Tribunal File Number: 16-003478/AABS
Case Name: 16-003478 v The Co-operators General Insurance Company
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
and
The Co-operators General Insurance Company
Respondent
HEARING DECISION
Adjudicator: Ian Maedel
Appearances:
For the Applicant: Lindsay Charles, Counsel
For the Respondent: Jonathon Kahane-Rapport, Counsel
Heard in writing on: June 1, 2017
OVERVIEW
1This is an application to the Licence Appeal Tribunal (the “Tribunal”) concerning an insured person’s entitlement to statutory accident benefits. Specifically, this application concerns the amount of statutory accident benefits to which an insured person is entitled.
2The applicant was catastrophically injured in a motor cycle accident resulting in the amputation of his right leg. There is no dispute amongst the parties that he sustained a catastrophic impairment.
3A dispute arose between the parties regarding the hourly amount of the case management services provided by Lori-Ann St. Louis and Carrie Greenbird, both registered social workers.
ISSUE TO BE DECIDED
4The following is the issue to be decided:
a) Is the applicant entitled to case manager services in the amount of $150.00 per hour from June 12, 2016 to date and ongoing, provided by Lori St. Louis and Carrie Greenbird and denied by the respondent on June 21, 2016?
b) Is the respondent liable to pay an award under Regulation 664 1 because it unreasonably withheld or delayed payments to the applicant?
RESULT
5Based on the totality of evidence before me, I find that the applicant is entitled to $89.07 per hour for the case manager services provided by Ms. St. Louis and Ms. Greenbird. This is the maximum hourly rate for case manager services regarding catastrophic impairments set out in the Professional Services Guideline2 (the “Guideline”).
6The quantum claimed for case manager services is reasonable and necessary given explicit limits in the Guideline.
7This matter turns on the definition of “qualified case manager” in section 17(3) of the Statutory Accident Benefits Schedule, effective September 1, 20103 (the “Schedule”).
8The claim for an award pursuant to section 10 of Regulation 664 or any application for costs against the respondent shall be dismissed in their entirety.
FACTS
9The applicant was catastrophically injured in a motorcycle accident on June 13, 2016. As a result of the accident, his right leg was amputated above the knee. He remained in hospital until August 12, 2016.
10On June 20, 2016 the applicant submitted an Application for Benefits (OCF-1) to the Co-operators, the respondent, who acknowledged the applicant sustained a catastrophic injury.
11On July 8, 2016, a treatment plan (OCF-18) was submitted to the respondent by Dr. Thomas Davidson, Psychologist, for case management services to be provided by Ms. St. Louis and Ms. Greenbird. Both case managers are registered social workers and both have a Master’s degree in social work. Both are also registered with the Ontario College of Social Workers and Social Service Workers and are employed by Abilities Rehabilitation Services.
12The treatment plan claimed an hourly rate of $150.00 for Ms. St. Louis and $130.00 for Ms. Greenbird for case management services.
13The parties never agreed on an hourly quantum for the provision of case manager services.
14On July 21, 2016 the respondent advised the applicant it would partially fund the assessment proposed in the treatment plan (OCF-18) dated July 8, 2016 for case manager services in the amount of $100.00 per hour.
15On February 16, 2017, the respondent reduced the case manager hourly rate to $89.07 per hour based on the Maximum Hourly Rate of Unregulated Providers for catastrophic impairments prescribed by the Guideline.
16The applicant filed an application for dispute resolution with the Tribunal on October 25, 2016.
17The respondent claims that the hourly quantum claimed for case manager services is not reasonable or necessary and has denied payment of the hourly rates claimed by Ms. St. Louis and Ms. Greenbird.
18As part of their submissions, the respondent provided a labour market study prepared by Acclaim Ability Management Inc. of social workers rates of pay in the applicant’s geographic region.
19The applicant claims that Ms. St. Louis and Ms. Greenbird are social workers providing services as case managers. Consistent with these duties, the hourly quantum is reasonable and necessary and falls within the general interpretation and spirit of the Schedule and the decision in Lubana and Markel Insurance.4
20The applicant takes issue with any reliance on the labour study rovided, submitting that it was drafted by a third party in breach of the applicant’s privacy interests. As a result, the applicant is seeking to exclude said report from the respondent’s submissions an award pursuant to section 10 of Regulation 664.
ANALYSIS
21The facts in dispute are quite straightforward. It is admitted by both parties that Ms. St. Louis and Ms. Greenbird are professional social workers and registered with the Ontario College of Social Workers and Social Services Workers. There is similarly no dispute that Ms. St. Louis and Ms. Greenbird provided case manager services to the applicant.
22If I find that Ms. St. Louis and Ms. Greenbird are covered by the Guideline, then they are entitled to the amount set out in it ($89.07 per hour), and I need look no further. If not, I will need to consider what rate may be reasonable for their services.
23Section 17 of the Schedule states:
Case manager services
- (1) Subject to subsection (2), medical or rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by a qualified case manager in accordance with a treatment and assessment plan under section 38,
(a) if the insured person sustains a catastrophic impairment as a result of the accident; or
(b) if the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) is available to the insured person. O. Reg. 34/10, s. 17 (1); O. Reg. 251/15, s. 7.
(2) The insurer is not liable to pay expenses for case manager services that exceed the maximum rate or amount of expenses established under the Guidelines. O. Reg. 34/10, s. 17 (2).
(3) In this section,
“qualified case manager” means a person who provides services related to the co-ordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit. O. Reg. 34/10, s. 17 (3); O. Reg. 289/10, s. 3.
24Section 17 of the Schedule clearly establishes that an insurer is responsible to pay for case manager services provided they are reasonable and necessary as per section 17(1) and provided that they do not exceed the maximum rate established by the Guidelines as per section17(2).
25Section 17(3) further defines a “qualified case manager”, a definition which was absent from the 2009 version of the Schedule.
26To obtain the applicable maximum hourly rate for case manager services, one then has to refer to the Guideline as per section 17(2) of the Schedule.
27The Guideline was published by the Financial Services Commission of Ontario (“FSCO”) in September 2014. At the outset it makes specific reference to section 17 of the Schedule:
This Guideline is issued pursuant to subsection 268.3 (1) of the Insurance Act for the purposes of subsections 15 (2) (b), 16 (4) (a), 17 (2) and 25 (3) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS), and applies to expenses related to services rendered on or after September 6, 2014.
28The purpose of the Guideline is also very clear from the outset:
This Guideline establishes the maximum expenses payable by automobile insurers under the SABS related to the services of any of the health care professions or health care providers listed in the Guideline. These maximums are applicable to:
a medical benefit under clauses 15 (1) (a), (b), or (h) of the SABS;
a rehabilitation benefit under clauses 16 (3) (a) to (g) or (l) of the SABS;
case management services under subsection 17 (1) of the SABS; or
conducting an examination, assessment or provision of a certificate, report or treatment plan under subsection 25 (1) 3 of the SABS.
Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline.
29Section 268.3 of the Insurance Act ( “the Act”) speaks to the applicability of Schedule Guidelines:
Guidelines, Statutory Accident Benefits Schedule
268.3 (1) The Superintendent may issue guidelines on the interpretation and operation of the Statutory Accident Benefits Schedule or any provision of that Schedule. 1993, c. 10, s. 27; 1997, c. 28, s. 116.
Same
(1.1) The Superintendent may issue guidelines setting out the treatment, services, measures or goods applicable in respect of types of impairments for the purposes of payment of a medical or rehabilitation benefit provided under the Statutory Accident Benefits Schedule, and such guidelines may include conditions, restrictions and limits with respect to such treatment, services, measures or goods. 2002, c. 22, s. 125.
Effect of guideline
(2) Subject to section 268.2, a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule. 1993, c. 10, s. 27.
30The Act is clear - the Guideline must be “considered” when determining the reasonableness of provision of services, like those of a case manager.
31There is a direct reference to case manager services pursuant to section 17 of the Schedule. The superintendent’s intention is clear that insurers are only required to pay the maximum hourly rate for covered services.
32The maximum hourly rate for case management services for catastrophic impairments is $89.07, as laid out in the Guideline’s Appendix.
33The essential difference between the parties is whether a social worker providing case management services is to be paid at the case management rate or at a reasonable rate for a social worker. In light of section 17(3), I find that they fall within the definition of “qualified case manager” notwithstanding their professional designation or qualifications.
34Clearly the legislative intent of including the definition of a “qualified case manager” illustrates an attempt to bring certainty to this particular role. Anyone providing services related to the coordination of goods and services falls into the role of a “qualified case manager”. The definition makes no reference to potential professional designations.
35By definition, another professional such as a physiotherapist, occupational therapist or podiatrist could also fall into this category, provided they coordinated treatment services for an injured party.
36Both parties have made reference to FSCO Arbitrator Wilson’s decision in Lubana and Markel Insurance which is directly on point with regard to this issue.
37Arbitrator Wilson did not have the benefit of referring to section 17(3) of the Schedule, as the definition of “qualified case manager” was not added to the Schedule until 2010. The legislative intent of this change cannot be ignored, thus, Arbitrator Wilson’s decision is of little persuasive value.
38The applicant has relied on a 2004 FSCO Bulletin stating that regulated and unregulated providers are to be paid according to their professional designation, not by the services they provide.
39The definition in section 17(3) and the FSCO policy differ. The definition is focused on the services provided, whereas the FSCO policy is focused on a provider’s professional designation.
40Unlike the Guideline, this 2004 Bulletin is not binding. In my view, any analysis must revert to the clear definition of a “qualified case manager” in the Schedule.
41The legislature has clearly defined the terms of the Schedule, and FSCO has clearly defined the rates of pay in the Guideline. While social workers are not listed as regulated or unregulated providers, qualified case managers are defined by the nature of the services they provide.
42If professional social workers are providing services as a “qualified case manager(s),” as per section 17(3) of the Schedule, they shall be paid according to the Guideline at a maximum rate of $89.07 per hour (my emphasis).
43The intent is not to ignore the professional accreditation of social workers or any other professional provider, but to provide certainty regarding the services provided as per the Schedule and the Guideline.
44Parties must expect some certainty with regard to the hourly maximum rates charged by providers. If rates are not agreed upon by the parties, there must be a strict adherence to the rates set out in the Guideline.
45Selective application of the Guideline and the rates of pay therein would completely ignore the definition of “qualified case manager” and the legislative intent to bring clarity for the services provided.
46Given the evidence before me and the clear definition set out in the Guideline, Ms. St. Louis and Ms. Greenbird shall be paid the maximum hourly rate of $87.09.
47To provide payment for case manager services at a rate of $150.00 or $130.00 per hour would amount to a selective application of the Guideline. This is apparent when one examines the maximum hourly rates for other qualified regulated professionals such as occupational therapists, physiotherapists and podiatrists, which all fall below the hourly quantum sought by the applicant.
48Case manager services are often provided by other qualified professionals. The intent of the definition is to clarify the services provided. When a qualified professional is providing case management services, they shall be paid as a case manager. To provide payment as per their professional designation, would render the definition of “qualified case manager” and the maximum hourly rates in the Guideline meaningless.
49In light of my finding that the maximum rate for case managers applies, I need not consider evidence regarding what might be a reasonable rate for social workers in the geographic region where the applicant resides.
The Labour Market Survey
50The respondent has provided a labour market survey prepared by Acclaim Ability Management Incorporated. The applicant objects to any reliance on the document, indicating that it was prepared in violation of the applicant’s privacy and to bolster the respondent’s case before the Tribunal.
51In light of my finding with respect to the Guideline, I need not consider the labour market survey except to the extent that it may trigger an award pursuant to section 10 of Regulation 664 of the Act.
Costs and an Award Pursuant to Section 10, Regulation 664 of the Insurance Act
52The applicant has sought to amend the application to include an award pursuant to section 10 of Regulation 664 of the Act. Section 10 states:
Dispute Resolution (Section 280 of the Act)
- If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. O. Reg. 43/16, s. 4.
53The applicant advanced this claim due to the respondent’s reliance on the labour market study provided by Acclaim Ability Management Incorporated. Specifically, the applicant claims that his privacy was breached when the respondent provided key information such as the name, date of birth and date of loss to a third party for the preparation of said report.
54The test for this award is a particularly onerous one: has an insurer has unreasonably withheld or delayed payment? I do not find that that the provision of the applicant’s information to Acclaim Ability Management Incorporated meets any portion of the aforementioned test. I do not find that the respondent acted in bad faith, nor do I find that the respondent breached the applicant’s privacy by providing the applicant’s name and date of birth to Acclaim Ability Management Incorporated for the purposes of the market survey. There has also been no evidence submitted that would lead me to conclude that the respondent unreasonably withheld or delayed payment of any benefit. Thus, any claim for an award pursuant to section 10 of Regulation 664 is dismissed.
CONCLUSION
55For the reasons outlined above, I find that:
i. Based on the totality of evidence before me, I find that the respondent is entitled to $89.07 per hour for the case management services provided by Ms. St. Louis and Ms. Greenbird. This is the maximum hourly rate for case manager services regarding catastrophic impairments.
ii. The quantum claimed for case management services is not reasonable and necessary given explicit limits in the Professional Services Guideline.
iii. This matter turns on the definition of “qualified case manager” in section 17(3) of the Schedule.
iv. The claim for an award pursuant to section 10 of Regulation 664 is dismissed.
Released: September 29, 2017
Ian Maedel, Adjudicator
Footnotes
- R.R.O. 1990.
- Superintendent’s Guideline No. 04/14, Financial Services Commission of Ontario
- O. Reg. 34/10.
- Surjit Singh Lubana and Markel Insurance Company of Canada, FSCO A07-002502, October 28, 2009.