Poterski v. Northbridge Commercial Insurance Corporation, 2023 CanLII 52475

Citation: Poterski v. Northbridge Commercial Insurance Corporation, 2023 ONLAT 20-010549/AABS

Licence Appeal Tribunal File Number: 20-010549/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:

Roman Poterski

Applicant

and

Northbridge Commercial Insurance Corporation

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Gordon Harris, Counsel

For the Respondent: Daniel Himelfarb, Counsel

HEARD: By way of written submissions

OVERVIEW

1Roman Poterski (“R.P.”), the applicant, was involved in an automobile accident on August 30, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). R.P. was denied benefits by the respondent, Northbridge, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is R.P. entitled to a medical benefit in the amount of $1,397.01 for occupational therapy services, denied September 11, 2018?

ii. Is R.P. entitled to an attendant care benefit (“ACB”) in the amount of $811.90 per month for the period of August 30, 2015 to September 20, 2015, denied January 29, 2019?

iii. Is R.P. entitled to an ACB in the amount of $555.40 per month for the period October 1, 2015 to August 29, 2017, denied January 29, 2019?

iv. Is R.P. entitled to a medical benefit in the amount of $1,867.59 for occupational therapy services, denied December 10, 2018?

v. Is R.P. entitled to a medical benefit in the amount of $838.50 for a concussion assessment, denied February 21, 2019?

vi. Is R.P. entitled to interest on any overdue payment of benefits?

vii. Is Northbridge liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to R.P.?

RESULT

3R.P. is entitled to the OCF-18 dated February 21, 2019 for a concussion assessment. Interest is payable.

4R.P. is not entitled to ACBS or the remaining OCF-18s in dispute as he has not demonstrated that they are reasonable and necessary. Interest and an award are not payable.

ANALYSIS

OCF-18 in the amount of $1,397.00 for an occupational therapy (attendant care) assessment denied September 11, 2018

5I find that R.P. is not entitled to the OCF-18 for an attendant care assessment.

6In order to be entitled to a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The purpose of an assessment is to determine if a condition exists. To establish whether a treatment plan is reasonable and necessary, R.P. must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment.

7In support of his claim for the attendant care assessment, R.P. relies on the OCF-18 completed by occupational therapist, Alison LeBlanc, who recommended the assessment to address R.P.’s attendant care needs and level of occupational therapy intervention required.

8In Part 8 of the OCF-18, under Activity Limitations, Ms. LeBlanc note that R.P. continues to experience post-concussion symptoms, back and neck pain and pedestrian anxiety. Ms. LeBlanc further notes that R.P. relies on his wife or daughter to complete housekeeping and home maintenance tasks. Lastly, she notes that R.P. is limited in his ability to participate in pre-accident leisure activities (running and socialization).

9In response, Northbridge argues that there is no evidence to support that R.P.’s functionality was impaired to the point that he required attendant care. It submits that the treatment provider, Dr. Bruce’s records did not indicate that an attendant care assessment was required; nor that there was any indication that R.P. was experiencing any difficulties with performing self-care or housekeeping tasks. I note that September 8, 2015 was the one entry in Dr. Bruce’s records that were for accident-related complaints.

10In addition, Northbridge points to the treatment records of Walsh Health and Wellness, which it submits does not support entitlement to the OCF-18. Specifically:

i. October 8, 2015 – R.P. reported his pain was significantly diminished. No pain symptoms or vomiting were noted;

ii. October 1, 2015 – He reported his balance was getting better; and

iii. September 24, 2015 - R.P. reported that there was no impairment with his functional activity.

11I find that R.P. has not met his burden for several reasons. First, R.P. reported to s. 44 assessor, psychologist, Dr. Chan in a June 8, 2021 report that he believed that the origins for his ongoing pain are not physical, but rather psychological in nature. Dr. Chan also noted that R.P. has demonstrated that he is able to continue to work and participate in most of his ongoing activities of daily living. Second, R.P. has reported that he is able to engage in housekeeping tasks and does so when his Wife is home; he has also reported independence in engaging in self-care tasks. Third, in the November 29, 2018 s. 44 report of occupational therapist, Ms. Seiling, R.P. had returned to his pre-accident job as a full-time lab assistant. Notably, R.P. also reported to Ms. Seiling that he resumed taking over and supporting several of his wife’s pre-accident roles. He has adapted strategies to complete his tasks and has adapted to allow for more independence with his tasks. Lastly, R.P. reported that while he is no longer running, he is engaging in other leisure and fitness activities (notably, swimming three times a week).

12On this evidence, I do not find that an attendant care assessment is reasonable and necessary, with R.P. engaging in substantially all of his pre-accident activities, without assistance. He has demonstrated an ability to engage in his pre-accident self-care and home maintenance tasks, which would be the purpose of the attendant care assessment. Accordingly, I find that R.P. is not entitled to payment for the OCF-18 for an attendant care assessment.

Attendant Care Benefits - $811.90 per month for the period of August 30, 2015 to September 30, 2015

13I find that R.P. is not entitled to receive ACBs.

14Sections 42(1) and (2) of the Schedule set out the requirements to apply for an ACB and identify the documents required to apply for the ACB. Section 42(1) states the application for an ACB must be in the form of and contain the information required to be provided in a document called an Assessment of Attendant Care Needs (Form 1). The Form 1 must be prepared and submitted to the respondent by an occupational therapist or a registered nurse. Section 19(2) states that the amount of an attendant care benefit is determined in accordance with the version of the Form 1 that is required to be submitted under s. 42. In all cases, the onus on R.P. to establish entitlement to ACBs on a balance of probabilities.

15R.P. is claiming ACBs in the amount of $811.90 per month for the period of August 20, 2015 to September 20, 2015 (as recommended by occupational therapist Alison LeBlanc in her January 9, 2019 report) and $555.40 per month for the period of October 1, 2015 to August 29, 2017 (also recommended in the January 9, 2019 report) for retroactive ACB services provided by his wife, B.P.

16As it pertains to retroactive ACB claims, a Form 1 can be submitted and considered if it is reasonable and necessary and where the evidence supports an urgency and/or an impossibility or impracticability of compliance with the requirements of the Schedule. This test was set out in T.K. v. Unica Insurance Inc., 2017 CanLII 15835 (ON LAT).

17Based on the test in T.K., R.P. is required to provide a reasonable explanation for the delay in filing a retroactive Form 1 and his explanation should demonstrate the urgency, impossibility or impracticability of compliance with s. 42(5) of the Schedule.

18I agree with Northbridge that R.P. has not produced any evidence that he was unable to apply for ACBs sooner and within the prescribed time period in accordance with the Schedule. In addition, R.P. has not produced any submissions or evidence that any ACB expenses have been incurred. As such, the requirement under s. 3(7) of the Schedule that benefits be incurred in order to be considered payable, has not been met.

19R.P. submits that the ACBs ought to be deemed incurred under s. 3(8) of the Schedule, as a result of Ms. LeBlanc’s recommendations, and due to his injuries. I note that R.P. did not direct me to any case law or evidence that supports a finding that the benefits ought to be deemed incurred. In this regard, Northbridge directs me to the Tribunal’s jurisprudence in Duval v Aviva General Insurance, 2021 CanLII 62527 (ON LAT) (“Duval”), where the adjudicator confirmed the two-part test to determine when ACBs can be deemed incurred under s. 3(8).

20The first part of the test requires the applicant to demonstrate that the respondent unreasonably withheld or delayed the benefit. The second part requires the applicant to demonstrate that it was because of the unreasonable withholding resulting why the applicant could not incur the cost of the benefit.

21On the first part of the test, R.P. has not demonstrated that Northbridge unreasonably withheld benefits. Northbridge points to the November 29, 2018 s. 44 insurer examination report of occupational therapist, Ms. Seiling, which indicated that R.P. was independent with his self-care and housekeeping tasks. Ms. Seiling also noted that he had returned to many of his pre-accident activities. For the second part of the test, there is no evidence that R.P. was unable to incur the cost of attendant care services.

22The evidence showed that he returned to work. I agree with Northbridge that this is indicative of a level of functionality such that he was able to return to full-time work, earn an income to pay for an attendant, which in turn, demonstrates that he did not require an attendant on account of his ability to return to work full-time. While I note that both R.P and his wife, B.P. assisted each other with self-care and housekeeping tasks, there is no evidence that B.P. was not able to engage in his pre-accident activities, in any capacity, as a result of accident-related injuries.

Attendant Care Benefits - $555.40 for the period of October 1, 2015 to August 29, 2017

23This portion of ACBs is also based on the recommendation in Ms. LeBlanc’s January 9, 2019 occupational therapy report, again, approximately 3.5 years post-accident. In accordance with s. 20(2) of the Schedule (effective September 1, 2010), ACBs are payable up to 104 weeks post-accident (August 29, 2017).

24For the reasons discussed in paragraphs 8 to 16, and as R.P. does not point me to any other evidence in support of his claim for this period of ACBs, I find that R.P. has not established that he is entitled to ACBs in the amount of $555.40 for the period of October 1, 2015 to August 29, 2017.

OCF-18 in the amount of $1,867.59 for occupational therapy services denied December 10, 2018

25The OCF-18 recommended an electric heating pad and an anti-fatigue mat.

26Northbridge denied the OCF-18 on December 13, 2018, determining that the “modalities and services requested are substantially similar to the services requested in the OCF-18 dated August 16, 2018.” The August 16, 2018 OCF-18 is for an in-home occupational therapy assessment. The stated purpose of the August 2018 OCF-18 was to address cognition, pain management, energy conservation, sleep hygiene, activities of daily living, and assistive aids/devices, equipment research and pricing.”

27R.P. submits that the October 2019 OCF-18 is not similar to the August 2018 OCF-18 as “the requests are for completely different things.” I disagree.

28The August 2018 OCF-18 clearly indicates that assistive aids/devices are recommended. An electric hearing pad and anti-fatigue mat are such “assistive aids/devices”, as they are meant to be used by R.P. to assist him in his activities of daily living at home. The very nature and purpose of such devices is to aid and assist and therefore they are similar to the recommendations made in the August 2018 OCF-18.

29While R.P. submits that the only similarity is that both OCF-18s were recommended by Ms. LeBlanc, I find that the recommendations between the August 2018 OCF-18 and October 2019 OCF-18 for assistive aids/devices and a heating pad and mat greatly overlap.

30As such, I find that R.P. has not established that the separate October 2019 OCF-18 is reasonable and necessary.

OCF-18 in the amount of $838.50 for a concussion assessment denied February 21, 2019

31Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

32In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

33The purpose of an assessment is to determine if a condition exists. Therefore, to establish whether an OCF-18 for an assessment is reasonable and necessary, R.P. must point to objective evidence that there are grounds to support that the condition for which he seeks the assessment exists. I find that R.P. has demonstrated that the OCF-18 is reasonable and necessary in this case.

34R.P. submits that the OCF-18 could have resulted in recommendations for treatment, accommodations to assist with activities of daily living and an expedited recovery. His position is that the fact that he is still seeking treatment, and experiencing accident-related headaches, balance issues, and anxiety, at almost four years post-accident, supports that the OCF-18 is reasonable and necessary.

35In response, Northbridge relied on the March 7, 2019 s. 44 physiatry paper report of Dr. Heitzner, in support of its determination. Dr. Heitzner opined that there was no objective organic pathology to support R.P.’s subjective complaints and that his prognosis for recovery from his soft tissue injuries was good. Dr. Heitzner also noted that there were no signs of cognitive impairment observed during an in-person assessment.

36I find R.P.’s evidence persuasive. First, he has regularly reported to Ms. Leblanc and the treatment providers at Walsh Health and Wellness his ongoing headache, balance, and vision issues, up to four years post-accident. Second, Dr. Heitzner’s report speaks to R.P.’s physical injuries, as evidenced in diagnosing R.P. with a cervical strain (WAD II), cervicogenic headaches, right hip contusion, and left foot contusion. Dr. Heitzner does not appear to ever consider or explain the ongoing headache issues that have been reported since the accident. Lastly, as the treatment providers at Vestibular and Orthopaedic Rehabilitation are concussion experts, I place more weight on their expertise in diagnosing concussion symptoms versus that of physiatrist, Dr. Heitzner.

37Having no notable pre-existing conditions, specifically related to headache or balance issues, and subsequently suffering from ongoing headache and other potential concussion-related symptoms post-accident, I find that further investigation is warranted to determine the extent of any concussion-related symptoms R.P. may be suffering from on an ongoing basis as a result of the accident. Accordingly, I find that a concussion assessment is reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

39R.P. is entitled to funding for the OCF-18 for a concussion assessment. Interest is payable in accordance with s. 51 of the Schedule.

Award

40R.P. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

41In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the case of Plowright v. Wellington Insurance Co. (1993 OIC File No.: A-003985 (FSCO) [“Plowright”]). According to Plowright, the conduct must be found to be an “unreasonable behaviour by an Insurer in withholding or delaying payments …seen as behaviour, which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. In Plowright, the award was less than 10% of the total benefits.

42R.P. submits that despite Northbridge providing funding for psychological treatment, it failed to properly address his physical injuries, which can impact his overall psychological condition. His position is that Northbridge’s failure to properly assess and treat his physical injuries have impeded his recovery. Accordingly, he submits that Northbridge’s unreasonable withholding or delaying payment of benefits is conduct which has been excessive, imprudent, stubborn, inflexible, unyielding and immoderate, worthy of deterrence and therefore, warranting of an award.

43I disagree.

44Northbridge argues that the evidence does not indicate that R.P. sustained significant physical impairments. It points to R.P.’s self-reporting to s. 44 general practitioner Dr. Abram (report dated June 8, 2021), that the reasons for his symptoms at the time of the assessment was “psychosomatic versus physical in nature.” Dr. Abram concluded that there was no evidence of objective organic pathology to substantiate the subjective complaints. This is in line with Dr. Heitzner’s findings that R.P. suffered soft tissue injuries. Further, I find the s. 44 assessor’s findings are supported by Dr. Bruce’s records that contain a single entry of accident-related pain complaints, nine days after the accident. Lastly, R.P. reported to and was observed by Ms. LeBlanc to be able to engage in many of his daily activities, including resuming work on a full-time basis, swimming and engaging in many of his pre-accident household tasks.

45I find that Northbridge has not demonstrated the type of conduct that is set out in Plowright. Northbridge relied on the conclusions of its assessors, and I found no reason to interfere with those determinations based on the evidence before me. Despite making a finding that the concussion assessment is reasonable and necessary, I do not find that Northbridge’s denial of this OCF-18 satisfies the award threshold. I found R.P.’s evidence persuasive as it pertains to the issue, not that Northbridge wrongly determined that the OCF-18 was not reasonable and necessary. An award is not appropriate here.

ORDER

46R.P. is entitled to funding for the concussion assessment. Interest is payable in accordance with s. 51 of the Schedule.

47R.P. is not entitled to the remaining ACBS or OCF-18s in dispute as he has not demonstrated that they are reasonable and necessary. No interest is payable with respect to these issues.

48R.P. is not entitled to an award.

Released: June 14, 2023

__________________________

Derek Grant

Adjudicator