Licence Appeal Tribunal File Number: 22-010293/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:
Christopher Gunraj-Sturgess
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Emily Morton
APPEARANCES:
For the Applicant:
Sherilyn Pickering, Counsel
For the Respondent:
Patricia M. Hill, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1Christopher Gunraj-Sturgess, the applicant, was involved in an automobile accident on September 20, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the Schedule). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the Tribunal) for resolution of the dispute.
ISSUES
2According to the motion order released February 21, 2024, there is one issue remaining in dispute:
i. Is the applicant entitled to $3,528.83 for occupational therapy services proposed by Complex Injury Rehab in an OCF-18 submitted on January 31, 2023 (the treatment plan)?
RESULT
3I find the applicant has not demonstrated entitlement to the treatment plan.
ANALYSIS
Overview
4The parties argue the central issue on this application is whether the motor vehicle accident is the cause of a worsening of the applicant’s pre-existing physical and psychological impairments. The applicant has a diagnosis of global developmental delay, autism spectrum disorder and a seizure disorder. He is 36 years old, but, in the submissions and evidence, his capacity is described as that of “a toddler.” He is non-verbal and has hearing impairments. His grandparents have cared for the applicant since his infancy, and he is dependent upon them for all daily tasks of living, including hygiene, toileting and feeding.
5On September 20, 2017, the applicant was seated in the front passenger seat of his grandfather’s parked car when it was struck from behind by another vehicle. According to the applicant’s grandfather, the applicant fell to the floor of the car and lost consciousness. He was bleeding from his nose and mouth. The applicant’s grandparents took him to the emergency room, but he ultimately was not seen due to his fear of medical staff. The family went home and gave the applicant Tylenol.
6The applicant applied for a catastrophic impairment (CAT) determination. As a result, a number of assessments were completed, which form much of the evidence in support of the present application, along with transcripts of examinations of the applicant’s grandparents before a different adjudicator of the Tribunal when the CAT determination was at issue. Ultimately, the parties withdrew the CAT issue.
7The treatment plan at issue here is for modifications to the applicant’s grandparent’s home. On January 31, 2023, Richard Chui of Complex Injury Rehab Inc. submitted the treatment plan that is the subject matter of the application. The treatment plan recommends the installation of a promenade handrail at a cost of $1215.00, grab bars for safety with transfers ($300.00) and a padded swivel bath stool ($70.98) along with delivery and installation and documentation and support for the claim. The treatment goals are stated to be “safety in the home” and “access of the community.” The report provides a number of recommendations to significantly renovate the applicant’s grandparents’ residence to accommodate the applicant’s needs.
8Though the application relates to only one treatment plan, the applicant submits this determination has “wide ranging implications” for his overall accident benefits claim as it requires the resolution of the issue of causation. I note at the outset that while the parties both submit the main issue on this application is causation, the core issue for me to decide is whether the treatment plan at issue is reasonable and necessary.
Parties’ Positions
9The applicant submits the accident is a significant contributing cause of his physical and psychological impairments. A home accessibility expert assessed the applicant’s home and in a report dated June 30, 2022 found it was not suitable for the applicant’s impairments. He recommended installation of commercial grade handrails on staircases the applicant uses, as he had damaged and pulled out fixtures in the home. The accessibility expert also recommended building a bathroom with sufficient size to accommodate the applicant and his attendants, a walk-in shower with a bench to allow seated showering and reinforced walls to facilitate grab bar installation for support. The applicant argues that the treatment plan in dispute represents the most important modifications recommended.
10The applicant submits that that the evidence establishes his behaviour, which includes damaging property within the residence, worsened because of the accident and this makes the installation of commercial grade handrails and grab bars reasonable and necessary. He also submits his seizure disorder has worsened in terms of the frequency and severity of seizures as a result of the accident. The applicant argues the evidence shows his dependency needs, such as help with toileting, have also increased as a result of the accident. The applicant’s submissions also highlight evidence that, the applicant argues, demonstrates a change in his communication, social behaviour and interest in pastimes since the accident.
11The respondent submits the goods recommended are not reasonable and necessary to treat the impairments identified by the applicant, as these impairments were not caused by the accident. The respondent argues there is evidence the applicant’s behavioural challenges presented themselves before the accident, and evidence of worsening behaviour is based on unreliable, subjective reports of the applicant’s grandparents. The respondent further submits the evidence is that the applicant’s seizure disorder has not, in fact, worsened since the time of the accident, and, moreover, the medical evidence is that the injuries the applicant suffered in the accident do not contribute to a worsening of a seizure disorder, if there has been any.
12Overall, for the reasons that follow, I find the applicant has not met the burden of establishing the treatment plan is reasonable and necessary to treat his impairments. Though the parties structure their arguments around causation, I find that there is not sufficient evidence the grab bars and handrail proposed in the treatment plan are reasonable and necessary goods to treat the applicant’s physical and psychological impairments. On the matter of causation, I find there is reliable evidence the applicant experienced the behavioural issues prior to the accident, and that reports of the exacerbation of these impairments post-accident contradict other evidence. Similarly, I find the applicant’s grandparents’ reports of the post-accident worsening of the applicant’s seizures are inconsistent with other cogent evidence about his pre-accident behaviour. Moreover, I find the applicant has not led medical evidence to establish that, even if there has been an increase in seizure activity following the accident, the accident is the cause of the increase. Instead, I find the respondent has led medical evidence that the motor vehicle accident is not the cause of the increase in seizure activity, if there is any.
Legal Test
13To receive payment for a treatment and assessment plan under ss. 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. To do so, the applicant should identify the goals of the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
14With respect to causation, the applicant is required to prove on a balance of probabilities that his impairments were caused by the accident. The parties agree that the applicable test in making this determination is the “but for” test: whether the applicant would have had the impairments but for the accident: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). The motor vehicle accident need not be the major or only cause of the impairments at issue but it must be a “necessary cause”: Sabadash at para. 39.
Evidence and Analysis
15There is no dispute the applicant lived with significant impairments prior to the accident, which included impulsive and unpredictable behaviour, the need for assistance with personal hygiene and daily tasks of living, as well as seizures. The issues to be decided are whether the applicant’s impairments in fact worsened after the accident, and, if so, whether the accident was a necessary cause of their worsening. I will consider the evidence as to whether the applicant’s impairments worsened after the accident, and the evidence as to whether the accident was the cause of their worsening, if any, under two separate headings: evidence relating to the applicant’s physical impairments, including his seizure disorder, evidence of falling and pain complaints, and the evidence relating to the psychological impairments affecting his overall behaviour and activities of daily living.
Physical Impairments: Seizure Disorder, Falls and Pain
16Most of the evidence related to the applicant’s physical impairments, and the submissions on how they worsened following the accident, result to his seizure disorder. The applicant has a seizure disorder that pre-dated the accident. While there is some reference to the applicant experiencing seizures at an early age, the evidence before me focuses on seizures the applicant began to experience approximately five years before the accident.
17The evidence relating to frequency and extent of the applicant’s seizures pre-accident is limited. On July 14, 2016, the applicant saw a consultant neurologist, Dr. Gawel, who wrote in his consult note that, in 2013, the applicant began having “seizures for generalized tonic clonic seizures getting about 2 or 3 a week.” The note states the applicant has been having seizures in his sleep every two weeks, and had a generalized tonic clonic seizure on June 16, 2016. Dr. Gawel tried to get a CT scan and EEG, but was not able to. He prescribed Epival syrup for the seizures. The evidence is the applicant took one teaspoon of Epival syrup three times a day for his seizure prior to the accident, as prescribed by Dr. Gawel.
18Other than the July 14, 2016 note from Dr. Gawel, the evidence relating to pre-accident seizures arises from the reports of the applicant’s grandparents, and, on one occasion, his older sister. In his evidence before the Tribunal, the applicant’s grandfather stated the applicant had seizures at a frequency of “probably every three months or so” prior to the accident. The applicant’s grandfather described the seizures as the applicant becoming motionless and drooling quite a lot. His evidence was they lasted for about six to seven hours. The applicant’s grandmother’s evidence was that the applicant suffered from seizures before the accident, but “not as much”, and that he had a seizure approximately once a month before the accident.
19In other records before me, based on reports from the applicant’s grandparents and sometimes his sister, the reported frequency of the pre-accident seizures varies considerably. A January 9, 2019 report by Dr. Solomon, a clinical neuropsychologist, states the applicant’s grandfather reported seizures occurring once a month prior to the accident. In a psychiatric assessment by Dr. Wiesenthal, dated April 29, 2021, the report was the applicant had seizures once or twice a month prior to the accident. In a neurological assessment by Dr. Basile, dated August 29, 2019, the pre-accident frequency of seizures is reported as “once every 2 weeks or so.” In an ADL functional assessment by Mr. Pritchett, an occupational therapist, dated June 8, 2021, the report is the applicant had seizures approximately once every three months prior to the accident. The report described the seizures as lasting for approximately two hours, when the applicant becomes unresponsive. In a physiatry assessment by Dr. Berbrayer, dated November 27, 2020, the report from the family was the seizures occurred once every few months prior to the accident. There is a May 2016 record entry by Tammy Douglas, the lead contact at through the Community Care Access Centre (“CCAC”), who notes a report of the applicant having seizures that have increased to two times weekly.
20The applicant submits his seizures became worse following the accident. A month after the accident, Dr. Gawel saw the applicant and increased the dose of Epival syrup to two teaspoons, twice a day, on October 26, 2017. He wrote in his consultation letter that the applicant “… had a seizure. However, his situation is much better than before. He is quite agitated at times. I’m not sure I can help with this you might want to send him to a psychiatrist. I have increased the Epival to two teaspoons twice a day.” There is a further consult note from Dr. Gawel, dated January 19, 2023, which states the applicant “is still having seizures at night about twice a month.” Dr. Gawel increased the dose of Epival to five teaspoonfuls a day.
21The balance of evidence regarding the post-accident increase in seizure activity is from the reports of the applicant’s grandparents to assessors, and their evidence before the Tribunal on February 8, 2023. The applicant’s grandfather testified that, following the accident, the seizures increased to two to three times a month. The applicant’s grandmother’s evidence was the seizures increased to two or three a month following the accident.
22The assessment reports in evidence, which record the applicant’s grandparents’ reports of the post-accident increase in the frequency of seizures, are also inconsistent on the rate of that increase. In a November 17, 2017 service coordination consult assessment report from Surrey Place Centre, the applicant’s grandfather reported he had a seizure once a week following the accident. In Dr. Solomon’s 2019 report, the frequency of post-accident seizures is reported as once per week. In Dr. Basile’s neurological assessment, dated August 19, 2019, the frequency of seizures is noted as “once ever other day.” In a July 27, 2021 report from Mr. Chui, an occupational therapist, the reported increase in seizure frequency is noted as “2x in the past 6 months.” In the November 2020 physiatry assessment of Dr. Berbrayer, the increase is reported to “several times per week.” The applicant’s grandfather described in an occupational therapy session in September of 2019 that the applicant suffered four seizures in the past three weeks. In an occupational therapy assessment completed on November 26, 2020 by Ms. Lalani, the applicant’s sister reported the seizures had increased since the accident and could occur two to three times a week.
23The applicant and respondent each point to medical opinions in the material relating to whether the motor vehicle accident caused the increase in seizures, if there was any. The applicant points to the neurological medical assessment report of Dr. Basile, dated August 29, 2019. Dr. Basile received the reports of the applicant’s grandparents on their increased frequency, reviewed the 2016 consultation notes of Dr. Grewal and conducted a physical examination. In Dr. Basile’s report, there is a reference to the applicant seeing Dr. Unarket for his seizures, though there is no reference to any notes or records of Dr. Unarket, nor are any in evidence.
24Dr. Basile concluded the applicant had symptoms of neck pain, low back pack pain, likely headaches and behavioural changes with likely post concussive syndrome. He stated the “exacerbation of his seizure frequency and severity is also a likely direct versus indirect consequence of the motor vehicle accident either due to direct impact to the brain or sleep deprivation secondary to pain.” The report goes on to state that the likely accident related diagnoses include, but are not limited to, post concussive syndrome and posttraumatic headaches, though the report does not link the reported increase in seizures to these diagnoses. The diagnosis with respect to seizures states only that there is “exacerbation of his seizures post-impact”, and that they have “increased in frequency since the accident.”
25The respondent relies on two medical reports prepared in the course of the CAT assessment to support its position that the motor vehicle accident did not cause an increase in the applicant’s seizures, if, in fact, there has been any increase. Dr. Ranalli, a neurologist, conducted a catastrophic neurology file review, with a report issued June 21, 2022. The review included Dr. Gawel’s July 14, 2016 consultation note and an April 9, 2019 MRI of the applicant’s head. The MRI report found that, on the balance of probabilities, its results represented previous traumatic brain injury. Dr. Ranalli concluded:
The claimant’s MRI brain scan of April 9, 2019, shows evidence of intracranial pathology of unknown age. Without pre-accident images for comparison or images contemptuous (sic) with the date of loss, it is difficult to determine if the previous haemorrhages are as a result of the subject motor vehicle accident from September 2017.
In my opinion, the accident did not contribute significantly to the reported slight increase in seizure frequency. As a rule, closed head injury does not lead to seizures. Also, surface cortical injury can lead to seizures, but the reported blooming aretefacts (e.g. previous haemorrhages) are located deeper in the brain.
26Second, the respondent points to the report of Dr. Oshidari, a physical medicine and rehabilitation specialist, who issued a report on July 21, 2021. Dr. Oshidari considered the applicant’s pre-existing seizure disorder and the reports of increased seizures. He noted that, according to the neurology assessment, there were no injuries as a result of the subject accident which could be contributory to an increase in his seizure activity. Dr. Oshidari opined that:
…the nature of the accident cannot explain the deterioration of function of this individual. We have to consider this patient has a history of significant autism. There is a significant history of seizure disorder. I expect over time all of these symptoms with the aging process will be increased. Also, we have to consider if the person has a history of seizure disorder, with any seizure, unfortunately, they are going to cause some more deterioration of cognitive and function of the person.
27In submissions, the applicant also refers to an increase in falling since the accident. The evidence with respect to falls is limited and it is unclear whether the falls are related to the applicant’s seizure disorder. The applicant’s grandfather reported to Mr. Chui of Complex Injury Rehab in July of 2021 that the applicant had five falls over the past six months and multiple near falls where he was required to use his upper extremities for support. The report goes on to state the applicant has a history of recent falls and continues to be at risk of recurrent falls, particularly with stairs or uneven or slippery surfaces. This report does not link the falls to the seizure disorder. The June 30, 2022 Home Accessibility Report states the applicant’s “seizures are more frequent and he falls forwards and backwards more often”. The report recommends home safety modifications, including handrails for stairs, as the applicant “has demonstrated an increased number of falls and remains at a high risk of falls since the accident.” While this report refers to an increased frequency in falls since the accident, there are no reports of increased falls recorded in any of the numerous medical reports submitted by the parties.
28I find the applicant has not met the burden of demonstrating the goods recommended in the treatment plan are necessary to treat accident related physical impairments. The goods are the purchase and installation of handrails for the stairs and grab bars and a stool for the bathroom. These goods are, for the most part, recommended to treat the applicant’s psychological or behavioural impairments. To the extent they are recommended to treat physical impairments associated with the applicant’s seizure disorder and falling, the evidence is limited. In the July 27, 2021 report of Mr. Chui of Complex Injury Rehab (who authored the treatment plan at issue) there is only a recommendation for further assessment of environmental modifications to increase safety in the home. This report does not link the need for environmental modifications to the applicant’s seizure disorder, nor any reports of pain. The report states the applicant has a history of recent falls, considers his grandparents’ report of having five falls in the past six months, and finds he could benefit from supervision with mobility and transfers.
29The June 30, 2022 Home Accessibility Report authored by Mr. Baum considers information that the applicant’s seizures are more frequent and he falls forwards and backwards more often. This report recommends home safety modifications, including handrails for stairs, in part because the applicant “has demonstrated an increased number of falls and remains at a high risk of falls since the accident” and recommends home safety modifications. The only falls in this report between the applicant’s seizure disorder and falls is that “his seizures are more frequent and he falls forwards and backwards more often.”
30There are no references in either the Complex Injury Rehab report or the Home Accessibility Report recommending these goods being recommended in relation to the reports the applicant experiences pain which he indicates by pointing to his back and asking for anti-inflammatory cream to be applied.
31The parties did not make submissions about whether the goods proposed are reasonable and necessary to treat the applicant’s physical impairments. At most, I find the installation of a stair handrail and grab bars in a bathroom may treat safety risks that arise from the applicant falling when he experiences the onset of a seizure. However, the evidence before me is that when the applicant experiences seizures he is “unresponsive” and is “almost motionless.” The applicant’s grandfather’s evidence is that when he has a seizure, the applicant “doesn’t shake” and “lies down quietly and drools” for periods of up to seven hours. Where there are references in the Complex Injury Rehab report to the applicant falling, these are not linked to the onset of seizures in the report. I therefore conclude the installation of a handrail and grab bars is not, on the balance of probabilities, reasonable and necessary to treat physical impairments associated with the seizure disorder.
32Moreover, I find that the applicant has not met the burden of demonstrating that the motor vehicle accident is a necessary cause of an increase in seizures. First, the evidence as to the overall frequency of seizures, both before and after the accident, is inconsistent. The reports of the pre-accident frequency of seizures varies greatly. In evidence before the Tribunal in 2023, the applicant’s grandfather recalled the frequency of post-accident seizures as once every three months, while his grandmother recalled they occurred once a month. In the medical reports and other records summarized above, the reported frequency of the applicant’s seizures varies from “once every 2 weeks or so” to once a month to every three months.
33On the other hand, contemporaneous records describe the seizures as occurring more frequently pre-accident. Dr. Grewal’s first note, dated July 14, 2016, indicates the report was of two or three generalized tonic clonic seizures a week, with the applicant having seizures in his sleep every two weeks. A May 2016 assessment from the CCAC notes a report of the applicant having seizures that have increased to two times weekly.
34The post-accident reports are similarly inconsistent, and I find they do not provide reliable evidence that there has been a marked increase in seizures as a result of the accident. Dr. Grewal saw the applicant post-accident on October 26, 2017. He wrote in his consultation letter that the applicant’s situation “is much better than before.” I acknowledge Dr. Grewal increased the dose of medication to treat seizures by one teaspoon per day following that consult. However, I cannot find, based on the balance of evidence regarding the change, if any, in the frequency of the applicant’s seizures, that this increase in dosage establishes a causal link between the accident and any increase. There is no explanation in Dr. Grewal’s note that there has been an increase in seizures and his note states the applicant is better than before. In considering the significance of the increase in dose, I also draw upon Dr. Oshidari’s opinion that there is an expectation that symptoms, including seizures, will be increased with the applicant’s aging process.
35The balance of reports by the applicant’s grandparents as to the frequency of the applicant’s seizures in the years following the accident are inconsistent. In their evidence in February 2023, the applicant’s grandparents stated the seizures increased to two to three times a month following the accident. However, in the reports to Surrey Place Centre in 2017 and Dr. Solomon in 2019, the frequency is noted as once a week; to Dr. Berbrayer in 2020, the report is several times a week; and, in a report to an occupational therapist in November of 2020, the frequency is noted as two to three times a week. Finally, in Dr. Gawel’s January 19, 2023 consultation note, the report is the applicant has seizures at night, twice a month.
36I am left with an evidentiary picture that is very inconsistent. The pre-accident level of seizures is described as occurring as infrequently as once every three months, in the applicant’s grandfather’s evidence, while Dr. Grewal’s 2016 note indicates a report they occurred as often as two to three times a week, with seizures during sleep every two weeks. A note from a CCAC worker in 2016 indicates a report the seizures had increased to twice a week. I am not able to conclude, based on the information before me, that there has been an increase in seizure activity. While the applicant’s grandparents undoubtedly reported a subjective perception that the seizure activity had in fact increased, when these reports are compared with the contemporaneous pre-accident records of Dr. Grewal and the CCAC worker, I am left in significant doubt about whether there has been an increase in seizure activity.
37I note again the description of post-accident seizure frequency varies among the different reports. In 2017, in the month following the accident, Dr. Grewal saw the applicant and wrote that his situation “is much better than before.” Dr. Grewal did increase the medication by one teaspoon a day following that visit but does not state why. In January 2023, Dr. Grewal saw the applicant again, when seizures were reported as occurring at night two times a month. This diverges from the descriptions in 2020 to the physiatrist that the seizures occurred several times a week, and to an occupational therapist that they occurred two to three times a week.
38Therefore, I find that while the applicant’s grandparents provided multiple, subjective reports to assessors of an increase in seizure activity since the accident, the records do not provide persuasive evidence there has, in fact, been an increase in seizures. I place particular weight on the contemporaneous, pre-accident reports of Dr. Grewal and the CCAC worker that the family reported a pre-accident occurrence of seizures up two or three times a week. This is difficult to reconcile with the evidence of the applicant’s grandparents, given in 2023, that the pre-accident seizures occurred as infrequently as once every three months. I therefore find the applicant has not met the burden of demonstrating there has been an increase in seizures post-accident.
39I place limited weight on the medical evidence relied on by the applicant that states the accident was a direct cause of an increase in seizure activity following the accident. While the applicant has filed multiple reports which describe an increase in seizure activity, this is based on the reports of the applicant’s grandparents, which I have found do not accord with other evidence I find reliable and have accepted. The only opinion in the applicant’s evidence as to a causal connection between the accident and increased seizure activity is from Dr. Basile’s report, which contains a conclusory statement that the accident was likely a direct cause of increased seizure activity. In contrast, Dr. Ranalli’s opinion refers to the applicant’s MRI brain scan, and states it is difficult to determine whether brain injury is the result of the motor vehicle accident. Dr. Ranalli’s report goes on to explain that “as a rule closed head injury does not lead to seizures” and opines that the accident did not contribute significantly to the reported increase in seizures. I find that Dr. Ranalli’s opinion, unlike Dr. Basile’s conclusory statement about causation, contains greater explanation for his conclusion on the lack of relationship between the applicant’s seizures and his injury in the accident.
40For these reasons, I have concluded the applicant has not met the burden of demonstrating the accident is a necessary cause of an increase, if any, in his pre-existing seizure disorder.
Psychological Impairments: Behaviour
41The applicant submits that, while he was dependent on caregivers and exhibited unpredictable and sometimes aggressive behaviour prior to the accident, this dependence and behaviour has worsened since the accident. The applicant points to notes and records from caregivers, as well as reports from his grandparents, and argues that they evince a pattern of worsening behaviour, such as an increase in damaging property in the home and in spitting at caregivers and others, following the accident.
42The respondent points to records that demonstrate the applicant’s grandparents were struggling with the applicant’s violent and disruptive behavior before the accident. In particular, there are contemporaneous pre-accident records that indicate behaviours at the problematic level the applicant’s grandparents now describe post-accident. The respondent also points to the applicant’s grandparents’ evidence before the Tribunal in February of 2023, arguing that each caregiver’s evidence was misleading and downplayed the extent of the applicant’s pre-accident behaviour issues. This, in turn, impacts the reliability of their reports that there has been an increase in the applicant’s impulsive and aggressive behaviour post-accident.
43While the parties have framed their submissions in terms of causation, I must consider whether the actual treatment plan at issue is reasonable and necessary to treat the applicant’s impairments. I find the goods recommended in the treatment plan are not reasonable to treat much of the behaviour described in the evidence and submissions. The applicant’s submissions refer to impulsive behaviour such as spitting at or hitting caregivers, which has also resulted in a reduction in social activity. The applicant has made no submission as to how the proposed goods treat this aspect of his impairment, and I find there is none.
44However, the goods recommended in the treatment plan may be reasonable and necessary to treat his aggressive behaviour to the extent reinforced handrails and grab bars in the home treat the applicant’s destruction of household property. This is the main basis that the Home Accessibility Report recommends the installation of these goods. The assessor wrote that commercial-grade and/or durable furniture and fixtures should be installed in the home because the applicant “has demonstrated an increased tendency to damage household items and break housewares since the accident, requiring commercial-grade and/or more durable options to reduce the need for frequent repairs and/or replacement.” The report notes that since the accident there have been multiple repairs to the home including replacement of a faucet, installation of a grab bar in place of a towel bar and replacement of household wares. Taking the fact the applicant’s destruction of household fixtures has increased because of the accident at face value, I would find the professional installation of commercial grade handrails and grab bars reasonable and necessary to achieve the treatment goal of household safety.
45However, even if the goods are reasonable and necessary to treat these behavioural issues, I find that the applicant has not met the burden of demonstrating the described behaviours or increase in behaviours was caused by the accident. I recognize that the numerous assessments, records and reports relied upon by the applicant state that challenges with his behaviour have increased post-accident. However, these assessments are based on the reports of the applicant’s grandparents that his behaviour has worsened. These reports are contradicted by contemporaneous, pre-accident records that document similarly challenging behaviour.
46The applicant relies on several sources to support the argument that the applicant displayed increased behavioural difficulties following the accident. The applicant points to the Surrey Place Centre Service Consult Assessment Report, dated November 17, 2017, which records the applicant’s grandfather’s information during a home visit that the applicant had behaviour problems, including spitting and temper tantrums. The applicant also refers to the Minimum Home Data Set, completed by Tammy Douglas on March 23, 2018, which states that the applicant grabs, throws and easily breaks items in the home, causing his grandparents to have to repurchase items. The note states that the applicant’s grandparents have found the applicant’s behaviour had worsened. He refers to further reports prepared in September 2018 and January 2019 by interRai Home Care Assessment. The reports state the applicant continues to spit and break items, including pulling out pipe in a washroom. A July 2019 note from CCAC, regarding staffing, indicates that personal support workers requested not to be assigned to the applicant due to his spitting and chasing, raising safety concerns. On August 7, 2019, the applicant’s grandfather stated during an occupational therapy session that the applicant was exhibiting new behaviours since the motor vehicle accident, including hitting his grandmother, banging things and spitting on the postman. Reports in January 2020 were that the applicant had broken locks in the home, had kicked a doctor and had licked people and knocked objects from their hands while in public, limiting his grandparents’ ability to take the applicant out in public.
47The applicant also relies on observations of the applicant’s behaviour by his post-accident medical assessors. On July 27, 2021, Mr. Chui of Complex Injury Rehab filed an occupational therapy attendant care re-assessment report. This included an observational assessment of the applicant in his home. The report concluded that the applicant had demonstrated a significant increase in inappropriate behaviours since the accident, and that the applicant required skilled supervisory care at all times. The report also considers the report from the applicant’s grandfather that the applicant had begun to experience falls and near-falls, requiring physical assistance with toileting and dressing. In June of 2023, the applicant underwent treatment with a behavioural consultant, Mr. Robinson. Mr. Robinson collected data over five days of the applicant spitting, hitting, banging items, running away and throwing objects. During an in-person assessment with the insurer’s occupational therapist, Mr. Pritchett, in September 2018, the applicant slammed Mr. Pritchett’s hand onto a table, struck him in the hip and reached into this pocket pulling out items. He flung saliva at Mr. Pritchett and his grandmother. Mr. Pritchett observed a faucet pulled off of the wall. In his report, Mr. Pritchett opined that the applicant’s need for continuous care and supervision had changed as his behaviour had become aggressive and unpredictable.
48I agree with the respondent that there is evidence that the applicant demonstrated similarly challenging behaviour prior to the accident. The respondent has filed case notes from the CCAC that pre-date the accident. In a CCAC note, entitled “Assessment information” and dated June 19, 2017, the “Minimum data set home care” assessor Tammy Douglas says under “Mood and Behaviour” that: “the [client] continues to easily be upset. He still grabs and throws items. Easily breaks items in the home. [Client] throws items at PSW. [Client] spits at caregivers. [Client] has broken most things in the home, like drawers, mirrors and tables. [Client] throws anything that is in his hands.” The note goes on to say that the applicant’s family has found that his behaviour has gotten worse and they are finding it difficult to manage. A note from 2015 states the applicant had broken a granite shelf in the kitchen, had broken toilet seats and pulled out plumbing in the basement.
49The crux of the applicant’s argument is that the applicant’s behaviours have worsened or increased since the accident. I acknowledge that the reports relied on by the applicant state there has been an increase in his difficult and unpredictable behaviour, however these statements are based on the reports of the applicant’s caregivers. I agree with the respondent that I cannot reconcile the reports of the applicant’s grandparents, in light of the evidence they gave to the Tribunal on February 8, 2023.
50The applicant’s grandfather testified in 2023 that the applicant became a “different person” after the accident. He testified they had a routine and that they were able to take the applicant out in public before the accident, but no longer could as he displayed aggressive behaviour to others in the years following. He testified that he had not seen behaviour like that before the accident. He testified that, since the accident, the applicant had begun to damage property in the home, such as damage to doors and drywall and knocking and breaking dishes in the household. He testified the applicant did not engage in this sort of behavior “at all” prior to the accident. He testified the applicant had begun spitting and throwing saliva at others, while he did not do this before the accident. In cross-examination, he acknowledged that he had not told assessors at all that the applicant had broken things in the house, conceding that “there are lots of things I didn’t say.”
51The applicant’s grandmother’s evidence, similarly, was that there had been a “big change” in the applicant since the accident. Her evidence was that they could not bring him out in public as he had become unmanageable. For example, the applicant had attended church regularly prior to the accident, but his grandparents stopped taking him due to his behaviour. She testified that the applicant’s spitting before the accident was “very rare”, but, since the accident, it had increased to every day, at any opportunity, and that the family had stopped taking him to social activities as a result. She testified that, following the accident, the applicant began to damage the home and objects in the home, while before the accident any property damage was accidental.
52I find this evidence is in contrast with the contemporaneous CCAC records that pre-date the accident. The records from 2015 note the family, by that time, had found the applicant’s behaviour was “getting worse”, and that he was causing significant property damage within the home. I find the evidence of the applicant’s grandparents significantly impacts the reliability of opinions given by assessors that the motor vehicle accident was the cause of a worsening of impulsive or aggressive behaviour. Those opinions were based on reports from the applicant’s grandparents, and they described new behaviours, such as spitting or breaking objects in the home. The CCAC records demonstrate that these were not new behaviours. The applicant’s grandfather conceded in his evidence that there were many things he did not share with the assessors. This greatly reduces the amount of weight I place on any expert opinion relied upon by the applicant that the accident resulted in a worsening of his behaviour.
53I accept the opinion of Dr. Wiesenthal, a psychiatrist who assessed the applicant for a multidisciplinary CAT report for the respondent dated July 21, 2021. Dr. Wiesenthal’s opinion was that the applicant’s limitations are in keeping with his pre-accident presentation. Dr. Wiesenthal’s opinion was that, based on a file review and assessments with the applicant and his caregivers, “his behaviours are not new or unique to the accident.” Even if there was an increase in the negative behaviours in the years following the accident, Dr. Wiesenthal explains in the report this does not mean they were caused by the accident:
The noted increase in behaviours, is based on the self-report of his grandparents.
I consult for two agencies providing special needs services to children, adolescents and adults with developmental disabilities, and Mr. Sturgess-Gunraj’s behaviours are common for individuals with ASD and Global Developmental Delays. . Mr. Sturgess-Gunraj’s behavoiurs are for attention. His family given in to keep him happy. This creates a very difficult cycle to break. They were offered in home intervention but declined it as Mr. Sturgess-Gunraj does not like to have people in the home.
Even if the self-report is taken at face value, in my opinion, given the low safety concerns, my observations that the claimant was responsive to the limits set by his grandparents during the assessment, the fact that he has never been trialed on psychotropic mediations (sic), which he would have for significant concerning behaviours, 911 has never been called, and his generally still able to access the community, I am of the opinion that the reported increase in behaviours are likely mild, and not having a significant effect on his overall functional presentation as compared to pre-accident.
54Dr. Weisenthal’s comprehensive file review and two assessments of the applicant took place approximately two years apart. I find Dr. Wiesenthal’s opinion that the applicant’s reported increase in behaviours, if taken at face value, are “likely mild,” is supported by the other evidence that he demonstrated similar behavioural issues prior to the accident.
55Therefore, based on the inconsistency between the applicant’s grandparents’ report and the contemporaneous pre-accident records about his aggressive behaviour, along with the opinion of Dr. Wiesenthal, I conclude the applicant has not demonstrated on a balance of probabilities that the accident caused an increase in behavioural issues. Therefore, I cannot conclude the goods are reasonable and necessary to treat impairments caused by the motor vehicle accident.
56For these reasons, I find the applicant has not demonstrated on a balance of probabilities that the treatment plan in dispute is reasonable and necessary. As such, he has not established entitlement to the plan.
ORDER
57For the reasons above, I find:
i. The applicant has not demonstrated entitlement to the treatment plan.
ii. The application is dismissed.
Released: April 3, 2025
Emily Morton
Adjudicator