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:
Robin Bellamy
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Monica Chakravarti
APPEARANCES:
For the Applicant: Jonathan Burton, Counsel
For the Respondent: Rory Wasserman, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1The applicant was injured in a motor vehicle accident on November 16, 2017 (the Accident). The applicant sought benefits from the respondent, for medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The respondent denied the benefits because it concluded that the benefits being sought were not reasonable and necessary and were not related to the Accident, the applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute were identified and agreed to as follows:
a. Is the applicant entitled to a medical benefit in the amount of $4,406.23 for assistive devices recommended by Rehab Results in a treatment plan (OCF18) submitted on April 5, 2019 and denied on April 17, 2019?
b. Is the applicant entitled to a medical benefit in the amount of $3,200 for laser foot therapy recommended by Dr. David Allison, Chiropodist in a treatment plan (OCF18) submitted on May 9, 2019 and denied on May 24, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the reasons below the applicant is not entitled to the above noted treatment plans. As the treatment plans are not payable the applicant is not entitled to interest.
REASONS
Pre and Post Accident Injuries
4Dr. Rathbone, neurologist, provided a report on behalf of the applicant dated May 25, 2020. Dr. Kucher, neurologist, provided a report following an insurer examination (I.E.). Both neurologists concluded that the applicant sustained a mild traumatic brain injury and/or concussion as a result of the Accident.
5Further the I.E. assessors and the assessors retained by the applicant agree that as a result of the accident the applicant sustained injuries to her cervical spine, left shoulder, thoracolumbar spine, and knees bilaterally2. This list is not exhaustive but are the injuries both parties agree the applicant sustained.
6The medical records confirm that the applicant has pre-existing issues with depression, anxiety, migraine headaches, non-Hodgkin’s lymphoma, scoliosis, COPD, sleep apnea, chronic pain as well as a previous motor vehicle accident of 2007 that resulted in the applicant ambulating with a cane. The above is not exhaustive of the pre-existing issues of the applicant but they are medical conditions that neither party is taking issue with. 3
The Treatment Plans in Dispute
7The treatment plans in dispute are for assistive devices (the Assistive Devices OCF-18) and for laser therapy (the Laser Therapy OCF-18).
8The Assistive Devices OCF-18 is based on the recommendations of Hazel Wood, an occupational therapist4. It is dated April 5, 2019. Ms. Wood lists the injuries that are a direct result of the accident as:
“Intercranial injury
Traumatic subdural haemorrhage [sic]
Other mental disorder due to brain damage and dysfunction and to physical disease,
Sprain and strain of other and unspecified parts of shoulder girdle
Dislocation, sprain and strain of joints and ligaments of knee
Sprain and strain of cervical spine.
9In terms of prior and concurrent conditions, Ms. Wood listed that the applicant had a previous motor vehicle collision “about 10 years ago with neck pain and difficulties with balance”.
10The goals of the Assistive Devices OCF-18 were listed as pain reduction, “equipment is need[ed] to enhance function” and a return to activities of normal living.
11The proposed devices (the Assistive Devices) and associated costs are the following:
a. Documents/support activity - $115.00
b. Cookware - $145.00
c. Steam mop - $125.00
d. Scooter - $2,190.00
e. Battery/Replacement battery $120.25
f. Delivery Charge – $75.00
g. Lift chair - $1,199.00
h. Hair perm - $75.00
12The second treatment plan in dispute is for laser therapy it is submitted by David Allison, chiropodist and dated May 9, 2019.5 In the Laser Therapy OCF-18 Mr. Allision does not list the injuries or impairment associated with the Accident. With respect to the questions in the OCF-18 of “prior and concurrent conditions” and if the applicant’s impairments from the injuries affect employment or normal life, he answers “unknown”.
13The treatment goals of the Laser Therapy OCF-18 are listed as pain reduction, regeneration of the spine and return to pre-accident work activities.
14In the attachment to the Laser Therapy OCF-18 Mr. Allision indicates that the applicant has degrading balance related to trauma of the lower spine. He recommends low intensity laser therapy and recommended 30-40 treatments over 60 days at a cost of $75.00 per visit to a maximum of $3000.00.
Parties Positions and the Law
15The above treatment plans are governed by the following sections of the Schedule:
Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
Medical and rehabilitation benefits under sections 15 to 17.
(1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for….
16Section 15 of the Schedule goes on to list the various medical and rehabilitation services.
17The parties agree that under the Schedule the applicant must show that the injuries or impairments (that require the benefits) are caused by the Accident and as well the applicant must show that the medical and rehabilitation services are reasonable and necessary expenses.
18The applicant submits that with respect to causation of the impairments the test to be used in this case is the “material contribution” test and not the “but for” test. Alternatively, the applicant submits that the applicant has shown that the applicant meets the “but for” test with respect to the accident causing impairments to the applicant.
19The respondent submits that the jurisprudence has established that for disputes under the Schedule that the test is the “but for” test and no other test. Further the respondent submits that the “material contribution” test is to be used in the rarest of circumstances in tort and that it cannot be used an alternative argument in this dispute.
20I agree with the respondent. The test to determine causation in a Statutory Accident Benefits case is the “but for” test.6 The causation is a factual determination made on a balance of probabilities.7 The onus is on the applicant to show that she would not have suffered the impairments “but for” the accident. The accident is looked at not as the only cause for the applicant’s impairments but as a necessary cause.8 It is in this context that the Treatment Plans in dispute will be examined.
Assistive Devices OCF-18
21The applicant submits that as a result of the accident she sustained an exacerbation of pre-existing impairments and that the Accident caused further injuries leading to impairments requiring the recommendation for the Assistive Devices.
22Further the applicant submits that the disputed Assistive Devices recommended are reasonable because the treatment goals identified in each individual treatment plan is reasonable. The applicant relies on the jurisprudence of the Tribunal that has recognized that pain relief and a return to pre-accident functioning as legitimate recognized goals of treatment thereby making the treatment plan reasonable and necessary.
23The respondent submits that the assistive devices recommended are not related to impairments caused by the Accident but are related to pre-existing issues and related to a fall that occurred following the Accident.
24The onus is on the Applicant to prove that the Assistive Devices are required as a result of the accident related impairments and that the Assistive Devices are reasonable and necessary.
25I find that the applicant has not met her burden to show that the assistive devices recommended in the Assistive Devices OCF-18 are required as a result of impairments sustained in the Accident. Further the applicant has not proven that the Assistive Devices OCF-18 are reasonable and necessary for the reasons below.
a. Scooter, Battery/Replacement battery, Delivery Charge, Lift chair
26The applicant submits that she has issues with ambulating and standing as a result of injuries sustained in the Accident to her back and her knees. She further submits that she has issues with balance due to a brain injury and foot numbness. This, she states is as a result of Accident related injuries. Because of the issues with mobility and balance she requires the use of a scooter and a lift chair.
27The respondent submits that the issues with the Applicant’s mobility as a whole are pre-Accident impairments that are not related to nor caused in any way by the Accident. Further, the respondent submits that the Applicant’s testing with respect to her balance are in the normal range and her foot numbness is not as a result or caused by the Accident but is caused by chemotherapy.
28I find that the Applicant has not met her burden to show that the need for the Scooter and Lift Chair are as a result of impairments sustained in the Accident. The applicant has not provided persuasive medical evidence to show that her issues with dizziness, balance, sitting or standing are due to impairments that were caused by the Accident. The evidence shows that her issues with mobility are as a result of pre-Accident impairments. Further while I agree that the applicant sustained a brain injury, she has not provided reports or enough evidence to conclude that the brain injury is now causing issues with balance that warrant the use of a scooter or a lift chair.
29Firstly, the applicant has not shown that the issues with balance if they are as a result of the accident, are of such a degree that they require the use of a scooter or lift chair. The In-Home Assessment of January 8, 2018, completed by Lesley Notari, the applicant’s occupational therapist (“OT”), noted that the applicant did not report any issues with balance but does report that her knees give way due to pain. Ms. Notari completed the Berg Balance Assessment resulting in a score 40/56 indicating “medium fall risk”. Ms. Notari explained in her report that a score between 21-40 is considered “medium fall risk”. On May 15, 2019 another In Home Assessment was completed by the applicant’s OT, Ms. Wood, and the applicant was again administered the Berg Balance Assessment and obtained a score of 43/56 putting her in the “low fall risk” category.
30Secondly, neither of the applicant’s OTs, Ms. Notari and Ms. Woods, concluded that any issues that the applicant has with balance are as a result of Accident related impairments.
31The family doctor however has confirmed that the applicant has pre-accident impairments of balance and mobility. The family doctor’s clinical notes and records distilled below confirm the applicant’s pre-Accident issues with balance and mobility as follows:
February 19, 2014: using a walker
January 6, 2015: fallen twice in the last two weeks, her legs just give way, noise in her ear-balance exercises to do, next visit do pain assessment
May 6, 2015: here for a discussion of motorized wheel chair or scooter, her old walker has just been worn out, she needs a new one-was told to apply for ADP, Rx for rollator or scooter and she will decide the options, rollator dx mobility impairment.
July 25, 2015: scooter assessment is pending
November 9, 2015: ambulating slowly with a cane but well
November 20, 2017: MVA f/up …head hit the head rest and maybe walker wheel
32The applicant relies on the report of Dr. Rathbone, neurologist, who opined in his report of May 25, 2020 that the back pain experienced by the applicant continues to impair her ability to stand, walk on uneven surfaces and perform activities of daily living. He notes that the applicant’s knee pain has improved, and she continues to have some pain while climbing stairs. Dr. Rathbone notes that the applicant reports to him that her balance tends to be poor and she often leans into walls. He also notes that the applicant experiences foot numbness.
33Dr. Rathbone however makes no finding and does not lend any support to the issues with balance being accident related. He does find that the back pain that the applicant is experiencing aggravated by prolonged standing and he does note that walking on uneven surfaces would jolt the spine thereby aggravating the pain but he does not make any recommendation for any assistive devices or connects issues with mobility to the injuries to the applicant’s lower back.
34With respect to the foot numbness I find that the applicant has not proven that it was caused by the Accident or that it is an Accident related impairment because the applicant’s own treating neurologists confirm that the foot numbness is related to a history of chemotherapy. Specifically, the Applicant’s treating neurologist, Dr. Kasavari in his report of October 15, 2019 concluded that her foot numbness was related to her history of chemotherapy9. Dr. Parekh, the applicant’s treating neurologist as well noted in his report of May 28, 2019 that the foot numbness is likely polyneuropathy and in his report of November 12, 2019, he confirmed that the foot numbness was polyneuropathy, possibly due to previous chemotherapy.10
35Dr. Rathbone as well does not relate the foot numbness to the lack of balance or mobility, nor does he relate issues with balance to accident related impairments. He merely states what the applicant reports to him regarding her balance, which is that she leans on walls.11
36The applicant must show on a balance of probabilities that but for the accident she would not have issues with walking, balance, standing or mobility. She has not met this burden. She has shown that the Accident potentially exacerbated some of these pre-accident issues it did not cause these impairments.
37The applicant has not provided sufficient evidence to show that she has issues with balance or that her issues with balance are as a result of the brain injury or post-concussive symptoms. The family doctor notes three days following the Accident the applicant had issues with balance. However, since that note there is no further mention of this. Neither the treating neurologists, the I.E. neurologists nor Dr. Rathbone conclude that there are any balance, dizziness or mobility issues related to the post-concussive symptoms or from the mild brain injury.
38Further the applicant has not met her burden to show that her issues with mobility i.e. ambulating are accident related impairments. The family doctor’s notes confirm that in 2015 she required the use of a scooter to ambulate.12 Other than the in-home assessment the medical reports provided, do not link any accident related impairments to her ability to ambulate nor do the reports make any recommendations regarding the need for a scooter.
39Lastly while the applicant’s occupational therapist notes that scooter is needed to help the applicant reintegrate into the community, she does not relate how the need for the scooter is any different from the need for the scooter pre-accident when it was noted by the family doctor in 2015.
40Based on the above, the applicant has not met her burden to prove that the scooter is required as a result of Accident related impairments and therefore the cost of the scooter is not payable. Similarly, the associated battery, battery replacement and delivery charges are not payable.
41With respect to the lift chair, the applicant has provided no evidence or rationale as to the need for a lift chair or how it relates to her impairments from the Accident. The OT Rebuttal report (to an insurer examination) by Ms. Wood dated August 2, 201913 makes no mention of the lift chair. There are no reported difficulties to the examiners regarding moving from seated to standing or standing to seated. The Berg Balance Scale conducted on May 3, 2019 reported a score of 4 (the highest score) for sitting to standing, sitting unsupported, standing to sitting and transfers.14 There are also no recommendations made by the family doctor for assistive devices for the applicant let alone recommendations for a specialized chair.
42Therefore, the applicant has not shown that the lift chair is required as a result of Accident related impairments and she has not shown that it is reasonable or necessary.
b. Cookware
43The applicant submits that the cookware is reasonable and necessary because the applicant has set a goal of writing a cookbook. The applicant submits that setting this goal assists in her recovery and the cookware is therefore reasonable and necessary.
44The treatment plan indicates that the cookware recommended is “Non-stick” Cookware”15 and in the “Additional Comments” the proposed treatment provider states “to accommodate reduced strength, the following are recommended…Lightweight Cookware.”16
45The respondent submits that following the accident the applicant has in fact completed a cookbook. The applicant as well cooks elaborate meals without the aid of the lightweight cookware recommended and that the applicant does not demonstrate any issues with lifting that would make the lightweight cookware reasonable and necessary.
46I agree with the respondent. The applicant has not shown the need for lighter cookware to be able to complete her cooking tasks or to assist in returning to cooking. The evidence shows that the applicant continues to cook and does not report any issues relating to the cookware as limiting her ability to do so. She reports pain to be the impairment that interferes with her ability to cook.
47The OT Progress Note of October 18, 2018 notes the applicant is reporting that she is able to cook with pacing and making smaller meals.17 There is no reporting of issues with the weight, lifting or anything else with respect to the cookware that she is using when cooking her meals.
48As well, the applicant provides no further evidence to support her need for the cookware other than the treatment plan which in and of itself does not provide an explanation as to why the cookware is needed and how it will assist. The treatment plan simply states the cookware will assist with reduced strength but provides no explanation as to what “reduce strength” means.
49Further the applicant’s submissions that the lighter cookware is required to complete a cookbook is a submission made without evidence and the evidence is actually the contrary in that the applicant reported to her OT that she completed and published a book.18
50Therefore, based on the above and the fact that the applicant at no time related her inability to cook as she did pre-accident to her cookware, I find that the cookware is not reasonable and necessary.
c. Steam Mop
51The applicant submits that the steam mop is required because the applicant is unable to take her dogs outside and has set up soiling pads that result in spillage of urine and feces requiring a steam mop to maintain basic hygiene.
52The respondent submits firstly that there is no medical evidence to support that the difficulty of the applicant to take her pets outside is as a result of the Accident related impairments. Secondly the respondent submits that they have already provided the applicant with a Swiffer wet jet, lightweight vacuum and telescopic baseboard cleaner and the applicant has not provided any reasons why these devices are insufficient. Lastly the applicant chose to get a second dog one-year post-accident and made that choice knowing her limited capabilities.
53The applicant has not met her onus to show that the need for a steam mop is as a result of accident related impairments. The treatment plan does not speak to why the applicant cannot take her pets outside and I am left to assume that it is because of her difficulty ambulating and her difficulties with mobility. As discussed above her issues with mobility are not Accident related impairments.
54There is no evidence tendered other than the treatment plan itself and the rebuttal report of the treating OT, Ms. Wood, dated August 23, 2019. In the rebuttal report there is no information other than the fact that the applicant cannot take her pets outside.
55Therefore, the applicant has not met her onus of showing that the steam mop is a reasonable and necessary or that it is related to impairments from the Accident.
d. Perm
56With respect to the perm the applicant tenders only the treatment plan in support of the need for this assistive device. She submits that as a result of restrictions to her neck and shoulder that she requires assistance with her hair and that having her hair done properly alleviates the psychological issues as well.
57Other than the treatment plan there is no medical support that the applicant is unable to do her hair. The applicant has self-reported that she has difficulty using a curling iron because of injuries to her shoulder and neck, however other than her self-reporting there is no further medical support. The insurer examinations (I.E.s) of Dr. Millard, physiatrist, and Mr. Sasani, occupational therapist, both find normal range of movement in the arms and the neck.
58The applicant’s family doctor has not endorsed any issues with the range of movement of the applicant’s shoulder. While I agree that the applicant does have pain and did injure her shoulder in the Accident the applicant has not met her onus to show that the perm is a reasonable and necessary assistive device or how the perm would facilitate the treatment goals listed in the Assistive Device.
Laser Therapy Treatment Plan
59The Laser Therapy OCF-18 was recommended by the chiropodist Mr. Allison. He recommended 40 sessions. The applicant submits that this plan is for foot laser therapy and submits that this is reasonable and necessary to treat the foot numbness.
60The respondent submits that the foot numbness is not an accident related impairment and therefore not payable and further that the treatment is not reasonable and necessary.
61The Laser Therapy OCF-18 is not payable because as explained above the foot numbness is not an accident related impairment. Also, the treatment plan is not reasonable and necessary because there is no indication as to which part of the body the laser would treat. There is no evidence or information other than the treatment plan itself that speaks to the purpose of the treatment and its possible effectiveness in achieving the goals of pain reduction, regeneration of the spine and return to pre-accident work activities.
62Mr. Allison in his report states that the applicant has pain and numbness degrading of balance, not related to the foot. Mr. Allison opines that the nerve pain is associated with the sacral iliac. I am not persuaded by this opinion and I prefer the findings of the applicant’s treating neurologist that the numbness was polyneuropathy related to a history of chemotherapy. Further Mr. Allison does not take into account the applicant’s medical history nor does he state how he comes to the conclusion of trauma to the spine. Mr. Allison as well does not indicate what part of the body would be receiving the laser treatment so it cannot be said that the laser treatment would target an accident related impairment. Lastly other than the treatment plan itself there is no further evidence in support of this treatment.
63I find that the applicant has not proven that the laser therapy was for an accident related impairment or that it is reasonable and necessary.
CONCLUSION
64In summary the issue of causation was decided based on the “but for” test. The applicant has not established that but for the accident she would not have sustained impairments to her feet, mobility and balance. The treatment plans in dispute are not payable as they either relate to the non-accident related impairments or the applicant has not shown that they do relate to accident related impairments and that they are reasonable and necessary. As no benefits are payable there is no interest that is payable.
Released: January 11, 2021
Monica Chakravarti
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Dr. Millard, physiatrist I.E. report dated September 20, 2018, Dr. Abuzgaya, Orthopedic I.E. report dated September 10, 2019 and Dr. Rathbone, neurologist report dated May 25, 2020.
- Applicant’s Submission Tab S, report of Dr. Rathbone, May 25, 2020 (Report of Dr. Rathbone), Respondent’s Submission’s Tab C: Selections from the Clinical notes and records of family doctor (Family Doctor’s Clinical Notes and Records),
- Applicant’s Submission, Tab H: OCF-18 dated April 5, 2019
- Applicant’s Submission, Tab J: OCF-18 dated May 9, 2019
- Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”).
- Ibid at para. 31
- Ibid at para. 39
- Respondent’s submission tab M, Consultation Report of Dr. Kasavari, dated October 15, 2019.
- Respondent’s submissions Tab N, selection of clinical notes and records of Dr. Parekh.
- Report of Dr. Rathbone
- Family Doctor’s Clinical Notes and Records May 6, 2015 and July 25, 2015
- Applicant’s Submissions, Tab Q
- Respondent’s Submission Tab U: Berg Balance Scale Test, dated May 3, 2019
- Applicant’s Submissions Tab H of, page 8 – Part 12 Proposed Goods and Services Requiring Insurer Approval.
- Ibid page 13
- Respondent’s Submission Tab V, OT Progress Note dated October 18, 2018, page 305-306, (OT Progress Notes)
- OT Progress Note, note of April 12, 2019 pages 316-319