Citation: Amorim v. Jevco Insurance, 2022 ONLAT 19-012408/AABS

Licence Appeal Tribunal File Number: 19-012408/AABS

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:

Rui Amorim

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Brian Cameron, Counsel

Jordan Kofman, Counsel

For the Respondent:

Tracy Brooks, Counsel

Mary Catherine Lill, Counsel

Denise Junkin, Counsel

HEARD:

By Videoconference on September 7, 8, 9 and November 18, 2021

BACKGROUND

1The applicant was involved in an automobile accident on August 29, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant was accepted as catastrophically impaired by the respondent in 2017. The applicant’s seeks entitlement to 22.7 hours of attendant care per day as he feels unsafe to be alone in his home. The dispute essentially boils down to whether the need for supervisory care fits the diagnosis. The applicant submits that he needs someone with him all the time as he doesn’t want to be alone on his property. The respondent’s experts opined that it is not appropriate for the diagnosis of agoraphobia and anxiety.

ISSUES

3The issues to be decided are:

a. Is the applicant entitled to attendant care benefits of $7,522.85 per month from July 26, 2019 to date and ongoing?

b. Is the applicant entitled to $2,996.10 for medication recommended by Apollo Applied Research in a treatment plan (OCF 18) dated March 20, 2019?

c. Is the applicant entitled to $1,970.00 for optometric services recommended by Dr. Peddle in a treatment plan (OCF 18) dated February 25, 2019?

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

4The applicant conceded at the end of the hearing that the two treatment plans in dispute were not reasonable or necessary. Therefore, I have limited my analysis to the attendant care. The applicant also confirmed that he is not seeking an award of attendant care arrears that were not incurred, but just entitlement for future funding.

RESULT

5The applicant is entitled to attendant care benefits of $7,522.85 per month (subject to the statutory maximum payable). No arrears being claimed per the applicant’s submission; therefore, the applicant is not entitled to interest as there are no overdue payments.

THE LAW

6Section 19 of the Schedule provides that the insurer shall pay for all reasonable and necessary attendant care expenses. The onus is on the applicant to establish that the expenses are reasonable and necessary.

ANALYSIS

Pre-Accident

7The applicant is 62 years old and lived alone in a home on a farm in Uxbridge. Prior to the accident, he owned his own business providing occupational health and safety consultations. He tried unsuccessfully to return to work since his accident. It was conceded that the applicant had personality issues and psychological problems around the time of his divorce many years prior to the accident, and he was estranged from his children. However, even the respondent’s assessor concluded that there was insufficient evidence to suggest that the applicant’s pre-existing psychological issues contributed substantially to his current presentation. I am satisfied that based on the available evidence his pre-existing psychological issues did not contribute substantially to his post-accident presentation.

Post-Accident

8The accident occurred on August 29, 2012. He was riding a motorcycle when he was struck by another vehicle. He was thrown 82 feet and landed on his chin. He suffered a broken leg, injuries to his knee and thumb, and a mild traumatic brain injury. This is not a case where the applicant is physically incapable of completing their personal care tasks. The applicant in this case has serious cognitive and psychological issues that results in safety concerns. Over time his psychological conditions shifted, but prognosis was generally poor across the various reports. In September 2016, the treating occupational therapist, Ms. Kadanoff, recommended that the applicant receive assistance from an RSW, and a personal support worker (“PSW”) – services that were approved by the respondent. A PSW started staying overnight with the applicant three nights per week in an effort to transition him to living at home.

9Attendant care was paid following an assessment in 2017 and was submitted as incurred. In February 2019, the adjuster requested a new Form 1. The Form 1 was submitted by Ms. Kadanoff, recommending a total of $7,522.85 in assistance, which included feeding, cueing, a few minutes for medication management, and most significantly, 22.7 hours a day for supervision.¹ In 2017 the respondent’s catastrophic assessor concluded that he was deemed catastrophically impaired as a result of his psychological impairments.² In March 2018 the treating neuropsychiatrist, Dr. Seyone diagnosed bipolar affective disorder, panic disorder and generalized anxiety disorder.

10Essentially, the parties disagree whether 24-hour supervision is reasonable or necessary treatment for the applicant’s conditions. He has significant issues with his memory, anxiety, and panic attacks, as well as emotional outbursts that have resulted in violence – he has damaged property and been arrested. The applicant reports that he feels unsafe and unable to sleep at the farm unless someone was there with him.

11The Tribunal heard evidence from the applicant, his friend/former roommate, his treatment team including his occupational therapist, neuropsychiatrist, psychotherapist, rehabilitation support worker (“RSW”), as well as the respondent’s experts: a psychologist and an occupational therapist. The applicant relies on evidence from his treatment providers who support the applicant’s need for attendant care. The respondent’s experts concluded that the supervision was not the appropriate way to address his conditions, but that he should have more intensive cognitive behavioural therapy including aversion therapy.

12The applicant has significant issues with his memory. He often forgets where he puts things and loses important papers. On several occasions the applicant took his mother to a medical appointment with the intention of staying with her and taking her home, but he would forget what he was doing and would leave without her. He forgets where he parks his car. He forgot to buy parking passes, or would buy them but forget to display them, resulting in hundreds of dollars in parking fines. In 2017 he got an accessible parking permit but forgets to display it on the dash. He forgets to eat. He forgets to pay his bills, or sometimes pays them twice. He keeps a note on his front door to remind him to turn off the gas, hot water, close windows, the fridge door. He reported that he often forgets to turn off the lights or lock the gate. He tries to do laundry but forgets them in the washer for days and will have to redo the load. The applicant has ruined the engine on his car as he forgot to get an oil change. The home is heated by oil. The applicant forgot to fill the oil tank one winter, resulting in the pipes freezing and bursting, which caused $300,000 in damage to the home.

13The applicant reports that he feels unsafe and unable to sleep at the farm unless someone was there with him. He was able to stay at the farm when his friend, Mr. Rahim was living there with him. On nights that Mr. Rahim was not there, the applicant would go stay at his mother’s home in Toronto. Mr. Rahim began living with the applicant at the end of 2015 most nights of the week until May 2021. Mr. Rahim confirmed that the applicant was constantly losing things, like his keys and phone. He would forget about his pet cats. The applicant ruined several chainsaws after leaving them laying outside and it rained. Mr. Rahim testified that he was concerned about the wood stove in the house, because the applicant lives in a wood cabin. There are burn marks all over the floor where the applicant has put a log on the stove and forgotten to close the hatch, so burning logs have rolled out onto the floor. The applicant had to have a shut off valve installed on his gas stove because he would forget and leave it on. Mr. Rahim testified that he insisted that the applicant stay out of the kitchen because he is too dangerous. Mr. Rahim described mood swings and outbursts the applicant would have, such as forcing a driver off the road after being cut off.

14Mr. Rahim testified that he didn’t think the applicant spent any time alone at home. While Mr. Rahim was at work, the applicant would go to Starbucks, his mother’s home, his aunt’s, or girlfriend’s.

15The occupational therapist, Ms. Kadanoff, indicates in a 2017 report that she had spoken with his girlfriend, who confirmed that she had observed safety issues, such as him forgetting to turn off the gas stove, welding in shorts with no protective gear, or using a chain saw on a ladder in flip flops.³ He didn’t understand why it was unsafe. She was cueing him to take his medication. The applicant’s aunt also spoke to Ms. Kadanoff. She also reported problems with the applicant’s memory, such that she and her husband were going to his property to check on him. She reported that he was staying with his mother. She and her husband have slept at the applicant’s farm as this makes him feel less anxious, and he is able to stay there when they are present.⁴

16In a report dated March 22, 2019, Ms. Kadanoff indicates that the applicant requires 24 hour basic supervisory care to hep him manage his psychological symptoms: “due to his ongoing problems with feelings of anxiety and panic, negative feelings in general and problems with anger management he currently requires 24 hours of attendant care”. He reports ongoing problems with anxiety and panic attacks particularly related to sleeping alone at his farm. He cannot stop perseverating on a number of issues. He frequently reports being in a downward spiral at any negative thought or occurrence. He is at risk of further damaging his property and potentially harming himself. He is unable to control his emotions and needs support during times of anxiety and panic. The need for 24-hour care was supported by his psychotherapist, Ms. Gan, and his neuropsychiatrist, Dr. Seyone.

17Ms. Gan noted in her January 2019 progress report that the applicant was familiar with Cognitive Behavioral Therapy strategies to help with his panic attacks, including self-talk, reframing, and relaxation strategies. Ms. Gan testified that he was better at reciting the strategies in her sessions, but outside he couldn’t apply them or even think about using them. She encouraged him to write out reminders or put cues in his phone, but he was still unable to use them without someone cueing him in the moment. His PSW had been able to break the perseveration cycle in the past and redirect him.

18Upon receipt of the Form 1 proposing 24-hour care, the respondent arranged for the applicant to undergo s. 44 assessments.

19The respondent’s assessor, Dr. Direnfeld noted in May 2019 report that the applicant was experiencing panic attacks, albeit less frequently.⁵ He continued to fear being alone, particularly in his home. Medication helped control his emotional lability and outbursts, but they continued to occur once or twice a week. Outbursts were triggered by innocuous situations, such as a cat trying to be affectionate, that cause him to become enraged to the point of yelling and/or destroying his own property. He recently destroyed an antique counter in his home. The applicant reported that he was independent with self-care such as bathing and dressing but required cueing from his girlfriend to remind him to shower or brush his teeth.

20The applicant passed all the validity testing administered. Dr. Direnfeld confirmed that the applicant’s description of panic attacks met the criteria described in the DSM-5. He diagnosed the applicant with a panic disorder, adjustment disorder and agoraphobia. Prognosis was guarded given that his symptoms had persisted for seven years despite a variety of psychological and pharmacological intervention. Dr. Direnfeld concluded that the applicant experiences sudden, out-of-the-blue panic attacks; experiences anxiety in specific situations (being home alone) where help may not be readily available, escape might be difficult, or consequences may be humiliating in the event that a panic attack occurs; he experiences chronic anhedonia and dysphoria (dissatisfaction and lack of interest/enjoyment/participation in his pre-accident activities); and he experiences frequent outbursts of poorly controlled rage and aggression.

21However, Dr. Direnfeld concluded that these diagnoses did not represent a functional impairment – from psychological perspective – that would necessitate 24-hour care. It was not considered an appropriate or effective treatment for his diagnoses and associated symptoms, and therefore were not reasonable or necessary from a psychological perspective. Dr. Direnfeld recommended that he receive Cognitive Behaviour Therapy involving education and interoceptive exposure. He opined that there are many psychotherapeutic approaches for the treatment of panic attacks, but few have proven efficacy by empirical evidence. Dr. Direnfeld suggested interoceptive exposure – gradual exposure to bodily sensations that mimic distress (shortness of breath etc.) -- in a safe and controlled until the individual becomes comfortable with the sensation.

22Dr. Direnfeld prepared an addendum report in July 2019 following review of some additional documentation. He maintained his opinion that there was no empirical evidence to indicate that 24-hour attendant care would resolve the applicant’s symptoms. He continued to recommend that the applicant receive psychoeducation and exposure treatment.

23The applicant’s treating psychologist, Dr. Semler, also suggested the same training. The clinical notes and records indicate that in 2020 that Dr. Semler was engaging systematic exposure techniques to target and reduce the applicant’s fear of being alone.⁶

24Based on the evidence before, I accept that intensive cognitive behavioral therapy, including systematic exposure in a graduated way could reduce his panic attacks and fear of being alone, however, the proposed attendant care is reasonable and necessary at least until that therapy is successful. Despite significant support of a PSW, RSW, and the rest of his treatment team, the applicant has been unable to stay alone at his home until this time, he continues to suffer from panic attacks, and outbursts of poorly controlled rage. I note also that the prognosis for improvement has been noted to be “guarded”, “highly guarded”, or “poor” by various assessors since 2012. Even if the applicant’s fear of being alone in the home is resolved with treatment, the applicant will still likely require supervision due to the significant safety issues that are well documented, as well as his anger management issues. Given the information available, I am satisfied that attendant care is reasonable and necessary to reduce the applicant’s panic attacks, fear of being alone, as well as to address the significant safety concerns identified by the various assessors.

CONCLUSION

25Subject to the statutory maximum payable, the applicant is entitled to attendant care benefits of $7,522.85 per month. There is no award for any attendant care in the past. Since the applicant conceded OCF-18s are not reasonable or necessary, I do not have to make a finding. The applicant is not entitled to interest, as there are no outstanding amounts owing.

Released: February 17, 2022