C.D. v. Certas Home and Auto Insurance Company, 2019 CanLII 101655

Citation: C.D. vs. Certas Home and Auto Insurance Company, 2019 ONLAT 18-006437/AABS

Date: August 7, 2019

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:

C.D.

Appellant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

Appearances:

For the Appellant: Michelle F. Jorge, Counsel

For the Respondent: Marianne D. Davies, Counsel

Heard in Writing: April 29, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant “CD” was involved in a motor vehicle accident (“the accident”) on June 12, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2CD applied to the Licence Appeal Tribunal (“the Tribunal”) when her claims for benefits were denied by the respondent “Certas”.

ISSUES IN DISPUTE

3I must determine the following issues:

1. Is CD entitled to a case manager services (CMS) benefit in the amount of $600.00 for a partially approved treatment plan (total claim $8,416.04) submitted on October 3, 2015 and denied by Certas on December 15, 2015?
2. Is CD entitled to a benefit in the amount of $3,750.30 for CMS submitted May 23, 2018 and denied June 21, 2018?
3. Is CD entitled to interest on any overdue payment of benefits?

RESULT

4CD’s appeal on issue 1 is denied. Certas is not liable to pay the disputed amount for CMS under the Professional Services Guideline²

5I find that CD has/not met the onus on her to prove that the CMS benefit she seeks is reasonable and necessary.

ANALYSIS

6Section 17 of the Schedule prescribes the conditions to be met before the insurer is obliged to pay for CMS. CMS benefits are payable to persons who have sustained a catastrophic (“CAT”) impairment as a result of the accident.

7Section 17(3) defines “qualified case manager” and in doing so describes CMS as “the provision of services related to the coordination of goods and services for which payment is provided by a medical, rehabilitation or attendant care benefit.”

8The parties agree that CD is CAT impaired.

9I will refer to issue 1 as “the 2015 CMS proposal”. I will refer to issue 2 as “the 2018 CMS proposal”.

Issue 1: The 2015 CMS Proposal

10Certas approved the 2015 CMS proposal on its merits and paid $7,816.04 of it. However, Certas determined that the remaining balance of $600.00 is not payable in accordance with the provisions of the Professional Services Guideline (PSG).

11The PSG, page 9, paragraph 5 states that:

"Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.”

12CD argues that Certas is obliged to pay the disputed $600.00 because PSG states that “insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline”³ and “thus the partial denial of $600.00 of the $8,416.04 is not reasonable and necessary”.

13CD further argues that “the insurer agreed to pay $1,310.86 within the same treatment plan for ‘provider travel time’. Thus, [CD] submits that it would appear inconsistent for the insurer to partially deny the mileage on the basis that the additional cost caused the increase in the hourly rate yet approve $1,310.86 for ‘provider travel time’ amongst other costs.”

14I note that while Certas does not provide a breakdown or analysis of which specific expenses or fees push the 2015 CMS proposal above the PSG limits, CD does not contend that the above-noted PSG restriction on liability applies to the disputed amount. She does not deny the overage.

15I find that Certas is not liable to pay the disputed $600.00 on this case management plan because:

i. As noted, CD does not deny that the PSG limits on costs were exceeded.

ii. I have no authority to waive PSG restrictions on costs merely because Certas is not prohibited from paying extra amounts or because it allegedly was inconsistent in applying the PSG.

iii. There is no requirement for a denial to be reasonable and necessary: a denial must be based on valid medical and other reasons, and a partial denial based on the PSG is valid.

Issue 2: The 2018 CMS Proposal

16To support her claim, CD provides a detailed description of her accident-related impairments, including physical, psychological and cognitive issues. She relies on the following specific evidence:

i. In a Future Care Needs and Costs Analysis dated October 19, 2017, Ms. Wagenberg, occupational therapist, recommends 10 hours of case management services every five years at a fixed term cost of $15,121.20. This is to provide continued support to CD’s rehabilitation services.

ii. In an Initial Case Management Report dated October 17, 2016, Ms. Natalie Langlois, rehabilitation case manager, recommends that CD have a case manager to provide education to CD and her family and friends about her rehabilitation and facilitate additional referrals.

iii. A large number of medical reports detailing her continuing impairments. Of most interest to me were reports speaking to CD’s cognitive impairment, for example:

a. the neuropsychological report of Dr. Mendella, which diagnosed cognitive disorder NOS (post-concussional disorder);

b. CD’s CAT Impairment Evaluation, dated October 16, 2015, which included an assessment of 6-8% whole person impairment for mental status;

c. Certas’ CAT Determination IE⁴ report dated May 13, 2015, which included an opinion that CD’s prognosis for cognitive recovery is poor;

d. a vocational reintegration plan report dated March 31, 2017 by Ms. Richer identifying cognitive impairments as a barrier to vocational reintegration;

e. a occupational therapy attendant care needs reassessment report dated November 6, 2016 by Ms. McGregor, occupational therapist, noting cognitive difficulties including memory, concentration and attention span difficulties.

17Certas rebuts CD’s claim with the following evidence:

i. The Nurse Evaluation IE report by Beverley Hammond, RN, dated September 12, 2018, in which Nurse Hammond reported that CD stated that she was actively engaged in employment, was “an active partner in a business up until the day of the examination” and was taking a break before looking for a job in her “trained field of Human Resources”, attended appointments independently and as needed and never missed any of her therapy appointments out of forgetfulness or confusion. Nurse Hammond also reported that CD demonstrated insight around her therapy appointments, and the ability to book appointments beyond her regularly scheduled appointments; she specifically has extended the time between appointments to accommodate other life commitments. Nurse Hammond opined that the 2018 CMS proposal is not reasonable and necessary.

ii. The most Future Care Needs and Costs Analysis dated October 19, 2017, and relied on by CD, is inconsistent with the frequency, duration and cost of services recommended in the 2018 CMS proposal, which recommends 8.5 hours of CMS over a 12-week period.

18This case turns on whether CD continues to need CMS at present. Certas has approved previous CMS proposals, including the 2015 CMS proposal in this case and another CMS proposal approved on May 20, 2017. The evidence indicates that Certas approved CMS proposals when the contemporaneous medical evidence supported them, but has determined as a result of the September 12, 2018 Nurse Evaluation IE report that CD does not require CMS benefits at this time.

19I find that CD has not proven her entitlement to the benefit set out in the 2018 CMS proposal. I find that on balance CD does not require CMS at present, because:

i. I find the IE report by Nurse Hammond to be persuasive, noting that CD does not criticize its methodology, although she disputes it conclusion. In my view, the attributes observed by Nurse Hammond (also uncontested) speak persuasively to CD’s current ability to manage her own treatment schedule and otherwise coordinate the medical and rehabilitation goods and services for which Certas is paying benefits. This IE Nurse Evaluation report is the most recent evidence available.

ii. The Initial Case Management Report cited by CD is conflicted. While Ms. Langlois, recommends that CD have a case manager, at page 7 of the report Ms. Langlois states that “[CD] has been successfully managing her own rehabilitation needs and it has been recommended by this Clinician that the Case Management file be closed. [CD] is agreeable to same.” The contradictory statements in this report weaken its probative value.

iii. In a Vocational Status Update report dated June 30, 2017, Samantha McIntosh, vocational consultant reported that CD claimed that she was an owner and esthetician in a nail salon in her home town. She described her duties as organizing and scheduling duties of employees, restocking supplies and training a new person to take over the salon. This appears to me to support CD’s capacity to coordinate her own treatment and rehabilitation services.

iv. CD’s emphasis on evidence of ongoing impairments and challenges over a number of years did not, by and large, speak to her current capacity for “self-management”. There was nothing in the evidence of physical impairment to indicate that CD cannot, at present, coordinate her own treatment and rehabilitation. Likewise, in the reports noted above in paragraph [15] iii, cognitive difficulties, generally described as mild, were not expressly linked to issues of capacity for self-managing access to medical and rehabilitation services or to a need for CMS. This was telling in my view, because the same reports did relate cognitive challenges to the need for academic supports and workplace accommodations. I was unable to accord this evidence as much weight as the more recent and on-point IE Nurse Evaluation report.

CONCLUSION

20CD has not met the onus on her to prove her entitlement to the disputed CMS benefits.

21There are no payments owing to CD and therefore no interest due on overdue payments.

Footnotes

1. 1O. Reg. 34/10.
2. 2FSCO Superintendent’s Guideline 03/14, Professional Services incorporated by reference into the Schedule.
3. 3FSCO Superintendent’s Guideline 03/14, Professional Services, page 8, paragraph 4.
4. 4“IE” means “insurer’s examination”.