D.K. v. The Guarantee Company of North America, 2019 CanLII 122723

Citation: D.K. vs. The Guarantee Company of North America, 2019 ONLAT 18-007722/AABS

Released Date: November 25, 2019

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:

D.K.

Applicant

and

The Guarantee Company of North America

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Chloe Lester, Vice Chair

APPEARANCES:

Counsel for the Applicant:

David Levy, Counsel

Counsel for the Respondent:

Shawn Macdonald, Counsel

Hearing Date:

In Writing: June 3, 2019

OVERVIEW

1The applicant, DK, was involved in a car accident on March 23, 2016. She was struck by a motor vehicle as she crossed the street. At the time, she was a full-time PhD student and worked as a teacher’s assistant.

2The applicant applied for benefits under the Schedule.¹ The respondent, The Guarantee Company of North America, denied those benefits. The applicant then filed an Application for Dispute Resolution to the Tribunal² for various benefits, including attendant care benefits (“ACBs”), expenses relating to the accident and treatment plans.

3The applicant argues entitlement to 17 different issues, three of which have now been withdrawn. The remaining issues pertain to ACBs, treatment plans for chiropractic and physiotherapy, and expenses relating to the car accident.

ISSUES:

4The issues in dispute for the hearing are:

(a) Is the applicant entitled to an attendant care benefit?

(b) Is the applicant entitled to three treatment plans for chiropractic and physiotherapy services?

(c) Is the applicant entitled to expenses relating to the accident?

(d) Is the applicant entitled to interest?

RESULTS:

5I find the chiropractic treatment plans, physiotherapy treatment plan, and Tylenol receipts reasonable and necessary.

Overall Impressions:

6Overall, the applicant has argued very little submissions or evidence to substantiate her claims. The applicant produced five medical reports: two in-home assessments that were largely based on self-reporting. The reports had very little testing conducted, and the testing results showed that there should be no reason physically why the applicant could not complete her activities of daily living. The applicant self-reports in those examinations that she is having trouble cognitively and emotionally but, absent testing or other medical evidence to substantiate those claims, I do not have enough information to find the benefits reasonable and necessary. In her psychological assessment, she was found to have a marked impairment in adaptation and global impairment, but, that said, the assessment does not explain how this marked impairment supports a need for the attendant care benefits or the expenses.

7The other two reports are two competing neuropsychology reports. They both confirm that the applicant has a mild traumatic brain injury. Neither report explains how this diagnosis supports her claim for benefits.

8I do not have any clinical notes and records from a treating medical professional to confirm the applicant’s abilities pre- and post-accident. Most of the requests for benefits pertain to expenses relating to her light sensitivity, allergy issues and fibromyalgia. Also, I have no medical documentation to support the light sensitivity or allergic reactions were caused by the accident, so any expenses relating to those issues are not payable. Lastly, the applicant claims she had fibromyalgia prior to the accident, so without any medical evidence to show the condition was worsened by the accident, expenses relating to those issues are also not payable.

9A significant amount of expenses being claimed were done so outside of a treatment plan which leaves the respondent at a disadvantage of not having been able to conduct a s. 44 examination to obtain a medical opinion on the issue. The Schedule states that an expense incurred prior to a treatment plan being submitted is not payable. Therefore, any treatment incurred prior to a treatment plan being submitted would also not be payable.

IMPAIRMENTS:

10The applicant claims that, as a result of the accident, she suffers from numerous impairments. There is no doubt that the accident caused her some injuries. However, the respondent argues that many of the benefits in dispute were recommended for injuries that are not accident-related. The applicant has produced very little evidence and few submissions to support her claims. The three main impairments that are at issue in this hearing are whether the applicant developed a light sensitivity, chemical or EMG sensitivity, and fibromyalgia as a result of the accident.

11Light Sensitivity: The applicant claims she has developed a light sensitivity as a result of the accident. The applicant was diagnosed with a mild neurocognitive disorder because of the accident. Despite that, I have no evidence to support that the neurocognitive impairment caused a light sensitivity.

12Chemical/EMG Sensitivity: Many of the applicant’s requests for benefits/expenses relate to the issue of whether she has developed a chemical or EMG sensitivity as a result of the accident. While the applicant claims she did, she did not provide any medical evidence to substantiate the claim. Many of the submissions regarding her alleged chemical sensitivities are from her self-reports to various assessors. The respondent claims the first report of this chemical sensitivity to her doctor is approximately a year and a half after the accident, at which point the applicant attributed the root cause to construction near her apartment. The doctor, in his clinical notes, did not render an opinion on the cause of the impairment.³ The applicant also reports to the occupational therapist, in an assessment conducted on March 29, 2018, that after the accident she would swim twice a week and found it beneficial. It wasn’t until August 2017, some 17 months after the accident, that she could no longer continue swimming because she had developed a sensitivity to the chlorine in the water.⁴ Based on these self-reports and, more importantly, the lack of any medical evidence directly supporting the claim, I cannot see how the applicant’s reported sensitivities, apparently developed about a year and a half later, was related to the car accident.

13The applicant also claims she developed fibromyalgia as a result of the accident.⁵ This is in contradiction to the applicant’s reports to various treating practitioners that she suffered from fibromyalgia prior to the accident.⁶ I also do not have any evidence to support the accident made the applicant’s fibromyalgia worse or, if the treating practitioners misunderstood the applicant, that she developed fibromyalgia as a result of the accident. Therefore, I cannot conclude the accident caused her fibromyalgia or worsened her condition.

ATTENDANT CARE BENEFITS

14The applicant claims entitlement to ACBs in the amount of $3,022.33 per month from March 23, 2016 to date and ongoing.⁷ The respondent denied these benefits.⁸

15The applicant claims her friends provided some of these attendant care services by packing her personal effects when she was moving out of the apartment. The applicant produced an expense claim form with receipts from three of her friends, suggesting that paid them $15 an hour for their services.⁹

16The onus is on the applicant to prove why she is entitled to the benefit. The applicant did not provide any submissions as to why ACBs are reasonable and necessary pursuant to s. 19 of the Schedule.

17An in-home assessment was conducted on February 8, 2018 to determine whether the applicant needed ACBs. The report outlines the difficulties she is allegedly having as a result of the accident. The report indicated that the applicant was able to complete many of the functional tasks, like walking, standing and sitting, without any signs of discomfort or that she is able to manage the discomfort with breaks or by alternating the tasks. The range of motion testing showed all areas of the body were within normal limits, and many of which did not report pain with the testing. Her strength testing showed full range of motion with maximal resistance. In the activities of daily living chart, many of the clinical onions reported no attendant care assistance required.

18The applicant also self-reports that she suffered from pre-existing fibromyalgia as reported in her treatment plans, yet that is not reflected in the history portion of the assessment.¹⁰ The applicant also reports to the respondent’s neuropsychological doctor¹¹ that she is independent in many of her activities of daily living, including cooking, cleaning and laundry although not at the same level as before the accident.

19Even the applicant’s own psychiatric assessor, in a report dated May 2019, confirms that the applicant reports she is independent with her activities of daily living.

20I fail to see from a physical perspective how the recommendations for $3,022.33 worth of ACBs per month coincide with most of the testing which shows she is functionally able to complete the task. Moreover, as the reports indicate she is independent with her activities of daily living, I find that any ACBs relating to her physical conditions are not reasonable and necessary.

21I note that the report’s questionnaire portion suggests significant psychological distresses and that report recommends psychological intervention. Absent a psychological diagnosis or medical records supporting a need for attendant care related to her psychological condition, I find that any ACBs relating to her psychological issues not reasonable and necessary.

22The applicant claims that her attendant care providers should be compensated for their services. I find the expenses relating to the ACBs are not payable because firstly, they are not reasonable and necessary. Secondly, since the providers are non-professionals, the applicant would have to prove that they incurred an economic loss in order to be compensated for their services. She has not. And lastly, the expenses relate to compensating her friends for helping her move, which is not a service covered under attendant care benefits. Therefore, the expenses are denied.

23The applicant claims she is entitled to two treatment plans for chiropractic services recommended by Alexander Kipershlak from Activa Clinic in the amount of:

(a) $2,907.44. The respondent denied the benefit on September 29, 2016; and

(b) $2,456.20. The respondent denied the benefit on January 30, 2017.¹²

24The onus is on the applicant to prove why she is entitled to these benefits. The applicant did not provide any submissions as to why the chiropractic treatment plans are reasonable and necessary pursuant to s. 15 of the Schedule.

25The treatment plans express that the recommended chiropractic services are to treat the various strains and sprains, concussion, headache, radiculopathy, and contusion of the knee as a result of the accident. The applicant reports that she had pre-existing conditions of fibromyalgia and varicose veins. The treatment plan goals were to increase strength, reduce pain, increase range of motion, and to return the applicant back to her activities of normal living and pre-accident work activities.

26The respondent denied the first treatment plan based on a physiatry assessment conducted on June 13, 2016. The examining doctor opined that the applicant suffered from soft tissue injuries and possible concussion. The assessor recommended active therapy instead of passive therapy to improve upon her accident-related impairments.¹³ The same assessor conducted a paper review on the second treatment plan and opined that further facility-based treatment was not needed, and that the applicant should focus her treatment on a self-directed exercise program.¹⁴

27I find the treatment plans are reasonable and necessary. The Schedule does not stipulate what type of treatment is appropriate and when, only that it be reasonable and necessary. The applicant would be entitled to treatment up until she has reached maximal medical recovery, at which point the respondent may no longer obligated to continue to pay for benefits for the accident-related impairments. She has not reached maximum medical recovery. The treatment was for impairments that the respondent, for the most part, acknowledged she had. The two treatment plans were recommended within the first year of the accident. I find the two treatment plans reasonable and necessary.

28The applicant claims entitlement to a physiotherapy treatment plan in the amount of $1,796.00 as recommended by Shironika Thabirajah from Activa Clinic. The respondent denied the benefit on June 2, 2017.¹⁵

29The applicant argues the treatment was necessary to manage her symptoms. The treatment plan express that the recommended physiotherapy services are to treat the various strains and sprains, concussion, headache, radiculopathy, dizziness and contusion of the knee that resulted from the accident. The applicant reports that she had pre-existing conditions of fibromyalgia and varicose veins. The treatment plan goals were to increase strength, reduce pain, increase range of motion, and to return the applicant back to her activities of normal living and pre-accident work activities.

30The respondent argues that based upon its physiatrist paper review of the treatment plan, facility-based treatment and intervention would no longer be useful 17 months post-accident for soft-tissue injuries. The doctor opines that the applicant should engage in a self-directed exercise program.¹⁶

31I find the treatment plan for physiotherapy reasonable and necessary. As stated above, the Schedule does not stipulate what type of treatment is appropriate and when, only that it be reasonable and necessary. The applicant would be entitled to treatment at least up until she has reached maximal medical recovery. She has not reached maximum medical recovery. The treatment was for active therapy which the respondent’s assessors recommended she pursue. As the applicant still complains of pain deriving from her accident-related impairments, and further that she has not reached maximal medical recovery, I find the treatment plan reasonable and necessary.

Expenses Relating to the Accident

32The applicant claims entitlement to various expenses relating to the accident.

Expenses relating to food, prescriptions, assistive devices, etc.

33She claims entitlement to $623.69 for treatments from Activa Clinic, damaged clothing, assistive devices from Dollarama, Ikea, Food Basics, Superstore, Honey World and Walmart, prescription receipts, printing and mailing documents, and food because she was unable to cook. These expenses were submitted to the respondent on July 16, 2016.¹⁷

34Based on my review of the receipts for the alleged assistive devices from Dollarama, many are obviously not related to the accident, including a pencil case, flower pot, shower curtain, milk pitcher, sleep mask, vaporizing rub, and pedicure paddle, just to name a few. Likewise, the expenses from Walmart relate to a hamper, umbrella, vitamins and salad plate while the expenses from Ikea are for lights and cushions. In any event, even if they are assistive devices related the accident, I have no evidence to establish that these devices were recommended by a medical professional, or to explain how they relate to her accident-related impairments or if they reasonable and necessary.

35The damaged clothing receipts relate to a sweater, sunglasses and hair accessories. The Schedule allows for replacement of damaged clothing. In this case I do not have any evidence that the applicant’s clothing was damaged in the car accident and needed to be replaced. In the applicant’s letter to the respondent explaining the reasons behind the expenses, the applicant explains that many of the expenses are to protect her from the sun or to keep her hair in place. Unless these devices were recommended by a medical professional and relate to her accident-related impairments – something of which I have no evidence – they are not reasonable and necessary.¹⁸

36Concerning the food receipts, the applicant’s in-home assessment dated February 15, 2018 recommends assistance with meal preparation because of the applicant’s decreased cognitive function, decreased lifting and carrying tolerances, endurance, activity tolerances and emotional impairments. This report was based on the applicant’s subjective complaints and, problematically, no medical documentation was provided to confirm the precise diagnosis. Since many of her physical tests reported a normal range of motion with no reported pain, and since the reports show that she is capable of standing for one hour, I cannot see why the applicant is not capable of meal preparation. With regards to her cognitive or emotional capabilities, I have no medical evidence to support a diagnosis to coincide with the applicant’s subjective complaints to determine whether the impairments prevent her from meal preparation. The applicant also reports to the respondent’s neuropsychological assessor that she is able to cook meals as she did prior to the accident. The food receipts are not reasonable and necessary.

37In review of the Shoppers Drug Mart receipts for Tylenol and prescriptions, the respondent’s physiatry assessment conducted on June 13, 2016 recommended the occasional use of Tylenol for her soft tissue injuries. The respondent argues that the non-prescribed over-the-counter medication would not be payable pursuant to s. 38(2) of the Schedule. I disagree. Section 38(2) considers an expense reasonable and necessary as a result of the accident as long as the applicant is prescribed drugs by a regulated health professional. The word prescribed does not necessarily mean that the drug needs to be written on a formal prescription pad to be payable. Therefore, as long as a regulated health professional has recommended or formally prescribed a drug for the accident-related impairments, then it may be reasonable and necessary. The respondent’s own assessor, a regulated health professional, recommended the use of Tylenol, a drug, for the applicant’s accident related impairments and, therefore, I find the receipts pertaining to Tylenol reasonable and necessary.¹⁹

38The receipts pertaining to her other prescription medications are not specific and I cannot confirm what the prescription is for and whether it was prescribed by a medical professional for her accident related impairments. They are not reasonable and necessary.

39With respect to the taxi receipts, I have no information regarding where the applicant was being transported to and for what purpose. Also, in accordance with s. 3(1) and 14 of the Schedule, transportation expenses are not covered for the first 50 km of the trip unless one is declared catastrophically impaired. The receipts do not indicate the journey’s destination or distance. Also, in the applicant’s letter to the respondent explaining the reasons for the expenses, the applicant explains that the taxi was used to transport her to and from a laundromat. This is not a payable expense under the Schedule.²⁰ The taxi receipts are not considered reasonable and necessary.

40The respondent denied most of the benefits on the basis of requiring more information or that many of the receipts were illegible or not scanned properly. The applicant responded in a letter providing an explanation for the receipts. Many of the expenses relate to issues with the applicant’s hands or light sensitivity. Absent a recommendation by a medical professional for these items or assistive devices, they are not reasonable or necessary.²¹

CPAP Machine

41The applicant requests reimbursement for a CPAP machine. Part of the expenses were covered by the applicant’s extended health care coverage. However, $500.00 remains outstanding. The letter provided to the respondent on March 13, 2017 from the sleep institute indicated that the applicant’s sleep difficulties began after the car accident. The respondent requested pre-accident clinical notes to confirm whether the sleep issues were in fact related to the car accident. Although the letter from the sleep institute indicates the sleep issues began after the car accident, does not mean it was result of the accident. Expenses can only be considered reasonable and necessary if they relate to impairments caused by the accident. Therefore, I cannot find the CPAP machine reasonable and necessary.²²

Ambulance Services Expenses

42The applicant requests reimbursement of $300.00 for ambulance services on September 16, 2017 due to an allergic reaction. Based on the medical records from the hospital, it is unclear whether the allergic reaction is as a result of the accident. I have no other records to substantiate that this particular claim is as a result of the accident. The respondent argues that ambulance services are only payable for five business days after the accident as per s. 38(2)(b). I agree. For that reason, this expense is not payable. ²³

Expenses relating to supplements, ozone treatment, adrenal fatigue drip, etc.

43The applicant requests reimbursement of $3241.87 for adrenal fatigue drip ozone treatments, rouge valley hospital receipts, a Scotiabank receipt, taxi cab receipt, vitamin supplements, printer, phone and computer cable, and water dispenser, just to name a few. The respondent partially approved the expenses in the amount of $178.50 for the rheumatologist appointment and the taxi cab. The remainder of the expenses were denied because they were experimental in nature and/or not related to the car accident. I have no evidence to substantiate these claims. Therefore, the expenses are not payable.²⁴

Prescriptions, Treatment and Housing Expenses

44The applicant requests reimbursement in the amount of $9,622.43 for prescriptions, vitamins, medical, travel and housing expenses. The respondent partially approved the expenses in the amount of $3,492.29. The remainder of the expenses were denied because the respondent needed more information to substantiate the claim, they were experimental in nature and/or not related to the car accident. Again, I have no evidence to illustrate why these claims were necessary as a result of the car accident or that the expenses are payable under the Schedule. Therefore, these expenses are refused.²⁵

Vitamins, Ozone Treatments, Hospital Visits, and Taxi Cab Expenses

45The applicant requests reimbursement in the amount of $1,607.06 and $2,515.20 for ozone treatment, DNA testing, hospital visit, eye drops, Tylenol, taxi cabs, shampoo, body cream, and vitamins. The respondent partially approved the expenses in the amount of $16.94. The remainder of the expenses were denied because the respondent needed more information to substantiate the claim, were experimental in nature and/or not related to the car accident. I have no medical records to substantiate the claim for expenses being medically necessary because of the car accident. Therefore, they are not payable.²⁶

Short Term Housing Rental

46The applicant argues she is entitled to reimbursement for a short-term housing rental and moving expenses in the amount of $1,171.46. The applicant claims she had to leave her apartment due to construction and excessive dust and, as a result, her injuries and allergies were aggravated. The respondent denied the request for reimbursement on the basis that there is no provision under the Schedule to cover these types of expenses. The applicant has not produced any evidence to explain coverage under the Schedule, let alone any medical evidence to substantiate her claim that it was necessary to leave her apartment as a result her accident related impairments. Therefore, the expenses cannot be considered reasonable or necessary.²⁷

47In the same vein, the applicant argues that, due to her injuries, allergic reactions and mobility issues, she was forced to move out of her apartment. The new apartment cost more in rent than the previous one. The applicant requested reimbursement for the difference in rental costs for six months until she moved to Halifax. The respondent denied the expenses. The recommendation for the new apartment came from the applicant’s occupational therapist and is based upon the applicant’s self-reports that the original apartment was causing her to become quite ill because of chemical and EMR sensitivities. I do not have any objective testing that the applicant suffers from these chemical and electromagnetic sensitives as a result of the accident and that her original apartment was causing her to become ill. The assessor did not review any medical documentation to support the claims in the report.²⁸

48The respondent argues that, in both cases, the expense should have been requested under a Treatment Plan (OCF-18) so that a determination from the respondent could have been made. In accordance with s. 38(2) of the Schedule, the respondent argues they are not liable to pay for an expense that is incurred before a treatment plan is submitted. I agree. The applicant ought to have submitted a treatment plan requesting coverage for the expense. The respondent would then have an opportunity to make a determination or send the applicant for a s. 44 examination.

49Absent of any medical documentation supporting the applicant’s position that she required to move out of her apartment for her accident-related conditions and that it was submitted to the respondent on an OCF-18 to make a determination, I find that the expenses are not reasonable and necessary.

Speech Language Pathology Assessment

50The applicant argues entitlement to a cost of examination in the amount of $2,200.00 for a speech language pathology assessment.²⁹

51The respondent approved this treatment plan as per its letter dated December 21, 2018.³⁰

52As the respondent has already approved this treatment plan, the applicant would be entitled to interest if it had been incurred prior to approval.

CONCLUSION:

53Overall, the applicant has not been able to prove on a balance of probabilities that she meets the tests in any of the benefits she is claiming for except for the chiropractic and physiotherapy treatment plans and Tylenol receipts.

54The remainder of the issues in dispute are not found to be reasonable or necessary because the applicant has not met her onus, has not produced enough medical documentation to support the impairment is a result of the accident, has not described how the expense is payable under the Schedule, or that the benefit/expense is being recommended by a medical professional.

ORDER:

55I find the following Treatment Plans reasonable and necessary, payable with interest, if incurred, in accordance with the Schedule:

(a) $2,907.44 submitted on September 10, 2016

(b) $2,456.20 submitted on November 25, 2016

(c) $1,796.00 submitted on May 15, 2017.

56I order the respondent pay for the Tylenol receipts with interest.

57I order the respondent to pay interest on speech language pathology assessment if incurred prior to its approval, in accordance with the Schedule.

Released: November 25, 2019

___________________________

Chloe Lester

Adjudicator

Footnotes

1. 1Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”)
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
3. 3Respondent’s Document Brief Tab F
4. 4Respondent’s Document Brief Tab G
5. 5Respondent’s Document Brief Tab G
6. 6Respondent’s Document Brief Tab C, D and E
7. 7Applicant’s Document Brief Tab 2
8. 8Applicant’s Document Brief Tab 6
9. 9Applicant’s Document Brief Tab 5
10. 10Applicant’s Document Brief Tab 7
11. 11Applicant’s Document Brief Tab 4
12. 12Applicant’s Document Brief Tab 7-10
13. 13Respondent’s Document Brief Tab G
14. 14Respondent’s Document Brief Tab M
15. 15Applicant’s Document Brief Tab 11-12
16. 16Respondent’s Document Brief Tab N
17. 17Applicant’s Document Brief Tab 14A
18. 18Applicant’s Document Brief Tab 14C
19. 19Respondent’s Document Brief Tab G
20. 20Applicant’s Document Brief Tab 14C
21. 21Applicant’s Document Brief Tab 14B and 14C
22. 22Applicant’s Document Brief Tab 15
23. 23Applicant’s Document Brief Tab 16
24. 24Applicant’s Document Brief Tab 17
25. 25Applicant’s Document Brief Tab 18
26. 26Applicant’s Document Brief Tab 19
27. 27Applicant’s Document Brief Tab 20 and 21
28. 28Applicant’ Document Brief Tab 22 and 23
29. 29Applicant’s Document Brief Tab 24 and 25
30. 30Respondent’s Document Brief Tab T