Rankin v. TD General Insurance Company, 2025 CanLII 31148

Licence Appeal Tribunal File Number: 23-001008/AABS

Citation: Rankin v. TD General Insurance Company, 2025 CanLII 31148

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:

Riley Rankin

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Lara Fitzgerald-Husek, Counsel

For the Respondent: Annette Uetrecht-Bain, Counsel

HEARD: By way of written submissions

OVERVIEW

1Riley Rankin (the “Applicant”) was involved in an automobile accident on April 1, 2013 and sought benefits from TD General Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The 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

2The issues in dispute are:

1. Is the Applicant entitled to medical benefits in the form of massage therapy services, proposed by Dianna Burrage, RMT, as follows: a) $263.02 ($996.55 less $733.53 approved by the Respondent) related to a treatment plan/OCF-18 (“plan”) dated July 22, 2022; and b) $996.55 related to a plan dated October 21, 2022?

2. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $546.33 per month for the period from August 23, 2022 to-date and ongoing?

3. Is the Applicant entitled to housekeeping and home maintenance services (“HH”) in the amount of $100 per week for the period from December 7, 2022 to ongoing?

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

RESULT

3I find that $896.55 of the $996.55 proposed in the massage therapy plans to be reasonable and necessary.

4The Applicant is entitled to incurred ACBs, subject to the monthly limit of $546.33, for the period from August 23, 2022, to-date and ongoing.

5The Applicant is entitled to incurred HH, subject to the weekly limit of $100.00, for the period from December 7, 2022 to-date and ongoing.

6Interest is payable pursuant to section 51 of the Schedule.

BACKGROUND

7At twelve years old, the Applicant was struck by a car while attempting to cross a country highway as a pedestrian. He sustained a severe brain injury in the form of a diffuse axonal injury, as well as fractures to his right shoulder and hip, and other sequalae as a result of the accident. He has no recollection of the accident.

8The Respondent accepted the Applicant as having sustained a catastrophic impairment as a result of the accident. However, the parties now disagree on the level of ongoing care that the Applicant requires, as well as whether two massage therapy treatment plans are reasonable and necessary as a result of the accident.

ANALYSIS

9The onus is on the Applicant to demonstrate entitlement to the benefits claimed. For the massage therapy plans, he must demonstrate that they are reasonable and necessary as a result of the accident. For ACBs, he must demonstrate that they are reasonable and necessary expenses incurred by him or on his behalf as a result of the accident for services provided by an aide or attendant. For HH, he must demonstrate that they are reasonable and necessary additional expenses incurred by him or on his behalf as a result of the accident that results in a substantial inability to perform the HH services that he normally performed before the accident.

10I find that the massage therapy plans are mostly reasonable and necessary as a result of the accident.

11The Applicant benefits from massage therapy. According to his affidavit, dated October 24, 2023, the Applicant reported that massage therapy helps with his mood and well-being, and that his mobility, and his pain symptoms in his back, shoulder, and knee, worsen without treatment. In the examination under oath (“EuO”), dated January 18, 2024, the Applicant reported that massage therapy is helpful, improves his sleep, and reduces his pain during the day. He reported that his neck and back pain is almost daily, at about four times per week, and that massage therapy decreased the number of days a week he had pain complaints. None of the Applicant’s statements have been challenged by the other evidence. The Applicant’s statements in the affidavit and EuO are consistent with his report in the Insurer’s Examination (“IE”) report by Dr. C. de Carlo, neuropsychologist, issued December 1, 2022. Dr. de Carlo highlighted that the Applicant reported that massage therapy was acutely helpful. Accordingly, I place great weight on these consistent statements.

12I give less weight to the conclusion in the IE report of Dr. M. A. W. Khan, physiatrist, issued December 1, 2020. Dr. Khan’s report concluded that further massage therapy is not expected to provide any significant subjective or objective improvement for the Applicant’s accident-related injuries. This conclusion holds less weight than the Applicant’s self reports because treatment does not need to provide significant improvement for it to be found reasonable and necessary. The Applicant seeks massage therapy for the benefit of pain relief, as well as the other improvements discussed previously, not because he believes it will provide significant improvement. It is trite law that pain relief is a legitimate treatment goal.

13The Applicant is not entitled to the $100.00 form fee, listed in each of the plans. In addition to fees for massage therapy, each plan also seeks $200.00 for an assessment and $100.00 for the completion of the respective form. The Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”) permits a maximum fee of $200.00 for the completion of a plan, including any assessment or examination necessary for the purpose of that review and approval by the health practitioner. Thus, the $100.00 fee, charged for each plan, is duplicative billing because the completion of forms is included in the $200.00 assessment fee.

14Accordingly, I find that $896.55 of the $996.55 proposed in each massage therapy plan to be reasonable and necessary.

ACBs

15Pursuant to section 19 of the Schedule, the Respondent is liable to pay for all reasonable and necessary expenses that are incurred on or behalf of an insured person as a result of an accident for services provided by an aide or attendant.

16The parties agree that the Applicant is entitled to ACBs, however, they differ on the quantum that the Applicant is entitled to. He claims entitlement to a monthly quantum of $546.33, based on the recommendation of OT R. Lazaruk in a report dated August 2, 2022. The Respondent submits that the monthly quantum should be $330.64, based on the recommendation of OT R. Findlay in an IE report issued December 1, 2020. There are three main differences between the competing quantum:

Task	Claimed	Approved	Difference
Assistance with meal preparation	15 minutes per meal, or 315 minutes per week	5 minutes per meal, or 105 minutes per week	10 minutes per meal, or 210 minutes per week
Supervisory care and cueing	60 minutes per day, or 560 minutes per week	45 minutes per day, or 315 minutes per week	15 minutes per day, or 315 minutes per week.
Coordination of care	10 minutes per week	None	10 minutes per week

17The Applicant submits that he has difficulties with planning, initiation, pain in his low back, right shoulder, left knee, and hips, fatigue, and emotional dysregulation. According to his treating OT, Lazaruk, and as confirmed by his girlfriend, his emotional concerns include decreased initiation, anxiety, anger, stress, and intolerance.

18The Respondent relies on the IE report of OT Findlay and submits that the Applicant demonstrated active range of motion in the neck, upper back, and lower extremities, and did not present with any significant cognitive deficits that would compromise safety beyond stove use due to a tendency to become distracted and leave the stove on. OT Findlay found that the Applicant required a monthly quantum of $330.64 for check-in assistance to promote functional restoration and adherence to a regular productive routine. The Respondent adds that Dr. Khan, physiatrist, in an IE report issued December 1, 2020, found that, physically, the Applicant can perform all the personal care tasks that he performed prior to the accident.

19I prefer the opinion of OT Lazaruk. OT Lazaruk has had the benefit of working with the Applicant over a period of several years. The request for care for the Applicant is reasonable, considering his cognitive and ancillary issues such as decreased initiation, anxiety, anger, stress, and intolerance. OT Lazaruk administered tests and the corresponding results are persuasive. OT Lazaruk assessed the Applicant’s fatigue and cognitive symptoms with tests such as the Fatigue Assessment Scale, the neurobehavioral symptom inventory, and the World Health Organization Disability Assessment Scale 2.0. The results of those tests were that the Applicant scored in the range of substantial fatigue, identified that his symptoms of forgetfulness are always present, and that sensitivity to light, poor concentration, an inability to pay attention, being easily distracted, and feeling more anxious or tense is frequently present. His perceived level of disability regarding cognition was extreme, and regarding participation was severe, and his mobility, getting along, and life activities were at a moderate level.

20I give less weight to the report of OT Findlay. OT Findlay concluded that the Applicant did not present with any significant cognitive difficulties during the assessment that would compromise his safety in the event of an emergency, or hinder his day-to-day activities beyond stove use. Yet, in contrast to the conclusion of the report, OT Findlay also acknowledges the Applicant’s cognitive and psychosocial complaints, and confirmed some cognitive deficits were present during the assessment such as being tangential at times and needing occasional redirection to the questions posed to him. However, OT Findlay administered no formal cognitive testing as part of the assessment, and I accordingly assign their findings less weight. Formal cognitive testing could confirm or deny the presence of cognitive deficits and would permit OT Findlay to include those deficits when determining the level of ACBs that is reasonable and necessary for the Applicant.

21Given the Applicant’s ongoing cognitive deficits, I find that the Applicant is entitled to ACBs in the amount of $546.33 per month, for the period from August 1, 2023, to-date and ongoing.

22On whether the Applicant incurred ACB services, I find that he has. Pursuant to section 3(1) of the Schedule, an expense in respect of goods or services referred to in the Schedule is considered incurred if the person has received the goods or services to which the expense relates, has paid the expense or is otherwise legally obligated to pay the expense, and the person who provided the goods or services did so in the court of their employment, occupation, or profession in which they would ordinarily have been engaged but for the accident. Here, the Applicant’s evidence in his affidavit and the EuO is consistent that he received assistance from a personal support worker who engaged in the services during the course of their employment. He has also submitted invoices for the ACB services provided by a personal support worker from Neural Rehabilitation Group. This is sufficient to satisfy the incurred provision, outlined in section 3(1) of the Schedule.

23The Applicant is not entitled to ACBs above what is incurred. While I have found that the Applicant is entitled to ACBs at a monthly rate that is greater than what was approved by the Respondent, he remains subject to the incurred provision and is not entitled to more ACBs than what he has incurred. I decline to deem incurred any expenses above what was incurred because the Applicant has not made any submissions on the subject and he has not demonstrated that the Respondent’s position on ACBs amounted to unreasonable withholding of the benefit.

Housekeeping and Home Maintenance (“HH”)

24HH benefits are available to catastrophically injured persons who suffer a substantial inability to perform the HH tasks that they did prior to the accident. HH benefits are capped at the rate of $100.00 per week, pursuant to section 23 of the Schedule.

25To me, it is clear from the medical records that the Applicant requires HH services. The IE report by Dr. C. de Carlo, neuropsychologist, dated December 1, 2022 unequivocally finds that the Applicant is unable to complete his own HH. Specifically, it states:

Based on his persisting neurobehavioral sequalae, (the Applicant) suffers a substantial inability to perform the housekeeping/home maintenance services that he would normally complete, as his impulse tendencies, emotional regulation issues, and suboptimal self-awareness/performance monitoring will make him prone to errors and inefficiencies, avoidant and interpersonal dynamics and hesitant to engage in task requiring him to drive a vehicle.

26Accordingly, I find this to be persuasive evidence confirming that the Applicant suffers a substantial inability to complete his HH tasks following the accident. Dr. de Carlo’s conclusion is in contrast to the Respondent’s submission that there is no physical or psychological reason why he is unable to complete his HH tasks.

27The basis for the Respondent’s denial of HH benefits is that the Applicant was not completing any significant HH tasks prior to the accident. It submits that the Applicant was 12 years old at the time of the accident and his tasks now, in his early 20’s, are much more onerous than at the time of the accident. It also submits that some of the services the Applicant claims under HH are provided through ACBs. To the Applicant, this position ignores Dr. de Carlo’s findings in the IE report, dated December 1, 2022, and does not account for the HH tasks that he was responsible for at the time of the accident.

28I find sufficient evidence depicting that the Applicant engaged in HH tasks prior to the accident and that his accident-related injuries preclude him from completing those tasks. The Applicant’s affidavit, and subsequent EuO, are persuasive. In the affidavit, the Applicant clarified that his pre-accident HH duties included tidying his room, making his bed, changing his sheets, vacuuming his room, some laundry duties, as well as some dusting and wiping surfaces. He also affirmed that he would help his mother with grocery shopping, sweeping and mopping, bathroom cleaning, taking care of the family dog, and taking the garbage out. During the EuO, the Applicant maintained that he engaged in these HH duties prior to the accident. He further reported that he has difficulty remembering life before the accident, but that his older brothers told him about the tasks he performed prior to the accident.

29The multidisciplinary IE report, issued March 24, 2017, concluded that the Applicant suffers a substantial inability to perform the HH tasks that he did prior to the accident. This multidisciplinary assessment included an evaluation from an orthopaedic surgeon, neuropsychologist, and occupational therapist. Importantly, these 2017 IEs included participation from the Applicant’s mother, who provided additional information about the Applicant’s pre-accident status because the Applicant has limited memory of the events pre-dating the accident. The Applicant’s mother provided an account of his pre-accident HH duties such as assistance with meal preparation, laundry, and grocery shopping, bed making, floor cleaning, tidying his room, and taking out the recycling and garbage, which was considered by the assessors during those evaluations.

30In contrast, the multidisciplinary assessment report, issued November 29, 2022, did not include input from a family member or close friend. This is critical because the report relied solely on the limited historical information from the Applicant, and he indicated that he had no HH duties prior to the accident. Whereas the reports involving the Applicant’s mother had a clearer image of the Applicant’s pre-accident activities, based on a more accurate recollection of events. The testimony in the EuO completed by the Applicant clarifies his pre-accident activities, based on the account of his siblings, whom the Applicant sought information from prior to completing the affidavit. In the EuO, the Applicant also relayed that his mother was a single parent at the time of the accident with a full-time job, raising four boys, and that the boys tried to help as much as they could.

31The IE report of Dr. de Carlo concluded that the Applicant suffers a substantial inability to perform the HH services that he would normally complete. The finding was based on the Applicant’s “persisting neurobehavioral sequalae”. Dr. de Carlo concluded that the Applicant has impulse tendencies, emotional regulation issues, and suboptimal self-awareness/performance monitoring will make him prone to errors and inefficiencies. The Applicant was also considered avoidant and hesitant to engage in tasks requiring him to drive.

32For the reasons above, I find that the Applicant’s poor memory of his pre-accident tasks is insufficient to deny him entitlement to HH. To me, it is implausible to find that the Applicant’s never engaged in HH prior to the accident given the corollary reports of the Applicant’s activity pre-dating the accident. Accordingly, I find that he suffers from a substantial inability to complete his pre-accident HH tasks.

33On whether the Applicant has incurred HH, I find insufficient evidence demonstrating that he has incurred HH during the period claimed. The Applicant demonstrated he incurred ACBs by providing invoices, his affidavit evidence, and participating in an EuO, but has not done the same for his HH expenses. His affidavit and EuO support that he incurred the services, but he provided no invoices related to incurred HH expenses. The Applicant incurred HH and ACBs from the same provider and it is possible that the invoices provided for ACBs include some HH services. Though this situation would not increase the amounts the Applicant incurred. Thus, I am unable to find that the Applicant incurred HH during the period claimed. Like with ACBs, he has provided no submissions or evidence for which I could deem HH to be incurred due to the Respondent’s unreasonable withholding of the benefit, pursuant to section 3(8) of the Schedule.

Interest

34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the plans in dispute, but for the two $100.00 form fees, and any incurred ACBs, I find that interest is also payable.

CONCLUSION AND ORDER

35The Applicant is entitled to $896.55 of the $996.55 proposed in the massage therapy plans to be reasonable and necessary, plus interest pursuant to section 51 of the Schedule.

36The Applicant is entitled to incurred ACBs, subject to the monthly limit of $546.33, for the period from August 23, 2022, to-date and ongoing.

37The Applicant is entitled to incurred HH, subject to the weekly limit of $100.00, for the period from December 7, 2022 to-date and ongoing.

38The Applicant is entitled to interest on any unpaid and incurred ACBs, to-date.