Citation: McNeil v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-012440/AABS
Licence Appeal Tribunal File Number: 20-012440/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:
Karen McNeil
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Karen McNeil, Applicant
For the Respondent:
Sharla B. Bandoquillo, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was injured in an automobile accident on April 3, 2010. At the time, the applicant sought treatment at the Woodstock Rehabilitation Clinic for her accident-related injuries and was discharged on December 7, 2010. Thereafter, the respondent Certas Home & Auto Insurance Company approved further physiotherapy per a treatment plan dated January 31, 2011, which the applicant did not incur. From the period March 2011 to September 2018, the applicant did not advance any claim for accident benefits. The applicant submits that she was unaware of her entitlement to benefits and how to claim benefits.
2About nine years post-accident, the applicant submitted a treatment plan dated July 19, 2019, and sought benefits pursuant to the *Statutory Accident Benefits Schedule – Accidents On Or After November 1, 1996*1 (the “Schedule”). In the treatment plan, the applicant sought $10,200.00 for 17 years of lawn care service, $7,361.95 for a walk-in-shower and installation, $549.99 for an Ultra-lite Dyson ball vacuum, and $1,500.00 for a knee brace. The first three issues are for housekeeping and home maintenance expenses and the knee brace is a rehabilitation benefit.
3The treatment plan was denied by the respondent. The respondent took the position that the housekeeping and home maintenance expenses were not reasonable or necessary and contrary to the time limit set out in section 22(3) of the *Schedule*. The respondent also took the position that the rehabilitation benefits were not reasonable or necessary. The applicant disagreed with this decision and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the *Insurance Act*, R.S.O. 1990, c. I.8 (the “Act”).
4A written hearing was scheduled, and a review of the evidence and submissions forms the basis for the decision.
ISSUES IN DISPUTE
5The following are the issues to be decided:
i. Is the applicant entitled to a housekeeping and maintenance benefit in the amount of $10,200.00 for lawn care service until the applicant’s age of 65, denied on August 23, 2019?
ii. Is the applicant entitled to a housekeeping and maintenance benefit in the amount of $7,361.95 for a walk-in-shower, denied on August 23, 2019?
iii. Is the applicant entitled to a housekeeping and maintenance benefit in the amount of $549.99 for an Ultra-lite Dyson ball vacuum, denied on August 23, 2019?
iv. Is the applicant entitled to a rehabilitation benefit in the amount of $1,500.00 for a knee brace recommended by Fowler Kennedy, denied on August 23, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6Based upon the totality of the evidence presented, I find the applicant is not entitled to any of the benefits in dispute and accordingly not entitled to interest.
DISCUSSION
A. Housekeeping and Home Maintenance Expenses
7The issues in dispute were submitted in one treatment. For purposes of the decision, I will consider the housekeeping and home maintenance expenses for lawn care, a walk-in-shower and vacuum cleaner separately from the rehabilitation benefit for a knee brace. I have reviewed the submissions and evidence and find that the housekeeping and home maintenance benefits are not payable. My reasons are as follows.
8With regards to these expenses, the relevant section 22(1) of the *Schedule* states:
The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
9Section 22(3) states:
No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability.
10Section 22(4) provides an exception:
Subsection (3) does not apply if the insured person sustained a catastrophic impairment as a result of the accident.
11The respondent submits that per section 22(3) no housekeeping and home maintenance expense is payable beyond 104 weeks, or April 3, 2012, which is 104 weeks after the date of the accident and/or the date of the onset of the applicant’s disability. Furthermore, the exception under section 22(4) does not apply to the applicant as she did not sustain a catastrophic impairment. The respondent notes the 104 week time limit is one prescribed by law, and not a limit chosen by the insurer. I would agree with the respondent’s submissions that the housekeeping and home maintenance expenses coverage ceased at the 104 week mark, in 2012.
12I note the disability certificate, dated July 22, 2010, states the onset of the applicant’s disability as April 3, 2010, the date of the accident, and her injuries as: right medial knee sprain and strain and cervical sprain and sprain.
13It is not disputed that the treatment plan was submitted on July 19, 2019. This date is more than 104 weeks after the onset of the applicant’s disability. A period of about nine years after the accident. The applicant is past the 104 week time period set out in the *Schedule*. Given the provisions in section 22 of the Schedule, I find the applicant is not entitled to these expenses and they are not payable beyond the 104 week mark.
14I further find that the applicant’s reliance upon Tomec v. Economical Mutual Insurance Company 2019 ONCA 882, in support of her position that housekeeping benefits are discoverable is misplaced as she has not asserted that she has sustained a catastrophic impairment as a result of her accident. The applicant’s submissions make no reference to her sustaining or being diagnosed with a catastrophic impairment. While Tomec is helpful, it does not assist the applicant in meeting her burden. I find that she can not rely upon section 22(4) of the Schedule to overcome the 104 week time limit set forth in section 22(3).
15I find the applicant is not entitled to housekeeping and home maintenance expenses beyond the 104 week mark.
16On a balance of the probabilities, I find the applicant has not met her burden and is not entitled to the expenses in the treatment plan for lawn care services, a walk-in shower and a lightweight vacuum cleaner.
B. The Rehabilitation Benefit for a Knee Brace
17Based upon a totality of the evidence presented, I find the applicant is not entitled to the request for a knee brace.
18I note the test for the payment of medical and rehabilitation benefits as set forth in sections 14 and 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses as a result of the accident. The onus is on the applicant to establish that she meets this test on a balance of probabilities.
19The applicant submits that she has had ongoing issues with her right knee and breast since the accident and that her most dire complaint is daily pain in her knee. She asserts that the injury to her knee has impacted her life horribly and the daily knee pain is physically and mentally exhausting. She submits that a knee replacement, or partial knee replacement, would be the only way to relieve her daily pain.
20The treatment plan at issue was submitted by her family physician, Dr. Eric Roszell, and the goals of the treatment plan are pain reduction, increase in strength and a return to activities of normal living. I note Dr. Roszell’s clinical notes and records were not provided to the Tribunal. The only medical evidence presented by the unrepresented applicant is a December 3, 2019 medical report of Dr. Al Getgood, orthopaedic surgeon. No other medical evidence, including diagnostic imaging or clinical notes and records, were submitted by the applicant.
21I have reviewed Dr. Getgood’s report. Dr. Getgood first met the applicant in November 2016, about five years after the accident to assist her with her ongoing right knee pain which is noted as growing worse with prolonged standing, walking, and going up and down the stairs. Dr. Getgood notes the applicant’s symptoms include right knee pain located on the medial side and she presented with clinical symptoms and signs of ACL rupture associated with a medial compartment osteoarthritis and varus alignment. At the time, she was treated with non-operative measures including physiotherapy, advice regarding activity modification, weight loss, discussed options of unloader brace plus cortisone injections. However, over the course of a number of consultations, in June 2019, Dr. Getgood states the best course forward would be unicompartmental knee arthroplasty and he refers her to the arthroplasty clinic at London Health Sciences. Notably, in 2019, Dr. Getgood did not recommend a knee brace to relieve pain symptoms or for her ongoing care, instead, he recommends a possible partial knee replacement.
22While Dr. Getgood’s report was helpful in understanding the applicant’s ongoing right knee pain symptoms and medical care, it was not persuasive in establishing that a knee brace was reasonable or necessary. Dr. Getgood instead focused on operative intervention as the best course forward.
23I found more persuasive the section 44 occupational therapy assessment report of Daniel Horban, occupational therapist, dated December 5, 2019, who found the treatment plan was not reasonable or necessary. He notes that approaching ten years post-accident there is insufficient medical documentation which highlights the need for accident-related treatment or assessment. He opines that there is a relative paucity of medical documents over the years following the accident which substantiate symptoms and limitations attributed solely and directly to the accident.
24During the examination, Mr. Horban observed the applicant to be independent with indoor and outdoor walking, lifting/carrying, bending, and shower transfer. He reports the applicant ambulated independently throughout her residence and immediate surrounds with a slower and shuffling gait. There was reduced loading through the right lower extremity. He observed the applicant ambulating across her street and to the front access point of her home in an independent manner and without the need for any external aids or supports. He notes she demonstrated full and unrestricted bending and lumbar flexion throughout the assessment, from seated to standing positions. In reliance thereof, the respondent asserts the applicant’s level of function, albeit with pacing, demonstrate that she is able to perform key activities of daily living without the need for aids or a knee brace.
25I also found persuasive the section 44 orthopaedic assessment report of Dr. Ramunas Saplys, orthopaedic surgeon, dated December 5, 2019, and the orthopaedic addendum report, dated January 10, 2020. Dr. Saplys found that the rehabilitative benefit was not reasonable or necessary. He opined that the applicant sustained soft tissue injuries to her cervical spine and possibly an exacerbation of pre-existing degenerative changes in her right knee which should have resolved over a period of approximately six months after the accident, after which time any ongoing symptoms would be related to the pre-existing degenerative changes. He found there was documented evidence of early degenerative changes in her right knee which he opined pre-existed the accident and any ongoing symptoms are related to those pre-existing degenerative changes. In support of his opinion, he relied upon a pre-accident MRI report from August 2010 which describes early degenerative changes possible anterior cruciate ligament injury. He also relies upon x-rays from November 2, 2011 which indicate mild degenerative changes in the applicant’s knees. He opines that a knee brace would be related to osteoarthritis in her right knee which was would have become symptomatic and progressed in any event. He opined that the applicant’s ongoing symptoms were related to osteoarthritis as opposed to accident-related injuries.
26In reliance upon its experts reports, the respondent raised the issue of causation as to the ongoing symptomology being experienced by the applicant. The respondent asserts that the knee brace is not reasonable and necessary as the benefit does not pertain to accident-related injuries.
27I will not make a determination on causation because even were I to find that causation was not an issue, I would still find that based upon the medical evidence presented the benefit is not reasonable and necessary. Again, the sole medical report submitted by the applicant was insufficient to meet her burden. While I note the applicant’s written submission provides extensive and helpful self-reported details of her daily struggles and ongoing right knee pain, I must also take into consideration the medical evidence presented by both parties when making a determination. Based upon the totality of the evidence presented, I do not find the applicant has met her onus.
28Accordingly, on a balance of the probabilities, I find the applicant has not met her burden and is not entitled to the rehabilitation benefit in the treatment plan.
C. Entitlement to Interest
29As I have found the applicant is not entitled to any of the benefits in dispute, there is no need to conduct an analysis on whether interest is payable.
ORDER
30After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the *Act*, I deny the application in its entirety.
Released: June 23, 2022
Rupinder Hans
Adjudicator