Licence Appeal Tribunal File Number: 22-006511/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:
Dale Hewitt
Applicant
and
Halwell Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Tim Gillibrand, Counsel
HEARD: By way of written submissions
OVERVIEW
1Dale Hewitt, the applicant, was involved in an automobile accident on May 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Halwell Mutual Insurance Company, 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 $1,995.51 for an attendant care assessment, proposed by Pursuit Health Management in a treatment plan ("OCF-18") submitted June 30, 2020 and denied July 14, 2020?
ii. Is the applicant entitled to $7,006.00 for a physiatry assessment, proposed by Dr. Kumbhare, in an OCF-18 submitted December 17, 2020 and denied December 29, 2020?
iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the OCF-18s in dispute, or interest.
4The respondent is not liable to pay an award.
ANALYSIS
5Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
6The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.
Background
7The applicant argues that as a result of the accident, he sustained impairments to his neck, low back and right knee. While his neck and low back pain resolved in the years post-accident, the applicant submits that his right knee pain developed into chronic pain, citing the s. 25 physiatry assessment report of Dr. Dinesh Kumbhare, dated November 2, 2021. A September 28, 2016 MRI conducted soon after the accident revealed a complex tear of the medial meniscus and a joint effusions with recent rupture of Baker's cyst. The applicant argues that the accident was the cause of his knee injury, which has led to ongoing knee pain, restrictions in standing, walking, going up and down stairs, sitting, driving and in completing a number of household tasks.
8The respondent submits that the accident was not the cause of the applicant's right knee meniscal impairment. It relies on a March 1, 2017 consultation report from an OHIP-funded orthopaedic surgeon, who noted that meniscal tears on MRIs tended to increase with a patient's age and that based on the applicant's self-reports, the meniscal tear may not be the cause of his symptoms. The respondent further relies on the s. 44 chiropractic report of Dr. Mazzarella, dated October 4, 2018, who opined that it was more likely than not, that the meniscal tear and Baker's cysts pre-dated the accident and were related to osteoarthritic changes.
9The respondent further argues that the medical records show limited reports of accident-related impairments after 2017 and that surveillance evidence conducted in October 2020, June 2022, and August 2023 show the applicant involved in a number of physical activities. It submits that the applicant already suffered from functional restrictions pre-accident. In an ODSP application completed in March 2016 just a few months before the accident, the applicant was identified as having arthritis in the neck, lumbar spine and knee and was moderately restricted in his ability to walk more than three blocks, climb or descend stairs. As such, the respondent argues that other than the applicant's self-reports to Dr. Kumbhare, there is no evidence of ongoing accident-related functional impairments.
Causation
10The parties provided extensive submissions on the cause of the applicant's right knee impairment, his most significant symptom. The respondent submits that the applicant's meniscal tear was not caused by the accident. The applicant argues that the respondent improperly relied on the s. 44 chiropractic assessment of Dr. Mazzarella to deny his claim. He submits that as a chiropractor, Dr. Mazzarella is not qualified to conduct a crash forensics analysis or to legally or medically provide a causation opinion.
11The test to determine causation is the "but for" test, one that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that he would not have suffered the injuries "but for" the accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a "necessary" cause.
12I agree with the applicant that the accident was a "necessary" cause of his right knee pain after the accident. While I agree with the respondent that it is unclear whether the accident directly caused the applicant's meniscus tear, I find that the medical record establishes that the applicant's right knee was asymptomatic prior to the accident. Immediately after the accident, for a period of approximately two years, the applicant reported ongoing right knee pain and sought treatment for such pain. I further am persuaded by the opinion of Dr. Kumbhare who found that even if a component of the applicant's symptoms were degenerative in nature, the accident "likely contributed to an aggravation of underlying degenerative changes".
13As such, I find that the applicant has led sufficient evidence linking his right knee pain, to the accident.
The OCF-18 for an attendant care assessment is not reasonable and necessary
14The applicant submitted an OCF-18 on June, 30, 2020 identified in the Case Conference Report and Order as an attendant care assessment, with the stated goals of: assessing supports required in the home to facilitate recovery, pain reduction, increased range of motion and return to activities of normal living. The applicant concedes that as his accident predated the June 1, 2016 amendments to the Schedule, he is subject to s. 20(2) of the historical version of the Schedule, which held that attendant care benefits are not payable beyond 104-weeks post-accident.
15While the applicant concedes that attendant care benefits would not be available to him, he argues that only $299.95 of the requested $1,995.51 was for the completion of a Form 1. Rather, he submits that the OCF-18 was unfairly labelled as an attendant care assessment, when in fact the outstanding balance was for an occupational therapy assessment to document the applicant's status and to further recommend treatment, supports, aids and services. He notes that the stated goals of the plan included pain reduction, increased range of motion and a return to activities on normal living.
16The respondent argues that the submitted OCF-18 was clearly intended exclusively for an attendant care assessment. It was identified as such at the case conference and the respondent argues that it is unrealistic for the applicant to argue that an attendant care assessment and Form 1 completion would be completed for only $299.95. It further argues that the applicant has not led sufficient evidence of accident-related functional restrictions, given that he was already restricted in his activities pre-accident. As such the applicant has not established that an occupational assessment is needed more than four years post-accident.
17I find that the applicant has not met his onus to prove that the OCF-18 in dispute is reasonable and necessary.
18Firstly, I agree with the respondent that the OCF-18 was identified in the Case Conference Report and Order as an attendant care assessment. It was noted in the OCF-18 that the attendant care assessment would be retroactive and "could involve multiple Form 1's for the 104 week period, post accident". While I agree with the applicant that a portion of the OCF-18, being $249.38, was identified as an in-home occupational therapy assessment, the remaining amounts were identified as being file review, documentation support activity in addition to the attendant care assessment. In my view, at least a portion of these additional fees would have been to support the attendant care assessment.
19However, even with respect to the occupational assessment portion of the OCF-18, I find that the applicant has not established that such an assessment is reasonable and necessary. I do not find that the applicant has met his onus to prove that at the time the OCF-18 was submitted, more than four years post-accident, he suffered from accident-related functional impairments which prevented him from completing his tasks at home.
20After June 2018, there is very limited evidence in the evidentiary record of ongoing right knee pain or functional limitations. The clinical notes and records ("CNRs") from the applicant's walk in clinic indicate that from 2016-2017, the applicant consistently reported right knee pain to Dr. Conte and was referred to an orthopaedic surgeon. He also sought treatment at the Kitchener Rehabilitation Clinic from October 2016 to June 2018. However, from June 2018 onwards, the medical record does not establish that these impairments and pain reports continued.
21From my review of the subsequent CNRs from the applicant's walk in clinic, he complained of right knee pain only once to his family physician in December 2019. The applicant reported twisting his right ankle while getting out of his truck for "one month" and reported ongoing knee pain. I am not directed to any other right knee complaint until the November 2, 2021 s. 25 physiatry assessment of Dr. Kumbhare. The applicant argues that the reason why the medical record lacks reference to the accident post-2018, is because the respondent's repeated denials limited his ability to seek treatment. I am not persuaded by the applicant's argument. The applicant continued to attend his walk-in clinic in the years post-2017 for unrelated medical reasons. However, other than one entry, right knee pain and impairments were not referenced.
22Nor do the CNRs of the applicant's walk in clinic establish accident-related functional impairments. The applicant does not direct me to any CNR entry post-accident where he reported an inability to complete tasks. The applicant relies in large part on the physiatry assessment of Dr. Kumbhare and points to his reports of limited walking and standing tolerance, and pain caused by climbing stairs or when performing activities such as bed making, grass cutting, gardening and snow shovelling. However, I agree with the respondent that the applicant had provided a differing account of his pre-accident functionality to Dr. Kumbhare.
23The applicant reported to his assessor that prior to the accident, he biked and walked long distances and had not reported "any difficulty or limitations performing household duties". However, the ODSP application completed in March 2016 just a few months pre-accident already identified moderate restrictions in the applicant's ability to complete household tasks, and severe restrictions in walking more than three blocks, climbing or descending stairs. Although the applicant argues that this March 2016 ODSP application was related to his mental health, it also identified arthritis in the neck, lumbar spine, feet and knee, which would have affected his ability to complete physical tasks.
24Further, I note the respondent's surveillance evidence, conducted in October 2020, where over a period of three days the applicant was observed collecting and dropping off scrap metal at recycling facilities, carrying/lifting heavy items such as a bathtub, raking leaves and using his right leg to move the pile. I find that based on the record before me, the applicant has not provided persuasive evidence as to why an in-home occupational assessment is required four years post-accident.
The OCF-18 for a physiatry assessment is not reasonable and necessary
25The applicant submitted an OCF-18 in the amount of $7,006.00 for a physiatry assessment, which the applicant subsequently incurred in the amount of $5,650.00. The applicant concedes that pursuant to s. 25(5) of the Schedule the amount payable for an assessment is limited to $2,000.00, plus HST. The applicant further submits that he should be entitled to the cost of the OCF-23 and OCF-18 preparation.
26With respect to the reasonableness and necessity of the OCF-18, the applicant argues that his ongoing knee pain and functional limitations warranted the physiatry assessment. The applicant further submits that where there is a reasonable possibility of impairment, assessments are reasonable and necessary, which is "an extremely low bar to meet". He relies on Tribunal decision L.F.B. v. Intact Insurance Company, 2021 CanLII 48377 (ON LAT) in support of his claim.
27I am not persuaded by the applicant's argument. As previously noted, I did not find that the objective medical record established that in December 2020 the applicant suffered from chronic right knee pain or accident-related functional limitations sufficient to warrant additional assessments. Further, I do not agree with the applicant that the test for entitlement to an assessment is an "extremely" low bar.
28In determining whether an assessment is reasonable and necessary, I note that assessments are, by their nature, speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. In December 2020, at the time the OCF-18 for the physiatry assessment had been submitted, the applicant had not reported knee pain to his treating physician for more than three years, outside of one report on December 20, 2019. I agree with the respondent that the applicant's lack of medical attendances post-2017 does not support an ongoing impairment necessitating a physiatry assessment.
Award
29The applicant sought an award under s. 10 of Regulation 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. As no benefits are outstanding, the applicant is not entitled to an award.
ORDER
30For the foregoing reasons I find that:
i. The applicant is not entitled to the OCF-18s in dispute, or interest.
ii. The respondent is not liable to pay an award.
Released: August 16, 2024
Ulana Pahuta
Adjudicator