Licence Appeal Tribunal
Tribunal File Number: 18-008199/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:
C.M.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: Emily Foreman
Counsel for the Respondent: James Schmidt
Written Hearing: November 15, 2019
OVERVIEW
1The applicant, C.M., was injured in an automobile accident on June 21, 2016 and sought benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2As a result of the accident, C.M. alleges she sustained a concussion, contusions to her left shoulder and left ankle, and strained her wrists. She sought attendant care benefits and various medical and rehabilitation benefits. Attendant care was denied by Wawanesa on the basis that C.M.’s service provider, her mother, did not meet the requirements for a provider under the Schedule. Wawanesa denied the medical benefits on the basis that C.M. fell within the Minor Injury Guideline (the “MIG”) and that they were not reasonable and necessary. C.M. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided, as set out in the case conference order dated March 11, 2019:
i. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month for the period June 21, 2016 to August 16, 2016?
ii. Is the applicant entitled to attendant care benefits in the amount of $205.60 per month for the period August 16, 2016 to November 14, 2016?
iii. Is the applicant entitled to receive a medical benefit in the amount of $3,108.74 for physiotherapy treatment, recommended by Neurophysio Rehabilitation in a treatment plan dated July 8, 2016, and denied by the respondent on July 26, 2016?
iv. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,486.00 for occupational therapy services, recommended by Brainworks Corporation in a treatment plan dated July 15, 2016, and denied by the respondent on September 26, 2016?
v. Is the applicant entitled to receive a medical benefit in the amount of $43.06 for physiotherapy treatment, recommended by Neurophysio Rehabilitation in a treatment plan dated October 24, 2016, and denied by the respondent on November 4, 2016?
vi. Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,197.51 for occupational therapy services, recommended by Novus Rehabilitation Ltd. in a treatment plan dated October 25, 2016, and denied by the respondent on October 27, 2016?
vii. Is the applicant entitled to receive a medical benefit in the amount of $2,443.90 for physiotherapy treatment, recommended by Neurophysio Rehabilitation in a treatment plan dated December 1, 2016, and denied by the respondent on December 8, 2016?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find on the evidence that C.M. is not entitled to attendant care for either period in dispute as she has not demonstrated that the care was provided by a professional service provider or that her mother sustained an economic loss. I also find that C.M. is not entitled to any of the treatment plans, as they are not reasonable and necessary.
ANALYSIS
Attendant Care Benefits
5I find C.M. is not entitled to attendant care for either period in dispute, as she has not demonstrated that her service provider meets the definition under the Schedule or that the services were incurred.
6Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant. Section 3(7)(e) provides further guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. Further, s. 3(8) states that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
7C.M. submits that her mother, L.M., provided attendant care services to her between June 21, 2016 and late August 2016 in accordance with the retroactive Assessment of Attendant Care Needs form dated November 14, 2016. Following the accident, L.M. drove to London to pick up C.M., who then spent two weeks living at L.M.’s home in McGregor, Ontario. L.M. provided C.M. with 24-hour care, including personal care, hygiene and bathing, meal preparation, taking her to appointments, doing her laundry and providing her medication. After two weeks, L.M. accompanied C.M. back to London for her physiotherapy and resided in her home for three weeks, providing the same services. C.M. then returned to work in late August 2016.
8In her affidavit, L.M. states that she is trained and was previously employed as a Health Care Aid (“HCA”). She states that she was not employed—as an HCA or otherwise—during the period she provided attendant care for C.M. but was still accredited as an HCA at the time and had the training, competency and certification to provide C.M. with care during the period in dispute. Accordingly, C.M. argues that L.M. should be considered a professional service provider under the Schedule and, therefore, she is not required to prove an economic loss and may charge for her services at the professional guideline rate.
9In response, Wawanesa submits that L.M. was not acting in the course of her employment, occupation or profession in which she would have ordinarily engaged in but for the accident at the time she provided attendant care to C.M. Wawanesa argues that L.M. had not been employed as an HCA since the 1990s and did not provide evidence of her accreditation or certification. Further, it argues L.M. was not employed during the period in dispute, has not adduced evidence that she was seeking employment in this profession and did not provide a breakdown of the services provided and what was actually incurred. Wawanesa also submits that C.M. has not provided evidence that the attendant care was even reasonable and necessary for the injuries she sustained in the accident and that the Assessments of Attendant Care Needs recommending 24 hours of care and the reduced amount were both completed retroactively without reference to any medical documentation whatsoever. Finally, Wawanesa submits that C.M. returned to both of her pre-accident jobs on modified duties on August 15, 2016, during the same period she is claiming that she needed 24-hour attendant care.
10On the evidence, I agree with Wawanesa. While I agree with C.M. that a family member like L.M. can be a service provider and that a professional service provider is not required to prove an economic loss, the Tribunal cannot ignore the holding in Shawnoo v. Certas Direct, 2014 ONSC 7014 which found that an HCA—who had not been employed or paid as one for a considerable period of time and was also not seeking employment in the field at the time the services were provided—“was not acting in the course of employment, occupation or profession in which they ordinarily engaged” and therefore attendant care was not payable. Like the Court in Shawnoo, I have difficulty accepting C.M.’s position that L.M. was acting in the course of her “employment, occupation or profession” as an HCA when she was providing care to her daughter. In her affidavit, L.M. admits that she was unemployed during both periods in dispute and had not provided services as an HCA since the early 1990’s. Further, as Wawanesa submits, there was no evidence provided to the Tribunal that L.M. was seeking employment or had been offered employment as an HCA during the periods she provided aid to C.M. or that she even intended to return to the field, let alone evidence that L.M. incurred economic losses as a result of having to provide this aid to C.M.
11On the facts before the Tribunal, aside from caring for C.M., I find that L.M. was not working as an HCA during the periods in dispute—or even in the decade prior to C.M.’s accident—and I am not satisfied that L.M. would have been ordinarily working in the course of her employment as an HCA but for C.M.’s accident. Accordingly, I find that C.M. is excluded from claiming payment for attendant care benefits under the Schedule unless she can demonstrate that L.M. suffered an economic loss. As indicated above, C.M. has not provided evidence of L.M.’s economic loss or a breakdown of the services provided. I find that C.M. has not satisfied her onus to prove that L.M. suffered an economic loss.
12For completion, while I accept that C.M. may have needed some assistance from L.M. following her accident and recognize the important role that family members play in these situations, I agree with Wawanesa that the sheer amount of attendant care recommended—being 24-hours of care—by occupational therapist Ms. Moore is not proportional to the injuries C.M. sustained in the accident or for her timeline for recovery, which was fairly quick. Further, given the fact that C.M. returned to work on modified hours during the period she is now claiming entitlement to and that Ms. Moore’s recommendations were made retroactively, I cannot help but question the veracity of the Assessment of Attendant Care Needs form. In addition, while I am alive to Dr. Sequeira’s recommendations for housekeeping, I note that his report is dated September 14, 2018 and seems to focus on housekeeping, which C.M. was not entitled to. On this basis, I afforded his retroactive opinion limited weight.
13As a result, I do not find L.M. provided attendant care in the course of her employment, occupation or profession and did not sustain an economic loss in doing so. For the reasons above, I also do not find the attendant care to be reasonable or necessary for either period and therefore it is not payable.
Are the treatment plans reasonable and necessary?
14I find that none of the treatment plans in dispute are payable as they have not been incurred by C.M. and are not reasonable and necessary.
15C.M. submits that all of the treatment plans in dispute—three for occupational therapy and two for physiotherapy—were denied by Wawanesa on the basis that her accident-related impairments were subject to treatment within the MIG and since she is no longer within the MIG, that all of the treatment plans are payable and, based on the treatment goals and the report of Dr. Sequeira, are reasonable and necessary.
16In response, Wawanesa submits that C.M. had not adduced any timely evidence from a family doctor or a hospital to establish the impairments she allegedly sustained as a result of the accident. It argues that the 2018 report of Dr. Sequira on which C.M. relies did not even address C.M.’s impairments until two years after the treatment plans in dispute were submitted. Wawanesa relies on the medical opinion of Dr. Khaled, who found that C.M. sustained soft-tissue injuries and that further symptomatic relief could be achieved with independent, self-directed, home or community-based active rehabilitation. Finally, it argues that C.M. did not provide updated clinical notes or evidence that the treatment was incurred.
17I agree with Wawanesa. It is well-settled that it is the applicant’s burden to prove that treatment plans are reasonable and necessary and incurred in order to receive payment from the insurer. On the evidence, I find C.M. has not proven, on a balance of probabilities, that any of the treatments proposed are reasonable and necessary in order to aid in her recovery from the accident. What is more problematic, in my view, is that C.M. has not provided medical evidence concurrent with the accident detailing what exactly her impairments from the accident were and any diagnosis, prognosis or recommendations for her recovery. While not strictly required, aside from the OCF-18s from the clinic that list her impairments and the retroactive reports from Ms. Moore and Dr. Sequeira, I find there are simply no continuous or corroborating records from medical professionals in evidence to support the treatment she is claiming nor the injuries she claims to have sustained as a result of the accident. Accordingly, it is difficult to discern what is reasonable and necessary when all that is before the Tribunal are OCF-18s.
18Indeed, the medical documentation before the Tribunal that C.M. relies on is, quite frankly, either not proportional to the evidence or, untimely for my analysis. The OHIP summary reveals a single visit in November 2016, five months after the accident. As noted, Ms. Moore’s OT report made recommendations for 24-hour attendant care that are not, in my view, supported by the evidence. Ms. Moore’s retroactive recommendations were to help C.M. return to work and complete her daily activities. However, by the time these recommendations were made, C.M. had been back at work for over two months. Meanwhile, Dr. Sequeira’s report detailing C.M.’s impairments was completed on September 14, 2018, which is more than two years after the treatment plans were submitted, which is so far removed from the accident that its weight is negligible. Simply put: it is C.M.’s onus to prove that the treatment plans are reasonable and necessary, but she has not provided the Tribunal with objective and timely medical evidence to rebut the findings of Dr. Khaled on which Wawanesa relied in denying the treatment. On the evidence, I find no reason to interfere with Wawanesa’ determinations. Accordingly, I find C.M. is not entitled to payment for any of the treatment plans in dispute.
Section 3(8)
19Finally, while I am alive to the fact that C.M. was removed from the MIG at the case conference, it remains her onus to prove that any treatment claimed is reasonable and necessary and incurred. On the evidence, it appears that her MIG limits have been exhausted. However, I find that she has not proven that the treatments in dispute are reasonable and necessary or that they were incurred.
20C.M. argues that s. 3(8) of the Schedule applies and that the treatment plans should be deemed incurred because Wawanesa refused to remove her from the MIG. I disagree. I find no evidence that Wawanesa unreasonably withheld or delayed the payment of benefits that C.M. was entitled to. I decline to exercise the discretion afforded by s. 3(8) to deem the treatment incurred and therefore payable.
Interest
21As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
CONCLUSION
22For these reasons, I find C.M. is not entitled to attendant care for either period in dispute as she has not demonstrated that it was provided by a professional service provider in the course of her employment or that an economic loss occurred. I find she is not entitled to payment for any of the treatment plans, as they are not reasonable and necessary and have not been incurred.
Released: November 27, 2019
Jesse A. Boyce
Adjudicator