Citation and Parties

Citation: S.M. vs. Federated Insurance Company of Canada, 2019 ONLAT 18-004533/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:

S.M.

Applicant

and

Federated Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Nan Diaram O'Reilly, Counsel

For the Respondent:

Shikha Sharma, Counsel

HEARD IN WRITING:

February 27, 2019

OVERVIEW

1The applicant, S.M., now 85 years of age, was injured as a pedestrian in an automobile accident on February 3, 2012 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Federated Insurance Company of Canada (“Federated”), the respondent.

2Federated denied S.M.’s claim for attendant care benefits, the cost of an occupational therapy assessment and funding for a file review as part of a multidisciplinary catastrophic assessment and, as a result, S.M. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) on May 24, 2018.

3The parties were unable to resolve their dispute at a case conference held on September 19, 2018, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is S.M. entitled to attendant care benefits (ACBs) in the amount of $6,000.00 per month less amounts paid from April 1, 2012 to date and ongoing for services provided by S.M.’s niece, [F.S.]?

(ii) Is S.M. entitled to payment for the cost of an examination in the amount of $1,586.65 for an in-home occupational therapy assessment conducted by Ms. Sophie Bielawski submitted on April 11, 2016, and denied by Federated on May 24, 2016?

(iii) Is S.M. entitled to payment for the cost of an examination in the amount of $2,000.00 for a clinic file review that formed part of a multidisciplinary catastrophic determination (CAT) assessment conducted by Omega Medical Associates submitted on October 6, 2016, and denied by Federated on October 25, 2016?

(iv) Is S.M. entitled to an award under Ontario Regulation 644 because Federated unreasonably withheld or delayed the payment of benefits?

RESULT

5I find that:

(i) S.M. has failed to prove on a balance of probabilities that her attendant care service provider, [F.S.], sustained an economic loss as a result of providing services to S.M. for any period from April 1, 2012 to date. As a result, I find that no ACBs are payable to S.M. as they have not been incurred as required by the Schedule;

(ii) S.M. is not entitled to payment for the cost of the in-home occupational therapy assessment in the amount of $1,585.65 or the cost of a clinic file review in the amount of $2,000.00 that formed part of a multidisciplinary CAT assessment as she failed to prove that either were reasonable and necessary on a balance of probabilities; and

(iii) S.M. is not entitled to an award as there are no benefits owing, and therefore no benefits have been unreasonably withheld or delayed by Federated.

PROCEDURAL ISSUE

Addition of a New Issue in Dispute – Award

6In her submissions, S.M. requests that this issue of whether or not she is entitled to an award under Ontario Regulation 664 is added to the issues in dispute in this matter despite this issue not being previously listed in the Tribunal’s September 25, 2018 Order following the case conference in this matter. S.M. has not filed a formal Notice of Motion requesting this relief.

7As I have both parties’ positions on the merit of S.M.’s claim for an award, I am allowing the issue to be added as part of this hearing. Federated has not claimed any prejudice by the addition of the issue and was able to provide submissions in response to it. Further, adding the award issue to the issues in dispute, even at the hearing, promotes efficiency and is consistent with previous decisions of the Tribunal.¹

ANALYSIS

Attendant Care Benefits

8S.M. has failed to prove on a balance of probabilities that she has incurred any expenses for ACBs for any period from April 1, 2012 to date. As a result, I find that no ACBs are payable to S.M.

9S.M. is claiming ACBs from April 1, 2012 to date and ongoing. As such, there are three distinct periods of time that I must review to determine S.M.’s entitlement to ACBs which are as follows:

(i) April 1, 2012 to January 31, 2014;

(ii) February 1, 2014 (Change to the Schedule) to February 2, 2014; and

(iii) February 3, 2014 (104 weeks pos-accident) to date and ongoing.

April 1, 2012 to January 31, 2014

10During this time period, s. 19 of the Schedule stated that the insurer shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.

11Section 3(7)(c) defined “aide or attendant” as including a family member or friend even if the family member or friend does not possess any special qualifications. Section 3(7)(e) sets out the following relevant requirements for an expense to be considered “incurred”:

(iv) the insured person has received the goods or services to which the expense relates;

(v) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and

(vi) the person who provided the goods or services sustained an economic loss as a result of providing the goods or services to the insured person.

12For an expense to be considered incurred, all three elements of the test must be met.

13During this initial period of time, case law held that once an economic loss was established, an injured person was entitled to the full amount of ACBs outlined in the Assessment of Attendant Care Needs Form (“Form 1”) for attendant care services provided by a non-professional attendant care provider. During this time period, the amount of ACBs payable was determined by the amount listed on the Form 1 and not the specific and actual economic loss incurred by the provider. However, some amount of economic loss was still required. Therefore, I disagree with S.M.’s position that she was not required to show that [F.S.] sustained an economic loss prior to February 1, 2014 in order to be entitled to ACBs.

14The amount of ACBs that were available to S.M. at this time was a maximum of $3,000.00 per month with a total maximum of $36,000.00 up to 2 years post-accident if she did not sustain a catastrophic impairment. If S.M. did sustain a catastrophic impairment, she would have access to a maximum of $6,000.00 per month in ACBs with a total maximum lifetime amount of $1,000,000.00. In this matter, there has been no determination that S.M. has sustained a catastrophic impairment as I understand that this issue is before the Tribunal under a different application.

15While the parties disagree in the amount of ACBs that S.M. would have been entitled to during this time, it appears as though there is an agreement that ACBs were reasonable and necessary.

16I also accept that [F.S.], S.M.’s niece, was at least one of S.M.’s service providers and fell within the definition of “aide or attendant” for the purposes of the Schedule. I also accept that on September 5, 2013, Federated paid $24,053.49 to S.M. for past attendant care services provided by [F.S.] for the period up until August 15, 2013.²

17Despite the payment by Federated, I find that based on the evidence before me, S.M. failed to prove on a balance of probabilities that [F.S.], or any other service provider, sustained an economic loss as a result of providing attendant care services to S.M. Aside from submitting several attendant care expense forms for the period of May 1, 2012 through to March 22, 2014 where [F.S.] confirmed that she provided attendant care services to S.M., there was no information submitted that demonstrated any economic loss suffered by [F.S.] even in S.M.’s reply submissions following receipt of Federated’s hearing submissions which raised this issue.

18While I am not willing to go so far as to make an adverse inference as requested by Federated resulting from S.M. failure to provide any witness statements or affidavit evidence from [F.S.], I am not persuaded by S.M.’s argument that affidavits were not submitted because of the Tribunal’s September 25, 2018 Order. The September 25, 2018 Order reflects the parties’ agreement at the case conference that no affidavit evidence would be filed at the hearing. The recording of the parties’ agreement in the September 25, 2018 Order does not “nullify” Federated’s argument that S.M. should have adduced affidavit evidence from [F.S.] as argued by S.M. S.M. clearly agreed to this evidentiary restriction for the hearing at the case conference and she failed to bring a motion to seek permission to file an affidavit after the fact to support her claim for ACBs if she had changed her mind since the case conference.

19For all of the above-reasons, there is insufficient evidence before me that establishes that [F.S.], as an attendant care provider to S.M., suffered an economic loss as a result of providing services to S.M. from April 1, 2012 to January 31, 2014 and, therefore, I find that S.M. is not entitled to ACBs for this period.

February 1, 2014 to February 2, 2014

20The Schedule was amended effective February 1, 2014, to limit the amount of ACBs payable for attendant care provided by non-professional attendant care providers to the actual amount of economic loss sustained. Section 19(3)(4) stated that the amount of ACBs payable for non-professional attendant care providers shall not exceed the amount of the economic loss sustained by the provider during the period while, and as a result of, providing the attendant care. This change did not have a retrospective effect, but an immediate one and, therefore, the possible amount of ACBs payable to S.M. from February 1, 2014 onward is limited to the amount of economic loss sustained by [F.S.] as S.M.’s non-professional attendant care provider.³

21S.M. has failed to provide any evidence of that establishes that [F.S.] suffered an economic loss as a result of providing attendant care services to S.M. during this very brief period and, therefore, I cannot find that S.M. is entitled to ACBs for this period as well.

February 3, 2014 and ongoing

22Section 20(2) of the Schedule, as it read at the relevant time, stated that no ACBs are payable for expenses incurred more than 104 weeks after the accident unless an injured person has sustained a catastrophic impairment as a result of the accident.

23As stated above, there has been no determination that S.M. has sustained a catastrophic impairment as a result of the accident to date. S.M., however, argues that she was required to file her application with the Tribunal to dispute Federated’s October 6, 2016 explanation of benefits in which Federated advised that further to a June 6, 2016 Form 1, which sough ACBs in the amount of $8,769.69 per month, there were no ACBs payable. S.M.’s position is that this denial started the two-year limitation period set out in s. 56 of the Schedule to begin. S.M. also argues that she was required to file her application to seek ACBs at the higher level of $6,000.00 per month in the event that it was later determined that she sustained a catastrophic impairment as a result of the accident.

24S.M. relies upon the decision of 16-003034 v Economical Mutual Insurance Company,⁴ in which the Tribunal held that although a CAT designation may further entitle an insured to a higher tier of benefits, this does not absolve the insured person from his or her obligation to adhere to the two-year time limitation period established by the Schedule when faced with a clear and unequivocal refusal to pay benefits.⁵

25S.M. also relied upon the decision of 17-001627 v Certas Direct Insurance Company⁶ in which the Tribunal determined the amount of ACBs that the applicant would have been entitled to if the applicant was determined to be catastrophically impaired as a result of the accident at some point in the future.⁷ The Tribunal noted that entitlement to ACBs after 104 weeks post-accident is still subject to the incurred losses requirement set out in s. 3(7)(e) of the Schedule.⁸

26The onus to prove entitlement to ACBs lies with S.M., which includes proving [F.S.] sustained an economic loss. S.M. failed to submit any evidence in this regard for any time since the accident including the period after 104 weeks post-accident. Moreover, Federated even requested such information from S.M. in its March 20, 2014 explanation of benefits, some five years ago, by stating, “kindly provide us with information of the attendant providing you care did so in the course of their employment, occupation or profession in which she would ordinarily have been engaged or sustained an economic loss as a result of providing the services to you.”⁹ Without further evidence, I find that S.M. has not proven on a balance of probabilities that [F.S.] sustained an economic loss as a service provider to S.M. for the period from February 3, 2014 to date. Therefore, I find that ACBs have not been incurred and, therefore, there is no amounts payable for the period of February 3, 2014 to date and ongoing.

Unreasonable Withhold/Delayed Payment of ACBs

27Pursuant to s. 3(8) of the Schedule, if I find that ACBs were not incurred because Federated unreasonably withheld or delayed payment of a benefit in respect if the expense, I may, for the purposes of determining S.M.’s entitlement to ACBs, deem the expense to have been incurred.

28S.M. asks that I make a finding that ACBs were not incurred because Federated unreasonably withheld or delayed payment of ACBs and that the expense of $6,000.00 per month is deemed to be incurred from February 2014 to date and ongoing. I disagree. I find no evidence that Federated unreasonably withheld or delayed the payment of ACBs after February 2014 that prevented ACBs from being incurred as the Schedule was amended on February 1, 2014 with an immediate effect and Federated was entitled to request proof of [F.S.]’s economic loss from S.M. Accordingly, I decline to deem the expense of $6,000.00 per month for ACBs incurred from February 2014 as requested by S.M.

29Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

30S.M. bears the onus of proving her entitlement to the occupational therapy assessment and the clinic file review are both reasonable and necessary on a balance of probabilities.¹⁰

In-Home Occupational Therapy Assessment

31For the reasons that follow, I find that S.M. has failed to prove on a balance of probabilities the reasonableness and necessity of the proposed in-home occupational therapy assessment at the time this treatment plan was submitted for consideration by Federated.

32The April 11, 2016 treatment plan proposes funding for an occupational therapy in-home assessment, provider mileage and travel time, two duplicate fees for completion of a Form 1 and a fee for “brokerage, service.” The treatment plan was completed by Ms. Bielawski, occupational therapist, and the goals of the treatment plan were pain reduction, increase in strength, increased range of motion and a return to activities or normal living. There were no attachments to the treatment plan.

33By way of explanation of benefits dated May 24, 2016, Federated denied the treatment plan and informed S.M. that it was not approving the treatment plan as no ACBs were payable for more than 104 weeks after the accident pursuant to s. 20(2) of the Schedule.

34Despite Federated’s denial, S.M. proceeded with the proposed in-home occupational therapy assessment and incurred the costs of same.

35S.M. argues that she is entitled to be reimbursed for the occupational therapy in-home assessment and completion of the Form 1 irrespective of whether or not she is determined to have sustained a catastrophic impairment as a result of the accident. S.M. relies upon s. 25 of the Schedule and argues that it does not restrict attendant care assessments to within 104 weeks of an accident. Finally, S.M. argues that insurance legislation is remedial and must be interpreted in favour of the insured and to accept Federated’s position would mean that funding is only available for attendant care assessments after 104 weeks post-accident if the applicant has sustained a catastrophic impairment.

36Federated argues that this treatment plan was not reasonable and necessary at the time it was submitted as S.M. had not yet applied for a catastrophic determination and such a determination was required to entitle her to post-104 weeks ACBs. S.M. only requested funding for a multidisciplinary CAT assessment on October 25, 2016 by way of a treatment plan dated October 6, 2016. Federated submits that it later approved, and paid for, an in-home occupational attendant care assessment as part of the multidisciplinary CAT assessment.

37I find that S.M. has failed to prove on a balance of probabilities that the proposed treatment plan was reasonable and necessary at the time it was submitted to Federated for consideration. I agree with Federated that as of April 11, 2016, there was no evidence of S.M. applying for a catastrophic impairment determination. As such, it was not reasonable or necessary to fund an occupational therapy assessment for the purposes of preparing a Form 1, or two Form 1s as the treatment plan sought funding for, because S.M. would not have access to post-104 week ACBs without a catastrophic impairment designation. Furthermore, Federated did approve and fund an in-home occupational therapy assessment as part of the multidisciplinary CAT assessment. As such, I find that the submission of this treatment plan was premature and is now duplicitous of the approved in-home occupational therapy assessment.

Clinic File Review

38S.M. is not entitled to payment for the clinic file review as she has failed to prove on a balance of probabilities that the clinic file review was reasonable and necessary.

39The October 6, 2016 treatment plan in dispute was completed by Dr. Harold Becker, physician, and proposed funding for a multidisciplinary CAT assessment in the total amount of $11,752.00 which included $2,000.00 for a clinic file review. Federated approved $9,752.00, being the balance of the treatment plan less the $2,000.00 for the clinic file review.

40S.M. has the onus to show that each constituent element that makes up the multidisciplinary CAT assessment is reasonable and necessary on a balance of probabilities. I find that S.M. has not discharged this burden and, therefore, she is not entitled to payment for clinic file review because this expense is not reasonable.

41S.M. submitted Dr. Becker’s explanation letter dated November 20, 2018¹¹ in which he explains that the clinic file review fee is as a result of a document summary that is prepared by a regulated health professional under his supervision which is then provided along with the medical brief to the assessors. The purpose of this summary is to streamline the review and assessment process to ensure a proper evaluation of the client within the allotted fee structure. In light of Dr. Becker’s further explanation of the clinic file review fee, it does not appear to be for a file review at all. Instead, it appears to be a preparation fee for the creation of a document that relieves assessors of the “additional burden of having to document the full brief.”¹²

42In any event, whether the proposed fee is for a clinic file review or for the preparation of a document that then forms part of the assessment reports, there is no evidence to suggest that this fee is not duplicitous, and I do not agree with S.M. that this clinic file review is akin to a separate assessment. As in 16-004501 v The Sovereign General Insurance Company,¹³ a file review should be completed as part of an assessment and so too should any report generation. Therefore, I find that it is unreasonable to bill for a clinic file review, or document preparation, in addition to any individual assessment and S.M. is not entitled to this portion of the treatment plan.

Award

43Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

44As I have found that there are no benefits owing, and therefore no benefits have been unreasonably withheld or delayed, S.M. is not entitled to an award.

CONCLUSION

45For the reasons outlined above, I find:

(i) S.M. has failed to prove on a balance of probabilities that ACBs were incurred for any period from April 1, 2012 to date and ongoing. As a result, no ACBs are payable to S.M.;

(ii) S.M. is not entitled to payment for the cost of the in-home occupational therapy assessment in the amount of $1,585.65 or the cost of a clinic file review in the amount of $2,000.00;

(iii) S.M. is not entitled to an award; and

(iv) The application is dismissed.

Footnotes

1. 1See 16-004312 v Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at paras. 14-15 and 17-001681 v Motor Vehicle Accident Claims Fund (MVACF), 2017 CanLII 87161 (ON LAT) at paras. 9-15.
2. 2Documents Attached to the Applicant’s Written Submissions, Standard Benefit Statement ending November 12, 2014, tab 49.
3. 3See para. 62 of 17-005604 v Wawanesa Mutual Insurance Company, 2018 CanLII 140989 (ON LAT).
4. 42017 CanLII 59507 (ON LAT), upheld on reconsideration, S.T. v. Economical Mutual Insurance Company, 2018 CanLII 61170 (ON LAT).
5. 5Ibid. at para. 39.
6. 62017 CanLII 99139 (ON LAT).
7. 7Ibid. at para. 79.
8. 8Ibid. at para. 58.
9. 9Document Brief of the Respondent, tab R.
10. 10Scarlett v. Belair Insurance, 2015 ONSC 3635, paras. 20-24.
11. 11Documents Attached to the Applicant’s Written Submissions, tab 58.
12. 12Ibid.
13. 132018 CanLII 13158 (ON LAT) (“16-004501”).