Citation: Darwich v. The Co-operators, 2023 ONLAT 20-015268/AABS

Licence Appeal Tribunal File Number: 20-015268/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:

Camil Darwich

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Camil Darwich, Applicant

Frank McNally, Counsel

Rebecca Duplantie, Counsel

For the Respondent:

Krystal Jennings, Adjuster

Jamie R. Pollack, Counsel

Court Reporter:

Prasanth Thambipillai

Observer:

Anita John, Member

Heard by Videoconference:

June 13, 14, 15, 16, & 17, 2022

OVERVIEW

1Camil Darvich, (“the Applicant”), was involved in an automobile accident on November 25, 2012, and sought benefits from the Co-operators, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The Applicant participated in this hearing; however, he passed away shortly after it ended, but before closing submissions were made.

3The Applicant’s passing has rendered moot the question of whether he sustained a catastrophic impairment as a result of the accident. The parties agree that no further expenses will be incurred under the Applicant’s claim and that the benefits in dispute are not contingent on a finding that the Applicant sustained a catastrophic impairment.

ISSUES

4The issues in dispute for this hearing are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the applicant entitled to a medical benefit in the amount of $1,709.45 for an in-home functional assessment, recommended by Ferland and Associates in a treatment plan dated August 12, 2020?

3. Is the Applicant entitled to a medical benefit in the amount of $21,450.00 related to treatment plan dated August11, 2021 by Sebastien Ferland, OT, for admission to 1000 Islands Addiction Treatment Centre?

4. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

5I find the following;

1. The issue of whether the Applicant sustained a catastrophic impairment as a result of the accident is moot and I make no finding as a result;

2. The Applicant is not entitled to the treatment plan dated August 12, 2020 pursuant to section 38(2) of the Schedule because it was submitted after it was incurred;

3. The Applicant is entitled to the treatment plan dated August 11, 2021, plus interest pursuant to section 51 of the Schedule; and

4. No award is payable.

BACKGROUND

6The Applicant suffered from a polysubstance abuse disorder. Leading up to his death, the Applicant was regularly abusing drugs such as cocaine, crack cocaine, heroin, and fentanyl, and living in a shelter system for people experiencing homelessness. Compounding the issue, he was diagnosed with cancer in 2020 and was engaging in chemotherapy at the time of the hearing.

The Accident and Initial Course of Care

7The Applicant was the driver of a vehicle which was struck from behind while stopped at an urban intersection. Police and ambulance attended at the scene of the accident and the Applicant was transported to the hospital due to shoulder, neck, and back pain, and numbness in the left knee. He was assessed at the hospital, given Percocet for pain, and discharged after x-rays were performed.

8It appears that the Applicant initially treated his injuries with medication only. He testified that over-the-counter medication sufficiently reduced his pain at first. His OHIP summary notes healthcare billings for sinus issues, but not any for sprains and strains. The Applicant travelled to Lebanon after the accident, in the spring of 2013. He provided some evidence that he engaged in treatment while there, but the validity of those documents is contested.

9In any event, the Applicant returned to Canada and made complaints of ongoing accident-related neck pain to his family physician, Dr. Elrefai. The Applicant testified that this occurred when over-the-counter medication stopped relieving his pain symptoms. The Applicant was referred for back x-rays on January 1, 2014, which showed minimal multilevel degenerative changes and no significant foraminal of the spinal canal stenosis. On February 18, 2014, the Applicant returned to Dr. Elrefai and complained of pain when standing and walking, relieved by forward flexion. During another visit to his family physician’s office, on March 5, 2014, the Applicant’s neck muscles were observed to be very tense and morphine was prescribed for the Applicant in order to deal with his ongoing neck and back pain.

10According to the Applicant, morphine relieved his pain and permitted him to relax and sleep. However, he testified that he started to need more of the narcotic and would have issues if he couldn’t get it. His need for morphine became problematic to the point that he would get other doctors to prescribe morphine or would obtain it from illicit sources. Eventually, the Applicant was using other substances, such as cocaine, crack cocaine, heroin, and fentanyl to deal with pain and stress.

11Perhaps unbeknownst to the Applicant’s family physician, the Applicant had a prior history of substance abuse. It started when he was enrolled in the army in Lebanon as a teenager and, during that time, he was exposed to cocaine and crack cocaine. He regularly used these substances during his tenure in the army from the age of 16 to 18. His evidence at the hearing was that he received 16 months of treatment for his substance use and never relapsed until after the accident.

12After serving in the army, the Applicant started to work as a barber. He later got married and move to Canada while in his mid-30’s, which was about 6 years prior to the accident. He started working as a barber in Canada, eventually opening his own barber shop. The success of the Applicant’s barber shop is unclear as his tax filings for that period of time show modest earnings, despite testimony from the Applicant, his ex-wife, and a former colleague and friend who all described the business as successful while it was operating.

13The crux of the Applicant’s position for this hearing is that he was prescribed morphine due to pain from his accident-related injuries, which caused him to relapse into a downward spiral of polysubstance addiction. To the Respondent, the evidence is unclear, and it is unconvinced that the Applicant’s polysubstance abuse disorder was triggered by the accident instead of other stressors in the Applicant’s life around that time.

ANALYSIS

14As noted previously, the issue as to whether the Applicant sustained a catastrophic impairment as a result of the accident is now moot and unnecessary for me to determine. The Applicant passed away and the benefits in dispute do not exceed the funding limit on medical and rehabilitation benefits for non-catastrophic injuries.

15Additionally, the Applicant conceded that he is not entitled to the treatment and assessment plan dated August 12, 2020. The treatment and assessment plan was incurred prior to being submitted to the Respondent. Section 38(2) of the Schedule provides that the Respondent is not liable to pay an expense in respect of a medical benefit or an assessment that was incurred before the Applicant submitted a treatment and assessment plan.

16What is left for me to decide is whether a 30-day in-patient drug treatment program at 1000 Islands Addictions Treatment Centre is reasonable and necessary as a result of the accident, and whether the Applicant is entitled to an award. The onus is on the Applicant to demonstrate on a balance of probabilities that he is entitled to the benefits claimed.

Causation

17At issue is whether the subject accident caused the Applicant’s relapse into a polysubstance abuse disorder, depression, and somatic symptom disorder. I find that the Applicant’s presentation, namely his polysubstance abuse disorder, in August 2020 is a direct result of the accident.

18The Applicant is required to demonstrate that his polysubstance abuse disorder would not have occurred but for the accident. He is not required to demonstrate that the accident was the sole cause of his injuries. In situations where multiple independent causes may bring about a single harm, the Applicant must establish that there is a material contribution. For caselaw on causation, see Sabadash v. State Farm, et al., 2019 ONSC 1121, Monks v. ING Insurance Company of Canada, 2008 ONCA 269, and Walker Estate v. York Finch General Hospital, 2001 SCC 23.

19In the Applicant’s case, there may be multiple independent causes to his polysubstance abuse disorder. For example, the Applicant and his wife experienced fertility issues around the time of the accident and were unable to conceive a child, leaving the couple with a lot of disappointment. The couple also encountered marital issues at times, both before and after the accident, which led to some temporary separations and finally divorce. The Applicant’s brother died in or around 2011. Also, during 2011, the Applicant was charged with impaired driving and had hospital admissions due to mixing prescription medication with alcohol. Most remarkably, at some point likely before the accident, the Applicant was involved in what he described as business dealings to start a restaurant operation with another man, which resulted in financial losses for the Applicant in the amount of about $60,000.00 to $70,000.00. The circumstances of the failed business endeavour are murky, at best. The Applicant could not remember the man’s name during the hearing or, perhaps, chose to withhold the name. He nevertheless testified that the man stole the money through credit card transactions and gave him cocaine during their relationship. The Applicant testified that he never got his money back and declared bankruptcy as a result.

20Despite the life stressors the Applicant experienced, I find that the Accident directly caused his relapse into a polysubstance abuse disorder as concluded by Dr. S. Shahmalak, psychiatrist, and Dr. R. Jetly, psychiatrist. Dr. Shahmalak assessed the Applicant for a psychiatric diagnosis and related impairments, to address causation, and provide recommendations if indicated. He issued a report dated January 28, 2020 and diagnosed the Applicant with polysubstance dependence, major depressive disorder, and somatic symptom disorder with predominant pain, persistent. He concluded that but for the subject accident, the Applicant would not have sustained the psychiatric impairments that he is currently faced with, namely the prescription of high-dose opiates for pain relief from accident-related symptoms. Dr. Shahmalak concluded that, prior to the accident, the Applicant was psychiatrically stable and functioning well in his self-care, homecare, social, vocational and avocational activities, despite indications of the vulnerabilities described earlier.

21I find Dr. Shahmalak’s assessment and report persuasive. Dr. Shahmalak did an extensive document review, interview, and psychometric testing to complete the assessment and report. The psychometric testing results showed the Applicant to be clinically severely depressed with moderate somatic symptom severity. Dr. Shahmalak noted inconsistencies between the Applicant’s self-reports and the medical documentation but found him to be forthright and spontaneous and concluded that the Applicant did not seem to exhibit any gross malingering.

22As for Dr. Jetly’s evidence, the Respondent asked that it be excluded from the hearing record on the basis that Dr. Jetly assessed the Applicant for a defence medical report in the tort action related to this accident. The Applicant responded that he is waiving any possible privilege with respect to Dr. Jetly’s evidence and that the evidence speaks to causation. To the Applicant, having the best evidence is paramount and Dr. Jetly’s independent evidence would help guide my decision as the adjudicator.

23I mostly agree with the Applicant and find Dr. Jetly’s evidence to be relevant to the issue of causation and will admit it. The Applicant’s case is complicated – his history with substance use is long and the various life stressors make it difficult to determine the cause and extent of his injuries. Hearing additional evidence from another expert psychiatrist helped provide the best evidence to make the best decision. Dr. Jetly’s evidence was disclosed within the timelines for the hearing, is unsurprising to the Respondent, and was subject to cross-examination. Further, I am not satisfied that the admission of previously disclosed evidence prejudices the Respondent’s ability to present its case. I now turn to Dr. Jetly’s evidence itself.

24Dr. Jetly conducted a clinical interview with the Applicant and concluded he suffered from somatic symptom disorder with persistent pain, and polysubstance abuse disorder as a result of the subject accident. Dr. Jetly attributed the Applicant’s relapse into substance abuse to the subject accident based on the use of hydromorphone triggering the biopsychosocial factors associated with substance dependence. Dr. Jetly found the timeline of events to be demonstrative when determining the cause of the Applicant’s polysubstance abuse disorder. He saw a hard-working person who was married and functioning well prior to being introduced to opiates to treat his accident-related pain. Since, the Applicant has fallen down the socioeconomic ladder considerably, living in shelters, divorced, and addicted to multiple substances. Dr. Jetly acknowledged that the Applicant may have had a relapse into cocaine use prior to the accident but considers the introduction of opioids and the request for increasing doses of them to have a greater impact on the Applicant’s presentation at the time of the assessment. I found no issue with Dr. Jetly’s assessment methodology and consider his evidence to be fairly consistent with that of Dr. Shahmalak.

25The Respondent relies on the evidence of Dr. Sivasubramanian, whose evidence does not upset Dr. Shahmalak’s and Dr. Jetly’s conclusions. Dr. Sivasubramanian assessed the Applicant, issued an insurer’s examination (“IE”) report dated November 11, 2020, and testified at the hearing. Dr. Sivasubramanian concluded that it was not entirely clear if the Applicant’s polysubstance abuse disorder was triggered by the subject accident. His report refers to the stressors discussed earlier. Nevertheless, Dr. Sivasubramanian concludes that the Applicant may have experienced a worsening of pre-existing pain subsequent to this accident. Dr. Sivasubramanian further concluded that he likely meets the criteria for somatic symptom disorder with predominant pain, meets the criteria for a substance use disorder but the timing of his relapse is unclear as to whether it occurred before or after accident.

26Upon review, I find Dr. Sivasubramanian’s evidence to be generally compatible with the evidence of Dr. Shahmalak. Dr. Sivasubramanian agreed with Dr. Shahmalak that the Applicant developed a polysubstance use disorder but disagreed on origin. Dr. Shahmalak concluded that the prescription of opioid medication was the impetus of the Applicant’s relapse into substance use and development of a polysubstance use disorder and Dr. Jetly’s conclusions were largely the same. The difference was that Dr. Sivasubramanian was reluctant to provide an opinion on the origin of the Applicant’s polysubstance use disorder when Dr. Shahmalak did. To me, Dr. Sivasubramanian’s evidence includes no additional information that compels me to render a conclusion that is different than Dr. Shahmalak’s. Thus, I find that the accident directly caused the Applicant’s polysubstance use disorder through the prescription of opioid medication of escalating doses to reduce his accident-related pain.

In-patient drug treatment is reasonable and necessary as a result of the accident

27Given the gravity of the issue of catastrophic impairment, this hearing focused much on whether the Applicant sustained a catastrophic impairment as a result of the accident and little on whether this treatment plan is reasonable and necessary. I do not fault the parties for this focus. However, it remains the Applicant’s burden to demonstrate that the treatment plan is reasonable and necessary.

28Nevertheless, having concluded above that the Applicant’s polysubstance abuse disorder was directly caused by the Accident, it follows that treatment for the condition is an accident-related expense. For this and the following reasons, I find that the treatment plan for in-patient drug treatment, dated August 11, 2021 is reasonable and necessary as a result of the accident.

29In most cases, the Applicant is required to demonstrate that the costs associated with a treatment and assessment plan are reasonable and necessary. Here, the Applicant’s case and submissions have neglected to address the costs associated with the in-patient drug treatment program. However, through the benefit of hindsight I can see the value of the in-patient program and find the associated costs to be reasonable and necessary.

30I find that it is likely that the in-patient drug treatment program prolonged the Applicant’s life, if only by a matter of a few months. At the time of his admission to the treatment facility, the Applicant had suicidal thoughts, was consumed by polysubstance drug abuse, and living in shelters for people experiencing homelessness where he was subject to assaults and exposed to other drug users. This presentation was in addition to a medical history which included prior attempts at suicide.

31It appears that the Applicant completed the in-patient drug treatment program and was discharged thereafter in good condition, but eventually relapsed. The Applicant was using various substances almost daily or every other day when he entered into the 1000 Islands Treatment Centre program for 45 days starting in June or July 2021. Following his discharge, he travelled to Lebanon to live with family and returned to Ottawa in January 2022. He relapsed into polysubstance use following his return to Ottawa.

32The in-patient program is consistent with Dr. Shahmalak’s treatment recommendation. In the January 28, 2020 report, Dr. Shahmalak concluded that the Applicant would benefit from a medically monitored detox program which should be immediately followed with in-patient admission into a drug and alcohol rehabilitation program. Dr. Shahmalak noted that the Applicant’s stay may be lengthy given the chronicity of his longstanding substance use and may benefit from other pain management medications that do not pose a risk for psychological dependency.

33I prefer the evidence and testimony of occupational therapist S. Ferland over that of occupational therapist S. M. Taillefer in light of my conclusion on the causation of the Applicant’s injuries. Ms. Taillefer concluded that the Applicant’s presentation was attributed to long-standing drug abuse disorder that was not accident-related, according to her interpretation of Dr. Sivasubramanian’s report.

34The Applicant required timely and appropriate intervention. Mr. Ferland testified that the 1000 Islands Treatment Centre is preferred over an OHIP treatment facility because it has a physician and psychiatrist on-site and no waitlist. He said that his goal was to get the Applicant into an in-patient treatment facility because the Applicant was taken over by acute drug use, homelessness, and faced the additional stressor of a cancer diagnosis in 2020. Mr. Ferland added that the Applicant experiences high anxiety while living in shelters which leads to episodes of suicidal ideation. I acknowledge that section 47(2) of the Schedule provides that the Respondent is not liable to pay for medical benefits for which payment is reasonably available to the Applicant under any insurance plan, such as OHIP. However, Mr. Ferland’s testimony regarding the waitlist for an OHIP-funded treatment facility and his recommendation for on-site physician and psychiatric care cause me to conclude that the urgency of the situation required the Applicant to incur the services of a private treatment facility and avoid an untimely wait for necessary treatment.

35I find that the Applicant is prone to relapse when he is not in a structured facility. Mr. Ferland discussed connecting with the Applicant around February 4, 2022, following his return to Ottawa and after his stay at the 1000 Islands Treatment Centre. Mr. Ferland observed that the Applicant was positive, looking forward to getting his own place to live, and “on a good path”. However, about a week later Mr. Ferland received a call from the Applicant’s friend, Sam, whom the Applicant was living with at that time, who advised Mr. Ferland that the Applicant was acting bizarre: hallucinating and searching the bushes outside barefoot in the dark during the winter. A pattern of destructive behaviour appears to have continued while the Applicant was out of an in-patient facility. Mr. Ferland met with the Applicant most recently in May 2022 and observed him in a “concerning state”. He testified that, at this time, he was concerned for the Applicant’s safety considering a history of suicide attempts coupled with feelings of abandonment and having no reason to live. Mr. Ferland acknowledged that he is unable to determine the cause of the Applicant’s presentation at the time he was treating him but concluded that the Applicant requires multidisciplinary treatment involving a drug counsellor, pain specialist, a social worker, and other professionals due to psychiatric and psychological issues such as his substance use disorder.

36For these reasons, I find that the in-patient drug treatment program was a reasonable and necessary medical and rehabilitation expense incurred by the Applicant as a result of his polysubstance abuse disorder, which was triggered by the prescription of opioid medication to deal with accident-related back pain.

AWARD

37I find that the Applicant is not entitled to an award pursuant to Reg. 664 because there is no evidence demonstrating that the Respondent unreasonably withheld or delayed the payment of benefits.

38Pursuant to section 10 of Reg. 664, the Applicant may be entitled to an award of up to 50 per cent of the total benefits payable if the Tribunal finds that the Respondent unreasonably withheld or delayed the payment of benefits.

39Here, no award is payable as there is no evidence that the Respondent unreasonably withheld or delayed the payment of benefits. As previously noted, the Applicant’s case is complicated and his claim spans a decade. While I have determined that the subject accident was the cause of the Applicant’s relapse into substance abuse disorder, it was a difficult decision to make. To me, the Respondent’s position was reasonable considering the opinion from Dr. Sivasubramanian that the origin of the Applicant’s substance abuse disorder was unclear. Dr. Sivasubramanian’s evidence included no egregious errors or findings that would reasonably compel the Respondent to reject the opinion. Thus, I find no evidence that the Respondent unreasonably withheld or delayed the payment of benefits.

CONCLUSION AND ORDER

40The issue of whether the Applicant sustained a catastrophic impairment as a result of the accident is moot and I make no finding as a result.

41The Applicant is not entitled to the treatment plan dated August 12, 2020 pursuant to section 38(2) of the Schedule because it was submitted after it was incurred.

42The Applicant is entitled to the treatment plan dated August 11, 2021, plus interest pursuant to section 51 of the Schedule.

43No award is payable.