Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-006478/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:
Sandra Pettifer
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Christopher Evans
APPEARANCES:
For the Applicant: Ryan Jeffries, Paralegal
For the Respondent: Michael McChesney, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sandra Pettifer, the applicant, was involved in an automobile accident on March 15, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Canada, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At issue is whether the applicant is entitled to three months of attendant care benefits, medical and rehabilitation benefits, an assessment, and interest.
ISSUES
3The issues in dispute are:
Is the applicant entitled to $7,400.32 in attendant care benefits for expenses incurred from March 6 to May 26, 2021?
Is the applicant entitled to the following medical and rehabilitation benefits:
i. $1,019.64 ($2,584.31 less $1,564.67 approved) for psychological services, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 (“plan”) dated December 6, 2019;
ii. $7,803.33 for home modifications, proposed by Medex Assessments Inc. in a plan dated April 29, 2020;
iii. $3,729.20 for chiropractic services, proposed by Newmarket Health and Wellness in a plan dated August 27, 2020;
iv. $19,834.35 for the cost of a hot tub, proposed by Aquatic Home Living Ontario in a plan dated June 18, 2021; and
v. $1,351.48 for massage therapy services, proposed by Vitality Wellness in a plan dated June 18, 2021?
Is the applicant entitled to $2,010.31 for a functional abilities evaluation, proposed by Medex Assessments Inc. in a plan dated January 19, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
4In its submissions, the respondent advised that issue three listed in the Case Conference Report and Order is no longer in dispute because it had approved the services in question.
RESULT
5The applicant is partly entitled to the attendant care benefits in dispute with interest.
6The applicant is not entitled to the medical and rehabilitation benefits in dispute or a functional abilities evaluation.
ANALYSIS
1. The applicant is partly entitled to the attendant care benefits in dispute
7The applicant commissioned an attendant care needs assessment dated April 29, 2020 from Michael Sabayle, an occupational therapist. The respondent paid attendant care benefits up to January 7, 2021, when it terminated the benefit after commissioning insurer’s examinations. The applicant submitted three invoices totalling $7,400.32 for attendant care expenses incurred from March 6 to May 26, 2021. The respondent refused to pay for them because it had determined that she was no longer entitled to attendant care benefits.
8The applicant submits that Mr. Sabayle’s assessment proves the attendant care expenses were reasonable and necessary. She reported to Mr. Sabayle that due to the accident she had pain in her neck, mid and lower back, both shoulders, and both hips, and that she also suffered from fatigue and poor balance. Mr. Sabayle opined that she was impaired in her ability to carry out a variety of activities and that she required attendant care services totalling $2,188.06 per month.
9The respondent submits that the applicant is not entitled to the attendant care expenses because the accident did not cause her impairments and because she is independent in her activities of daily living. It relies on insurer’s examinations conducted by Dr. Patrick Tansey, an orthopaedic surgeon, Dr. Ahmad Belfon, a general practitioner, Dr. Nagib Yahmad, a neurologist, and Joan Saunders, an occupational therapist.
a. The applicant sustained an impairment as a result of the accident
10Section 14 of the Schedule provides that the applicant is entitled to attendant care benefits if she sustained an impairment as a result of an accident and the impairment was not a minor injury.
11The applicant’s impairments were likely caused to some extent by events that occurred before and after the accident, including a previous car accident that left her with fibromyalgia, kidney cancer that required surgery in August 2019, and potentially a car accident in August 2020. However, the “but for” test for causation requires only that the March 15, 2019 accident be a necessary cause of the applicant’s impairments, not that it be sufficient to cause those impairments on its own: Sabadash v State Farm et al., 2019 ONSC 1121 (Div Ct) at para 39. On a balance of probabilities, I find that the accident meets this test for the following reasons.
12Dr. Tansey and Dr. Belfon opined that the applicant injured her neck and back in the accident. They did not rule out those injuries as a cause of the applicant’s impairments:
i. Dr. Tansey opined that there was no objective evidence of any specific accident-related impairment, but cautioned that he spoke only “[f]rom an orthopaedic point of view.” This conclusion flowed from his finding that the applicant had sustained uncomplicated myofascial strain-type injuries rather than objectively-verifiable injuries such as broken bones.
ii. Dr. Belfon found that the applicant sustained strains and sprains of her cervical, thoracic, and lumbar spine. Like Dr. Tansey, he concluded that there was no objective evidence of musculoskeletal impairment for that reason. He opined that “much” of the applicant’s reported symptoms were related to deconditioning secondary to her kidney surgery and post-operative complications, and that her ongoing limitations were “not necessarily” accident-related. However, he did not go so far as to claim that the applicant’s limitations were entirely unrelated to her injuries from the accident.
13The applicant told her family doctor on December 19, 2019 that she was experiencing chronic neck pain from the accident and was receiving massage therapy. The respondent argues that the clinical note carries little weight because it contains no further analysis. The appointment was to discuss another matter and the applicant only mentioned the accident and her neck pain in passing. Nevertheless, the clinical note is evidence that she experienced ongoing neck pain due to the accident.
14The applicant told Ms. Saunders that while her fibromyalgia caused ongoing pain and fatigue, it was manageable. Before the March 15, 2019 accident, she worked full time and did not need attendant care. She told Ms. Saunders that her pain was significantly worse after the accident. She rated the intensity of the pain as three to five out of ten before the accident, and seven to ten after.
15The respondent argues that the applicant’s level of impairment did not change due to the March 15, 2019 accident because she had already been receiving ongoing chiropractic treatment. It filed the clinic’s pre-accident clinical notes and records, which show that she had tenderness and hypertonicity in her neck and back. Neither party filed the clinic’s post-accident clinical notes and records. I therefore cannot draw any conclusions about whether there were any changes in the applicant’s symptoms or the amount and type of treatment she received.
16The applicant’s injuries in the August 2020 accident were largely unrelated to the impairments requiring attendant care. Aside from a stiff neck, the issues she reported to her family doctor on August 13 and 17, 2020 were pain in her right arm and potential signs of a concussion, including slight dizziness, mild headaches, and some photophobia. Dr. Yahmad opined that she did not suffer from an impairment due to a neurological injury.
17My finding that the applicant sustained an impairment as a result of the accident does not depend on Mr. Sabayle’s report. I find that it is uninformative on this point because Mr. Sabayle appeared to proceed on the assumption that the accident was the cause of the applicant’s impairments. He noted that the applicant had a history of fibromyalgia but did not explicitly consider what role it played in her impairments. There is no indication in his report that he was aware of the applicant’s kidney cancer or surgery. Because his assessment preceded the August 2020 accident, he did not and could not have accounted for it.
18I conclude that the applicant sustained an impairment as a result of the accident.
b. The impairment was not a minor injury
19The parties’ submissions did not address whether the applicant’s impairment was a minor injury. The respondent does not argue that it was, possibly because an insurer’s examiner concluded that she suffered from a psychological disorder. However, the onus is on the applicant to establish that she sustained a non-minor injury: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.
20I find that the applicant sustained a non-minor injury because she suffered from pain that was continuous and of a severity that it caused suffering and distress accompanied by functional impairment or disability: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28. I have found that the applicant had continuing pain after the accident, and that the accident was a cause of that pain. In the following section, I find that she was impaired in her ability to carry out day-to-day activities. I make no finding as to whether she sustained a psychological impairment due to the accident. She did not make that submission, and neither party entered the examiner’s report into evidence.
c. Attendant care was reasonable and necessary
21Section 19(1)(a) of the Schedule provides that the applicant is entitled to attendant care benefits for all reasonable and necessary expenses that she incurred as a result of the accident for services provided by an aide, attendant, or long-term care facility. In this section, I find that attendant care services were reasonable and necessary given the applicant’s impairments. In the next section, I consider the specific attendant care services recommended by Mr. Sabayle.
22I prefer Ms. Saunders’s observations to Mr. Sabayle’s for two reasons:
i. Ms. Saunders conducted an in-home assessment where she could observe the applicant in person. Mr. Sabayle conducted his assessment by videoconference in the early days of the COVID-19 pandemic lockdown. That limited his ability to verify the applicant’s self-reported limitations. Notably, the applicant told him that she used the walls and furniture for support to stand and walk. None of the insurer’s examiners observed such a dramatic impairment when they met her in person, and surveillance investigators observed her walk her dog a short distance on a leash from her car to a dog grooming business without “display[ing] any obvious physical difficulty.”
ii. Mr. Sabayle’s assessment was on April 29, 2020 and Ms. Saunders’s was on September 9, 2020. To the extent that any differences in their findings are attributable to the passage of time, Ms. Saunders’s observations better reflect the applicant’s level of function when she incurred the attendant care expenses from March 6 to May 21, 2021.
23Ms. Saunders’s observations show that the applicant had the following impairments for which attendant care was reasonable and necessary:
i. The applicant had difficulty dressing and undressing if it required her to lift above shoulder level. She consequently wore simpler clothing;
ii. The applicant needed help to blow dry her hair and maintain her fingernails and toenails, and no longer applied makeup;
iii. The applicant had a personal support worker to help her with cooking—such as by cutting vegetables—and to help her with cleaning the bedroom and bathroom; and
iv. The applicant knelt “with bilateral support and slight shortness of breath,” “engage[d] in partial crouching when transferring on/off chair with support,” was unable to do any lifting or carrying, and felt unable to walk long distances on her own.
24While I accept Ms. Saunders’s observations, I reject her opinion that the applicant did not require attendant care because Dr. Yahmad found she was not impaired “from the strict neurological perspective.” The fact that she did not have an impairment from a neurological injury is irrelevant to the fact that she had impairments from her neck and back injuries.
25Ms. Saunders largely did not explain why attendant care was unnecessary for the applicant’s impairments aside from citing Dr. Yahmad’s opinion. Where she did specifically address those impairments, I do not accept her explanations:
i. Ms. Saunders opined that the applicant did not require assistance with dressing and undressing because “she demonstrated sufficient functional abilities” to perform those activities independently. I disagree. The fact that the applicant could only independently dress and undress herself in certain clothing shows that she was impaired. Going without wearing other types of clothing did not nullify that impairment.
ii. Ms. Saunders opined that the applicant did not require assistance with mobility because she reported no limitations, she walked without mobility aids, she engaged in 22 minutes of continuous activity, she used a reciprocal gait while ascending and descending stairs, and she demonstrated the ability to transfer independently without support. This is an inaccurate and incomplete statement of Ms. Saunders’s own findings:
a. The applicant did report limitations with respect to mobility. She told Ms. Saunders that she was nervous about going for walks on her own because she feared she would “get stuck,” meaning that she would be unable to make it home.
b. Ms. Saunders stated elsewhere in her report that she observed the applicant engage in 10 minutes of continuous activity, which mainly consisted of standing and walking. Whether it was 10 minutes or 22, it was a short period of time involving light physical activities. That does little to show that the applicant had no mobility issues requiring attendant care.
c. The applicant did not use a reciprocal gait going up and down the stairs. Ms. Saunders observed that she used a tandem gait going down the stairs and used the railing for support.
d. The applicant did not demonstrate the ability to transfer independently without support. Ms. Saunders observed that she transferred from sitting to standing and vice versa with support.
e. Ms. Saunders did not mention her observations that the applicant had difficulty kneeling and was unable to do any lifting or carrying. That is a glaring omission. If Ms. Saunders believed that those impairments did not justify attendant care, it was incumbent on her to explain why.
26I conclude that attendant care services were reasonable and necessary given the applicant’s impairments.
d. The applicant is partly entitled to the proposed attendant care services
27Section 19(2) of the Schedule provides that the amount of a monthly attendant care benefit is determined in accordance with an assessment of attendant care needs. Mr. Sabayle calculated the amount of the benefit as $2,188.06 per month for assistance with personal care, cooking and cleaning, exercise, and treatment.
28I find that the applicant is partly entitled to the proposed attendant care services as follows:
i. Forty minutes per day for dressing and undressing was excessive given that the applicant only needed help lifting above shoulder height. I find that 10 minutes per day was reasonable and necessary.
ii. Ten minutes per day for washing, rinsing, and drying the applicant’s face was not reasonable and necessary. The evidence does not show that she was unable to do so independently.
iii. Ten minutes per day for applying cosmetics, 20 minutes per day for brushing, shampooing, drying, and styling the applicant’s hair, and 20 minutes per week for fingernail and toenail care were reasonable and necessary. The applicant had stopped using cosmetics and needed help to perform the other tasks.
iv. Ten minutes per week for shaving was reasonable and necessary. Ms. Saunders’s report did not state whether the applicant was limited in this respect, but Mr. Sabayle’s report specified that she was and it is reasonable to infer given her mobility issues.
v. Thirty minutes per day for preparing, serving, and feeding meals was reasonable and necessary given that the applicant’s personal support worker helped her cook.
vi. Thirty minutes per day for supervision and assistance with walking was reasonable and necessary given the applicant’s mobility issues and concerns about getting stuck. She reported to Dr. Belfon that one of her personal support worker’s tasks was to accompany her on walks.
vii. Twenty minutes per day for cleaning the tub, shower, sink, and toilet, and 20 minutes per week for ensuring the applicant’s “comfort, safety, and security in the bedroom” were reasonable and necessary. The applicant was limited in her ability to kneel, crouch, lift, and carry. Another of the personal support worker’s tasks was to help with cleaning the bathroom and bedroom.
viii. Thirty minutes per day for assistance with prescribed exercises and stretching was not reasonable and necessary. The applicant told Ms. Saunders that she did a physiotherapy stretching routine independently. The evidence does not show that she required attendant care to help do those stretches or other exercises.
ix. Thirty minutes per day for assistance with walking using crutches, canes, braces, and/or a walker was not reasonable and necessary because the applicant did not use any mobility devices.
x. Forty minutes per day, four days per week for preparing transcutaneous electrical nerve stimulation (“TENS”) equipment and administering treatment was not reasonable and necessary. Mr. Sabayle recommended that the applicant have a TENS machine at home but did not explain why.
29Applying the maximum hourly rates set out in Superintendent’s Guideline No. 01/18: Attendant Care Hourly Rate Guideline, I find that the applicant was entitled to an attendant care benefit of $940.05 per month. She incurred attendant care expenses of $2,466.84 per month for three months. She is therefore entitled to a total of $2,820.16.
2. The applicant is not entitled to the medical and rehabilitation benefits in dispute or the cost of a functional abilities evaluation
30The applicant is entitled to all reasonable and necessary expenses incurred as a result of the accident for the goods and services enumerated in ss. 15 and 16 of the Schedule.
31The applicant argues that she incurred the treatment proposed in the July 30, 2020 treatment plan to mitigate her need for attendant care, and that the goals of unspecified treatment were to assist in pain reduction and provide a higher level of functioning. Her submissions do not otherwise address the medical and rehabilitation benefits in dispute or the functional abilities evaluation.
32The applicant has not established that she is entitled to the medical and rehabilitation benefits in dispute or the cost of a functional abilities evaluation. The fact that she incurred treatment does not establish on its own that the treatment or any of the other proposed goods and services are reasonable and necessary. Citing the goals of treatment is insufficient to prove that it is reasonable and necessary. The applicant must also show that the goals are being or would be met to a reasonable degree and that the overall costs of achieving those goals is reasonable: Jennifer Esterreicher v Non-Marine Underwriters, Mbrs. of Lloyd's, 2008 ONFSCDRS 197 (FSCO Arb), citing General Accident Assurance Co. of Canada v Dominic Violi, 2000 ONFSCDRS 177 (FSCO App).
3. Interest
33The applicant is entitled to interest pursuant to s. 51 of the Schedule.
ORDER
34The applicant is entitled to attendant care benefits of $2,820.16 with interest.
35The applicant is not entitled to the medical and rehabilitation benefits in dispute or the cost of a functional abilities evaluation.
Released: November 22, 2023
Christopher Evans
Adjudicator