DM v. Wawanesa Mutual Insurance Company, 2019 CanLII 43877

Tribunal File Number: 18-003314/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

DM

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

DECISION

PANEL:

Rebecca Hines, Adjudicator

APPEARANCES:

For the Applicant:

Gary Mazin, Counsel

Vasiola Bibolai, Counsel

For the Respondent:

Catherine Korte, Counsel

Michele Legault, Counsel

HEARD:

In Person: December 11, 12 and 13, 2018

OVERVIEW

1On September 14, 2011, DM, the applicant, was driving a motorcycle when he collided with a car making a left hand turn at a traffic light. He was transported by paramedics to hospital where he was diagnosed with fractures to several parts of his body, as well injuries to his liver. One of his kidneys was removed. He underwent various surgeries and remained in hospital for a period of two months.

2He applied for accident benefits to Wawanesa Mutual Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied certain benefits and the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve this dispute at a case conference and the matter proceeded to an in-person hearing.

3The applicant was deemed to be catastrophically impaired in 2016, and as a result is entitled to claim a higher level of benefits.

ISSUES

4I have been asked to decide the following issues:

a) Is the applicant entitled to an attendant care benefit (ACB) in the amount of $6,000.00 per month from January 2018 to date and ongoing;

b) Is the applicant entitled to a medical benefit in the amount of $5,527.09 for physiotherapy recommended by Balance Physiotherapy in a treatment plan (OCF-18) submitted on May 10, 2018 and denied by the respondent on July 12, 2018;

c) Is the applicant entitled to a medical benefit in the amount of $4,633.04 for physiotherapy and chiropractic treatment recommended by Canadian Active Rehabilitation Centre (Canadian Active) in an OCF-18 submitted on October 17, 2018 and denied by the respondent on October 22, 2018;

d) Is the applicant entitled to interest on the overdue payment of benefits; and

e) Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

RESULT

5After reviewing and considering all of the evidence, I find that:

a) The applicant is entitled to an ACB in the amount of $3,047.29 per month from May 1, 2018 to date and ongoing; and

b) The OCF-18 for physiotherapy recommended by Balance Physiotherapy is partially reasonable and necessary in the amount of $3,728.29.

6I find that the applicant is not entitled to the following:

a) The OCF-18 for chiropractic treatment and physiotherapy recommended by Canadian Active in the amount of $4,633.04;

b) The applicant is not entitled to interest on overdue payments of benefits; and

c) The applicant is not entitled to an award.

PROCEDURAL ISSUES

The Applicant’s Witnesses

7On December 5, 2018, the applicant filed a witness schedule with the Tribunal listing ten witnesses to testify over three days. The schedule allotted a half day for the applicant’s testimony and an hour for each additional witness. The schedule did not take into consideration time for cross-examination and reply. In addition, no time was allotted for the respondent’s witnesses. At the beginning of the hearing, I asked the applicant to narrow his witness list as the schedule submitted was not practical and all of the witnesses were either not relevant to the issues in dispute or were duplicative. The applicant complied with the Tribunal’s request and narrowed his witnesses to seven.

Motion to exclude the Respondent’s Document Brief

8The applicant requested that the respondent’s document brief be excluded from the record on the basis that it was not served on the applicant until December 5, 2018 and was in non-compliance with Adjudicator Driesel’s order dated September 8, 2018. Adjudicator Driesel ordered the parties to exchange and file the evidence they intend to rely upon at the hearing 10 days prior to the hearing. The respondent argued that all of the documents in its brief had previously been exchanged so nothing should come as a surprise to the applicant. Further, it would not be procedurally fair to exclude its brief as it would not be able to present its case.

9I allow the respondent’s brief to be admitted into evidence. While the respondent’s brief was not served 10 days prior to the hearing, I find to exclude it would prejudice the respondent’s ability to present its case. In addition, while the respondent served its document brief late, I find the applicant already had knowledge of the documents contained in it. Therefore, I find that any prejudice to the applicant is limited.

Motion to exclude the Respondent calling Dr. Paitich as a Witness

10The applicant opposed the respondent’s request to add Dr. Paitich, orthopaedic surgeon as a witness on the basis that he received insufficient notice. On November 2, 2018, the applicant filed a notice of motion with the Tribunal requesting to add the OCF-18 of Canadian Active as an issue in dispute and add Sayma Mohammad, chiropractor, as a witness. The respondent consented to the applicant’s request to add the OCF-18 for physiotherapy as well as the witness. On December 4, 2018, Vice Chair Helt issued an order granting the applicant’s request to add the OCF-18 and witness.

11On December 8, 2018, the respondent sent the Tribunal an email requesting to add Dr. Paitich as a witness. The respondent argued that since it consented to the applicant adding the OCF-18 and Sayma Mohammad as a witness, it would be prejudicial to the respondent to not allow it to call Dr. Paitich who conducted a section 44 insurer examination (IE) in regards to the denial of the OCF-18s.

12I allow the respondent to add Dr. Paitich as a witness. The respondent consented to the applicant adding the OCF-18 in dispute and the applicant’s witness at the last minute before the hearing. I find it would not be procedurally fair to the respondent and it would be prejudiced if I excluded this witness from testifying. Further, Dr. Paitich’s testimony is relevant to the OCF-18 added as an issue shortly before the hearing.

BACKGROUND

13The applicant testified that he did not have any significant pre-existing medical issues prior to the accident and he was independent in his daily activities. In regards to his pre-accident life, he maintained that he lived with a roommate in an apartment and shared equal responsibility for housekeeping. Further, he was in excellent physical health as he regularly went to the gym and played sports such as soccer, boxing and basketball. Since 2009, he worked as a sales and mortgage specialist for [a financial service provider] helping clients with GICs, retirement plans and mortgages. Shortly before the accident, he reduced his hours to part-time as he wanted to pursue an electrician apprenticeship.

14The applicant contends that, prior to the accident, he was in a four-year relationship, was very social and had lots of friends. He drank alcohol socially, smoked marijuana occasionally and had tried cocaine once or twice before the accident.

15The applicant submitted that the accident has ruined his life. Following the accident, he had to move back in with his mother as he could not physically look after himself. He suffers from pain every day and is severely depressed because of his physical and mental state. Furthermore, his girlfriend and friends left him because he could no longer do things. As a result, he has become lonely and isolated. Post-accident the applicant became addicted to Percocet as, following surgery, the hospital administered morphine and oxycodone. He attempted to go back to work in September 2012 but was eventually fired in 2013 as his attendance was poor and his addiction to Percocet affected his performance. He has been unable to obtain suitable employment as a result of his accident-related impairments.

16The applicant moved out his mother’s home in 2016 into a one-bedroom apartment because he and his mom did not get along. While living on his own, the applicant contends he started consuming more alcohol, at times mixing it with Percocet and cocaine.

17The applicant was designated catastrophically impaired following a section 44 insurer examination (IE) dated October 26, 2016. He was found to have a marked impairment under Criteria 8 under the sphere of adaptation from a mental and behavioural perspective. In addition, he met the 55% Whole Person Impairment (WPI) threshold under Criteria 7 (total of 65% WPI consisting of a 32% WPI physical impairment combined with 49% mental behavioural).

Does the applicant require 24-7 supervisory ACBS?

18For the reasons that follow, I find the applicant is not entitled to 24-7 supervision.

19Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an occupational therapist (OT) sets out the services and amount of care an individual requires as well as the monthly amount payable. If a person sustains a catastrophic impairment as a result of the accident, the maximum amount of ACBs payable is $6,000.00 per month.

20The applicant has been assessed for ACBs approximately four times since the beginning of his claim. Twice by the applicant’s OT, Nir Tamir, and twice by the respondent’s OT, Kathryn Blaney. Prior to January 2018, the respondent had been paying the applicant a monthly ACB in the amount of $1,138.40 in accordance with the first Form 1 prepared by Ms. Blaney. The relevant Form 1s with respect to the time period in dispute are Nir Tamir’s dated April 12, 2018, which recommended $10,908.79 in monthly ACBs, and Ms. Blaney’s dated May 1, 2018, which recommended $3,243.95. Both OTs agree that the applicant has the physical capability to carry out his activities of daily living but that he requires prompting due to lack of motivation as a result of his psychological impairment. The crux of the dispute is whether the applicant requires 24-7 supervision. The onus is on the applicant to prove entitlement to the benefit.

21The applicant relied on the reports and testimony of the applicant, Mr. Tamir, Carolyn Daniel (social worker), Michele Diamond (case manager), Dr. Kodsi (family doctor) and Annalisa Ali (a representative from Medex), the service provider for ACBs. The applicant argues that he has become isolated and alone as a result of his accident related physical and psychological impairments. He contends that he requires 24-7 supervision because, post-accident, he has been known to combine alcohol with Percocets and cocaine, has suicidal ideations and has attempted suicide in the past. The applicant maintains that he is a danger to himself if he is left unsupervised.

22The respondent relied on the reports and testimony of Ms. Blaney. The respondent argues that the applicant does not require 24-7 supervision as he has resumed the majority of his daily activities with prompting from his personal support worker (PSW) and the support of his rehabilitation team. For example, the applicant maintains control over his finances, has been successful in going to night school at [college], is able to drive independently and navigate the community and is not an active suicide threat. The respondent contends that it is inappropriate to use ACBs as a suicide watch as the degree necessary for a person with suicide intent requires specially trained personnel in a secure setting. A PSW would be unable to keep the applicant safe in his own home or out in the community if he was a serious suicide threat. For the reasons that follow, I agree with the respondent and do not find that the applicant requires 24-7 supervision.

23First, this accident occurred over seven and a half years ago. Of significance is the fact that the applicant did not receive any ACBs for the first five and a half years following the accident. The applicant submitted that his mother and sister assisted him with his activities of daily living for this time period. The applicant’s sister testified that, prior to 2017, she assisted her brother twice a week with his daily activities. She would assist him with bathing, grooming, meal preparation and housekeeping activities. I find that the evidence supports that the applicant received minimum assistance during this large gap of time. In my view, this would have been the time period the applicant needed the most assistance.

24The applicant testified that on July 21, 2015, he felt alone and isolated so he went for a drive and jumped off a cliff in the hopes of ending his life. In the clinical notes and records (CNRs) of Dr. Maragh, there is a reference to the applicant injuring himself after jumping off a cliff.¹ However, there is no reference in the CNRs that this was a suicide attempt or that Dr. Maragh was concerned for the applicant’s safety. I found the applicant’s testimony with respect to this incident inconsistent with what is reported in the CNRs and no reference is made to this in any of the other records. Consequently, I gave it less weight.

25Second, the applicant first started receiving an ACB from service provider AGTA Home Healthcare (AGTA) in 2017. The respondent submitted the invoices from AGTA, which demonstrate that during this period the applicant was incurring far less than the maximum amount recommended on the respondent’s first Form 1 ($1,138.40 per month).² The applicant testified that the PSWs from AGTA were unreliable and did not properly assist him. Other than the applicant’s self-reports, I did not see any complaints regarding the lack of service in the high volume of detailed reports of his rehabilitation team from this time period. In my view, when I compare this with the inconsistencies in the other evidence I do not find the applicant’s testimony compelling.

26Third, the evidence of his treating practitioners and rehabilitation team was inconsistent. Dr. Kodsi, the applicant’s family doctor, testified that the applicant has never been an active suicide risk and that he has never been concerned for the applicant’s safety. Further, his CNRS confirm that the applicant no longer reports suicidal thoughts.³ The applicant also submitted the CNRs and report of Dr. Mamalek, psychiatrist. These records span from June 2017 to March 2018. Dr. Mamalek does not opine on the applicant being a suicide risk, nor is any reference made to the applicant’s suicidal ideations in his reports. Further, Dr. Mamalek does not make any recommendation with respect to the applicant’s need for 24-7 supervision.⁴ I find that the evidence of the applicant’s treating family doctor and psychiatrist does not support that the applicant requires 24-7 supervision.

27Most of the applicant’s argument and evidence regarding his need for 24-7 supervision was based on an incident on April 21, 2017. On that date, the applicant had missed a few appointments with his rehabilitation team so Ms. Daniel (social worker) and Mr. Tamir (OT) went to his home to check in on him. The applicant had mixed alcohol with Percocet and cocaine and was acting “out of it.” Ms. Daniel and Mr. Tamir convinced the applicant to go to the hospital. Once at the hospital, the applicant refused to be admitted. No reference is made in the hospital’s CNRs with respect to the applicant being a suicide risk. In fact, the record states that the applicant denied being suicidal to police and hospital staff.⁵ While the applicant’s actions were dangerous, in my view, if the hospital felt the applicant was a danger to himself he would have been admitted. The fact that this was not done does not support the applicant’s argument with respect to his need for 24-7 supervision.

28Following the above incident, Michele Diamond issued a report recommending that the applicant requires urgent 24-7 supervision.⁶ Ms. Diamond also recommended that the applicant be admitted into a facility such as Bellwoods or the Centre of Mental Health and Addiction for substance abuse. She assisted the applicant in filling out the paper work. Despite the rehabilitation team’s recommendations the applicant chose not to pursue this.⁷

29The applicant testified that, as of February 2018, he was longer abusing alcohol and drugs and that, with the help of his rehabilitation team, he had started school and things were improving. The issue in dispute is whether the applicant required 24-7 ACBs as of January 2018. The applicant’s issues with substance abuse, depression and poor coping is reflected in the various reports of his rehabilitation team in 2016 and 2017.⁸ The 2018 reports of his rehabilitation team note improvements.⁹ In my view, the applicant’s testimony contradicted his argument that he is currently a safety risk and requires 24-7 supervision for the time period claimed. Further, with the exception of Mr. Tamir, I found the reports of Ms. Diamond and Ms. Daniel did not support a need for 24-7 supervision post-2018.

30I also found the evidence of the applicant’s rehabilitation team with respect to his need to be admitted into a facility for substance abuse inconsistent. Mr. Tamir testified that institutionalization will cause isolation and impede the applicant’s progress within the community. I found credibility issues with this testimony as it was contradictory to what the rest his rehabilitation team recommended.¹⁰

31In addition, I found the evidence of Ms. Ali, a representative from Medex problematic. Medex has been providing PSW services to the applicant from November 2017 to present. Significantly, Ms Ali testified that Medex was not aware that the applicant had psychological issues or problems with substance abuse until 10 months after Medex started providing service. Furthermore, the PSW assigned to care for the applicant had been certified three months prior to providing PSW services and had no training dealing with people with psychological issues.¹¹ Following an incident in September 2018, the PSW had to be switched as she did not know how to cope with an incident involving the applicant being intoxicated. No further details were provided with respect to this incident.

32In my view, it is noteworthy that the PSW hired to care for the applicant was not aware of his suicidal ideations, substance abuse or psychological issues. In my opinion, this lack of knowledge and communication does not support an urgent need for 24-7 supervision. Moreover, Medex is currently charging the applicant $5,670.00 per month for six hours of ACBs a day.¹² The maximum payable under the Schedule is $6,000.00 per month. I find that the rates charged by Medex would not provide the applicant with 24-7 supervision. This is also acknowledged by Ms. Diamond’s report dated April 21, 2017.¹³

33Finally, the respondent submitted multiple surveillance reports and video footage between February 2012 and September 2018 which show the applicant independently driving and navigating within the community.¹⁴ It is important to note that the applicant never said he could not drive but he did report driving and passenger anxiety to service providers. In my opinion, the surveillance evidence supports that the applicant has the capability to function with a degree of independence. Furthermore, he has also been attending [college] and has been successful in passing his courses. I find that the evidence supports that while the applicant may have had a crisis in 2017, he has made positive improvements in 2018. After considering all of the above factors, I find that the applicant has not met his onus in proving on a balance of probabilities that he requires 24-7 supervision from January 2018 to date.

What is the maximum amount of monthly ACBs the applicant is entitled to?

34I find the applicant is entitled to a maximum ACB benefit in the amount of $3,047.29 per month.

35Although I do not find that the applicant requires 24-7 supervision, I still need to determine the appropriate amount of the Form 1 and thus a comparison of the Form 1s is required. The bulk of the parties’ evidence focussed on whether the applicant requires 24-7 supervision and little attention was given to the time the OTs accorded for the different levels of care. Therefore, I have taken a practical approach based on the facts before me. The chart below summarizes my findings based on the number of minutes per week for the levels of care and my rationale follows.

Nir Tamir’s Form 1 dated April 6, 2018	Kathryn Blaney’s Form 1 dated May 1, 2018	My Finding
Level 1: Dressing= 35 min Grooming=31 min Feeding = 420 min Total =486 min	Level 1 Dressing = 14 min Grooming = 11.5 min Feeding = 420 min Total = 459.50 min	Level 1: Dressing= 35 min Grooming=31 min Feeding = 420 min Total =486 min (8.1 hours per week)
Level 2: Bathroom Hygiene = 60 min Bedroom Hygiene = 60 min Comfort and Safety = 4200 min Coordination of ACBs = 60 min Total: 4380 min	Level 2 Bathroom Hygiene =14 min Bedroom Hygiene =11 min Comfort and Safety =420 min Coordination of ACBs =35 Total =445 min	Level 2 Bathroom Hygiene =60 min Bedroom Hygiene =60 min Comfort and Safety = 0 Coordination of ACBs =35 min Total = 155 min (2.59 hours per week)
Level 3: Monitors Medication = 35 min Bathing = 14 min Supervision = 5166 min Total = 5,215	Level 3 Exercise =35 min Medication supply =2 min Bathing = 14 min Oral Hygiene = 7 min Supervision =1680 min Total: 1738	Level 3 Exercise =35 min Monitors Medication = 35 min Medication supply =2 min Bathing = 14 min Oral Hygiene = 7 min Supervision =1680 min Total =1,773 min (29.55 hours per week)

Level 1

36With respect to Level 1 care, I accept Mr. Tamir’s recommendations. I did not find the amount of time Mr. Tamir recommended for these tasks excessive and found his numbers more reasonable than Ms. Blaneys. I found Ms. Blaney underestimated the time for dressing and grooming. She recommended 14 minutes per week to prompt the applicant in dressing and 11.5 minutes per week for shaving and nail care. I believe it would take a service provider longer than the time allotted to prompt and assist with these tasks. It might take a minute to prompt but the service provider would have to prompt and then assist or ensure the task was completed. Both OTs agreed that 60 minutes per day for meal preparation was reasonable so I need not make a determination on that. I find the total number of weekly assistance for level 1 services according to Mr. Tamir’s form 1 in the amount of 8.1 hours per week.

Level 2

37I found the time allocated on Mr. Tamir’s Form 1 for bathroom and bedroom hygiene more reasonable than what was recommended by Ms. Blaney. Ms. Blaney proposed 14 minutes per week to assist the applicant with cleaning the tub, sink and toilet on a daily basis. In my view, I find that whether it is prompting the applicant to do these tasks or doing it for him that it would take longer than 2 minutes per day. Mr. Tamir accorded 60 minutes per week (8.5 minutes per day). I do not find Mr. Tamir’s recommendation excessive and find it more reasonable. I find the appropriate amount for bathroom hygiene to be 60 minutes per week.

38I have come to the same conclusion regarding bedroom hygiene. Ms. Blaney endorsed 11 minutes per week to provide the applicant with daily assistance with changing and making the applicant’s bed and tidying his bedroom. Ms. Blaney’s own report notes that the applicant constantly wakes up in the middle of the night with night sweats. Consequently, I find 11 minutes per week insufficient to address this need and prefer the amount recommended by Mr. Tamir in the amount of 60 minutes per week (8.5 minutes per day).

39Ms. Blaney also recommended 1 hour per day under the category of “comfort and safety” in the bedroom environment. She noted in her assessment that the purpose is so that the applicant can call his sister if he wakes up in the middle of the night. Ms. Blaney did not consider the fact that the applicant’s sister is not a PSW and the ACBs would not be incurred pursuant to the Schedule. Since I have decided that the applicant does not require 24-7 supervision, I do not find the amounts recommended by either OT reasonable under this category and make a determination of zero.

40With respect to the time for the coordination of ACBS, I accept the amount recommended by Ms. Blaney in the amount of 35 minutes per week. Ms. Blaney noted in her report that the applicant is regularly in communication with the PSW to coordinate scheduling. Therefore, I find that the applicant requires less assistance in this regard. I find the total number of weekly assistance for level 2 services in the amount of 2.59 hours per week.

Level 3

41With the exception of the time Ms. Blaney recommended for medication, I accept the amounts she listed under Level 3 for exercise, bathing, brushing teeth and 4 hours of additional supervisory care per day. Regarding maintaining the supply of medication, Ms. Blaney provides 2 minutes per day. Mr. Tamir recommends 35 minutes per week to monitor the applicant’s medication intake and effect. I find this reasonable and therefore add this number to Ms. Blaney’s Form 1. I find that additional time would be required to monitor and control the applicant’s prescription medication due to the applicant’s substance abuse in the past. I find the total amount of reasonable Level 3 services in the amount of 29.55 hours per week.

42In conclusion, I find the applicant is entitled to incurred ACBs in the amount of $3,047.29 from May 1, 2018 (the date of Ms. Blaney’s second Form 1) to date and ongoing.

Was the ACB incurred by the applicant?

43Under subsection 3(7)(e) of the Schedule, in order for the applicant to receive payment for attendant care benefits, there must be evidence that the expense was incurred. An incurred expense requires that the following conditions be met:

I. The applicant received the service to which the expense relates;

II. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and

III. The person who provided the service did so:

A. in the course of their 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.

44The applicant submitted invoices and personal activity logs of Medex for the time period in dispute which sufficiently addresses the above requirements. However, the respondent argues that the applicant received housekeeping under the guise of attendant care which should be deducted as the applicant is excluded from receiving a housekeeping benefit pursuant to section 31 of the Schedule.¹⁵ The respondent also submits that the rates charged by Medex are in non-compliance with the Financial Service Commission of Ontario’s Superintendent Guideline (the Guideline) and the invoices do not show a proper breakdown of the services incurred by the applicant. I will first deal with whether the housekeeping services incurred by the applicant should be deducted from his monthly ACB.

Deduction of Housekeeping Services from ACBs

45The respondent argues that the amount of time the PSW spent on housekeeping services should be deducted from any past ACBs incurred. The respondent submitted case law which it maintains supports that housekeeping services are not payable under the category of attendant care. For the reasons that follow, I disagree with the respondent and find that the housekeeping type services received by the applicant are covered by the Form 1 under the category of attendant care.

46First, I found the case law submitted by the respondent distinguishable. For example, in 16-000372 v. Unica Insurance Inc., 2017 CarswellOnt 4372, the facts in that case are different than the matter before me. The insured in 16-000372 admitted to assessors that she was independent with her personal care and the only services that were being provided was housekeeping. The Adjudicator determined that the housekeeping services being provided were for the benefit of the insured’s daughter and were not payable.¹⁶ In the present case, the applicant is not fully independent in his daily activities. While the surveillance evidence demonstrates he is able to drive, the evidence of both OTs support that the applicant needs ACBS under all three levels of care and a section is included on the Form 1 for hygiene.

47In 17-001627 v. Certas Direct Insurance Company 2017 CanLII 99139 (ON LAT), 2017CanLII99139 (ON LAT), submitted by the respondent, the Adjudicator determined that the services on the Form 1 were not reasonable and fell more appropriately under the housekeeping benefit pursuant to s. 23 of the Schedule.¹⁷ While I agree that there can be some overlap between housekeeping and attendant care services, I find the benefits serve two different functions. I agree with the Adjudicator’s analysis in 16-001348 v. Guarantee Company of North America, 2017 CanLII 19196 (ON LAT) also submitted by the respondent with respect to how the benefits are different.

48In 16-001348, the Adjudicator highlighted that the housekeeping benefit payable under the Schedule is a weekly benefit compared to services for hygiene listed on the Form 1 which is a benefit designed to look after an individual’s daily needs.¹⁸ I agree with the Adjudicator’s interpretation in 16-001348 that the purpose of hygiene on the Form 1 is to ensure that an individual’s needs are looked after on a daily basis. This ensures that a person’s basic needs are being met so they are not sleeping in soiled bedding, or bathing in dirty bathtubs or wearing dirty clothes. Furthermore, the attendant care benefit is not a benefit that can be excluded under the Schedule, which reinforces its purpose to ensure that an individual’s basic human necessities are met.

49The Medex file submitted by the applicant contained the personal care service activity logs of the PSW who provided services for the applicant to show which tasks were completed per day.¹⁹ The activity logs do not provide a breakdown of how much time was spent on each task or break down the invoice according to the level of care. The evidence suggests that the PSW may have done some additional housekeeping tasks that fell outside of the scope of attendant care. However, based on the service provider’s logs I am unable to determine the amount of time. Out of the 14 tasks checked off on the activity log, three covered hygiene services such as light housekeeping, laundry and bed making – the other tasks are clearly listed on the Form 1. As a result, I find these services are covered under the Form 1 as both OTs allotted the applicant assistance with cleaning the bath tub and toilet after use, making the beds and tidying the applicant’s bedroom. Therefore, I do not find that the bulk of the services are housekeeping and deductible from the attendant care.

Rates Charged Exceed the Guideline Rates:

50The Guideline sets out the maximum hourly rates insurers are liable to pay for each level of care on the Form 1 to calculate an individual’s maximum monthly entitlement.²⁰

51The respondent submits and I agree that the hourly rate charged by Medex exceed the hourly rates allowed by the Guideline. Much was made by the respondent about the service contract that Medex entered into with the applicant. Medex had the applicant sign a service contract which included the following:

a) The applicant agreed to a lien to be assigned to Medex on any future settlement claim or judgment as a result of the accident in the event that payment of its invoices were refused by the insurance company; and

b) They charged him a flat rate of $35.00 an hour because he is catastrophic.

52From January 2018 to present, Medex has submitted invoices to the respondent in the average amount of $5,670.00 per month for 6 hours of service a day which is above the Form 1 amount in effect at that time and the rates in the Guideline.

53While I find the actions of Medex concerning, the issue regarding whether the clinic complied with ethical standards is not before me. The respondent submitted 16-001063 v. Belair Direct Insurance Company, 2017 CarswellOnt.13605, in which the Adjudicator went through the complex exercise of breaking down the time spent by the service provider under each level of care to determine the quantum of ACBs incurred in accordance with the levels of care and rates provided by the Guideline.²¹ There is not enough evidence before me to undertake such a task as the service provider’s daily logs do not allocate the hours worked between the three levels of care.

54The respondent also submits that a lack of invoices to show expenses incurred and invoices which do not provide a detailed breakdown of services rendered can disentitle an applicant to an ACB. It proposes that the invoices submitted by the applicant do not provide a detailed breakdown and consequently I should make a determination that the services were not incurred. For the reasons that follow, I disagree with the respondent.

55First, I found the case law relied upon by the respondent distinguishable. The respondent relied on 16-001063 v. Belair and 17-002957 v. Aviva Insurance Canada, 2018 CarswellOntario 13674. In 16-001063, no invoices were submitted for a specific time period and the Adjudicator determined that the ACBs had not been incurred. In 17-002957, the Adjudicator determined that the invoices did not specify or itemize the services provided. Consequently, the Adjudicator was unable to determine whether the goods and services were received. What is unclear to me is what evidence the Adjudicator had before him to make that determination. In the matter before me, the applicant has submitted invoices from January 2018 to October 2018. The applicant has also submitted the service provider’s daily activity logs which list the services provided on a daily basis. The only thing missing from the log is the amount of time the PSW spent on each task. I find the evidence before me is sufficient for me to conclude that the services have been incurred for the time-period claimed.

56Second, the Schedule is consumer protection legislation. In my view, the applicant should not be penalized because of the service provider’s disregard for the maximum rates payable under the Guideline or inadequate invoicing. Further, the respondent could have requested a more detailed breakdown of the services provided and no evidence was submitted that it did so. In addition, it paid for the invoices of AGTA which charged above the Guideline rates and also did not breakdown the services provided.

57Finally, while I do not have the authority to increase the hourly rates payable under the Guideline, I find that sections 19 (1) and (2) of the Schedule permit me to approve incurred ACBs up to the maximum amount of the Form 1 which I have determined to be $3,047.29 per month.

Is the applicant entitled to an OCF-18 in the amount of $5,527.09 for physiotherapy recommended by Balance Physiotherapy?

58I find the OCF-18 for physiotherapy recommended by Balance Physiotherapy partially reasonable and necessary in the amount of $3,728.29.

59Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

60It is not disputed that the applicant sustained serious physical impairments as a result of the accident, which included multiple fractures to various parts of his body. The applicant has not returned to his regular activities of daily living as a result of pain that has become chronic, and he lacks the interest and motivation because of his psychological condition. Since the accident, the applicant has received a substantial amount of treatment which has included active and passive rehabilitation.

61The applicant argues that he is entitled to the OCF-18 for physiotherapy as it helps him manage his pain. Further, he has not yet returned to his pre-accident activities.

62The respondent argues that the applicant has obtained maximum medical recovery and will achieve no benefit from continued physiotherapy. In addition, further treatment is redundant as he has a gym membership and home exercise program. I find the OCF-18 partially reasonable and necessary for the following reasons.

63First, I find that the applicant has consistently reported his pain to various assessors and service providers which is also reflected in the reports and CNRs. The applicant maintains that his pain has affected his ability to return to his pre-accident activities, such as work, playing sports, socializing with friends and his activities of daily living. The applicant testified that he benefits from ongoing physiotherapy as it helps him manage his pain in his neck, arms, upper and lower back and ankle. Further, following therapy the pain does not come back as severe. In the clinic’s progress notes the applicant consistently reported feeling better following treatment. The applicant submitted case law that supports that continued treatment is reasonable if it reduces an individual’s symptoms of pain.²²

64Second, I find the goals of the OCF-18 and methods of measuring progress reasonable. The goals of the OCF-18 include pain reduction and increase in strength and range of motion including balance. The OCF-18 covers a 12-week period and includes two sessions of physiotherapy per week and one session of massage at a total cost of $5,527.09. Hassel Bhatt, the applicant’s treating physiotherapist, testified that the applicant has shown improvement since the last treatment plan. For example, he has demonstrated an increase in cycling as he can now cycle for 16 minutes without a break, and there has been an improvement in his lower limb strength as he was able to maintain a squat position against a wall for 30 seconds. Mr. Bhatt acknowledged that the applicant’s improvement is variable as sometimes he is in too much pain. I found Mr. Bhatt’s evidence persuasive.

65The respondent relied on the IE report and testimony of Dr. Paitich, orthopaedic surgeon. Dr. Paitich opined that the applicant has achieved maximum medical recovery and that further treatment will provide no benefit to the applicant. In Dr. Paitich’s view, further physiotherapy will only make the applicant dependent on facilities which will impede his recovery. Dr. Paitich testified that, although the applicant has reached maximum medical recovery, he will continue to have ongoing symptomatology and simply stretching with a home exercise program is sufficient.

66Dr. Patich submits that the applicant has had four-to-five years of supervised physiotherapy and that the treatment was passive in nature. The applicant had a further twelve months of active treatment which focussed on improving his range of movement. In Dr. Paitich’s opinion this is well beyond the time period for recovery for someone with the applicant’s orthopaedic injuries. Dr. Paitich contends that the applicant’s fractures have all been anatomically reduced (which means put back together with plates and screws). As a result, his anatomy has been restored to normal.

67While I respect Dr. Paitich’s opinion as that of an orthopaedic surgeon, the evidence of the applicant’s service provider supports that improvements have been made by more active physical rehabilitation. Furthermore, the applicant’s testimony and the progress notes of the clinic also demonstrate that the treatment has helped relieve the applicant’s pain. As already noted, the case law contradicts Dr. Paitich’s opinion that continued treatment is justified if it relieves pain. In addition, Dr. Paitich has only seen the applicant three times for the purpose of conducting assessments, whereas the service provider has worked with him on a weekly basis and has noted progress. Therefore, I give Mr. Bhatt’s opinion more weight.

68While I find that the applicant continues to require treatment to alleviate pain and improve function, I do not find the total amount of the OCF-18 reasonable. The applicant has a home exercise program and a gym membership. The applicant testified that he does not feel comfortable doing the exercises independently as he fears re-injury. Mr. Bhatt testified that the home exercise program is meant to be done in conjunction with in-facility treatment. However, I find two sessions of physiotherapy a week excessive. Therefore, I find the OCF-18 partially reasonable and necessary for one physiotherapy session per week which reduces the treatment plan to $3,728.29.

Is the applicant entitled to the OCF-18 in the amount of $4,633.04 for chiropractic treatment and physiotherapy recommended by Canadian Active?

69I do not find the OCF-18 for chiropractic treatment and physiotherapy in the amount of $4,633.04 recommended by Canadian Active reasonable and necessary for the following reasons:

70First, I found the amount of the OCF-18 excessive and the various services listed a duplication. For example, the OCF-18 consists of twenty lines which recommended 12 sessions of exercise therapy in the amount of $1,624.30; 6 sessions of physiotherapy in the amount of $359.76; and $359.76 for 6 sessions of active exercise therapy. There is no explanation on the OCF-18 itself for the difference in treatment.²³ Sayma Mohammad, a chiropractor with the clinic and the author of the OCF-18, testified. Ms. Mohammad did not explain the difference in the various treatments or address the quantity. Further, there was no rationale provided for why a random eye test was on the OCF-18 or why educational materials for a boot camp were recommended in the amount of $75.00.

71Second, the applicant attended Canadian Active for six years following the accident. In 2018, on the recommendation of his rehabilitation team he switched to Balance Physiotherapy to undergo a more active rehabilitation program. A review of the clinic’s file was not helpful in demonstrating whether the past treatment the applicant received at this clinic was helpful. The CNRs were not legible; there was no mention of any progress or references to the treatment reducing the applicant’s pain.²⁴ Furthermore, there was no explanation given by either the applicant or Ms. Mohammad with respect to the random submission of the OCF-18 from this clinic when the applicant testified that he wanted to attend Balance Physiotherapy for treatment.

72Unlike Mr. Bhatt, who noted improvements with respect to function, Ms. Mohammad testified that from the date of the accident until now the applicant has deconditioned. In my view, this was contradictory and did not support that the OCF-18 is reasonable and necessary.

73Finally, Dr. Paitich testified that the OCF-18 of Canadian Active is worse than the OCF-18 submitted by Balance Physiotherapy in that they are recommending passive methods such as electrical stimulation versus active rehabilitation which is not going to help restore the applicant’s function. Dr. Paitich’s opinion with respect to active verses passive treatment made sense.

74For all of the above reasons, the applicant has not met his onus in proving that this OCF-18 is reasonable and necessary.

Is the applicant entitled to an award pursuant to Ontario Regulation 664?

75I do not find that the applicant is entitled to an award.

76Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

77The applicant argued that he is entitled to an award because the respondent fell below the standard of a reasonable careful and prudent adjuster in handling the applicant’s claim. Despite the severity of the applicant’s physical and psychological injuries the insurer only approved $1,138.40 in ACBs, whereas the applicant required above the maximum amount of $6,000.00 allowed by the Schedule. In addition, the respondent had evidence of the applicant’s deterioration and decreased the applicant monthly entitlement from $3,243.95 to $1,138.40 per month.

78The respondent submits that it has adjusted the applicant’s claim in the utmost good faith. Further, it has provided the applicant with multiple services. For example, it has approved all of the services of his rehabilitation team: a case manager, occupational therapist, social worker, rehabilitation support worker and speech language therapist. In addition, it has paid for the applicant to take courses at [college] and has approved a further OCF-18 for occupational therapy. For the reasons that follow, the applicant is not entitled to an award.

79First, the applicant did not submit any evidence in support of his claim for an award. The applicant submitted a letter from his representative making submissions on the award issue but the submissions were not backed up by evidence. Moreover, the applicant did not call the adjuster as a witness or refer to any log notes which demonstrate that the claim was mishandled in anyway. The evidence before me supports that the respondent adjusted its file appropriately. Following the incident in April 2017, its assessor reviewed additional medical evidence and increased the applicant’s entitlement to an ACB.²⁵

80Second, I did not make a finding in the applicant’s favour with respect to the ACB issue. While I found one of the OCF-18s for physiotherapy partially reasonable, I did not find the respondent’s expert’s opinion flawed. Therefore, I do not find that the respondent mishandled the applicant’s claim.

81Finally, I agree with the respondent that it has treated the applicant fairly as it has approved numerous services to assist the applicant in reaching his pre-accident status. For all of the above-reasons the applicant is not entitled to an award.

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

82In light of the above interest is not payable.

CONCLUSION:

i. The applicant is entitled to an ACB in the amount of $3,047.29 per month from May 1, 2018 to date and ongoing.

ii. The OCF-18 for physiotherapy recommended by Balance Physiotherapy is partially reasonable and necessary in the amount of $3,728.29.

iii. The applicant is not entitled to the OCF-18 for chiropractic treatment and physiotherapy recommended by Canadian Active in the amount of $4,633.04.

iv. The applicant is not entitled to interest on overdue payments of benefits; and

v. The applicant is not entitled to an award.

Footnotes

1. 1Exhibit 2: Dr. Maragh’s CNRs, Applicant’s Brief.
2. 2Exhibit 25: AGTA Home Healthcare Records, Respondent’s Brief.
3. 3Exhibit 33: Dr. Kodsi’s CNRs, Applicant’s Brief.
4. 4Exhibit 38: Report of Dr. Mamalek dated November 14, 2017, Applicant’s Brief.
5. 5Exhibit 3: Scarborough Hospital Emergency Records, Applicant’s Brief.
6. 6Exhibits 16: Report of Michele Diamond dated April 21 , 2017, Applicant’s Brief.
7. 7Exhibit 10: Report of Michele Diamond dated February 14, 2018 (reporting period March 2017 –February 2018), Applicant’s Brief.
8. 8Exhibits 9, 10, 13 and 15: Reports of Carolyn Daniel dated February 10, 2017 and May 26, 2017 ; Applicant’s Brief.
9. 9Exhibits 14 & 17: Report of Carolyn Daniel dated June 9, 2018 and Report of Michele Diamond dated April 24, 2018, Applicant’s Brief.
10. 10Exhibit 16.
11. 11Exhibit 31: Medex File, Applicant’s Brief.
12. 12Ibid
13. 13Exhibit 16.
14. 14Exhibits 18, 19,20,21,22,23 and24, Respondent’s Brief
15. 15Both parties agree that the applicant is excluded from receiving a housekeeping benefit as he was driving his motorcycle without insurance when the accident occurred.
16. 1616-000372 v. Unica Insurance Inc., 2017 CarswellOnt 4372, pg 6, Respondent’s Book of Authorities.
17. 1717-001627 v. Certas Direct Insurance Company 2017 CanLII 99139 (ON LAT), 2017CanLII99139 (ON LAT), para 74, Respondent’s Book of Authorities.
18. 1816-001348 v. Guarantee Company of North America, 2017 CanLII 19196 (ON LAT), pg 8, Respondent’s Book of Authorities.
19. 19Exhibit 31: Medex File, Applicant’s Brief.
20. 20Level 1: $13.19 per hour for routine personal care; Level 2: $11.25 per hour for supervisory functions; and Level 3: $19.35 per hour for complex healthcare and hygiene functions.
21. 2116-001063 v. Belair Direct Insurance Company, 2017 CarswellOnt.13605, pages 10 and 11.
22. 22Cubello v. Guidolin, [2000] O.J. No. 1468 (Ont. SCJ); 16-002951 v. Primmum Insurance Company, 2017 CanLII 33672 (ON LAT)
23. 23Exhibit 4: OCF-18 Canadian Active Rehabilitation Centre, Applicant’s Brief
24. 24Exhibit 12: Canadian Active Rehabilitation Centre’s CNRs, Applicant’s Brief
25. 25Exhibits 36 and 37, Attendant Care Assessments of Kathryn Blaney, Applicant’s Brief.