M.Z. v. Certas Home and Auto Insurance, 2020 CanLII 45507

M.Z. vs. Certas Home and Auto Insurance, 2020 ONLAT 19-005344/AABS

Citation: M.Z. vs. Certas Home and Auto Insurance, 2020 ONLAT 19-005344/AABS

Released Date: 06/30/2020

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:

M.Z.

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Neisha Moses

For the Respondent:

Meredith Harper

HEARD via written submissions

OVERVIEW

1On January 19, 2017, M.Z., a minor travelling as a passenger, was injured in a motor vehicle accident, suffering a perforated bowel, L4 compression fracture and a neck injury. He sought attendant care benefits (“ACBs”) and physiotherapy treatment from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2Following the accident and up to February 2018, Certas paid ACBs to M.Z. Certas then terminated the ACBs on the basis that they were no longer reasonable and necessary, as M.Z. had recovered. In a similar vein, Certas denied the physiotherapy claim on the basis that that it was not reasonable and necessary. M.Z. disagreed and applied to the Tribunal for dispute resolution.

ISSUES

3The following are the issues in dispute:

i. Is the applicant entitled to an attendant care benefit in the amount of $1,052.00 per month from February 12, 2018 to date and ongoing, for services provided by Gateway Home Heritage, submitted on June 30, 2017 and denied by the respondent on February 12, 2018?

ii. Is the applicant entitled to a medical benefit in the amount of $2,456.20 for physiotherapy services recommended by Dr. Asif Sachedina as set out in a treatment and assessment plan dated February 15, 2018 and denied by the respondent on April 25, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that M.Z. is not entitled to payment for ACBs as he has not demonstrated that they are reasonable and necessary.

5I find M.Z. is entitled to partial payment for the physiotherapy treatment plan in the amount of $1,892.15, as it is reasonable and necessary. Interest is applicable under s. 51 for overdue benefits that are incurred.

ANALYSIS

Attendant Care Benefits

6I find that M.Z. is not entitled to ACBs for the period in dispute as they are not reasonable and necessary. Section 42(1) of the Schedule states 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”). Section 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 services provided by an aide or attendant. M.Z. bears the burden of proving entitlement to ACBs on a balance of probabilities.

7On review of the medical documentation, I find there is limited evidence to support the contention that M.Z. needed continuing ACBs beyond February 12, 2018 for his accident-related impairments. With great respect, I am certain that being in a car accident with your entire family and sustaining the type of uncomfortable core injury and fracture that M.Z. did constituted a traumatic event for a 12 year-old-boy Where the entire family was involved in the accident as well, I accept that attendant care would have been required to help M.Z. with his daily activities and to help ease his recovery from a painful impairment. However, the medical evidence, including opinions from M.Z.’s own physicians in the months following the accident, indicates that M.Z. had largely healed from his accident-related impairments well before the February 2018 period in dispute.

8Given the volume of records from Sick Kids Hospital following the accident, it is clear that M.Z. was suffering from pain due to his laparotomy surgery and ACBs during this time were needed following his discharge in late January 2017. However, the timeline presented by Certas in the months that followed supports its contention that continued ACBs from February 2018 onwards are not reasonable and necessary. For instance, on April 7, 2017 and May 25, 2017, M.Z.’s family physician, Dr. Maragh, wrote that his accident-related injuries were resolved and he is noted as being recovered from his surgery and improving. Following this, on June 30, 2017 and July 6, 2017, Dr. Maragh notes that a L4 vertebral body fracture was queried at Sick Kids, but the x-ray of the lumbar spine was normal. I agree that Dr. Maragh’s notes from this period show that M.Z. was active and not experiencing back pain. From May 2017 to February 2018, M.Z. reports no pain complaints or functional limitations from the accident to Dr. Maragh and the family physician makes no referrals or recommendations for ACBs. The note from Sick Kids dated October 9, 2017 also does not recommend additional physiotherapy, chiropractic treatment or ACBs. While there are intermittent reports of abdominal pain in the documentation, I agree that there is limited evidence that this pain impairs M.Z.’s function as it relates to his daily activities.

9While Dr. Lindsay, orthopaedic surgeon, noted the L4 compression fracture in July 2017, his overall impression was that M.Z. had largely recovered from the effects of his injuries, had resumed all activities of daily living and begun participating in sports, albeit to a lesser degree. Dr. Lindsay indicated that M.Z.’s minor lifestyle changes were expected to be “short lived” and the prognosis for a full and complete recovery was excellent. Notably, Dr. Lindsay did not make a recommendation for immediate or continued ACBs, physiotherapy or chiropractic treatment and concluded that M.Z. was not restricted in his household activities.

10M.Z.’s initial Form-1 and ACB recommendation were made by his occupational therapist, Ms. Stewart, following the accident. These recommendations formed the basis of Certas’ approval and payment for ACBs up to February 2018. In the follow up In-Home Assessment with Form 1, completed again by Ms. Stewart, dated December 8, 2017, while pain was noted, M.Z. had returned to school, his pre-accident leisure activities and demonstrated normal limits on functional testing. M.Z. was able to sit, stand, walk, climb stairs, transfer, squat, kneel, lift and carry.

11Despite M.Z.’s abilities and in the absence of a recommendation from any of his treating practitioners, Ms. Stewart recommended that M.Z. required assistance with his meal preparation for breakfast, lunch and dinner, as well as with cleaning the tub, shower and toilet, totalling $926.08 in ACBs per month. On the evidence and despite M.Z.’s objections, I agree with Certas that these recommendations seem a bit peculiar for a 13-year-old boy who resides with his parents and who, by all accounts, had largely recovered from his accident-related injuries. I accept and agree with M.Z.’s submission on reply that pain, primarily M.Z.’s accident-related abdominal pain, can be intermittent and therefore not always captured by a clinical note or by a particular assessment. However, I do not accept that monthly ACBs 14 months post-accident are reasonable and necessary to assist with basic hygiene needs or meal preparation for a 13-year-old boy who resides with his parents on the basis of intermittent pain.

12In any event, I prefer the report of Ms. Bhatnagar, Certas’ O.T., dated January 21, 2018. Ms. Bhatnagar concluded that M.Z. did not require continuing ACBs due to his full range of motion, demonstrated functional strength and independence in the activities of daily living that he did before the accident. I find Ms. Bhatnagar’s recommendation to be more in line with the bulk of the medical evidence but also based on the fact that M.Z. was scoring excellent marks in school, participating in gym class, had returned to swimming, gone on field trips and, based on the records of Canadian Active Rehabilitation, was able to perform high knees, heel kicks, the agility ladder circuit, lunges, ball slams, isometrics, chest press, curls and, importantly, had “no new pain to report” as of February 2018, which falls in the period in dispute. While I am alive to M.Z.’s submission that he continued to complain of pain between January and April 2018 when Canadian Active’s records cease, I find he had significant function and was capable of independence during this period which makes it difficult to reconcile the need for continuing ACBs beyond February 2018.

13For completion, in submissions, M.Z. argued that ACBs were reasonable and necessary because of his progress and because they were incurred. Yet, on review of the documents provided, M.Z. has offered no substantive proof that the ACBs he claims were incurred during the period in dispute under any of the prongs of s. 3(7)(e). There are no invoices, no promissory notes, no affidavits speaking to services provided, the level of care, the rate of care, etc. Accordingly, as it is M.Z.’s burden, the Tribunal has no basis on which to find that he received the goods or services to which the ACB expenses relate, that he has paid the ACB expenses, has promised to pay the expenses or is otherwise legally obligated to pay the expenses. Further, M.Z. has not offered analysis on why s. 3(8) may apply to deem the expenses incurred.

14For these reasons, I find that M.Z. is not entitled to payment for ACBs as he has not demonstrated the benefits are reasonable and necessary for the period in dispute and has not demonstrated that services were incurred.

Is the physiotherapy treatment reasonable and necessary?

15M.Z. seeks payment in the amount of $2,456.20 for physiotherapy services recommended by Dr. Sachedina in a treatment plan dated February 15, 2018. Under s. 15 of the Schedule, an insurer shall pay for all medical and rehabilitation benefits that are reasonable and necessary as a result of the accident. M.Z. bears the burden of proving that treatment is reasonable and necessary.

16As Certas notes, a treatment plan, without any recommendations for that treatment from a qualified health practitioner, is insufficient to establish entitlement under the Schedule. While I find Dr. Maragh did recommend physiotherapy following the accident and into the spring of 2017 and that M.Z. attended frequently, I find no evidence that this recommendation was made in February 2018 when this particular plan was submitted. The treatment plan itself identifies three physical injuries: low back pain, cervicalgia and headache as well as nervousness. I agree with Certas that there is no objective medical evidence that M.Z. continued to complain of these latter symptoms in February 2018 or how this specific treatment would address these impairments specifically. I would also agree with Certas that there is no objective medical evidence to support the claim in the plan that M.Z. was experiencing ongoing/neck pathology related to the accident as there is no explanation, in the plan itself or in submissions, as to what exactly this entails.

17However, with regards to lower back pain, contrary to Certas’ submission, I find there are complaints of lower back pain in all of the attendance notes at Canadian Active between January and April 2018, although it appears the first five visit notes are missing. This conjures Dr. Lindsay’s report that opined that there is a possibility of M.Z. requiring rehabilitation for his lumbar back pain, although this was expected in M.Z.’s adult life, not six months following the assessment. Yet, in the same report, M.Z. reports to Dr. Lindsay that his back pain is intermittent, only 2/10 on the pain scale and occurs only after competitive sports, which contradicts M.Z.’s submissions that characterize the pain as “unrelenting” even though it does not prohibit him from his daily activities or sports. On this basis, I question how effective the physiotherapy M.Z. incurred under this plan was for his pain where he continued to complain of lower back pain at and seemingly after every session he attended. In this sense, I cannot accept that the treatment was beneficial for his pain, although on the other hand, M.Z.’s ability to perform many functional tasks as a result of treatment is evident.

18Certas relied on the orthopaedic examination report of Dr. Dessouki, dated April 20, 2018, to deny the treatment plan. In the report, Dr. Dessouki determined that M.Z. had no physical restrictions and was participating, fully, in gym class. He notes that M.Z. had returned to his pre-accident activities, including swimming and tidying up his room, had excellent range of motion of his lumbar spine and ultimately, that there was no objective evidence of residual musculoskeletal impairments. While Dr. Dessouki does note M.Z.’s complaints of gastric pain in his stomach, he concluded that the treatment plan for physiotherapy was not reasonable and necessary.

19While I question the efficacy of the physiotherapy treatment M.Z. incurred due to his consistent reports of pain in the specific attendance notes, based on Dr. Dessouki’s subsequent report, I would accept on a balance of probabilities that M.Z. gained functional improvement as a result of the treatment outlined in the plan and that it helped address his lingering back impairments from the accident. M.Z. sustained significant impairments as a result of the accident and, as a 13-year-old, I would agree that it is important to address any lingering issues now rather than later. M.Z. consistently attended for treatment in the year following the accident, so I accept that a final round of treatment is reasonable. Accordingly, I find the physiotherapy treatment to be partially reasonable and necessary on balance. First, I find the cost per session is reasonable, but payment will be capped at 15 sessions, as that is all that M.Z. has furnished proof of incurring based on the notes provided. Second, the $200 cost of preparing the OCF-18 is reasonable and payable. Third, I find the $451.24 for “documentation, support activity” is not payable, as it is unclear what this entails and neither of the OCF-18 or M.Z.’s submissions speak to why it is reasonable and necessary.

20For these reasons, I find the treatment plan for physiotherapy is partially reasonable and necessary. M.Z. is entitled to payment in the amount of $1,892.15. As benefits are overdue, it follows that interest is payable on overdue benefits incurred, pursuant to s. 51.

CONCLUSION

21M.Z. is not entitled to payment for ACBs as he has not demonstrated that they are reasonable and necessary. M.Z. is entitled to partial payment of the physiotherapy treatment plan in the amount of $1,892.15, as it is reasonable and necessary. Interest is applicable under s. 51.

Footnotes

1. 1O. Reg. 34/10, as amended.