Licence Appeal Tribunal File Number: 20-005105/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:
Anthony Okafor-Ogbujiagba
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Matthew Nieuwland, Counsel
HEARD: By way of written submissions
OVERVIEW
1Anthony Okafor-Ogbujiagba (“the Applicant”) was involved in an automobile accident on April 3, 2018 and sought benefits from TD General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing, as outlined in the Order dated February 7, 2023, are:
Is the Applicant entitled to attendant care benefits in the amount of $3,094.43 per month for the period from March 29, 2019, to September 15, 2020?
Is the Applicant entitled to attendant care benefits in the amount of $2,939.77 per month for the period from September 16, 2020, to-date and ongoing?
Is the Applicant entitled to physiotherapy in the amount of $2,398.38, proposed by VOR Physiotherapy in a treatment plan dated May 31, 2021?
Is the Applicant entitled to a vision rehabilitation assessment in the amount of $1,905.00, proposed by Dr. Tanya Polonenko in a treatment plan dated December 8, 2022?
Is the Applicant entitled to a registered support worker in the amount of $9,982.00, proposed by Spinetec Health Care Solutions, in a treatment plan dated June 25, 2020?
Is the Applicant entitled to physiotherapy in the amount of $1,796.00, proposed by Tri-City Physio & Rehabilitation in a treatment plan dated February 9, 2022?
Is the Applicant entitled to physiotherapy in the amount of $2,890.00, proposed by Hands of Care Physiotherapy & Rehabilitation in a treatment plan dated April 28, 2021?
Is the Applicant entitled to the devices, services, and assessments proposed by Meditecs Independent Medical Examination, as follows:
(i) $4,746.00 for assistive devices in a treatment plan dated May 19, 2020;
(ii) $4,040.54 for case manager services in a treatment plan dated June 25, 2020;
(iii) $2,486.00 for an attendant care needs assessment in a treatment plan dated September 16, 2020;
(iv) $10,949.79 for occupational therapy in a treatment plan dated April 25, 2022;
(v) $465.52 for case management services in a treatment plan dated March 5, 2021; and
(vi) $1,350.00 ($4,011.50 less $2,661.50 approved) for a psychiatric assessment in a treatment plan dated March 10, 2021?
- Is the Applicant entitled to the assessments and services proposed by Dawson Dental, as follows:
(i) $4,354.00 for a dental assessment in a treatment plan dated January 9, 2020; and
(ii) $2,408.00 for dental services in a treatment plan dated July 14, 2021?
- Is the Applicant entitled to the physiotherapy proposed by Wellington Ortho & Rehabilitation Association, as follows:
(i) $1,675.10 in a treatment plan dated December 23, 2021;
(ii) $1,696.25 in a treatment plan dated June 1, 2021; and
(iii) $1,666.00 in a treatment plan dated October 1, 2021?
Is the Applicant entitled to interest on any overdue payment of benefits?
Is the Respondent entitled to request hearing costs from the Applicant under section 19 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (Rules)?
RESULT
4I find that the Applicant has not met his onus to demonstrate entitlement to the benefits claimed.
5No interest or costs are payable.
BACKGROUND
6The Applicant was a passenger in a vehicle which was struck from behind while slowing down in traffic on a major highway. No ambulance or police attended at the scene of the accident. The Applicant was taken to the collision reporting centre by tow truck following the accident. He met with his family physician about a week later, due to neck and body pains, causing difficulty in walking and turning his head. He denied losing consciousness in the accident and never reported hitting any part of his body on any part of the vehicle to his family physician.
The Applicant is a poor historian
7When it comes to recalling the accident, the Applicant is a very poor historian.
8In the insurer’s examination (“IE”) report by Dr. A. Gwardjan, physiatrist, dated April 21, 2020, the Applicant reported he hit his right knee on the dashboard and the right side of his head on the doorframe. He denied losing consciousness and reported that he met with his family doctor the next day due to headaches, neck, shoulder, back, and right knee pain.
9As documented in the catastrophic impairment report by Dr. M. K. J. Kwok, orthopaedic surgeon, dated May 5, 2021, the Applicant reported that his vehicle was stopped at the time of the accident and struck from behind by another vehicle driving 110km/hr. He reported that he did not lose consciousness, that the upper handle on the car that he was holding broke as a result of the force, and he hit his jaw, right hand, hip, and body against the passenger door and his knee against the dash. He reported that he saw his family physician that day and was prescribed pain medication.
10In the IE report by occupational therapist (“OT”) A. Bertolo, dated August 5, 2021, the Applicant reported that he “kind of” lost consciousness and struck his head on the door of the vehicle. He reported that he struck his right knee on the door and the dash and “twisted” it. He did not report any police or ambulance attended, but that a tow truck attended, and he went to the reporting centre and then to his family physician and prescribed pain medication.
11As documented in the August 10, 2022 IE report by Dr. G. Moores, neurologist, the Applicant reported that the airbags did not deploy, but the force caused him to strike the right side of his head and right shoulder on the window, break and undetermined amount of teeth, and lose consciousness. He also reported that he took himself to the hospital that evening where it was discovered that he fractured his pelvis, but he was discharged the next day.
12In the report of Dr. O. Safir, orthopaedic surgeon, dated November 30, 2022, the Applicant reported that he lost consciousness for an unspecified amount of time, did not attend the hospital, but went to his family physician that day and was given medication. He reported that it was discovered there that he had broken teeth.
13These conflicting reports demonstrate the Applicant’s inaccurate and inconsistent reporting of the accident and highlight the importance of reviewing a person’s documented health history to gain a clear understanding of the extent of the injuries sustained in the accident and the history of treatment received.
The Applicant has a significant health history
14The Applicant, a septuagenarian at the time of the accident, has a health history significant for a diskectomy/ lumbar fusion in 1972, and motor vehicle accidents in 1996 and 2013, for which he had an ongoing claim at the time of the subject accident. He has a history of osteoarthritis in his right knee, for which a total knee replacement was recommended as early as October 2013. He eventually had knee replacement surgery on August 7, 2020. He has type 2 diabetes and hypertension.
The Applicant initiated and withdrew a claim for a catastrophic determination
15Central to the Applicant’s application before the Tribunal was a dispute over whether he sustained a catastrophic impairment as a result of the accident. To determine the issue, the matter was Ordered to a 10-day videoconference hearing.
16The Applicant withdrew his claim for a catastrophic impairment determination at the outset of the hearing. The parties then resolved some of issues in dispute, and the remaining issues in dispute were listed and ordered to be heard in writing, dated February 7, 2023.
The Applicant’s submissions do not match the issues in dispute outlined in the Tribunal Order
17Despite the issues being listed in the Order dated February 7, 2023, the Applicant addressed issues that were not slated to be heard. The Respondent noted this in its submissions. The Applicant issued reply submissions, but never addressed the discrepancy between the issues he addressed and the issues in dispute – he never asked to issue fresh submissions, or to make submissions on issues he failed to address.
18Where possible, I have applied the Applicant’s submissions to the issues in dispute. Regardless, this is an extremely difficult task as the Applicant’s submissions neglect to address the reasons why he is entitled to the benefits. For the most part, his submissions repeat that he is claiming entitlement to certain benefits, and that they were denied by the Respondent.
ANALYSIS
19The onus is on the Applicant to demonstrate entitlement to the benefits claimed.
20For attendant care benefits, he must demonstrate that he incurred the expense and that the expense is reasonable and necessary as a result of the accident. For the medical and rehabilitation benefits, he must establish that they are reasonable and necessary as a result of the accident.
Attendant care benefits (“ACBs”)
21I find that the Applicant has not demonstrated that he is entitled to ACBs.
22Pursuant to section 19 of the Schedule, ACBs shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the Applicant, as a result of the accident, for services provided by an aide or attendant. Pursuant to section 3(7)(e), an expense, including the cost of an aide or attendant, is not incurred unless the Applicant received the goods and services to which the expense relates, the Applicant has paid the expense or promised to pay it, and the person who provided the services did so in the course of their employment, occupation or profession, or sustained an economic loss as a result of providing the services to the insured person.
23I prefer the report by occupational therapist (“OT”) A. Kaur, over the report of OT Zakrzewski. The report by OT Zakrzewski, dated March 29, 2019 includes no indication that any medical records were reviewed as a part of the assessment. This is a pivotal issue considering the Applicant’s long-standing health issues pre-dating the accident. OT Zakrzewski attributes all the Applicant’s perceived limitations to the subject accident, without any consideration for his pre-existing health status.
24In contrast to the report by OT Zakrzewski, the report by OT Kaur, dated June 26, 2020, included an extensive document review and consideration for the Applicant’s pre-accident status. In the report, OT Kaur noted that the applicant is able to perform his personal care duties, including transfers and mobility, despite complaints of pain, and an assessment of the Applicant’s range of motion demonstrated functional limits throughout his body. OT Kaur’s assessment included an extensive document review which is important in light of his pre-existing health status and recovery from accidents in 1996 and 2013.
25The Applicant has tendered no evidence or submissions indicating that he incurred ACBs. The Applicant claims entitlement to ACBs on the basis that they were recommended by OT R. Zakrzewski but tendered no evidence indicating that he incurred the expense, despite it being a requirement pursuant to section 3(7)(e). Additionally, the Applicant has provided no submissions or evidence to consider whether ACBs should be deemed to be incurred due to unreasonable withholding or delay, pursuant to section 3(8) of the Schedule. Moreover, I see no sign of unreasonable withholding or delay as the Respondent’s decision to deny ACBs is based on the report by OT Kaur, who is a qualified healthcare professional. These facts are sufficient to dismiss the Applicant’s claim for ACBs.
26Accordingly, I find that the Applicant has not demonstrated entitlement to ACBs.
$1,905.00 for a vision rehabilitation plan, dated December 8, 2022
27I find that the Applicant has not met his onus to demonstrate entitlement to this plan.
28The Applicant made no submissions addressing whether this plan is reasonable and necessary. The entirety of his submissions on the issue is that Dr. T. Polonenko, optometrist, diagnosed him with post-concussion/trauma vision syndrome that includes severe fusional vergence dysfunction, reduced visual spatial processing and processing speed, and visual perceptive deficits. The Respondent submits that this plan is not reasonable and necessary on the opinion of Dr. G. Moores, neurologist. In the August 8, 2022 report, Dr. Moores concluded that there was no quality evidence available to suggest therapeutic benefits regarding vision therapy for post-concussive syndrome.
29I find that a vision rehabilitation plan is not reasonable and necessary as a result of the accident. The Applicant has not demonstrated that he receives any ongoing benefit from vision rehabilitation. At the time this plan was submitted, the Applicant had completed 34 sessions, but his reported symptoms remain. It would be unreasonable to continue with ongoing therapy considering there is virtually no evidence of any benefit from vision therapy. This is in keeping with Dr. Moores’ opinion that there was no quality evidence available to suggest a therapeutic benefit regarding vision therapy for post-concussion syndrome.
30Accordingly, I find that the Applicant has not met his onus and is not entitled to this plan.
$9,982.00 for a rehabilitation support worker plan, dated June 25, 2020
31I find that the Applicant has not met his onus to demonstrate entitlement to this plan.
32The Applicant made no submissions addressing whether this plan is reasonable and necessary. The entirety of his submissions on the issue is that the plan proposes several rehabilitation support worker treatments like facilitation, cognition, learning, documentation support activities, milage to treatment, education, promoting health and preventing disease that was denied by the Respondent. The Respondent submits this plan was denied based on the multidisciplinary report, dated September 29, 2020. It submits that the Applicant’s injuries were deemed to be soft tissue in nature and any ongoing symptomology was attributed to his pre-existing condition.
33The Applicant has not directed me to any evidence to support his claim for entitlement to this plan. His submissions and failure to direct me to any evidence in support of the claim is insufficient for me to conclude that the plan is reasonable and necessary as a result of the accident.
$2,890.00 for a physiotherapy treatment plan, dated April 28, 2021,
$2,398.38 for a physiotherapy plan, dated May 31, 2021
$1,796.00 for a physiotherapy plan, dated March 1, 2022, and
$10,949.79 for occupational therapy plan, dated April 25, 2022
34I find that the Applicant has not met his onus to demonstrate entitlement to these plans.
35The Applicant made no submissions directly addressing whether these plans are reasonable and necessary. His submissions on these plans state that it was denied by the Respondent, and that physiotherapist Vander Veen, which the Applicant wrongly characterized as doctor, submitted plans for physical rehabilitation and an assessment. He noted that he underwent “TKA” and requires some post “TKA” physiotherapy. He never explained what TKA is and never directed me to any documents in support of this plan. The Respondent clarified that TKA relates to a total knee arthroscopy (replacement). It submits that the Applicant’s right knee replacement surgery is not accident-related and is due to his pre-existing osteoarthritis. The Respondent directs me to the report of Dr. D. Arora, dated June 30, 2021, and the CNRs from the Applicant’s treating physicians to support its position.
36I agree with Dr. Arora and find that the Applicant’s knee replacement surgery is not as a result of the accident. The Applicant’s right knee issues clearly pre-date the accident and the evidence does not indicate that the surgery was accelerated or in any way affected by the subject accident. Consultation notes regarding the Applicant’s right knee issues, leading to a total knee replacement, start as early as 2011. While the Applicant did not provide the CNRs from his knee specialist, Dr. K. Al Shakman, orthopaedic surgeon, certain comments have been included in the reports before me. Excerpts from the pre and post operative reports by Dr. Al Shakman attribute the Applicant’s right knee issues to severe osteoarthritis and not as a result of the accident.
37Accordingly, I find that the Applicant is not entitled to these plans because he has not met his onus to demonstrate they are reasonable and necessary as a result of the accident.
$4,746.00 for assistive devices proposed in a plan dated May 19, 2020
38I find that the Applicant has not met his onus to demonstrate entitlement to this plan.
39The Applicant made no submissions addressing whether this plan is reasonable and necessary. The entirety of his submissions on the issue is that the plan proposes $4,746.00 for devices such as a heat pad, thera band roll, a walker, bathtub seat, pill organizer, and an electric chair raiser, and the Respondent denied the plan in full. The Respondent submits that, according to the IE report of Dr. A. Gwardjan, physiatrist, dated April 20, 2020, the Applicant’s accident-related injuries had healed, and any ongoing symptomatology was related to his pre-existing condition.
40The Applicant has not directed me to any evidence to support his claim for entitlement to this plan. These submissions and failure to direct me to any evidence in support of the claim is insufficient for me to conclude that the plan is reasonable and necessary as a result of the accident.
$4,040.54 for a case manger services plan, dated June 25, 2020, and
$465.52 for a case manager services plan, dated March 5, 2021
41I find that the Applicant has not met his onus to demonstrate entitlement to these plans.
42The Applicant made no submissions addressing whether these plans are reasonable and necessary. The entirety of his submissions on the issue is that the plans propose $4,040.54 and $465.52 for case management that was denied by the Respondent, and that a case management report recommends continuous monthly case co-ordination to ensure the Applicant’s proper rehabilitation. The Respondent submits these plans were denied based on the multidisciplinary report, dated September 29, 2020. It submits that the Applicant’s injuries were deemed to be soft tissue in nature and any ongoing symptomology was attributed to his pre-existing condition.
43The Applicant has not directed me to any evidence to support his claim for entitlement to these plans. His submissions and failure to direct me to any evidence in support of the claim is insufficient for me to conclude that the plan is reasonable and necessary as a result of the accident.
44Additionally, case manager services are restricted to people who have sustained a catastrophic impairment as a result of an accident, or have purchased additional, optional, benefits, pursuant to section 17(1) of the Schedule. The Applicant has not tendered evidence that he is entitled to enhanced benefits and he withdrew his claim for a determination that he sustained a catastrophic impairment as a result of the accident. Accordingly, he would not be entitled to case manager services.
$2,486.00 for an attendant care needs assessment plan, dated September 16, 2020
45I find that the attendant care needs assessment plan is not permitted pursuant to section 42(12).
46The Respondent denied this plan pursuant to section 42(12) of the Schedule. It submits that the Applicant was barred form submitted a plan for an attendant care assessment pursuant to section 42(12) because it was more than 104 weeks following the accident and the Applicant had participated in an examination regarding ACBs as recent as June 15, 2020. This reason was provided to the Applicant in letters dated September 30 and November 9, 2020. The Applicant made reply submissions, but never addressed this issue.
47Section 42(12) of the Schedule states:
If more than 104 weeks have elapsed since the accident, the insurer shall not require an examination under section 44 to determine the insured person’s entitlement to attendant care benefits and the insured person shall not submit nor be required to submit an assessment of attendant care needs to the insurer unless at least 52 weeks have elapsed since the last examination under section 44 relating to entitlement to attendant care benefits.
48I find that section 42(12) applies and conclude the attendant care needs assessment plan is not reasonable and necessary as a result. The accident occurred on April 3, 2018, and the plan was submitted on September 16, 2020, more than 104 weeks after the accident. The last assessment of the Applicant’s attendant care needs prior to the submission of the plan was June 15, 2020. Therefore, the Respondent is correct in that the Applicant’s attendant care needs shall not be assessed within 52 weeks of June 15, 2020.
49Accordingly, I find that this plan was denied pursuant to section 42(12) of the Schedule, and the Applicant has not demonstrated that it is reasonable and necessary as a result of the accident.
The other issues addressed by the Applicant are outside of my jurisdiction
50In addition to the issues outlined above, it appears that the Applicant made claims for other benefits, including but not limited to:
i. Physiotherapy plans;
ii. The unapproved balance of catastrophic impairment assessment plans;
iii. A dental work plan;
iv. Form fees related to a treatment and assessment plan; and
v. The unapproved balances of two psychiatric treatment plans.
51In response, the Respondent outlined that the Applicant addressed issues that are unrelated to the matter, and that the correct list of issues is outlined in the Order, dated February 7, 2023. The Applicant made reply submissions, but chose not to address this issue.
52I find that the Applicant’s additional claims are outside of my jurisdiction for this hearing because they are not issues in dispute as outlined in the Tribunal Order, dated February 7, 2023, and it is unclear if they remain in dispute. As noted previously, this matter was ordered to a videoconference hearing, and then converted to a hearing in writing. The Order converting the hearing to one in writing outlined the issues in dispute as I have listed them for this hearing. The Order also indicates that other issues are no longer in dispute. By noting that some issues were no longer in dispute in the Order, I conclude that there was no error of the Tribunal when outlining the issues in dispute, and that the issues outlined in the Order, dated February 7, 2023, are an accurate reflection of the dispute between the Applicant and Respondent. Accordingly, I would be acting outside my jurisdiction to opine on the Applicant’s claims to these benefits.
The Respondent is not entitled to costs
53The Respondent requests its costs associated with this hearing, in the amount of $1,000.00.
54The Respondent submits that it is prejudiced by the Applicant’s untimely withdrawal of his claim for a catastrophic impairment determination. It further submits that it was prepared to proceed with the videoconference hearing, and had its witnesses prepared and ready to testify, and that it could have avoided significant time waste had the Applicant withdrawn his claim in a timely manner. It requests costs for this in the amount of $1,000.00.
55The Applicant, in reply, submits that he has not acted unreasonably, frivolously, vexatiously, or in bad faith to be penalized with costs. He submits that he has initiated a separate application with the Tribunal to address the issues that were withdrawn.
56Pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), a party may make a request to the Tribunal for costs where they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Costs requests shall set out the amount being requested, the reasons for the request, and the particulars of the other party’s conduct. The amount of costs shall not exceed $1,000.00 for each full day of attendance.
57I find that the Applicant’s withdrawal of issues in dispute is not grounds for costs. The Respondent has provided no authority compelling the Applicant’s to proceed with his claims, regardless of what stage the dispute is in. Further, the Applicant has not violated any of the Rules in his withdrawal of certain issues. Accordingly, I find no costs payable.
Interest
53Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no benefits are overdue and the Applicant is not entitled to interest.
CONCLUSION AND ORDER
54The Applicant has not met his onus to demonstrate entitlement to the benefits claimed. No interest is payable as no payments went overdue.
55Neither party is entitled to costs.
56The Application is dismissed.
Released: December 20, 2024
Brian Norris
Adjudicator