Citation: Brown v. Heartland Farm Mutual Inc., 2024 ONLAT 21-013487/AABS

Licence Appeal Tribunal File Number: 21-013487/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:

Jeffery Brown

Applicant

and

Heartland Farm Mutual Inc.

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Joseph Fearon, Counsel

For the Respondent:

Bruce Keay, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Jeffery S. Brown (the “applicant”) was involved in an automobile accident on December 17, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Heartland Farm Mutual Inc. (the “respondent”) 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 the applicant entitled to $2,200.00 for occupational therapy services, proposed by FunctionAbility Rehabilitation in a treatment plan/OCF-18 (“treatment plan”) submitted April 24, 2020 and denied May 19, 2020?

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

RESULT

3For the reasons that follow, I find that the applicant is not entitled to the disputed treatment plan nor interest.

PROCEDURAL ISSUE

4The applicant affirms at paragraph 6 of his written hearing submissions that he is represented by a litigation guardian because he is not competent to instruct counsel due to his accident-related injuries. The applicant relies on a capacity assessment report dated December 2, 2022 completed by Rena Postoff, social worker.

5The respondent did not address the capacity issue raised by the applicant in its responding submissions, despite having the opportunity to do so.

6It is well established that a person who is eighteen years of age or more is presumed to have capacity. Since the applicant, who was born on January 6, 1975, is over the age of 18, he is presumed to have capacity. Further, there is no evidence that the applicant has filed a Representing Minors and Mentally Incapable Persons (Auto Insurance Dispute Resolution Applications pursuant to the Insurance Act) form along with relevant supporting documentation and information.

7Accordingly, I find that there is insufficient evidence to support the applicant’s affirmation that he is represented by a litigation guardian in this proceeding.

ANALYSIS

The Treatment Plan

8To receive payment for the disputed treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

9The applicant submits that as a result of the accident he sustained a brain injury and other physical, cognitive, and psychological injuries. He notes that he suffers from ongoing headaches, chronic pain, anxiety, dizziness, hearing impairment, lack of concentration, memory impairment, and cognitive deficits. He indicates that he suffers from post-traumatic vision syndrome, post-traumatic vestibulopathy, and post-traumatic sleep disturbance. He also suffers from ear pain with a significant deformity cause by the partial amputation of his ear.

10The applicant submits that the disputed treatment plan is reasonable and necessary. He indicates that he continues to have trouble carrying out his daily living activities, that he is dependant on his former spouse on a daily basis, and that he is unable to engage in community integration activities. He claims that he has impairments with his personal care tasks and as such, it is reasonable to assess his functional and attendant care needs related to the accident.

11The applicant argues that occupational therapy assessments are reasonable and necessary even if the applicant has pre-accident conditions that impact their functioning provided that they have some limitations with self-care, and it is reasonable to investigate the degree to which his accident-related impairment was interfering with his ability to carry out his personal care tasks. Further, when an applicant may be catastrophically impaired, it is reasonable to assess their attendant care needs beyond the two-year mark. The applicant relies on Ramnarine v. Aviva General Insurance, 2022 CanLII 57363 (ON LAT) and Day v. BelairDirect Insurance Company, 2022 CanLII 84685 (ON LAT).

12The applicant further relies on an occupational therapy in-home functional assessment report dated November 2, 2018 completed by Sean Allen, occupational therapist, a BrainScope testing report dated October 15, 2019 completed by Dr. Dominic Rosso, radiologist and neuroradiologist, a neurology assessment report dated October 15, 2019 completed by Dr. Manu Mehdiratta, neurologist, and the clinical notes and records (“CNRs”) of his family physician, Dr. Ralph John Kamatovic. The applicant has included several other medical records in his book of documents; however, he did not make specific reference to this evidence by tab and page number in his written hearing submissions.

13In response, the respondent submits that the applicant has failed to meet his burden of proof to demonstrate that the disputed treatment plan is reasonable and necessary. The respondent notes that the applicant has a very complicated medical history, unrelated to the accident, and argues that there is insufficient evidence to support that the applicant suffers from functional impairments as a result of the accident. Rather, the evidence supports that the applicant is completely independent with respect to his personal care needs, he can manage the vast majority of his pre-accident housekeeping and home maintenance tasks, and he has returned to his social activities.

14The respondent relies on various insurer examination reports, including a neurological assessment report completed by Dr. Verity John, neurologist, an occupational therapy assessment report completed by Heather Seiling, occupational therapist, a physiatry assessment report completed by Dr. Ryan Williams, physiatrist, and a psychiatry assessment report completed by Dr. Robert Weinstein, psychiatrist, all dated October 28, 2019, as well as an occupational therapy paper assessment report dated December 17, 2019 completed by Ms. Seiling. The respondent also relies on the CNRs of the Hamilton General Hospital, Niagara General Hospital, and St. Catherines General Hospital as well as a report dated January 15, 2019 completed by Dr. Victor Uwaifo, psychiatrist, a clinical note dated May 20, 2021 completed by Dr. Jeffrey Doyle, general surgeon and critical care medicine specialist, OHIP summary, Dr. Mehdiratta’s October 15, 2019 report, and an investigation report dated January 16, 2019 completed by Orion Investigations.

15On reply, the applicant acknowledges that he has prior medical conditions and argues that same does not disentitle him to treatment and assessments. He argues that the causation test outlined in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458 [Athey] allows for there to be many causes of an injury and that the accident does not need to be the dominant cause of an injury for compensation to be appropriate.

The disputed treatment plan is not reasonable and necessary

16I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated April 24, 2020 for occupational therapy services in the amount of $2,200.00 is reasonable and necessary.

17The plan proposes an occupational therapy in-home assessment and the completion of an Assessment of Attendant Care Needs (Form 1). The goal of the treatment plan is to evaluate the applicant’s safety, his physical, psychosocial, and cognitive function post-accident, his function in self-care as well as his productivity and leisure.

18I find that there is insufficient evidence to support that the treatment plan is reasonable and necessary. According to the Ambulance Call Report of the Niagara Emergency Medical Services dated December 17, 2017, the applicant was riding his bicycle, without a helmet, when he was struck by a car causing him to fall off his bicycle and hit his head on the pavement, ripping part of his right ear off. Bystanders stated that the applicant was alert and oriented the whole time, but he did not recall the accident. The applicant was taken to the Niagara General Hospital where diagnostic imaging of his head, cervical spine, chest, and ribs were conducted, and the results were unremarkable. The applicant received stitches to repair his lacerated right ear, and he was discharged the same night with pain medication.

19Although the applicant was diagnosed with a head injury as a result of the accident, the evidence supports that the applicant did not seek further medical attention until October 14, 2018 when he experienced dizziness after hitting his head on a bed frame the day before. As such, there is a gap in the applicant’s medical evidence between December 2017 and October 2018. Further, the applicant has not directed me to any medical evidence during this period to support that he experienced any cognitive difficulties or functional limitations in the months following the accident nor is there any evidence that the applicant had a need for assistance with his routine personal care, basis supervisory functions, or complex health/care and hygiene functions.

20Moreover, I am not persuaded by the applicant’s medical evidence and submissions that the treatment plan is reasonably required. The applicant previously underwent an occupational therapy in-home assessment with Mr. Allen, who prepared the corresponding report dated November 2, 2018. At that time, a Form 1 was completed indicating that the applicant required attendant care services in the amount of $8,329.13 per month as the applicant needed assistance with: cleaning the tub/shower/sink/toilet after his use; changing his bedding, making his bed, cleaning his bedroom; ensuring comfort, safety and security in the bedroom; preparing daily wearing apparel; hanging clothes and sorting clothing to be laundered/cleaned; basic supervisory care as the applicant lacks ability to be self-sufficient in an emergency; and co-ordinating and scheduling attendant care.

21There is no evidence to support Mr. Allen’s findings, aside for the report itself. Mr. Allen did not review any documentation to prepare his report, and he relies primarily on the applicant’s self-reporting, comments made by Tammy Brown, the applicant’s former spouse, and his observation of the applicant. Although Mr. Allen conducted various questionnaires with the applicant, he also noted in his report that the applicant had a Grade 3 literacy level and that the applicant requested that all documentation be read to him.

22Also, I prefer Ms. Seiling’s paper review report dated December 19, 2020 as her opinion is primarily based on objective evidence. In her report, she advised that there was no indication that the applicant would struggle with his personal care or require the services of an aide or attendant as a result of the accident.

23Ms. Seiling’s paper review report is informed by her previous in-person assessment of the applicant when she assessed his entitlement to non-earner benefits. As detailed in her report dated October 28, 2019, she conducted an examination of the applicant’s abilities and limitations with respect to functional components and assessed the applicant’s pre-accident and current participation in various life activities to determine whether there are any functional limitations resulting from the accident. During the examination, the applicant did not demonstrate any functional limitations related to the accident from a physical or cognitive perspective.

24Further, the applicant demonstrated the following functional abilities: functional neck range of motion with fluid and quick movements; functional lumbar range of motion with fluid movements; functional upper and lower extremity range of motion with fluid movements; functional sitting tolerance; functional standing and walking tolerance; functional grip strength; ability to navigate stairs independently; ability to access lower levels using forward bending, squatting, and kneeling; ability to lift 5 lbs from the floor level to waist level and from waist level to overhead with the right and left upper extremity; and ability to carry 10 lbs.

25The applicant was also assessed by various insurer examiners, including Dr. John, Dr. Williams, and Dr. Weinstein who all determined that the applicant did not sustain an impairment as a result of the accident that continuously prevented him from engaging in substantially all activities in which he ordinarily engaged prior to the accident. While the purpose of these assessments were to determine the applicant’s entitlement to non-earner benefits, these insurer examiners’ findings are relevant as they speak to the applicant’s functionality.

26I further find that there is insufficient evidence to support that the applicant requires supervisory care as a result of the accident. Although Dr. Mehdiratta opined that the applicant’s accident-related injuries interfere with his activities of daily living and that supervisory care is required, there is insufficient evidence to support Dr. Mehdiratta’s findings.

27Dr. Mehdiratta did not review any medical records beyond December 2018, and there are no contemporaneous records documenting any accident-related complaint. Although the applicant reported to Dr. Mehdiratta that at the time of the accident, he was employed on a full-time basis as a garbage loader and that his dizziness was preventing him from returning to work, most of the health practitioners who interacted with the applicant noted that at the time of the accident, he was unemployed and collecting Ontario Disability Support Program benefits. Further, as indicated above, the medical evidence supports that the applicant did not complain of dizziness until he hit his head in October 2018.

28Additionally, as noted by the respondent, the applicant has a complex medical history unrelated to the accident. Indeed, the applicant has a history of migraines, head injuries, bipolar disorder, schizophrenia, adult attention-deficit and hyperactivity disorder, anxiety with seizures, lesion on brain, chronic depression, borderline personality traits, poor impulse control, learning disability, substance abuse, antisocial personality traits, impulsive behaviour, major depressive disorder, split personality disorder, dyslexia, right shoulder injury, fractured right index finger, and right inguinal hernia repair surgery. Despite the applicant’s complex medical history, there is no evidence to support that the applicant had a need for attendant care around April 2019, when the disputed treatment plan was submitted.

29Rather, based on the CNRs of the Hamilton General Hospital, Niagara General Hospital, and St. Catherines General Hospital, it appears that in or around May 2019, the applicant had several substance abuse related hospital admissions which persisted following his incarceration in a detention centre from October 2019 to January 2020.

30While I agree with the applicant’s submission that Athey stands for the principle that an insured person’s impairment may have more than one cause, this principle was similarly adopted in the Divisional Court decision in Sabadash v. State Farm et al. 2019 ONSC 1121 in that an accident be a necessary cause of the impairment, without requiring it to be the cause of the impairment. That said, when considering the evidence, there is insufficient evidence to lead me to conclude that, but for the index accident, the applicant would not have suffered from his alleged functional impairments. Put differently, there is insufficient evidence to support that the index accident is a cause of the applicant’s alleged functional impairments.

31Based on the evidence as a whole, I find that the applicant has not proven that the treatment plan is payable.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

33For the reasons outlined above, I find that the applicant is not entitled to the disputed treatment plan nor interest.

34The application is dismissed.