Release date: 03/30/2021
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:
Antonio Perri
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
David J. Wylupek, Counsel
For the Respondent:
Rosalind W. Eastmond, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant was involved in a single vehicle collision on June 8, 2016 after suffering a cardiac arrest and striking a utility pole. Amongst other benefits, he sought an occupational therapy assessment from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2While Certas acknowledged that the applicant sustained significant impairments, it denied the benefit in dispute on the basis that the applicant’s resulting brain injury was not caused as a result of accident-related trauma and therefore the assessment was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
3The issues in dispute are as follows:
a. Is the applicant entitled to $1,496.75 for an Occupational Therapy Assessment recommended by Sarah Ruston in a treatment plan denied April 25, 2018?
b. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not demonstrated that his impairments were caused by the accident or that the assessment is reasonable and necessary or incurred.
ANALYSIS
5In order to attract benefits under the Schedule, the applicant must first prove causation. That is, he must demonstrate that but for the accident, he would not have sustained a cardiac arrest or anoxic encephalopathy and the impairments resulting therefrom.2 In turn, in order to receive payment for the OCF-18 in dispute, the applicant bears the burden of demonstrating on a balance of probabilities that the assessment is reasonable and necessary. To meet his burden, the applicant should demonstrate that the goals are reasonable, that they are being met to a reasonable degree and that the overall cost, both financial and the investment of time, are reasonable.
6Problematically, the applicant’s submissions were quite brief. He submits that he “received either an anoxic or traumatic brain injury, or possibly both, on the date of the accident.” In addition, the applicant states that he “may also have sustained additional injuries that are being obscured owing to the serious effects of the brain injury on the applicant.” With respect to the OCF-18 proposing an Occupational Therapy Assessment, he asserts that it “is necessary to determine the effects these injuries are having on the insured. Given the potential serious nature of the injuries and disabilities being experienced by the applicant, $1,496.75 is a reasonable cost to incur in order to obtain these answers.” To meet his case, the applicant relies on only two documents: an OCF-3 Disability Certificate dated March 12, 2018 and a CT Scan Report dated June 8, 2016.
7In response, Certas offers a very cogent theory of the case, parsing out the details of the accident and the applicant’s medical history to demonstrate that the applicant has failed to prove that his impairments would not have occurred but for the accident and that its determination to deny the treatment plan in dispute was based on a significant volume of medical evidence that indicates that an occupational therapy assessment was not reasonable and necessary to address his accident-related impairments, which were minor in nature. The applicant did not offer a rebuttal.
8To this end, Certas relies on the Ambulance Call Report; the MVA Report (and Initial Officer’s Report and Witness Statement); Consultation Reports from Dr. Kotowycz, Dr. Liem, Dr. Child and Dr. Peer; the diagnostic imaging reports from Windsor Regional Hospital; the Cardiac Diagnostic and PCI Report by Dr. Kotowycz; an ECG Report by Dr. Winger and a Cardiology Consultation Report by Dr. Sieniawski; a Regional Rehabilitation Unit Assessment Report by Dr. McLachlan; the hospital medical records; an OT Discharge Summary by Ms. Racine dated July 19, 2016; a Physiotherapy Assessment dated July 9, 2016; and a Discharge Summary Report by Dr. Liem dated July 19, 2016.
The applicant has not proven causation
9With respect, I agree with Certas and find that the applicant has not demonstrated that but for the accident he would not have sustained his cardiac arrest and resulting impairments. While there is seemingly no dispute that the applicant has sustained a brain injury, I agree with Certas that the evidence supports that the cause of the brain injury was due to a lack of blood flow and oxygen, intubation and complications resulting from the cardiac arrest, thereby leading to an anoxic brain injury. The applicant has not provided medical evidence to demonstrate that the nature of his brain injury was traumatic and as a result of the accident where the accident was relatively minor and where he has significant pre-existing medical conditions.
10Indeed, the applicant’s own theory of his case is somewhat vague, and he has not provided a medical opinion on causation. As Certas points out, in the applicant’s submissions, he states that “the pertinent question is whether he suffered an anoxic or a traumatic brain injury”, but then later suggests that he may have sustained both types of brain injury, despite only providing the Tribunal with a CT scan report and an OCF-3 from two years post-accident where his family physician simple states “Acquired Brain Injury.” The applicant offered no submissions on the causation test and did not provide further analysis to explain his position or, really, how the medical evidence he did provide is assistive in meeting his burden.
11Meanwhile, the Ambulance Call Report indicated that there was minor damage to the vehicle and the airbags did not deploy. Witnesses at the scene stated that the car was moving slowly and jumped the curb and there was no damage to the utility pole. The Report confirms that there were no deformities to the applicant’s head or spine and the only physical injury noted was a small laceration to the applicant’s nose. On arrival, CPR and three shocks with a defibrillator were administered, followed by the insertion of an endotracheal tube due to the failure of ventilation, failure of oxygenation and to protect the applicant’s airways. He was transported to hospital. The CT scans showed no fractures and no physical trauma. An angiogram determined that the cardiac arrest was likely caused by a distal right coronary artery (RCA), of 99% stenosis. The Cardiac Diagnostic Summary attributed the cause of the ventricular fibrillation and irregular heartbeat to the RCA legion and referred to the stenosis as “the culprit.”3
12As Certas notes, the applicant was then transferred to Windsor Regional Hospital for 12 days of rehabilitation services. His occupational therapy needs were addressed at that time in order to determine what services were necessary when he returned home. The medical evidence from this period states that he suffered an anoxic brain injury and that he was delirious in the context of his anoxic encephalopathy. Physiotherapist Mr. Palombo recorded the applicant as having suffered a cardiac arrest with anoxia in his report dated July 20, 2016. Thereafter, Dr. Child’s Consultation and Discharge Reports from July 2016 state that the applicant was in a motor vehicle accident which was thought to have been brought on by an acute cardiac event. In a July 19, 2016 Discharge Report, Dr. Liem confirms that the applicant suffered an acquired brain injury. Psychologist Dr. McLachlan found the applicant’s requirements consistent with anoxic encephalopathy.
13Further, I agree with Certas that the applicant’s medical history reflected multiple risk factors for coronary disease. For example, he had been previously diagnosed with chronic obstructive lung disease, suffered from obesity and hypertension, left bundle branch block and had used Symbicort, Metformin, Coversyl, Amlodipine and Ezetrol for his various ailments. In his Cardiology Consultation Report dated June 8, 2016, Dr. Sieniawski opined that the applicant’s history showed multiple risk factors for coronary disease.
14As can be seen, there is a mountain of persuasive medical evidence that suggests, contrary to the applicant’s position, that the applicant’s impairments are not related to the minor accident that occurred on June 8, 2016. Indeed, I find that it is clear that the applicant’s acquired brain injury flowed from his coronary artery disease and cardiac arrest on that day and that the minor impact from the accident did not cause his impairments. In any case, on the submissions and evidence, the applicant has fallen well-short of meeting his burden to prove that he would not have sustained his impairment but for the accident. The Tribunal would have benefitted from a more cogent theory of the case and evidence and submissions to support it.
The assessment is not reasonable and necessary
15While the applicant has not demonstrated causation, in a similar vein, and for completion, I find the applicant has also not demonstrated that the assessment in dispute is reasonable and necessary. While he cites the proper test, his submissions fall well-short of meeting his burden as he has not provided any information on his condition at the date of submission and the OCF-18 seems to attribute his struggles solely to the accident. His submissions do not address why an occupational therapy assessment would be a reasonable and necessary expense over two years after his discharge or what treatment or services he has been receiving in the interim. Other than stating that he has an acquired brain injury, the OCF-3 does not provide any specific details about the applicant’s condition to fill in these gaps.
16While I agree that the cost proposed is in line with industry norms, there is no evidence that the assessment was incurred in the three years since it was submitted, and no reply submissions were offered to speak to Certas’ position. Accordingly, I have no basis to interfere with Certas’ determination that the assessment is not reasonable and necessary or payable. As no benefits are overdue, no interest is payable under s. 51.
ORDER
17The applicant has not demonstrated that his impairments were caused by the accident or that the assessment is reasonable and necessary or incurred. The application is dismissed.
Date of Issue: March 30, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- See, for e.g., Sabadash v. State Farm, 2019 ONSC 1121; S.V. v. Certas Home and Auto Insurance Company, CanLII 87993 (ON LAT).
- Cardiac Diagnostic and PCI Report completed by Dr. Kotowycz, dated June 8, 2016.