Burns v. Heartland Farm Mutual Inc., 2025 CanLII 5852

Court File and Parties

Citation: Burns v. Heartland Farm Mutual Inc., 2025 ONLAT 23-002522/AABS Licence Appeal Tribunal File Number: 23-002522/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: Jerry Burns, Applicant and Heartland Farm Mutual Inc., Respondent

Decision

Adjudicator: Greg Witt

Appearances: For the Applicant: William Wolfe, Counsel For the Respondent: Prabhdip Dhami, Counsel

Heard: By way of written submissions

OVERVIEW

1Jerry Burns, the applicant, was involved in an automobile accident on October 11, 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, Heartland Farm Mutual Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

[2] The following issues are to be decided: i. Is the applicant entitled to $6,439.08 for physiotherapy services, proposed by Innisfil Wellness Centre in a treatment plan/OCF-18 ("plan") submitted November 8, 2021? ii. Is the applicant entitled to $2,736.75 for a functional ability evaluation assessment, proposed by Excel Medical Diagnostics in a plan submitted March 27, 2022? iii. Is the applicant entitled to $4,356.80 for neuropsychological assessments, proposed by Excel Medical Diagnostics in a plans submitted July 28, 2021? iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

[3] I find that: i. The applicant is not entitled to the amounts disputed in the treatment plans. ii. The applicant is not entitled to interest.

PROCEDURAL ISSUES

4The respondent submits that the applicant has not compiled with production requirements set out in the Case Conference and Report Order ("CCRO") dated October 20, 2023. The CCRO outlined that the parties were to exchange documents no later than 30 calendar days from the case conference. The case conference was held on October 11, 2023.

[5] The respondent submits that the following documents were not produced by the applicant, and the respondent is prejudiced as a result: (a) An updated decoded OHIP Summary, from June 28, 2022 to the date of the case conference; (b) Updated clinical notes and records of Dr. Eugene Chan, from February 9, 2022 to the date of the case conference; (c) Updated clinical notes and records from The Posture Clinic, D. Freer & Associates, Innisfill Wellness and Lifemark, including attendance sheets and a copy of the clinical notes and records of all massage, chiropractic and physiotherapy specialists consulted as a result of the impairments sustained as a result of the motor vehicle accident, from December 17, 2019 to the date of the case conference; (d) Updated clinical notes and records from D. Freer & Associates from May 5, 2021 to the date of the case conference; (e) Updated clinical notes and records from Innisfill Wellness from April 7, 2022 to the date of the case conference; (f) Complete clinical notes and records of Dr. David Kurzman & Associates, from the date of the first visit to the date of the case conference; (g) Complete clinical notes and records from Excel Medical Diagnostics, from the date of the first visit to the date of the case conference; (h) Clinical notes and records from any hospital visited, from one year pre-accident to the date of the case conference; (i) Clinical notes and records from any and all orthopaedic surgeons, from one year pre-accident to the date of the case conference; and (j) Prescription summaries, from one year pre-accident to the date of the case conference.

6The applicant did not submit a reply to the respondent's submissions, nor did the applicant make any other submissions that might explain why they did not comply with the aforementioned order.

7I find the applicant was in breach of the CCRO. As such, I agree with the respondent, that they were unfairly prejudiced as they were unable to rely on the evidence the parties consented to exchange and were ordered to exchange. I will weigh this appropriately as part of my considerations and analysis below.

ANALYSIS

Are the treatment plans reasonable and necessary?

8To receive payment for a treatment and assessment plan under sections 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 treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

The applicant is not entitled to the outstanding amounts of $4,356.80 for a neuropsychological assessment

9I find the applicant is not entitled to the outstanding amounts for a neuropsychological assessment in the treatment plans submitted July 28, 2021.

10Three separate but identical plans, for a neuropsychological assessment were proposed by Dr. David Kurzman, psychologist. The applicant submits that the plan is reasonable and necessary and relies on the neuropsychological assessment report of Dr. Kurzman, dated February 9, 2022. Dr. Kurzman conducted an in-person assessment and concluded that the applicant met the criteria for a mild neurocognitive disorder, and his symptoms were suggestive of a post-concussion syndrome.

11The respondent does not dispute whether the neuropsychological assessment was necessary and reasonable. Rather, the respondent's submission is that the applicant is attempting to circumvent section 25 of the Schedule by submitting three separate, yet identical plans, all dated July 9, 2021, and submitted July 28, 2021, for neuropsychological assessments. The evidence before me confirms that the respondent paid the applicant $2,000.00 for one of the three treatment plans proposed by Dr. Kurzman. It is the respondent's position that it compiled with section 25(5)(a) of the Schedule, and it is not obligated to pay more than a total of $2,000.00 for the assessment, and $200.00 for completion of the plan and applicable taxes.

12The respondent relies on Breadner v. Co-Operators General Insurance Company FSCO A15-005120, R.J. v. Certas Direct Insurance Company, 2020 ONLAT 19-009603 and R.G. v. State Farm Insurance, 2019 ONLAT 17-006934. While I am not bound by the decisions of my colleagues, I find the R. G. decision persuasive and see no reason to depart from its finding. Adjudicator Gosio was clear in his interpretation of section 25(5)(a) of the Schedule, providing at paragraph 17 that, "it places a $2,000.00 cap on the fees and expenses charged for conducting any one assessment or examination."

13The onus is on the applicant to provide that each examination is reasonable and necessary. Section 25(5)(a) of the Schedule states that an insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. In this case, the applicant has not provided evidence as to why the additional assessment compensation over and about the $2,000.00 already paid by the respondent is required. Furthermore, in reviewing Dr. Kurzman's report it is concluded that the applicant has achieved maximum medical recovery.

14I am satisfied that the applicant submitted the treatment plan in triplicate, and the respondent correctly paid for one I find that the applicant has not met the onus to demonstrate that the outstanding amounts from the other identical treatment plans are reasonable and necessary.

The applicant is not entitled to $6,439.08 for physiotherapy services

15I find the applicant is not entitled to the amount for physiotherapy services in the treatment plan dated November 8, 2021.

16The applicant does not make specific submissions as to the reasonableness and necessity of this plan, but rather makes reference to the applicant's past and current medical history.

17Despite the aforementioned in paragraph 16, the applicant relies on the report of Dr. Tajedin Getahun, orthopedic surgeon, dated June 15, 2019, who concluded that because of the accident the applicant suffered neck pain, back pain, and bilateral hip, knee and foot pain. Further reference to this report indicates that the applicant had previous sprain and strain injuries as well.

18The respondent has already paid $1,730.88 for physiotherapy services to date. The respondent advised the applicant in a letter dated December 16, 2021, to provide additional medical documentation to assist the respondent in making a determination on whether there is a need for ongoing physiotherapy treatment. In reviewing the evidence, I confirm that additional medical evidence as requested in the letter dated December 16, 2021, was not provided by the applicant. I also note the respondent followed up with the applicant outlining the outstanding documents required on January 21, 2022, and March 30, 2022 to which the applicant provided no response. The applicant also did not provide submissions as to why these requests were not satisfied.

19In addition, as referenced in paragraph [5] of this decision, the applicant did not comply with the production requirements in the CCRO. The applicant declined to make any reply submissions or explain why these documents were not provided.

20Given the lack of explanation in the submissions and that no plausible reason is given for failing to provide the evidence from the applicant, I choose to draw the adverse inference that the disclosure of these documents would be detrimental to the applicant's case.

21The respondent relies on the section 44 report from Dr. Scott McKenzie, orthopaedic surgeon, dated October 17, 2018, which concludes that the applicant did not sustain an orthopaedic impairment as a result of the accident. The respondent further relies on the section 25 report of Dr. Getahun, dated June 15, 2019, that confirms the applicant was able to complete his housekeeping including grocery shopping, meal preparation, dishes, laundry and floors. The respondent further relies on the report from Dr. Earl Bogoch, orthopedic surgeon, dated June 24, 2021, which finds that the applicant has bilateral hip osteoarthritis, and a bilateral rotator cuff arthropathy with a full thickness tear sustained from previous injuries and not caused by the accident.

22The respondent raises a significant issue of causation as it submits the applicant's injuries were attributable to other events. The 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. The injuries do not need to be "the cause" of the accident, but at least "a necessary cause". The respondent raises the issue of causation with respect to the applicant's physical impairments to his right hip and right ankle.

23While the applicant alleges that his injuries were sustained as a result of the accident, the respondent submits that the applicant did not lead sufficient evidence to prove that, but for the accident, he would not be experiencing the impairments he attributes to the accident.

24The respondent submits the applicant did not lead sufficient evidence to prove the injuries were not as a result of the applicant's pre-existing accident on January 24, 2013, or not as a result of the incident in February 2017 when the applicant fell down the stairs. The respondent further submitted the applicant did not lead sufficient evidence to prove the impairments alleged to have occurred as a result of the accident were unrelated to a post-accident ankle injury sustained while travelling to Cuba to which the applicant wore a brace, or were unrelated or not exacerbated by a hip injury sustained by the applicant in 2021.

25I agree with the respondent. The onus is on the applicant, and I find that it is not clear that the applicant's pain symptoms are attributable to the accident, this was his third accident and back to work. The applicant did not demonstrate that the impairments related to the treatment plan would have occurred but for this accident, making it difficult to assess the reasonableness and necessity of the plan. Had the applicant complied with the CCRO and provided the documentation agreed upon at the Case Conference, there may have been an opportunity to draw a more clear path between the injuries sustained as a result of this accident and the requested treatment plans.

26I am not persuaded that the applicant has demonstrated on a balance of probabilities that the remainder of the treatment plan is reasonable and necessary.

The applicant is not entitled to $2,736.75 for a functional ability evaluation

27I find the applicant is not entitled to $2,736.75 for a functional ability evaluation in a treatment plan dated June 21, 2022.

28The stated goal of the plan is to identify the applicant's current physical ability to manage his job and develop appropriate strategies to prepare him to return to work.

29The applicant does not make any specific submissions as to the reasonableness and necessity of this plan.

30The respondent relies on the orthopaedic assessment dated June 15, 2019 from Dr. Getahun where the applicant reported he returned to work the next day after the accident and continued to work thereafter. The respondent also submits that the applicant self-reported on his OCF-1 dated November 16, 2017, that he was retired at the time of the accident and further relies on CNRs from the Innisfil Wellness Centre dated May 19, 2021 from physiotherapist Sylvia Van Dyke that the applicant was retired.

31In this case, I find the contradictory facts about the applicant's work status. Furthermore, the onus is on the applicant, and, even if the applicant required a functional ability evaluation related to his return to work, I find as indicated above, that it is not clear that the applicant's pain symptoms are attributable to the accident. The applicant did not make submissions to demonstrate that the impairments related to the treatment plan would have occurred but for the accident making it difficult to assess the reasonableness and necessity of the plan. Without the documents required under the CCRO I am unable to draw a clearer path between the injuries sustained as a result of the accident and the requested treatment plans.

32I am not persuaded that the applicant has demonstrated on a balance of probabilities that the treatment plan is reasonable and necessary.

Interest

33As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

[34] For the reasons outlined above I find that: i. The applicant is not entitled to the treatment plans in dispute; ii. The applicant is not entitled to interest; and iii. The application is dismissed.