In this blog, we will explore the significance of having appropriate evidence to support recommendations in a FCC Report.
We will examine the judge’s assessment of a Life Care Planner’s (LCP) report in the case decision of Constantinou v. Stannard, 2021 ONSC 5585 [1].
On December 1, 2016, Ms. Constantinou visited her father’s property in Schomberg to meet electricians working there. Ms. Stannard, who rented an accommodation on the property, owned a large dog.
Upon arrival, Ms. Constantinou encountered Ms. Stannard and her dog in a van. Ms. Stannard requested a rope from Ms. Constantinou to tie up her dog, as he could not remain inside where the electricians were working.
While passing the lunge line to Ms. Stannard, the dog bit Ms. Constantinou’s right hand and then grabbed her left elbow with his mouth. Ms. Constantinou did not provoke the dog in any way. She struggled to free herself from the dog’s grip, while Ms. Stannard pulled on the dog’s leash to restrain him.
As a result of the incident, Ms. Constantinou suffered various injuries, with the most significant being a torn left rotator cuff. She filed a claim against Ms. Stannard, seeking compensation for the damages caused by the dog bite.
The dog bite caused a partial tear of the long head of the biceps in her left shoulder, resulting in a significant change in the functionality of her shoulder.
The judge concluded that Ms. Constantinou had suffered damages as a direct result of the dog bite.
The parties held different positions regarding the appropriate amount to be awarded, and the trial focused on the assessment of damages.
The plaintiff relied an occupational therapist with experience in life care planning to prepare a report to assess Ms. Constantinou’s future care costs.
The judge found that the cost estimates provided by the LCP were “overinflated and lacked a factual foundation in the evidence”, which raised concerns about the overall reliability of her report.
For example, the LCP’s estimated the Ms. Constantinou’s need for assistance with snow removal for 10 to 14 times per month for five months per year, or 50 to 70 times per year. This amount of snow clearing was acknowledged by the plaintiff’s counsel to be unnecessary.
As Ms. Constantinou had already required driveway clearing services before the dog bite the judge was not in agreement with this recommendation by the LCP, and stated that the only reasonable expense to compensate for her injury is the additional cost of having the person clearing the driveway also clear the walkways, which would only add about ten minutes to each service.
The LCP estimated the future cost of care in the event that Ms. Constantinou would require additional shoulder surgery. However, Dr. Richards, her orthopedic doctor, indicated that there was only a 10% chance of Ms. Constantinou needing one additional surgery. Therefore, this estimation was not supported by the evidence.
The LCP calculated the mileage costs and hospital trips based on the assumption that the surgery would take place at Sunnybrook Hospital in Toronto.
Ms. Constantinou’s first surgery was performed at MacKenzie Richmond Hill Hospital, which is much closer to her home. As a result of these assumptions, the LCP presented an inflated estimate of the cost of future surgery.
The LCP did not exclude costs associated with medical challenges unrelated to the shoulder injury. She included mileage expenses as reimbursement for additional visits to Ms. Constantinou’s family doctor, even though these visits were not related to the shoulder injury.
The LCP suggested awarding costs for a series of massage therapy sessions, despite no evidence of a recommendation for such therapy by any of Ms. Constantinou’s physicians. The value of massage therapy in managing her shoulder injury was not supported by evidence.
To add on, the LCP calculated the costs of past and future chiropractic care without any evidence or recommendation from Ms. Constantinou’s treating doctors, that such care was necessary for addressing the sequelae of her shoulder injury.
Lastly, the LCP supported Ms. Constantinou’s desire to convert her existing bathtub to a walk-in bathtub based on her difficulty in getting out of the bathtub. However, the evidence did not support the conclusion that her difficulty in transferring in and out of the bathtub was related to her shoulder injury, making this expense unreasonable.
Based on these factors, the judge concluded that the LCP’s recommendations were overinflated and lacked factual strength in assessing the costs and needs of Ms. Constantinou’s care.
In GLA we follow several important principles in composing a life care plan, including making recommendations that are supported by evidence, eliminating recommendations for needs that do not relate to the accident, and making sure that travel to services is reasonable.
We make sure that we get support for our recommendations from the treating team and the medical team, and always recommend the referral source to have our report reviewed by the client’s physician.
[1] Constantinou v. Stannard, 2021 ONSC 5585 (CanLII), https://canlii.ca/t/jkktv, retrieved on 2023-05-15