16-003223 v Echelon, 2017 CanLII 44016

Licence Appeal Tribunal

Date: 2017-06-20 Tribunal File Number: 16-003223/AABS Case Name: 16-003223 v Echelon

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:

Applicant

Applicant

and

Echelon

Respondent

DECISION

Adjudicator: S. F. Mather

Appearances:

For the Applicant: Robert W. Vitols For the Respondent: Jamie Pollack

Heard in Writing on: April 18, 2017

OVERVIEW

1The applicant was involved in an automobile accident on March 14, 2010 when the car he was operating was rear-ended. The applicant and his wife were both injured in the accident and their two year old daughter sustained fatal injuries. In April 2014 the applicant was found to be catastrophically impaired as a result of the accident¹.

2In June 2014 the applicant sought a rehabilitation benefit pursuant to Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Schedule''). At the time of the application the applicant was 34 years old with two young children at home.

3The applicant was seeking to continue the services of Lisa Hutchinson an occupational therapist to help him improve his level of function in his activities of daily living and interaction with his children

4The respondent denied the benefit on the basis that the Treatment and Assessment Plan in dispute (“treatment plan”) provided no clear rational as to why occupational therapy treatment continued to be required and did not specify any measurable treatment goals, achievable time lines and/or implementation strategies for the applicant to achieve his functional goals.

5The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).²

6A case conference was held on January 17, 2017 but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

7The issues to be decided are:

1. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,388.93 for an in-home assessment, occupational therapy treatments, meetings and administrative expenses recommended by DMA Rehability in a treatment plan dated June 30, 2014, denied by the Respondent on October15, 2014?³

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

3. Is the applicant entitled to costs?

RESULT

8I find that:

1. The applicant is entitled to receive a rehabilitation benefit in the amount of $2,388.93 for an in-home assessment, occupational therapy treatments, meetings and administrative expenses recommended by DMA Rehability in a treatment plan dated June 30, 2014 and denied by the respondent on October 15, 2014?

2. The applicant is entitled to interest on the overdue payment of benefits.

3. The applicant is not entitled to costs.

ANALYSIS

9After reviewing the documentary evidence and written submissions of the parties I am satisfied that the expenses contemplated by the treatment plan in dispute were for reasonable and necessary measures for the applicant’s rehabilitation.

10Section 15(1) of the Schedule requires an insurer to a pay rehabilitation benefit to an insured person who sustains impairment as a result of an accident.

11Section 15(2) provides that a rehabilitation benefit shall pay for all reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.

12The burden of proof rests with the applicant to show on the balance of probabilities that the rehabilitation benefits sought are reasonable and necessary. I find that the applicant has met this burden.

13I am satisfied that the applicant was impaired by the March 2010 car accident and that in June 2014 he still suffered from physical and psychological disabilities resulting from the impairment.

14I am also satisfied that the six occupational therapy sessions proposed in the treatment plan are reasonable and necessary to help reduce the effects of the applicant’s physical and psychological disabilities and will facilitate his integration into his family.

15The evidence I rely on to make these findings includes:

• The Independent Medical Assessment⁴ (the “IMA”) dated June 13, 2013 by Dr. Gordon Ho, a physiatrist and Dr. Stuart Kinsinger, a chiropractor, finds that the applicant’s physical impairment from the accident substantially interfered with his activities of daily living and that his physical impairment would continue to interfere with his activities of daily living for the considerable future.

• A Function Abilities Evaluation⁵ dated June 24, 2013 confirming that the applicant had limited ability to perform housekeeping tasks, home maintenance tasks, pre-accident recreational activities, care-giving for his children and was partially able to complete his personal care duties.

• Dr. Richard Guscott’s May 2013 report⁶ from his Independent Medical Examination (Psychiatry) finding that the applicant sustained physical injuries, chronic pain disorder (due to both medical and psychological factors), major depressive disorder (severe) and acquired brain injury in the accident. The finding of physical injuries was based on the Medical Brief he reviewed.

• According to the January 17, 2014 Occupation Therapy Progress Report⁷ of Lisa Hutchinson, the occupational therapist who proposed the treatment plan in dispute, the applicant was receiving treatment focusing on education regarding the importance of gradually increasing activity levels through participation in daily activities and promoting engagement in activities with his daughters. Ms. Hutchinson observes that the applicant was motivated to engage in rehabilitation and wanted to become a more active parent for his daughters. According to Ms. Hutchinson he made significant but small gains in functionality. She recommended therapy treatment once every 2-3 weeks to focus on increasing the applicant’s activity level through incorporation of a YMCA program and setting structured weekly goals. She also recommended a coordinated team approach to maximize the rehabilitation outcomes.

• The April 2014 determination that the applicant was catastrophically impaired made by psychiatrist Dr. Shreekant Sharma. Dr. Sharma found that the applicant has moderate impairment in the area of Activities of Daily Living, moderate impairment in social functioning and marked impairment in the domains of concentration, persistence, pace and adaptation.

16The respondent denied the treatment plan on the basis of the “Independent Occupational Therapy In Home Assessment” report of occupational therapist, Rasul Kassam⁸ and other earlier examinations and assessments included in its document brief.

17The report of Mr. Kassam does not convince me that the applicant has failed to meet the burden of proof to show that the treatment plan was reasonable and necessary.

18The reason provided by Mr. Kassam for denying the treatment plan is that there were no measurable treatment goals, achievable time lines or implementation strategies for the applicant to achieve his functional goals.

19The treatment goals set out in the plan are to: promote physical activity, and improve function; to help manage the on-going pain symptoms, to increase structure and routine; to promote community integration; to improve quality of life. The treatment plan also indicates that the applicant was working to increase his level of activity and engage in activities with his daughter. The treatment plan indicates that progress had been made in that the applicant had been attending the YMCA with his family.

20I find that the goals identified in the treatment plan are goals that are reasonable and necessary to reduce the effects of the applicant’s disabilities arising from the accident. Based on the evidence before me there is no doubt that the applicant was not functioning well either physically or psychologically and was in need of assistance to reduce the effects of his disabilities from the accident.

21With respect to the timelines and implementation strategies, I am satisfied based on additional reports of Ms. Hutchinson that the applicant’s progress was very slow and that it is not possible to set strict timelines. The requirement in the Schedule is that the treatment proposed be reasonable and necessary for rehabilitation of the insured. There is no requirement for strict timelines. The request is for six sessions over sixteen weeks and I am satisfied that it is reasonable to continue to support the applicant in increasing his functionality.

22In Mr. Kassam’s opinion it was difficult to see how further therapy would be of benefit to the applicant given his avoidance of functional activity due to his reported pain and depression. This opinion of Mr. Kassam’s ignores the January 17, 2014 report of Ms. Hutchinson that states that the applicant had made small but significant gains in his functionality and that he was receptive to continuing therapy to increase his functionality.

23The November 26, 2014 Multi-Disciplinary Progress Report⁹ prepared by Ms. Hutchinson and a social worker describes the occupation therapy as being focused on “goal setting around the gradual increase of activities through day-to day activity and via promotion of meaningful parent related activities with his you daughters”. Ms. Hutchinson reports that the applicant is continuing to engage in activities with his daughters however an increase in severe anxiety and increased anxiety was impacting his ability to do the activities. In this report Ms. Hutchinson recommends occupational therapy treatment once per month to continue working on increasing activity levels through ongoing encouragement of weekly goal setting, restarting his YMCA involvement and discussion of less physically demanding activities he is able to do with his daughters.

24In my view that fact that applicant was having a very difficult time increasing his functionality does not lead to the conclusion that that the therapy was not reasonable or necessary but rather to the conclusion that it was reasonable and necessary to reduce the effects of the disability.

25I am unable to find any evidence in the other Insurer Examination reports the respondent relies on to support a finding that the treatment plan in issues is not reasonable or necessary

• The report of occupational therapist Joanne Romas date June 11, 2011 ¹⁰approved occupational therapy for the applicant

• The report¹¹ of Dr. Jaroszynski, an orthopedic surgeon dated March 27, 2012 does not address a need for occupational therapy

• The report of occupational therapist Anglea Bertolo¹² dated November 15, 2012 denies an in-home assessment in a treatment plan proposed by Lisa Hutchinson. This denial is not evidence that a treatment plan proposed in June 2014 is not reasonable and necessary.

• The reports¹³ of Dave Wilkinson denying treatment plans for physiotherapy in November 2012 and April 2014 are also not evidence that the occupational therapy treatment plan in issue was not reasonable and necessary.

26I put little weight on the respondent’s evidence that on January 9, 2012 the applicant discharged himself from further occupational therapy treatment with Ms. M. Ferguson.¹⁴ This is not evidence that a June 2014 treatment plan was not reasonable and necessary.

27I also find that the respondent’s evidence that the applicant did not attend all of the approved psychological counselling sessions with Dr. Sunseth or appointments with psychiatrist Dr. Surapeni does not support a finding that that the treatment plan in issue is not reasonable and necessary.

28As Dr. Sunseth states in a letter¹⁵ dated July 18, 2013, the fact that the applicant and his wife did not attend regularly does not reflect ambivalence but rather should be considered part of the difficulties and a symptom of “their own struggles with the grief, depression, overwhelm, physical and recovery rehabilitation and trauma.”

29In his reply submission the applicant provided a copy of a September 2015 letter¹⁶ from Dr. Surapeni which confirms that the applicant and his wife were still dealing with severe grief and chronic pain arising out of the accident.

30The respondent also submitted surveillance evidence. The photographs from the surveillance footage are primarily of the applicant and his wife leaving their home to get into a vehicle or walking down the street.

31I do not give this evidence any weight as in my view it is not relevant to the determination as to whether the treatment plan for occupational therapy was reasonable and necessary.

Interest

32Having found that the applicant is entitled to the claim for the rehabilitation benefit I find that the applicant is entitled to interests on the amount overdue as provided for in the Schedule. The interest claim is not disputed by the respondent.

Costs

33The applicant requested costs in his submissions.

34The Tribunals authority to award costs comes from two sources:

35Section 17.1 of the Statutory Powers and Procedure Act (“SPPA”) and

Rule 19.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (the “Rules”).

36Section 17.1 of the SPPA empowers the Tribunal to order a party to pay another party’s costs in a proceeding according to rule made under s. 17.1(4). Section 17.1(2) states that the Tribunal shall not order a party to pay costs unless the conduct or course of conduct of that party has been unreasonable, frivolous or vexations, or has acted in bad faith.

37Rule 19.1 of the Rules mirrors the language of s. 17.1(2) of the SPPA and permits a party to make a request to the Tribunal for costs.

3819.1 Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith that party may make a request to the Tribunal for costs, …The respondent’s submissions ¹⁷ point out that it is not clear from the applicant’s submissions as to whether the applicant is asking for costs or an award under section 10 of Regulation 664¹⁸ made under The Insurance Act¹⁹ because the applicant relies on case law pertaining to “special awards” under the now repealed section 282(10) of the Insurance Act.

39I am satisfied that the applicant is seeking costs and not an award under Regulation 664 for the reason that the applicant is represented by counsel and in his reply submissions²⁰ the applicant clearly reiterates his request for costs and does not ask for an award under Regulation 664.

40The request for costs by the applicant is denied because I am not satisfied that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith in these proceedings.

41The applicant argues that an insurer’s conduct is unreasonable because the respondent failed to weigh the entirety of the evidence and relied upon the “flawed” report of its own expert, Rasul Kassam in denying the claim.

42The applicant also argues that the respondent owes a duty of utmost good faith to the applicant and cannot simply delegate its decision on a treatment plan to a medical examiner.

43The applicant asks me to draw an adverse inference because that respondent did not produce the log notes of the adjuster working on the file from the date of loss to the date of the application to the Tribunal.

44The Tribunal’s Rules only refer to behavior that occurs during the course of the proceeding before the Tribunal.

45The decisions of the Tribunal in 16-00041 v. Intact Insurance Company, 2016 Can LII 78333 (ON LAT) and J.B. v. Meloch Monnex Financial Services Inc., 2016 Can LII 96162 (ON LAT) cited by the respondent confirm this principle.

46The behavior that the applicant argues is unreasonable occurred prior to the application being filed with the Tribunal on October 13, 2016. ²¹ The only behavior of the respondent the applicant refers to that occurred after the filing of the application with the Tribunal is the respondent’s failure to produce the adjuster’s log notes that were ordered to be produced by the Tribunal at the case conference on January 17, 2017.

47I do not draw any inference from the fact that the applicant did not produce the adjuster’s log notes from the date of the accident to the date of the claims for the reason that the behavior of the respondent before the application to the Tribunal is not relevant to a cost determination under the LAT Rules.

48I also do not find the respondent’s failure to produce the adjuster’s log notes to be behavior entitling the applicant to costs because there is no evidence that the applicant pursued the request for the log notes after the order was made on January 17, 2017 and because I am not satisfied that the adjuster’s log notes are relevant to any of the issues the Tribunal has been asked to decide.

49In his reply submission the applicant requests an order from the Tribunal compelling the production of the adjuster’s log notes.

50It is too late to ask for a production order in the reply submission for a written hearing and as already stated I am not convinced that the adjuster’s log notes are relevant to the issues before me on this application.

ORDER

1. The applicant is entitled to receive a rehabilitation benefit in the amount of $2,388.93 occupational therapy treatments, recommended by DMA Rehabilitee in a treatment plan dated June 30, 2014 and denied by the respondent on October 15, 2014

2. The applicant is entitled to interest on the overdue payment of benefits.

3. The applicant is not entitled to costs

Footnotes

1. 1Tab 8, applicant’s submissions
2. 2Application – Tribunal File
3. 3Tribunal Order dated Feb. 1, 2017 stated denial date as October 15, 2015. Explanation of Benefit form filed with the application confirms denial date to be October 15, 2014
4. 4Tab 1, applicant’s submissions
5. 5Tab 2, applicant’s submissions
6. 6Tab 3, applicant’s submissions
7. 7Tab 7, applicant’s submission
8. 8Tab 11, applicant’s submissions
9. 9Tab 12, applicant’s submissions
10. 10Tab J, respondent’s document brief
11. 11Tab K, respondent’s document brief
12. 12Tab L, respondent’s document brief
13. 13Tabs M&N, respondent’s document brief
14. 14Tab G respondent’s document brief
15. 15Tab 2, applicant’s reply submissions
16. 16Tab 3 applicant’s reply submissions
17. 17Page 8, Written Submissions of respondent
18. 18R.R.O. 1990
19. 19R.S.O. 1990, c. I.8
20. 20Page 4 Applicant’s Reply Submissions
21. 21Application, Tribunal Record