Nebesnuik v. Aviva General Insurance Company, 2022 CanLII 93711

Citation: Nebesnuik v. Aviva General Insurance Company, 2022 ONLAT 20-007540/AABS

Licence Appeal Tribunal File Number: 20-007540/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:

Frederick Nebesnuik

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Vicki J. Edgar, Counsel

For the Respondent: Leanne W. Zabudsky, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on March 17, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (the "Schedule"). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to attendant care benefits of $704.08 per month from November 28, 2018 to date and ongoing?
2. Is the applicant entitled to $8,650.00 for a lawn tractor and front mount snow blower, proposed in a treatment plan ("OCF-18") dated December 10, 2018?
3. Is the applicant entitled to $1,252.95 for an iPhone, proposed in an OCF-18 dated September 30, 2019?
4. Is the applicant entitled to $927.00 for an optometry assessment, proposed in an OCF-18 dated November 29, 2019?
5. Is the applicant entitled to $7,811.12 for an iMac computer, proposed in an OCF-18 dated March 10, 2020?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons set out below, I find the applicant is not entitled to the attendant care benefits as the benefit is not incurred or deemed incurred. In addition, the applicant is not entitled to the disputed treatment plans and benefits, as he has not met his onus to prove that they are reasonable and necessary or payable. As no benefits are owing, no interest is payable.

ANALYSIS

Entitlement to Attendant Care Benefits

4I find that the applicant is not entitled to attendant care benefits ("ACBs") for the period in dispute, as he has not established that he has incurred any ACBs as a result of the accident.

5Section 42(1) of the Schedule states that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs ("Form-1"). Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred attendant care benefits by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant.

6Section 3(7)(e) of the Schedule provides guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.

7The applicant claims ACBs from November 28, 2018 to date and ongoing, but has furnished no proof that he has incurred expenses for ACBs. The applicant has not provided details of any attendant care assistance, names of any service providers, dates attended, what type of assistance was provided, time spent, remuneration for providing assistance, receipts or invoices, indicating proof of incurred expenses or economic loss. The applicant simply provides a general statement in his reply submissions that family members and friends had provided ACBs². However, as submissions are not evidence, I put little weight on these arguments.

8As such, I agree with the respondent's submissions that the applicant has failed to prove on a balance of probabilities that he incurred any ACB expenses in accordance with s.3(7) of the Schedule.

9The applicant submits that while it may be the case that ACBs provided by family and friends prior to the hearing may not be recoverable, the Tribunal could still make a prospective determination of entitlement to ACBs, "should he hire Attendant Caregivers in the future"³. Respectfully, I disagree with the applicant's position and find that the absence of proof of incurred ACBs expenses is determinative. Section 19 of the Schedule is explicit in stating that ACB expenses must be incurred to be payable. Further, the applicant has not requested that I find that the ACBs are deemed incurred pursuant to s.3(8) of the Schedule, nor has he provided any submissions on this issue.

10Therefore, as the applicant has not demonstrated that his expenses were incurred and I decline to deem them incurred as there is no evidence to support that the respondent unreasonably withheld or denied payment for such ACBs, I find that the applicant is not entitled to ACBs for the period in dispute.

Entitlement to Treatment Plans in Dispute

11Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident.

12The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

OCF-18 in the Amount of $8,650.00 for a lawn tractor and front mount snow blower

13The applicant submitted an OCF-18 dated December 10, 2018 for a lawn tractor and front mount snow blower. To establish the reasonableness and necessity of his claim, the applicant relies on the Occupational Therapy Report of Antony Ruddick, occupational therapist, dated November 26, 2018 (the "OT Report"). Mr. Ruddick noted that the applicant continued to suffer from headaches, neck pain, left shoulder pain and changes in his cognition, balance and issues with his mood and vision as a result of the accident.⁴ Mr. Ruddick opined that the applicant would benefit from assistance in his housekeeping and home maintenance duties and that a snowblower attachment may be reasonable to consider.

14The applicant further submits a Physiotherapy Assessment Report of Jason Vaillancourt, physical therapist, which noted the applicant's decreased range of motion and nerve root irritability with respect to his neck pain⁵. Finally, the applicant argues that due to his balance issues, dizziness and fatigue a lawn tractor and front mount snow blower would alleviate these difficulties significantly. The applicant submits that his dizziness and subsequent fall has been recorded in a hospital visit on May 31, 2019⁶.

15The respondent submits that a lawn tractor and snow blower do not fall under s. 15 or 16 of the Schedule within the purview of a medical or rehabilitation benefit. Further, the respondent argues that given the applicant did not provide any submissions on the appropriate section of the Schedule to be considered, no further inquiry was necessary. In support of this position, the respondent cites the Tribunal decision C.S. v. Co-Operators General⁷.

16Alternatively, the respondent submits that the applicant has not proven that the cost of the lawn tractor or snow blower attachment is reasonable as no alternative more cost-effective options were considered. Finally, the respondent submits that these yard maintenance materials are not reasonable and necessary, relying on the Insurer's Examination, Musculoskeletal Assessment Report of Dr. Pankaj Bansal, physician, who found that the applicant only had uncomplicated self-resolving soft tissue injuries of the neck, left shoulder and back. Further, Dr. Bansal opined that there were no signs of musculoskeletal, orthopaedic or neurological injury at the time of the assessment.⁸

17I agree with the respondent's submissions on the issue of the applicability of s.16 of the Schedule.

18With respect to the appropriate provision of the Schedule, the applicant submits that a lawn tractor and snow blower would be covered under s.16(1) as they would eliminate the effects of the disability which resulted in the impairment and would facilitate his reintegration into his family as the person who looked after lawn care for the family.⁹ However, from my review of s.16(1) of the Schedule, the provision is explicit in stating that s.16(1) of the Schedule only applies to activities and measures that are identified in subsection (3) of s.16.

19The applicant states in his reply submissions that s.16(3)(l) would encompass a snow blower or lawn tractor as it captures "other goods and services" that are essential for the rehabilitation of an inured person and for which a benefit is not otherwise provided in the Schedule. However, when referencing the provision, the applicant does not reference the second part of the subsection, which contains specific exclusions. Section 16(3)(l)(ii) holds that housekeeping services are excluded from s.16(3)(l).

20I find the decision cited by the respondent, C.S. v. Co-Operators General¹⁰ to be persuasive on this issue.

21In this decision, a riding lawnmower was specifically considered, and the Tribunal found that it did not fit under any of the rehabilitation benefit subsections of s.16. Vice-Chair Boyce found that "even if it could be lumped in under s. 16(3)(l) as 'a benefit not otherwise provided' in the Schedule, I find it clear that it would then be captured by s. 16(3)(l)(ii), which provides for housekeeping services, which include home maintenance activities."¹¹

22From my reading of the Schedule, both a riding lawnmower and the corresponding snowblower attachment would fall under the housekeeping and home maintenance activities exception of s.16(3)(l)(ii) of the Schedule. In fact, the evidence provided by the applicant in support of his claim, namely the OT Report, explicitly states that the snowblower is for housekeeping and home maintenance. As the applicant has not provided any further submissions on which provision of the Schedule the goods could fall under, other than s.16(1), or s.16(3)(l), I find that he has not met his onus to establish that the goods listed in OCF-18 would be payable under the Schedule as a rehabilitation benefit.

OCF-18 in the Amount of $1,252.95 for an iPhone

23The applicant submitted an OCF-18 dated September 30, 2019 prepared by Pat Spriel, speech language pathologist, recommending the purchase of an iPhone with a larger screen. Ms. Spriel recommended a large iPhone screen size in order to reduce eye strain and reduce the applicant's corresponding headaches, eye strain and fatigue¹².

24The applicant asserts that the medical record establishes his ongoing vision problems and headaches stemming from the concussion, relying on a report from Dr. Lulu Bursztyn, ophthalmologist, who found that the applicant suffers from vision problems as a result of the accident.¹³ Further, the progress notes of two physiotherapists Mr. Jon McIntosh and Mr. Jason Vaillancourt, both note the applicant's headaches and visual disturbances¹⁴. The applicant also submits that his family physician, Dr. D. Mather, recorded that the applicant was experiencing "ongoing visual problems"¹⁵. These visual problems and headaches were also noted by Dr. Mahmoud Reza Azarpazhooh, neurologist¹⁶, and Pat Spriel, speech language pathologist¹⁷.

25Upon review of the submissions of the parties and the medical evidence, I find that the applicant is not entitled to the disputed OCF-18, because he has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

26I accept that the applicant has suffered post-concussive symptoms, including headaches and intermittent visions problems, since the accident. However, the applicant has not led sufficient evidence to establish that a new iPhone is reasonable and necessary for his rehabilitation. The applicant relies on the progress reports of Pat Spriel, speech language pathologist, where she states that a larger sized cell phone screen would facilitate ongoing visual changes, alleviate eye strain, assist with memory and organizational deficits and that the Siri function would help with memory¹⁸.

27However, the applicant has not provided any submissions or evidence as to the size and type of cell phone he had previously, whether it had any of these recommended features, or whether he would have upgraded it regardless. I agree with the respondent that Ms. Spriel did not recommend any specific version of the iPhone, and the applicant has not provided any submissions on why this particular iPhone was chosen.

28In addition, although Ms. Spriel, the speech language pathologist, recommended a larger sized iPhone, this was not similarly recommended by the applicant's family physician, the ophthalmologist or neurologist that had assessed the applicant. Although all of these physicians had noted the applicant's visual complaints and headaches, it does not appear that any of these medical doctors had recommended a larger iPhone to address these impairments.

29Finally, I find the decision previously cited by the respondent, C.S. v. Co-operators General, to be persuasive. In this decision, the Tribunal considered a similar fact pattern, where the applicant requested an iPhone with a larger screen due to her accident-related vision challenges. In this decision, the Tribunal found that a new iPhone is not a "home device" that would help the applicant return to their pre-accident level of functioning or a "communication aid" as contemplated by s. 16(3)(i). Rather, the Tribunal found that the request for a new iPhone was simply an upgrade from an older device to a newer one, something that cell phone users do regularly. As such, it was found not to be reasonable and necessary.

30While I agree with the applicant that every case must be taken on its own facts, I find that the applicant has not led sufficient evidence to demonstrate that upgrading his cell phone to include a slightly larger cell phone screen and certain features, was essential to his rehabilitation, pursuant to s.16(1) of the Schedule.

31As such, I find that the applicant has not met his onus to prove that the OCF-18 for an iPhone is reasonable and necessary.

OCF-18 in the Amount of $7,811.12 for an iMac computer

32The applicant submitted an OCF-18 dated March 10, 2020, for an iMac Computer, Microsoft Office for Home and Student computer software, and Apple Care Plan for iMac. The applicant submits that this expense is reasonable and necessary, to assist with his ongoing cognitive impairments stemming from his concussion suffered during his accident. The applicant relies on the evidence previously discussed with respect to the OCF-18 for the iPhone, and the Speech Language Pathologist Progress Report of Pat Spriel, dated April 28, 2021, where Ms. Spriel opined that a computer would assist the applicant with online e-Learning training, expand his social network and support his ongoing challenges with memory and attention.¹⁹

33The respondent submitted that the applicant has not provided sufficient evidence to establish that the expense for a new computer is reasonable and necessary. The respondent further asserts that the replacement of a broken computer is a normal household activity, similar to replacing a cell phone, as previously noted in C.S. v. Co-operators General, and is not accident-related.

34I find that the applicant is not entitled to the disputed OCF-18 for the following reasons:

35The applicant has not provided any submissions or evidence to explain why an iMac computer in particular is necessary, and why a different, more cost-effective computer could not fulfill the same goal and provide a price comparison for this. Ms. Spriel notes that a computer would be useful for the applicant's life skills training, social rehabilitation, and counselling, among other benefits. However, there is no explanation as to why an iMac computer specifically is needed to fulfill these goals.

36Ms. Spriel noted in her April 1, 2020 report that the applicant had been using his own computer, until it broke. I agree with the respondent's submissions that this implies that the applicant's previous computer was adequate for the stated goals. The applicant did not dispute the respondent's assertion that the applicant owned a computer at the time of the accident.

37It does not appear that there is anything specific to an iMac computer that makes it particularly necessary to meet the goals of online eLearning training, expanding the applicant's social network and supporting his ongoing challenges with memory and attention. As such, it appears that the applicant's previous computer was adequate in that regard but had broken down at some point post-accident. I find that replacing a family computer is an upgrade of a device that households go through relatively regularly. As such, I find that the applicant has not met his burden to prove that a new iMac computer is reasonable and necessary.

OCF-18 in the Amount of $927.00 for an Optometry Assessment

38The applicant submitted an OCF-18 dated November 29, 2019 for an optometry assessment. The applicant argues that his vision problems have been ongoing since the accident, and have been well-documented by Pat Spriel, Dr. Azarpazhooh, Dr. Mather, and Mr. McIntosh. The applicant further relies on a magnetic resonance imaging ("MRI") report dated December 10, 2018, which evidenced tiny white intensities scattered bilaterally²⁰.

39In contrast, the respondent submits that a further optometry assessment is not reasonable or necessary. The respondent argues that the applicant had been assessed by an optometrist of his own choosing, Dr. Erin Hoevenaars, prior to the accident, and following the accident had three follow-up visits where no abnormality was found²¹. The applicant also had a neuro-ophthalmology consultation on April 2, 2019 with Dr. Lulu Bursztyn, who found that the applicant's anatomical examination was normal and that the MRI findings previously noted, were of "no significance"²². As such the respondent argues that an additional assessment, only months after the previous assessments, is not needed.

40I find that the applicant has not led sufficient evidence to establish that a further optometry assessment is reasonable and necessary.

41I agree with the respondent's submissions that the applicant has had a number of optometry assessments with Dr. Hoevenaars post-accident. When Dr. Hoevenaars was unable to find any abnormality, he referred the applicant to Dr. Bursztyn, who performed a neuro-ophthalmology assessment in April 2019. Although the applicant argues that the MRI results are a reason why an additional optometry assessment is warranted, Dr. Bursztyn reviewed the MRI and concluded that the non-specific white matter lesions were of "really no significance".²³ Both Dr. Hoevenaars and Dr. Bursztyn did not find any abnormality and did not request further follow-ups with the applicant.

42The applicant argued that Dr. Bursztyn had been willing to re-evaluate the applicant if his symptoms continued²⁴. From my reading of Dr. Bursztyn's report dated April 2, 2019, I do not see that she was suggesting a re-evaluation if symptoms continued, but rather, if new symptoms developed.

43Dr. Bursztyn states in her report that she discussed coping strategies and pacing with the applicant and referred him to the Parkwood Institute Seminar Series on Acquired Brain Trauma. The doctor goes on to say that "I have not arranged to see him again but will be happy to do so should any new issues arise". The applicant has not led any evidence that he has developed new visual impairments that differ from those that had been previously assessed by his specialists, Dr. Hoevenaars and Dr. Bursztyn. As such, I find that he has not met his onus to prove that another optometry assessment is reasonable and necessary.

Interest

44Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

45As no benefits are overdue, no interest is payable under s.51.

CONCLUSION

46The applicant's claim is dismissed. I find the applicant is not entitled to attendant care benefits which are not incurred nor deemed incurred. The treatment plans are not payable as they are not reasonable and necessary. As no benefits are overdue, no interest is payable.

Footnotes

1. 1O. Reg. 34/10 including amendments.
2. 2Applicant's Reply Submissions, at para 1.
3. 3Applicant's Reply Submissions at para 1.
4. 4Applicant's Submissions, Schedule B, Occupational Therapy Report of Antony Ruddick dated November 26, 2018, at p.21
5. 5Applicant's Submissions, Schedule B, Physiotherapy Assessment Report dated April 6, 2018, at p.387
6. 6Applicant's Submissions, Schedule B, Strathroy Hospital Records, at p.219
7. 7C.S. v. Co-Operators General Insurance Company, 2020 CanLII 51287 (ON LAT) at para.22
8. 8Respondent's Submissions, Tab D, Musculoskeletal Assessment Report by Dr. Bansal dated February 11, 2019
9. 9Applicant's Reply Submissions at para 11.
10. 10C.S. v. Co-Operators General Insurance Company, 2020 CanLII 51287 (ON LAT) at para.22
11. 11Ibid at para 22.
12. 12Applicant's Submissions at para 32
13. 13Applicant's Submissions, Schedule B, report of Dr. Lulu Bursztyn, dated April 2, 2019
14. 14Applicant's Submissions, Schedule B, Progress Report of Jason Vaillancourt dated June 5, 2018 and Progress Report of Jon McIntosh dated September 30, 2019
15. 15Applicant's Submissions, Schedule B, Clinical Note of Dr. Mather dated December 18, 2018
16. 16Applicant's Submissions, Schedule B, Report of Dr. Azarpazhooh dated February 8, 2019
17. 17Applicant's Submissions, Schedule B, Speech Language Pathology Report dated April 1, 2020
18. 18Ibid.
19. 19Applicant's Submissions, Schedule B, Speech Language Pathology Report dated April 1, 2020
20. 20Applicant's Submissions, Schedule B, MRI Report dated December 10, 2018
21. 21Respondent's Submissions, Tab K, Dr. Hoevenaars letter dated August 29, 2018
22. 22Respondent's Submissions, Tab L, Report of Dr. Bursztyn, dated April 2, 2019
23. 23Respondent's Submissions, Tab L, Report of Dr. Bursztyn, dated April 2, 2019
24. 24Applicant's Reply Submissions, at para 13.