pain from physical injuries and a psychological impairment continuously prevents her from engaging in her most important pre-accident activities.1
20There is evidence, however, that the applicant can perform a number of her most important pre-accident activities. Certas retained Dr. Moshiri, a psychologist, to examine the applicant. In a report dated April 15, 2016, Dr. Moshiri commented that the applicant said that she was able to complete the following tasks:
- Make breakfast
- Get the children ready for school
- Watch TV
- Read books
- Cook lunch
- Pick up her children from school
- Make dinner
- Help her children with homework
- Attend church on Sundays
- Go grocery shopping
21Certas also retained Dr. Guerra, an orthopaedic surgeon, to examine the applicant. In a report dated April 15, 2016 and an addendum dated May 9, 2017, Dr. Guerra diagnosed the applicant with only a myofascial injury of the lumbar spine, whiplash associated disorder of the cervical spine, and headaches.
22Certas also points to the applicant’s Application for Accident Benefits, on which she indicated that she can attend school.
23Based on Certas’ evidence, I accept that the applicant can engage in some of her most important pre-accident activities, such as going to school, taking her children to school (which is an aspect of taking care of her children), and making lunch and dinner (which, I presume, is an aspect of the applicant’s pre-accident household chores). Perhaps more importantly, when I look at the evidence through a qualitative lens, I am not satisfied that the applicant is restricted in performing those activities such that she is not “engaging in” them. The applicant has not provided an affidavit in this regard, nor has she described restrictions of this type to a medical practitioner who submitted a report at the hearing.2
24The applicant has failed to prove that she is continuously prevented from engaging in substantially all of her pre-accident activities.
3. Chronic Pain Assessment
25The applicant is entitled to payment for the $2,000 chronic pain assessment. It is a reasonable and necessary expense.
26Certas opposes payment on two grounds. The first ground is that the applicant is disqualified from payment under s. 38(3) of the Schedule. Section 38(3) requires the Treatment Plan for the chronic pain assessment to be signed by the applicant and a regulated health professional. Certas’s submission is defeated by the applicant’s reply evidence, which discloses the Treatment Plan in dispute, signed by the applicant and Dr. Grigory Karmy, a regulated health professional.
27The second ground is that the chronic pain assessment is not reasonable and necessary. The medical evidence in this hearing convinces me on a balance of probabilities that the chronic pain assessment is a reasonable and necessary expense.
28It is reasonably possible that the applicant suffers from chronic pain. This is made clear by the chronic pain assessment report, written by Dr. Pruzanski and dated March 29, 2017. The report describes “tenderness to pressure over both anterior shoulders, both tense trapezium muscles, both parascapular areas, nuchal area, and occipital areas.” Dr. Pruzanski claims that the applicant suffers from a marked difficulty to perform her household/home maintenance activities. As well, Dr. Pruzanski claims that the applicant cannot lift weights, move weight from side to side, perform repetitive twisting or neck or back bending, or walk up or down stairs.
29Certas did not have the chronic pain assessment report when it denied the Treatment Plan for the chronic pain assessment. At this hearing, however, I decide entitlement to payment on the basis of all of the evidence. Unlike Certas, I am able to consider the chronic pain assessment report in determining whether the chronic pain assessment is reasonable and necessary.
30The applicant also provided a report from Dr. Walker, a psychologist. The applicant rated his enjoyment of life to Dr. Walker as 8 out of 10. The applicant explained that she is in pain and slower than before the accident.
31Certas relies on Dr. Guerra’s report and addendum for its submission that the chronic pain assessment is not reasonable and necessary. As a reminder, Dr. Guerra believes that the applicant only suffers from a myofascial injury of the lumbar spine and whiplash associated disorder of the cervical spine.
32I am not required to resolve the debate between the medical reports provided by the applicant and Certas. When deciding entitlement to payment for a chronic pain assessment, I need only determine whether it is reasonable and necessary that the applicant assess whether he suffers from chronic pain syndrome: 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 69464. I do not need to determine whether the applicant actually suffers from chronic pain. Otherwise, the applicant would be in the unfair position of having to prove a conclusion that the assessment is intended to investigate.
33I find it analytically useful to break the inquiry into two sub-questions. The first sub-question is whether it is reasonably possible that the applicant suffers from chronic pain. A chronic pain assessment would be unreasonable and not necessary if there was no reasonable possibility that the applicant suffers from chronic pain. Based on Dr. Pruzanski’s report, I believe that it is reasonably possible that the applicant suffers from chronic pain.
34The second sub-question is whether it is reasonable and necessary for the applicant to explore the possibility that he suffers from chronic pain syndrome through a chronic pain assessment. In this case, the applicant has proven on a balance of probabilities that it is reasonable and necessary. I again base my conclusion fundamentally on Dr. Pruzanski’s report.
4. The Two Assessments of Attendant Care Needs
35The applicant is entitled to payment for the cost of two Assessments of Attendant Care Needs (Form 1s), each of which cost $575. Clause 4 of s. 25(1) of the Schedule requires Certas to pay for “reasonable fees charged by an occupational therapist … for preparing an assessment of attendant care needs under section 42”. The two Assessments of Attendant Care Needs fall squarely within this definition. The documents were charged by Remik Zakrewski, an occupational therapist, the charge was pursuant to s. 42 of the Schedule, and the cost is reasonable. Certas does not dispute this.
36Certas submits that the cost of the Assessments of Attendant Care Needs is not payable because, respectively, the applicant did not submit a Treatment Plan and s. 38(2) applies. Section 38(2) requires an insured person to submit a Treatment Plan prior to incurring an expense. I find that clause 4 of s. 25(1) governs in this instance. The plain words of clause 4 indicate that the applicant does not need to incur the expense prior to submitting a Treatment Plan or even submit a Treatment Plan at all. Certas’ submission would find support if clause 3 of s. 25(1) applied. However, in this instance clause 4 applies.
5. Interest
37The applicant is entitled to interest on payment for the chronic pain assessment and the two Assessments of Attendant Care Needs. Interest must be paid in accordance with s. 51 of the Schedule.
Conclusion:
38The applicant is neither entitled to an attendant care nor a non-earner benefit. She is entitled to payment for a $2,000 chronic pain assessment, each of the $575 Assessments of Attendant Care Needs, and interest in accordance with s. 51 of the Schedule.
Released: March 1, 2018
Chris Sewrattan, Adjudicator