Jackson v. Belair Direct Insurance Company, 2022 CanLII 78783

Citation: Jackson v. Belair Direct Insurance Company, 2022 ONLAT 20-010258/AABS

Licence Appeal Tribunal File Number: 20-010258/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:

Joshua Jackson

Applicant

and

Belair Direct Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Patrick Snelling, Counsel

For the Respondent: Omid Tavakoli, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Joshua Jackson (the “applicant”) was involved in an automobile accident on September 8, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹ (the “Schedule”). The applicant was denied certain benefits by Belair Direct Insurance Company Inc. (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issue is in dispute:

a. Is the applicant entitled to $1,449.88 for an Occupational Therapy Functional Assessment, proposed by the TRAC Group Inc in a treatment plan denied on June 5, 2018?

RESULT

3I find that the applicant is not entitled to the treatment plan in dispute.

ANALYSIS

Productions Issue Raised

4The respondent has requested that I draw an adverse inference from the applicant’s failure to comply with certain production orders made in the Case Conference Report and Order dated February 10, 2021, namely, his failure to produce:

a. An updated decoded OHIP summary from May 31, 2017 to present;

b. The complete clinical notes and records of all known treating clinics from one year pre-accident to present;

c. Complete records of Queensway Carleton Hospital for the same period; and

d. Particulars of and any accident benefits documentation for a subsequent January 23, 2018 accident.

5The respondent further noted that the applicant specifically excluded a period of about a year (the period from July 25, 2019 to September 29, 2020) from his request of medical records from his family physician Dr. Annie Docking². These records were excluded despite the fact that the applicant was ordered³ to produce his complete clinical notes and records of all treating physicians from one year pre-accident to present.

6The respondent submits that it is prejudiced by the applicant’s non-compliance with the production order and requests the Tribunal draw an adverse inference that the non-produced records would have contained evidence that undermined the applicant’s argument that he suffers from functional limitations as a result of the accident.

7Although I am not specifically prepared to draw an adverse inference, this lack of productions will go to the weight accorded to the applicant’s evidence presented. The applicant had the opportunity to provide reply submissions and could have addressed the production issues raised by the respondent, and clarified why certain documents were not produced, or why a period of one year was specifically excluded from the request for the family physician’s records. The applicant has chosen not to provide reply submissions.

Is the Treatment Plan for an Occupational Therapy Functional Assessment Reasonable and Necessary?

8Sections 15, 16 and 25 of the Schedule provide that an insurer shall pay for all reasonable and necessary medical and rehabilitation benefits, including assessments, incurred by or on behalf of an applicant as a result of the accident.

9The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plan is reasonable and necessary on a balance of probabilities.⁴

10In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.⁵ To do so, the applicant must point to persuasive, objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment.

11On July 28, 2017, the applicant submitted a treatment and assessment plan (OCF-18) proposing an in-home occupational therapy assessment to determine his current level of functioning in areas such as self-care, productivity and leisure, and identify and assess the need for treatment⁶.

12The applicant submits that the OCF-18 is reasonable and necessary, since as a result of the accident, he suffered a traumatic brain injury, soft tissue injuries to his neck and back and tinnitus which has resulted in ongoing short-term memory problems, disrupted sleep and psychological difficulties with mood.⁷ Due to these impairments, the applicant submits that he experiences functional difficulties at home and at work, necessitating the occupational therapy assessment.

13The applicant relies on the medical records of his family physician Dr. Caitlin Schwartz, which indicate that he continued to report post-concussion symptoms, namely, headaches, dizziness, sleep difficulties and tinnitus in the months immediately after the accident⁸. The applicant subsequently returned to his family physician in 2017, December 2019 and February 2020 to report continuing severe headaches⁹.

14The applicant also relies on an affidavit in which he submits that as a result of the accident, he suffers from recurring physical pain, including tinnitus, headaches and severe neck pain which severely impacts the quality of his sleep. The applicant further states in his affidavit that he is not independent in his activities of daily life, as a result of accident-related cognitive impairments, such as mental fatigue, mental disorientation and memory loss and as such, his wife must manage all of the family’s daily tasks¹⁰.

15The respondent submits that the medical evidence establishes that the applicant is independent in his activities of daily living (“ADL”). The respondent relies on the applicant’s self-reports to numerous medical professionals that he was independent in his ADLs, namely the applicant’s self-reporting during Dr. Joshua Abiscott, family physician’s, Insurer’s Examination (“IE”)¹¹. The respondent also relied on the applicant’s self-reporting to his family physician Dr. Schwartz¹² and Dr. Jennifer McDonald, a physical medicine and rehabilitation physician¹³. The respondent further cites the Tribunal decision Jolicouer v. RBC Insurance¹⁴ where the Tribunal found that an occupational therapy assessment for a private living space is not reasonable and necessary for an applicant who remains functional in their ADL.

16The respondent further submits that the applicant’s behaviour is not consistent with that of a claimant who has serious limitations and is in need of treatment. The respondent notes the applicant’s significant delays in filing his accident benefit materials, namely his Application for Benefits (OCF-1); the OCF-18 for the proposed occupational therapy assessment; and his Application to the Tribunal, along with the fact that he has not filed any additional treatment plans for concurrent concussion treatment.

17Upon reviewing the evidence and submissions of the parties, I find that the applicant has not met his onus to establish, on a balance of probabilities, that the proposed occupational therapy functional assessment is reasonable and necessary.

18On the issue of functional limitations, I find that while the applicant has established that he suffers from ongoing headaches and post-concussive symptoms, he has not adduced sufficient evidence that he is prevented from engaging in his normal daily activities as a result of his symptoms.

19The clinical notes and records (“CNRs”) of his family physicians indicate that in the period immediately after his accident, the applicant developed headaches, tinnitus, fogginess, poor concentration, light and noise sensitivity, such that he was unable to work for a month post-accident¹⁵. Within a few months afterwards he had returned to work full-time but continued to intermittently report headaches to his family physician on March 2, 2017, August 11, 2017, December 12, 2019 and February 11, 2020¹⁶.

20The respondent conducted an IE assessment, whereby Dr. Abiscott assessed the applicant and similarly found that he continued to report tinnitus and some occasional headaches and was suffering from post-concussion syndrome¹⁷. However, despite this diagnosis, Dr. Abiscott did not find that the proposed occupational therapy assessment was reasonable and necessary, as the results of the IE assessment indicated that the applicant was independent in his personal ADLs. Dr. Abiscott noted that the applicant reported that he had no difficulties with his ADLs and upon physical examination, appeared to sit and walk comfortably, had full range of motion in his neck, back, upper and lower extremities¹⁸.

21I agree with the respondent that the bulk of the objective medical evidence submitted indicates that the applicant is independent in his ADLs. In addition to his reports to Dr. Abiscott, the applicant reported to his family physician Dr. Schwartz soon after the accident on October 5, 2015 that while he was not able to work, he was “able to drive and do normal activities”¹⁹. Similarly, when the applicant attended at Ottawa Hospital on August 11, 2017, for an assessment at the mild traumatic brain injury/concussion clinic, his clinic and assessment report noted that the applicant reported that he was independent in his ADLs, independent looking after the kids, independent at work and driving with no safety concerns²⁰.

22Although the applicant has submitted an affidavit stating that he has great difficulty navigating through his daily life, such that his wife must manage all their daily tasks, he has not provided corroborating medical evidence of this fact. While it is clear that his doctors have noted that he has suffered from headaches and tinnitus post-accident, the applicant does not point me to any CNR indicating that he has limitations in his ADLs. Although one entry in December 2019 indicated that the applicant’s forgetfulness affected his daily work²¹, there was no discussion about his functionality at home.

23I find the decision cited by the respondent, Jolicouer v. RBC Insurance, to be persuasive on the issue of an in-home occupational therapy assessment. In this decision, the adjudicator considered a similar fact pattern where an applicant had sustained a head injury and suffered ongoing symptoms including headaches, fatigue and difficulty concentrating which led to functional difficulties at work. The Tribunal found that despite the applicant’s limitations at work, the applicant appeared to be functional in other areas of her life, and as such the assessment of her private living space was found not be reasonable and necessary. Although not binding on me, I find the reasoning of Vice-Chair McGee to be persuasive.

24The applicant did not submit caselaw in support of his assertion that the proposed occupational assessment was reasonable and necessary.

25Finally, I note that as a result of the applicant’s non-compliance with certain production orders, I am left with gaps in the applicant’s medical file. The applicant relies extensively on the CNRs of his family physicians to support his claim of functional limitations and submits entries from 2015, 2017, 2019 and 2020. However, I am troubled by the fact that he specifically excluded the period from July 25, 2019 to September 29, 2020 when requesting the CNRs from Dr. Dockley. Without an explanation as to this exclusion, which the applicant declined to provide by not submitting reply submissions, I am left with incomplete medical records.

26After considering the evidence and submissions of the parties, I find that the applicant has not adduced sufficient evidence that the proposed occupational therapy functional assessment is reasonable and necessary.

ORDER

27The applicant is not entitled to an Occupational Therapy Functional Assessment in the amount of $1,449.88. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Respondent’s Submissions, Tab 15 – Letter from Applicant’s Counsel to Dr. Annie Docking dated February 18, 2021
3. 3Case Conference Report and Order dated February 8, 2021
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24
5. 5Ibid.
6. 6Applicant’s Submissions, Tab 1, OCF-18 dated July 28, 2017.
7. 7Applicant’s Submissions, pg. 1 para 2.
8. 8Applicant’s Submissions, Tab 2, letter from Dr. Schwartz dated October 5, 2015
9. 9Applicant’s Submissions, Tabs 3, 4, 5 and 6 CNRs of Dr. Schwartz and Dr. Docking.
10. 10Applicant’s Submissions, Tab 7, Affidavit of Joshua Jackson, sworn February 19, 2021.
11. 11Respondent’s Submissions, Tab 6, IE Report of Dr. Abiscott dated May 30, 2018, pg. 3
12. 12Respondent’s Submissions, Tab 7, CNRs of Dr. Schwartz, entry dated October 5, 2015
13. 13Respondent’s Submissions, Tab 8 Clinic Assessment Report at the Ottawa Hospital dated August 11, 2017
14. 14Jolicouer v. RBC Insurance, 2020 CanLII 103478 (ON LAT)
15. 15Applicant’s Submissions, Tab 2, letter from Dr. Caitlin Schwartz dated October 5, 2015
16. 16Applicant’s Submissions, Tabs 3, 4, 5 and 6 CNRs of Dr. Schwartz and Dr. Docking.
17. 17Respondent’s Submissions, Tab 6, IE Report of Dr. Abiscott dated May 30, 2018
18. 18Respondent’s Submissions, Tab 6, IE Report of Dr. Abiscott dated May 30, 2018, p.3 and p.4
19. 19Respondent’s Submissions, Tab 7, CNRs of Dr. Schwartz, entry dated October 5, 2015
20. 20Respondent’s Submissions, Tab 8 Clinic Assessment Report at the Ottawa Hospital dated August 11, 2017
21. 21Applicant’s Submissions, Tab 5, CNRs of Dr. Docking, entry dated December 12, 2019