[The Applicant] v. Northbridge Insurance Company, 2020 CanLII 12757

Citation: [The Applicant] v. Northbridge Insurance Company, 2020 CanLII 12757

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:

[The Applicant]

Applicant

and

Northbridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Samia M. Alam, Counsel

For the Respondent: Linda M. Kiley, Counsel

Court Reporter: Athavan Jeya

HEARD: In-person on November 23 and 30, 2018 with closing written submissions concluding on February 15, 2019 and additional written submissions ending November 29, 2019

OVERVIEW:

1The applicant was involved in an automobile accident on February 22, 1999 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''1996 Schedule'').¹ In 2007, the applicant was deemed to be catastrophically impaired and, as a result, is entitled to claim a higher level of benefits. A dispute arose with respect to the monthly quantum of the attendant care benefit (“ACB”) to which the applicant is entitled, as well as his entitlement to the cost of an examination for a home modification assessment. Thus, the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties were unable to resolve their dispute at a case conference, and the matter proceeded to an in-person hearing, where I heard evidence from Dr. Jones, the applicant’s treating psychologist, and Dan Gauthier, an occupational therapist (“OT”) who conducted an insurer’s examination (“IE”). The parties then filed closing submissions in writing, which also addressed the treatment plan for the home modification assessment.

3The onus is on the applicant to prove, on a balance of probabilities, that he is entitled to the benefits claimed as a result of his accident-related impairments.

ISSUES:

4I have been asked to decide the following issues:

i) Is the applicant entitled to an ACB for the following amounts and time periods:

a) $706.12 per month from December 3, 2015 to October 25, 2016;

b) $1,053.50 per month from October 26, 2016 to July 2017;

c) $5,226.90 per month from July 2017 to December 2017; and

d) $5,345.43 per month from January 2018 to date and ongoing?

ii) Is the applicant entitled to the cost of examination in the amount of $9,014.00 for a home modification assessment recommended by Heidi-Ann Taylor in a treatment plan (OCF-18) dated October 24, 2017, and denied by the respondent on November 10, 2017?

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

RESULT:

5I find that:

(i) The applicant is not entitled to an ACB in the amount of $706.12 per month from December 3, 2015 to October 25, 2016;

(ii) The applicant is entitled to an ACB in the amount of $1,053.50 per month from October 26, 2016 to July 2017 plus interest in accordance with the Schedule;

(iii) The applicant is not entitled to an ACB in the amount of $5,226.90 per month from July 2017 to December 2017;

(iv) The applicant is not entitled to an ACB in the amount of $5,345.43 per month from January 2018 to date and ongoing; and

(v) The applicant is not entitled to the cost of examination in the amount of $9,014.00 for a home modification assessment recommended by Heidi- Ann Taylor in a treatment plan (OCF-18) dated October 24, 2017.

BACKGROUND:

6On February 22, 1999, the applicant was on a delivery trip in a company van when he t-boned another vehicle making a left-hand turn. The applicant sustained soft tissue injuries which developed into chronic pain. He also suffered a psychological impairment. In 2007, he was deemed catastrophically impaired within the meaning of s. 2(1.2)(g) of the Schedule, specifically as a result of a marked impairment in Social Functioning.²

7This case is complex in that the accident happened almost 20 years ago, and that, from 1999 to 2008, the applicant either did not require or was not assessed for ACBs. Despite his catastrophic designation, the applicant was able to independently manage his daily activities, start his own company, and participate in recreational golfing. However, from 2008 to present the applicant has been assessed for ACBs 12 times. The current dispute involves the applicant’s entitlement to ACBs from December 2015 to present, along with the benefit’s quantum. The applicant did not hire a service provider for ACBs until July 2017, which is when the respondent started paying the benefit.

8Both parties agree that the 1996 Schedule applies to the applicant’s entitlement to ACBs. They disagree on the extent to which an expense or benefit must be incurred before it is payable:

i. The applicant’s position. The applicant argues that, since the 1996 Schedule applies, so does its flexible use of the concept of “incurred.” Specifically, the applicant asserts that he does not need to have actually incurred the ACBs at issue and, instead, that they are automatically payable in the total amount provided in the Form 1 if he can demonstrate that they were reasonable and necessary.

ii. The respondent’s position. To the contrary, and despite the fact that it agrees that the 1996 Schedule applies, the respondent has adopted the much more strict definition of “incurred” from the amendments made to the 2010 Schedule³ in adjusting the applicant’s file and denying payments to the applicant. That definition is discussed in more detail in paragraph 24, below.

9Based on his legal interpretation of the 1996 Schedule, the applicant argues that he is entitled to ACBs from December 2015 to July 2017 in the reasonable and necessary amounts claimed. Further, he maintains that, as of July 2017, he required an increase in ACBs because his condition deteriorated significantly, resulting in his admission to Homewood Health (“Homewood”) for substance abuse issues. He asserts that, once there, he was able to function and quit smoking and drinking. Therefore, he argues, this experience demonstrates that he requires 24-7 supervision or access to 24-7 supervision if he has a crisis or if his condition decompensates – something that, he claims, has indeed happened. The applicant maintains the fact that his condition has deteriorated is supported by both the applicant and respondent’s OTs, as their respective Form 1s reflect an increase in ACBs post-2015. To this same end, the applicant relies on the report and testimony of Dr. Jones, the Form 1s and attendant care assessments completed by Heidi Ann Taylor, and the records of Solus, the service provider for his ACBs.

10The respondent maintains that ACBs are not payable between December 2015 and July 2017 because the applicant did not hire a service provider and, thus, the services were not “incurred” as that term is used in the 2010 Schedule. Further, in response to the applicant’s claim that he requires 24-7 supervision, the respondent asserts that the applicant has been abusing the PSW services he has received to date. In addition, the respondent also argues that the applicant does not require 24-7 supervision as he is able to work and operate his own business independently, has gone on trips for business and pleasure, is able to independently drive and navigate the community, and golfs recreationally. According to the respondent, the applicant has not met his evidentiary onus, as he failed to call several key witnesses at the hearing who would have crucial information regarding his entitlement to ACBs. The respondent asks that, as a result, I draw a negative inference. The respondent also relies on two IE attendant care assessments and Form 1s prepared by Dan Gauthier, OT, as well as the Solus notes in support of its position.

PROCEDURAL ISSUES

Motion to Exclude Dr. Jones as an Expert

11At the hearing, the applicant requested that Dr. Jones be qualified as an expert in chronic pain and rehabilitation. The respondent opposed Dr. Jones being qualified as an expert given the applicant’s failure to file an expert duty form pursuant to Rule 10.2 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”). The respondent argued that Dr. Jones does not understand his responsibility to provide fair, objective and non-partisan testimony and, thus, his evidence should be viewed with skepticism since he treated the applicant for over three years, reports no improvement in the applicant’s condition and continues to be paid on an hourly basis for treating the applicant. Further, the respondent noted that Dr. Jones has treated the applicant as a psychologist, not as a chronic pain specialist.

12In his closing submissions, the applicant argued that Dr. Jones does not need to be qualified as an expert since he is the applicant’s treating psychologist. I agree. Therefore, I accept Dr. Jones’s evidence as the applicant’s treating psychologist and do not qualify him as an expert in chronic pain and rehabilitation for the purpose of this hearing. That said, I am aware of his qualifications and view his evidence in light of that scope.

Motion to Exclude Dan Gauthier as an Expert

13The applicant took issue with the evidence of Mr. Gauthier, the OT who conducted an IE for the respondent. In particular, the applicant objected to Mr. Gauthier being qualified as an expert witness, and requested that his evidence be excluded for the following reasons:

i) He has limited treatment experience as an OT, has little experience treating people with psychiatric illnesses and, thus, is not qualified to give an opinion on the level of care the applicant requires. Further, his evidence does not meet the criterion of relevance as outlined by the court in R v. Mohan, [1994] 2.S.C.R. 9 (“Mohan”). As a result, his evidence cannot assist the trier of fact; and

ii) Most of his assessments are done for insurance companies, which calls his impartiality and objectivity into question.

14The respondent asserts that it complied with the Rules, filed an expert duty form executed by Mr. Gauthier in compliance with Rule 10.2, and that he fully understands his obligations as an expert. Mr. Gauthier testified that he has 19 years of experience treating and assessing patients as an OT, and is qualified to provide an opinion on the applicant’s entitlement to ACBs. Further, the respondent argues that the applicant has failed to submit any objective evidence to disqualify Mr. Gauthier as an expert or exclude his evidence. The respondent maintains that Rule 10.4 provides that, should a party wish to challenge the qualifications of an expert or their report, they must provide the other party with 10 days notice of the challenge prior to the hearing – something the applicant has failed to do. Consequently, it argues, the applicant is prohibited from challenging Mr. Gauthier’s expertise.

15I accept Mr. Gauthier’s testimony as an expert in occupational therapy. Mr. Gauthier has 19 years of experience as a treating OT with experience in assessing patients for catastrophic impairment, which, in my view, qualifies him to opine on the applicant’s entitlement to ACBs. I do not agree that simply because his experience does not focus solely on treating patients with mental health issues, this disqualifies him. Moreover, I find his evidence relevant to the issues in dispute and accept his expert testimony as an OT. Further, I agree with the respondent that the applicant did not comply with Rule 10.4 and provide 10 days notice of his objection to the qualifications of this witness or the information contained in his reports. Therefore, the applicant’s challenge to Mr. Gauthier not being qualified as a witness is dismissed. I agree with the respondent, that unlike the criteria outlined in Mohan, the Tribunal has a broader exercise of discretion than courts regarding the admission of evidence and witnesses. In addition, excluding Mr. Gauthier’s testimony or evidence would prejudice the respondent’s ability to present its case, which would contravene procedural fairness.

Motion to Exclude Surveillance Evidence

16The applicant also challenged the admissibility of the respondent’s surveillance evidence as well as Mr. Gauthier’s testimony with respect to the same, which was not addressed in his reports. The applicant argued the surveillance should not be admitted because Mr. Gauthier did not review it with the applicant or address it in his report. Further, the applicant asserts that Mr. Gauthier’s testimony as an expert is limited to the four corners of his report and, thus, since Mr. Gauthier did not discuss this evidence in his report, his testimony regarding it should be disregarded.

17The respondent argued that the surveillance should not be excluded, since it was served in compliance with Rule 9 and, thus, did not take the applicant by surprise. Further, the respondent highlights that, in advancing this particular challenge, the applicant relies on the Rules of Civil Procedure which have no application at the Tribunal. Rather, the Tribunal has sole discretion under Rule 3.1 to weigh evidence regarding surveillance and determine whether it is worthy of reliance.

18I agree with the respondent and allow the surveillance evidence, which I find relevant to the issues in dispute. It was served on the applicant in compliance with the Rules, and thus comes as no surprise. Given the notice that the applicant had about the respondent’s intention to rely on this evidence, I see no prejudice in its admission.

19While I disagree with the applicant’s argument that an expert’s testimony is bound to the four corners of their report, I do agree that in this case Mr. Gauthier’s testimony with respect to the surveillance should be limited since he reviewed the surveillance after completing his report. Mr. Gauthier’s testimony should be limited to the content of his report, whether explicit or latent, and to allow him to go beyond that would be procedurally unfair to the applicant. Regardless, I find that the surveillance evidence speaks for itself and that, any rate, Mr. Gauthier’s testimony about that evidence is of limited value. Consequently, I do not find that the respondent is prejudiced by me excluding Mr. Gauthier’s testimony on the surveillance.

Applicant’s Submission of New Evidence with Closing Reply Submissions

20In his closing reply submissions, the applicant submitted new evidence, namely the IE report of Nicholas Livadas dated January 14, 2019, which approved a treatment plan for rehabilitation support worker services. At the same time, the applicant also submitted LAT decision 17-001170/AABS v. GCNA, 2018, 2018 (“17-001170”) in support of his position that the Tribunal should allow new evidence at the closing submission stage. In that decision, the Tribunal allowed the filing of new evidence at the closing submission stage on the basis that the rules of evidence are relaxed in a tribunal setting, and the fact that the respondent had an opportunity to respond to the evidence in its reply submissions and did so.

21I do not admit the above report for two reasons. First, when I provided the parties with my order on filing closing written submissions, I specifically directed them not to file new evidence or raise new issues. Secondly, 17-001170 is distinguishable. The claimant in that case filed new evidence with the initial closing submissions, not in reply. In this case, the respondent was unable to address this new evidence in its closing submissions. Thus, it would be procedurally unfair and prejudicial to allow the applicant to file, as part of its closing submissions, a new report post-dating the hearing. Of course, this is to say nothing of the general purpose of an applicant’s reply, which should be limited to addressing only those arguments made in the respondent’s response.

ANALYSIS

22First, I will address the issue of whether the applicant had to incur ACBs for the benefit to be payable. Since this claim involves various time-periods and multiple Form 1s, I will deal with the applicant’s entitlement in chronological order. Finally, I will address the cost of examination in dispute.

Which Schedule applies to the applicant’s claim regarding the definition of incurred?

23The applicant did not have to incur past ACBs for the benefit to be payable.

24From December 2015 to July 2017, the applicant did not hire a service provider for ACBs, and the respondent did not pay for ACBs. From July 2017 to date, the respondent has been paying monthly ACBs in accordance with the invoices submitted verses the total amount of the Form 1.

25Both parties agree that the 1996 Schedule applies to the applicant’s entitlement to ACBs. Section 16 of the 1996 Schedule provides that an insurer is required to pay an ACB for “all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident for services provided by an aide or attendant.” A Form 1 prepared by a health practitioner 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. However, the 1996 Schedule did not provide a definition for the term “incurred.” That definition was only included in the amendments made to the Schedule in 2010, specifically s. 3(7)(e), which set out the following criteria that an insured person must meet in order to satisfy that an expense in respect of a good or service has been “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 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.

26The respondent applied the above criteria from the 2010 Schedule in adjusting the applicant’s claim and, in this hearing, argues likewise that the applicant must have “incurred” the ACBs for the benefit to be payable. The applicant argues that he did not have to incur services for ACBs in the sense contemplated by the 2010 Schedule, and that all that he must establish is that the ACBs were reasonable and necessary. For the reasons that follow, I agree with the applicant.

27First, I found the case law relied upon by the applicant persuasive. The applicant highlighted LAT Decision 16-003153 v. Echelon General Insurance Company, 2018 CanLII 13151 (“16-003153”) and the Court of Appeal’s decision of Monks v. ING Insurance Co. of Canada, 2008 ONCA 269 (“Monks”). In 16-003151, the adjudicator provides a detailed analysis regarding the amendments to the 2010 Schedule in relation to entitlement to ACBs and, ultimately, concludes that ACBs did not have to be incurred for accidents that pre-date the 2010 Schedule. I agree. As highlighted by the adjudicator, there is nothing in the transitional rules in either the 1996 or 2010 Schedules stating that the new definition of incurred applies retroactively to accidents pre-dating the amendment. I agree that, if the authors of the legislation intended for that to be case, it would have been clearly stated in the transitional rules.

28Second, since the 1996 Schedule does not provide a definition for “incurred,” Monks is instructive in setting out the legal test for defining “incurred” for accidents pre-dating the 2010 amendments. Similar to the present case, Monks dealt with an accident pre-dating the 2010 Schedule. The Court of Appeal determined that an insured person did not need to receive the item or services claimed in order to be entitled to the expense. Instead, the Court found that it was sufficient that the reasonableness and necessity of the service be established, and that the amount of the expenditure be determined with certainty.⁴ The Court agreed that an insured should not have to pay out of pocket for the service in order to receive the benefit.⁵ The Court also emphasized that, where the 1996 Schedule is concerned, a broad interpretation of the definition of “incurred” is required in order to protect accident victims and prevent insurers from benefitting from an insured’s lack of financial resources.⁶ In my view, the amendments made to the Schedule in September 2010 specifically and purposely narrowed this definition. That said, it does not apply in the applicant’s case.

29Finally, the respondent did not submit any authority in support of its position that the applicant had to incur past ACBs for the benefit to be payable. Therefore, I find that the respondent incorrectly applied the wrong approach in adjusting the applicant’s claim. I agree with the applicant that ACBs for accidents pre-dating the 2010 Schedule are payable in accordance with the Form 1 if it is determined that the benefit is reasonable and necessary. I will now address whether the disputed quantum for the different time-periods during which ACBs have been claimed by the applicant are reasonable and necessary.

Is the applicant entitled to an ACB in the amount of $706.12 per month from December 3, 2015 to October 25, 2016?[^7]

30For the following reasons, I do not find the applicant is entitled to an ACB in the amount of $706.12 per month from December 3, 2015 to October 25, 2016.

31To establish his claim for ACBs for this time-period, the applicant relied on the Form 1 and attendant care assessment of Varun Madan, OT, dated March 4, 2015.⁸ However, at the hearing the applicant gave very little attention to this Form 1 and assessment, and did not call Varun Madan as a witness. In the absence of this assistance, I find the OT’s report inconsistent and lacking in detail and analysis. For example, while the OT opines that the applicant is unable to perform most of his personal care tasks post-accident,⁹ this conflicts with the applicant’s self-reports of a typical day as outlined in the same report:

(i) He wakes up at 6:00 a.m., has a coffee, showers and eats breakfast;

(ii) He drives to work, travels around the GTA for sales calls and comes home between 5:00 and 6:00 p.m.; and

(iii) He then watches tv or plays games on his iPad and goes to sleep between 8:30 and 9:00 p.m.¹⁰

32In my view, the applicant’s report of a typical day reflects an individual who is independent in carrying out his daily activities. In addition, I did not find the recommendations made on the Form 1 consistent with this. There is no description of what an atypical day is like for the applicant, and little rationale was provided for the OT’s proposals. For example, 480 minutes per week is recommended under Level 1 for assistance with dressing, undressing, grooming and meal preparation. Although the applicant reported pain and a few limitations during the functional testing, there is nothing in the report indicating that the applicant was limited in dressing, undressing and grooming. Likewise, the report states that the applicant’s wife assists him with meal preparation, but never indicated that the applicant was unable to prepare meals because of his accident-related impairment. Under Level 2, 510 minutes is recommended, the bulk of which allots 420 minutes to ensuring comfort and safety in the applicant’s bedroom environment. But no explanation is offered on why the applicant requires this assistance. Given these inconsistencies and lack of detail, I have given Varun Madan’s assessment and Form 1 little weight.

33The applicant also consistently reported his independence with his self care tasks in describing a typical day to Anna Maria Vogiatzis, OT, which is reflected in her IE attendant care assessment and Form 1 dated September 3, 2015.¹¹ As a result, Ms. Vogiatzis recommended zero in monthly ACBs. However, she did recommend weekly housekeeping assistance as the applicant was found to have difficulty completing some household chores and heavier tasks. I find her recommendations more consistent with the information provided by the applicant to both assessors.

34The applicant also relied on Dr. Jones’s clinical notes and records (“CNRs”) and reports. However, I find that the information contained in Dr. Jones’s reports¹² and CNRs during this time-period conflicts with the information the applicant gave to Ms. Vogiatzis.¹³ For example, in Dr. Jones’s report dated September 30, 2015 (gathered from sessions in July and August 2015), the applicant reported that he is isolated and declines social activities, particularly those centered around golf.¹⁴ This contrasts with what the applicant reported to Ms. Vogiatzis, namely that he goes out for a men’s night once a week at the golf club.¹⁵ These assessments were completed during the same time period. Since the applicant did not testify or call any other lay witnesses, these inconsistencies were unable to be clarified. While there are a few references in Dr. Jones’s CNRs for this time-period in which the applicant reports not showering, the majority do not mention issues with self-care.¹⁶ Dr. Jones’s CNRs reflect the applicant being busy at work, independently travelling and playing golf.¹⁷

35In addition, I did not find the only other report issued by Dr. Jones during this time period (February 23, 2016) persuasive in support of his need for ACBs. The applicant reported to Dr. Jones periodic episodes of back and left leg pain rendering him functionally limited with self-care tasks. When these episodes occur, apparently, he relies on his wife for assistance. However, the report offers no particulars regarding how often these episodes occur or about what help he requires. The report goes on to say that “depression affecting his self-care tasks and work had improved in recent months” and that the applicant “has been able to maintain his rehabilitation, work and increase social and recreational activities.”¹⁸ Still, Dr. Jones renders no opinion or recommendation in either of his reports for this time period with respect to the applicant’s need for an ACB.

36For the above reasons, the applicant has not met his onus in proving on a balance of probabilities that he is entitled to ACBs in the amount of $706.12 per month from December 3, 2015 to October 26, 2016.

Is the applicant entitled to an ACB in the amount of $1,053.50 per month from October 26, 2016 to July 2017?

37For the following reasons, I find that the applicant is entitled to an ACB in the amount of $1,053.50 per month from October 26, 2016 to July 2017.

38The applicant’s attendant care assessment and Form 1 dated October 4, 2016 supports that he required ACBs for this time-period.¹⁹ The applicant submitted an updated assessment as there had been an increase in emotional and behavioural reactions and more frequent episodes of reduced physical capacity. The applicant reported to Ms. Taylor that he was able to manage his self-care most of the time by moving slowly and being cautious. However, when his back-pain flares-up, he could not manage without his wife’s assistance. He reported that he put his back out in April and July 2016, which made him completely dependent on his wife for self-care tasks during those months. The applicant also reported episodes of his left leg giving way, resulting in him falling.²⁰

39In her report, Ms. Taylor describes the applicant’s case as atypical, as he has time periods when his functioning rapidly decompensates followed by periods when he works full-time, golfs and can attend all his medical appointments. Ms. Taylor identified that the applicant’s need for ACBs is heavily dependent on his emotional status verses his physical limitations. She also interviewed the applicant’s brother and wife to get a full picture of the applicant’s functioning.²¹

40Ms. Taylor also indicates that the applicant’s chronic pain is well-documented, and that the impact it has on his emotional and psychological well-being can limit his functional ability daily. For example, he has poor coping strategies when he drinks to combat depression and pain, leading to poor decision-making. The applicant’s wife reported to the OT that the applicant is physically limited to assisting with chores. At times he helps, but that help is not consistent. The applicant’s wife substantiated the applicant’s reports that the applicant will over-exert himself on the golf course, resulting in his left leg giving out, which has led to falls. Further, she reports, she has had to assist the applicant with his self-care in summer months when he has tried to be more active.²²

41The Form 1 under the 1996 Schedule provided for the option of allotting ACBs on an intermittent basis. Due to the unpredictability of the applicant’s pain flare-ups and depressive episodes, Ms. Taylor allotted time under general supervision daily under Level 1 for cuing with dressing and undressing, grooming, feeding and mobility. Her rationale was that it is difficult to determine when these episodes would occur, and that this assistance will help the applicant during these periods.

42Ms. Taylor also allotted time under Level 2 for ACBs on an intermittent basis due to the applicant’s fluctuating emotional state. She allotted two hours in the morning and three hours in the evening for a total of 35 hours per week. Ms. Taylor opined that regular assistance and supervision is required to ensure the applicant is following through with regular activities, such as medical management and self-care. The total of monthly attendant care recommended was $1,053.00. I do not find this amount excessive and find it to be reasonable and necessary.

43Dr. Jones’s reports for this time period support the applicant’s need for ACBs as they reflect variations in the applicant’s mood. In his report dated November 14, 2016, Dr. Jones states that, in May and July 2016, there had been a deterioration in the applicant’s mood to the point he was neglecting his self care and his drinking increased.²³

44The respondent does not disagree that the applicant required ACBs during this time period. Indeed, it did not complete an IE attendant care assessment and Form 1 or deny the benefit for this period. In response to Ms. Taylor’s assessment and Form 1, the respondent sent the applicant an Explanation of Benefits dated November 21, 2016, requesting the applicant to submit OCF-6s (expense forms) with receipts attached for payment. It also requested that the applicant submit documentation showing that the individual providing services suffered an economic loss by providing the services or that they are a professional contracted to him. In short, what the respondent was doing was forcing the applicant to establish the benefit in accordance with the 2010 Schedule’s definition of “incurred,” which, as explained above, was the wrong approach.

45I find the applicant is entitled to payment of ACBs in the amount of $1,053.50 per month from October 26, 2016 to July 2017. Interest is also payable on overdue payment in accordance with the Schedule.

Is the applicant entitled to 24-7 supervisory ACBs or access to 24-7 ACBs from July 2017 to date and ongoing?[^24]

46For the following reasons, I find the applicant does not require 24-7 supervisory ACBs or 24-7 access to ACBs from July 2017 to date and ongoing.

47The Form 1s prepared by both Ms. Taylor and Mr. Gauthier are practically identical, except for the number of hours allotted under Part 2, Level 2 for attendant care on an intermittent basis. Ms. Taylor recommended 24-7 supervision and Mr. Gauthier recommended five hours per day. Therefore, my analysis will focus on whether the applicant requires 24-7 supervision. In her assessment dated July 17, 2017, Ms. Taylor recommends 24-7 supervision to assist the applicant in his transition back into the community after his discharge from Homewood to prevent decompensation, as well as to maintain his safety and routine.

48The applicant submits that several incidents support that he is a safety risk to himself and, thus, he needs 24-7 supervision. However, the applicant did not testify or participate in this hearing. (As was explained to me, this was on the advice of Dr. Jones, who was concerned with his psychological and emotional well-being.) Instead, the evidence about these incidents was given through Dr. Jones. Ultimately, I do not find the evidence suggesting that the applicant is a safety risk to himself compelling. For ease of reference, I have dealt with the incidents in chronological order.

New Years Eve 2015 – Suicide Attempt

49Dr. Jones testified that, on New Years Eve 2015, the applicant attempted to commit suicide by mixing alcohol with pain and anxiety medication. The applicant’s wife found him passed out in the bathtub. The applicant reported that his wife put him to bed, after which he slept for two days. I do not find the evidence with respect to this incident persuasive. While I take suicide very seriously, I find it challenging to accept that, if a spouse found his or her partner passed out in the bathtub, that spouse would simply put them to bed and wait for two days until his or her partner awoke – without calling for help. While the applicant’s wife’s response is not evidence that the applicant did not try to commit suicide, her response makes this incident appear as something not serious. In addition, in the only report submitted in which the applicant’s wife is interviewed, she makes no reference to the incident.²⁵ In my view, this was an important detail for the applicant’s wife to leave out if there was a legitimate concern about her husband’s safety.

50Indeed, the only records that refer to this incident are the applicant’s self-reports referred to in a CNR of Dr. Jones and a few of the reports of the members of his rehabilitation team. I find that if the applicant were an active suicide risk that Dr. Jones would have recommended immediate intervention. Significantly, this incident was not mentioned in Dr. Jones’s progress report dated February 23, 2016. I find the fact that it was omitted from his report shortly after the incident had occurred leads me to believe that even the applicant’s treating psychologist did not take this incident seriously. For these reasons, I am unable to give this incident much weight.

July 2017 - Admission to Homewood

51Dr. Jones testified that the applicant had a break down in the summer of 2017 which led to an increase in binge drinking and erratic behaviour. The applicant started sending Dr. Jones and other members of his rehabilitation team strange messages and turned off his phone so his team could not reach him. On the recommendation of his treatment team, he was admitted to Homewood for a 30-day substance abuse and pain management program. The applicant contends that the fact that he was able to quit smoking and drinking during this period supports his need for 24-7 supervision. I disagree.

52In my view, at Homewood the applicant had the services of an entire team, including psychologists, other medical doctors, nurses and counsellors to ensure he was following a routine and refraining from drinking and monitoring his medication. Mr. Gauthier testified that the applicant did not receive 24-7 supervision at Homewood as he was able to leave unaccompanied on day passes. Further, the level of treatment and support the applicant received at Homewood cannot be achieved while living in the community by having telephone access to Dr. Jones and access to 24-7 support from PSWs. I found the applicant’s evidence with respect to this inconsistent as his own rehabilitation team acknowledged that it would not be possible to mirror the services received at Homewood within the applicant’s home and in the community.²⁶ Moreover, in the Homewood discharge report, Dr. Lalonde does not identify any safety issues or discuss the need for the applicant to be supervised.²⁷

53While the applicant’s stay at Homewood shows that he made some improvements, I do not find that 24-7 supervision by a PSW in his home environment would ensure the applicant’s safety or sobriety. The applicant lives with his wife, who is also reportedly an alcoholic. The evidence supports that they have a dysfunctional relationship and that the applicant’s wife enables his alcoholism and struggles with addiction. I find that there would be little a PSW could do in this environment to protect the applicant from this type of self-harm.

54In addition, the surveillance report and video submitted by the respondent shows one of the PSWs buying beer for the applicant and the applicant consuming that beer.²⁸ While my determination does not rest on this incident, I find it troubling. If anything, the support he has been receiving, based on the respondent’s surveillance, actually undermines the applicant’s argument. The applicant obviously needs people in his life to help, not enable him. This particular evidence does not support his claim that he needs 24-7 supervision by a PSW to keep him sober.

March 2018 – 911 Call

55Dr. Jones highlighted an incident in March 2018, when the applicant’s brother and wife called 911 because he was self-isolating and acting erratically. No police or ambulance reports were submitted pertaining to this incident. The applicant was not taken to the hospital by paramedics and no action was taken by the police. I do not find this persuasive evidence in support of the applicant’s need for 24-7 supervision. Further, there is nothing to support that this incident was related to the applicant’s accident-related impairments. If there was a legitimate safety concern, police or the paramedics would have acted and there would be documentation to confirm it. For all of the above reasons, I do not find the above incidents support that the applicant is a safety risk to himself without 24-7 supervision or access to 24-7 supervision. I also did not find the PSW notes of Solus or the evidence of Dr. Jones and Ms. Taylor compelling in this regard.

Solus Log Notes[^29]

56While the Solus notes reflect that the applicant does need assistance carrying out some of his daily activities I do not find that they support his need for 24-7 supervision. Significantly, the Solus notes do not reference any behavioural issues for the period following the applicant’s discharge from Homewood. In my view, if there were issues relating to decompensation, it would be reflected in the PSW records, especially during this time-period.

57I find that the Solus log notes demonstrate that the applicant has managed to function independently as far as carrying out his daily activities, such as:

(i) the applicant managed and operated his own business. Although the records support that there were times when he did not physically go into work, the bulk of the records demonstrate that he has been consistently working and is highly dedicated to his work;

(ii) the applicant can drive and navigate the community independently. The records highlight numerous occasions on which the PSW would arrive and the applicant had not yet arrived from the office or had just arrived home from running an errand. This demonstrates that the applicant has the capability to independently carry out his daily activities;

(iii) the applicant has gone on several trips solo for business and pleasure from 2015 to date. In my view, someone that requires 24-7 supervision would not be able to travel independently; and

(iv) the applicant has continued to play golf recreationally. While he may not golf as frequently as he did pre-accident and experiences pain after golfing, the records demonstrate his physical capability to carry on this activity independently.

58Some of the Solus notes report that the applicant was neglecting his self care. However, the notes demonstrate that the PSWs had very little influence on the applicant to carry through on their instructions. Despite the PSWs prompting the applicant to shower, the applicant would ignore their prompts and refuse to carry out the activity. In my view, I do not find that 24-7 supervision is going to make a difference if the applicant refuses to cooperate.

59I found the Solus notes challenging in trying to determine the level of care the applicant requires as a result of his accident-related impairments. A high volume of the PSW notes refer to the PSW serving coffee and breakfast to the applicant and his wife, cooking the applicant and his wife dinner, cleaning the house, grocery shopping, walking the dog and carrying out several home improvement tasks. The applicant’s wife is often present in the home when these activities are undertaken. The notes frequently refer to the applicant’s wife giving orders to the PSWs to serve her needs. In my view, the tasks completed for the applicant’s wife do not fit within the scope of attendant care. However, it is impossible to distinguish between the hours where the PSWs are doing things for the applicant’s wife or just for him.

60In addition, while there are references to the applicant being in pain, or the PSW prompting him to shower and take his medication, there is no mention that the applicant is unable to perform the various activities being provided by the PSWs as a result of his accident-related impairments. However, the lack of proper note-taking does not prove that the applicant is capable of doing the activities. Significantly, both the applicant and respondent’s OTs support that he requires a certain level of supervisory care. Regardless, all the above factors do not support the need for 24-7 supervision or access to 24-7 supervision.

Evidence of Dr. Jones

61I did not find the testimony or reports of Dr. Jones in support of 24-7 supervision persuasive. Dr. Jones testified that the applicant faces safety issues because of self-harming behaviours such as not taking his medication and binge-drinking. Dr. Jones observed a consistent decline since December 2015, when the applicant apparently attempted suicide. As already highlighted, I did not find this incident convincing.

62Dr. Jones acknowledged that the applicant does not require someone with him 24-7 but requires 24-7 access to ACBs. I found Dr. Jones’s testimony inconsistent when compared to the contents of his reports. In the majority of Dr. Jones’ reports, he does not indicate that the applicant is a safety risk or mention the need for additional attendant care services. For the most part, Dr. Jones references the applicant benefiting from the ACBs that were being provided. Except for one report, the rest do not make any recommendations that the applicant requires more supervision due to being a safety risk to himself.

63I also found credibility issues with respect to what the applicant reported to Dr. Jones pertaining to his function compared to the other records. For example, in January 2018, the applicant reported to Dr. Jones that he had not worked for over a month, that he was neglecting his personal care and his mood was low. This conflicted with the daily logs in the Solus notes for this same period.³⁰ The inconsistencies in the records were not clarified at the hearing since, other than Dr. Jones, no other witnesses testified in support of the applicant. Furthermore, for the last couple of years, the sessions with Dr. Jones have taken place by phone, which limits Dr. Jones’ ability to verify what the applicant reports to him. For example, when the applicant reports that he has not showered for days Dr. Jones is unable to view the applicant’s physical appearance. As highlighted above, the applicant’s self-reports are not always accurate. I also find it problematic that Dr. Jones had very little understanding of the types of services the PSWs were providing to the applicant. For example, he was not aware that one of the PSWs providing the applicant with attendant care services was buying the applicant beer. Perhaps more disturbingly, during cross-examination, Dr. Jones did not find the fact that the PSW was buying the applicant beer concerning. For these reasons, I assign his testimony less weight.

Heidi Taylor’s Progress Report and Reassessment of December 2017

64Finally, Ms. Taylor authored a progress report in October 2017 indicating that the applicant was receiving five hours of ACBs a day, and that the services continue to be helpful in keeping him on track. She references many gains made since the applicant’s discharge from Homewood. However, she also indicated that the applicant forgot to take his medication on a recent business trip, and he skips meals when busy at work. Other than these references, she does not refer to any crisis or incident which would necessitate 24-7 supervision, yet she still advocates that he needs it. I found Ms. Taylor’s re-assessment of attendant care needs and Form 1 authored in December 2017 very similar to the one authored in July 2017. Considering all the other evidence, I do not find any additional relevant information contained in this report which would impact my finding. Nor did I find the case law relied upon by the applicant helpful in support of his claim.

65The applicant submitted various authorities which he contends supports his entitlement to 24-7 supervision or 24-7 access to supervision. I agree with the respondent that the case law cited by the applicant is distinguishable from the present case for a few reasons.³¹

66First, the claimants in the cases submitted demonstrated bona fide safety concerns in that they could not respond independently in an emergency. No evidence is before me that the applicant lacks the ability to respond in an emergency. Secondly, the claimants in the decisions submitted called other witnesses and a variety of medical experts to testify which was not done in the present case.

67The respondent argued that the Tribunal should draw a negative inference from the applicant’s failure to call several key witnesses including his wife, brother, OT, case manager and service providers from Solus. The respondent asks that I assume that these witnesses were not called to testify because they would be helpful to the respondent’s case.³² The applicant submitted that he did not call these witnesses because, unlike the respondent, he does not have the resources to pay for the added expense.

68I have drawn an adverse inference from the applicant’s failure to call some of these witnesses, especially his brother, wife and service provider from Solus. I understand that the applicant does not have deep pockets like the insurer to pay for expert testimony. However, these witnesses would be fairly inexpensive and would have valuable evidence about the applicant’s daily functioning. Further, these witnesses were even more important because the applicant did not participate in the hearing and was unable to clarify the inconsistencies in the evidence. I agree with the respondent that these witnesses were not called because they would not likely assist the applicant’s case. The applicant has not met his onus in proving on a balance of probabilities that he requires 24-7 supervision or access to 24-7 supervision.

69Since I do not find that the applicant requires 24-7 supervision, I find the applicant is entitled to a monthly ACB benefit in accordance with the attendant care assessments and Form 1s of Mr. Gauthier. Mr. Gauthier’s recommendations closely mirror the findings made by Ms. Taylor in her assessment in October 2016. After receiving authorization to speak with the applicant’s treatment team, Mr. Gauthier prepared a second Form 1 on October 3, 2018 recommending $1,976.46 in ACBs per month, which total eight hours of ACBs a day, plus an additional hour for enhanced rehabilitation support worker services.³³ As a result, the applicant receives ACBs at 3-hour intervals of the day in the morning, afternoon and evening. I find the time allotted by Mr. Gauthier is reasonable based upon all the evidence before me. However, the applicant is entitled to the total amount of the Form 1, regardless of whether the services were incurred and any interest owing as a result.

Is the applicant entitled to the cost of examination in the amount of $9,014.00 for a home modification assessment, recommended by Heidi-Ann Taylor in a treatment plan (OCF-18) dated October 24, 2017, and denied by the respondent on November 10, 2017?[^34]

70Prior to the hearing the respondent approved this cost of examination in the amount of $2,000.00³⁵. For the reasons that follow, the applicant is not entitled to the balance of this treatment plan.

71As highlighted in 18-001406, s. 268(1) of the Insurance Act (the “Act”) provides that insurance policies and contracts are governed by the Schedule which can be amended from time to time. Moreover, the terms of insurance contracts can be impacted by amendments to the Schedule subject to any terms, exclusions and limits set out in the regulation.

72Prior to September 1, 2010, s. 24(1)(10) and 42.1(3) of the 1996 Schedule³⁶ provided that an insurer pay the insured person reasonable fees and expenses to have an assessment or examination completed after a benefit was denied.

73On September 1, 2010, the Schedule was amended, and both above sections were repealed and replaced with s. 25(1)(5).³⁷ The 2010 Schedule placed a maximum amount payable at $2,000.00 per assessment.

74In his closing submissions, the applicant argued that, since this accident occurred in 1999, his entitlement to the cost of examination falls under the 1996 Schedule which did not place a $2,000.00 cap on assessments. The applicant maintains that the provisions of the 1996 Schedule apply prospectively. The respondent argues that the provisions of the 2010 Schedule apply to the applicant’s claim for a cost of examination. For the reasons that follow, I agree with the respondent.

75The sections which govern cost of examinations is specifically addressed by the transitional rules in both the 1996 and 2010 Schedules and is confirmed by FSCO Superintendent’s Bulletin A-04/10.

76I find the transitional rules in both Schedules do not allow for the interpretation submitted by the applicant. For example, s. 3 of the 1996 Schedule specifically states that any amount paid under the regulation shall be paid under the new regulation in an amount to be determined.³⁸ Section 2(2) of the transitional rules of the 2010 Schedule³⁹ confirms this, and states that any amounts previously paid under s. 24 would now be paid under s. 25(1),(3), (4) and (5).⁴⁰

77In my view, the fact that the transitional rules provide a cut-off date means that the $2,000.00 cap on examination expenses apply to any claim that is made after August 31, 2010, [emphasis mine] regardless of when the accident happened. I find the point that the authors of the legislation specifically states that s. 24 no longer applies in the transitional rules of both Schedules clearly highlights the intent to eliminate the use of that section. The same sentiment in the transitional rules is confirmed in FSCO Bulletin A-04/10. While the bulletin is not binding, it demonstrates a consistent approach to interpreting the transitional rules and s. 268 of the Act.

78In the additional submissions filed by the applicant, he agreed that the $2,000.00 cap applies to cost of examination expenses. However, he also put forth the creative argument that s. 25 of the 2010 Schedule does not apply because the home modification assessment is not a cost of examination but is a rehabilitation benefit which falls under s.5 of the 1996 Schedule. In my view, the applicant’s argument fails for several reasons. First, the issue in dispute was classified as a cost of examination benefit in all case conference reports and orders issued by the Tribunal. Secondly, the issue was confirmed by me as a cost of examination at the outset of this hearing. If the applicant had a valid challenge regarding how the issue was phrased, he could have brought a motion or raised it at the beginning of the hearing. In my view, I find that his time to challenge this has long expired.

79At any rate, the treatment plan in dispute is for a home modification assessment which is a cost of examination. The purpose of the treatment plan was for an OT to conduct the assessment and issue a report to provide an opinion on whether the applicant was functionally limited within his home environment as a result of his accident related impairments. Following which, a treatment plan would be submitted requesting home modifications which would then be classified as a rehabilitation benefit.

80Finally, the case law relied on by the applicant in support of his interpretation of the relevant laws are distinguishable from the present case, as those decisions dealt with interest and attendant care, which the transitional rules did not specifically address.⁴¹

81For all of the above reasons, the applicant is not entitled to the balance of the treatment plan for the cost of examination.

ORDER:

82The applicant is not entitled to an ACB in the amount of $706.12 per month from December 3, 2015 to October 25, 2016.

83The applicant is entitled to an ACB in the amount of $1,053.50 per month from October 26, 2016 to July 2017 plus interest in accordance with the Schedule.

84The applicant is not entitled to an ACB in the amount of $5,226.90 per month from July 2017 to December 2017;

85The applicant is not entitled to an ACB in the amount of $5,345.43 per month from January 2018 to date and ongoing; and

86The applicant is not entitled to the cost of examination in the amount of $9,014.00 for a home modification assessment recommended by Heidi-Ann Taylor in a treatment plan (OCF-18) dated October 24, 2017.

Footnotes

1. 1O. Reg. 403/96.
2. 2Exhibit 3: Applicant’s CAT assessment of Dr. Geows dated February 15, 2007; Respondent’s CAT Assessment, Applicant’s Document Brief, Volume 1, Tab 5, Seiden Health Assessment dated September 21, 2007, pages 35-107. There seems to be a difference of opinion with respect to the applicant’s catastrophic impairment as the applicant’s catastrophic assessments resulted in two marked impairments in Social Functioning and Adaptation. However, this does not appear to have been disputed and is not currently an issue before me.
3. 3Ontario Regulation 34/10, Statutory Accident Benefit Schedule -Effective September 1, 2010 Schedule (“2010 Schedule”).
4. 4Monks, para 49.
5. 5Wawanesa Mutual Insurance Co. v. Smith (Committee of) (1998) 42. O.R.(3d) 441. 1998 CanLII 18861 (ON CTGD), [1998] O.J. No. 5058 (Div. Ct), paras 38-39 (“Wawanesa”).
6. 6Monks, para 52.
7. 8Exhibit 27, Applicant’s Brief, Volume 1, Tab 8, Attendant Care Assessment and Form 1 of Varun Madan dated March 4, 2015.
8. 9Ibid, pg 6.
9. 10Ibid, pg 22.
10. 11Exhibit 28, Respondent’s Brief, Volume 1, Tab 12, IE Attendant Care Assessment and Form 1 of Anna Maria Vogiatzis dated September 3, 2015, pg 10.
11. 12Dr. Jones started treating the applicant in 2015 and testified that the applicant was diagnosed with Major Depressive Disorder, Generalized Anxiety Disorder, symptoms of PSTD, Somatic Symptom Disorder and Alcohol Use Disorder. Dr. Jones testified that the applicant’s symptoms were chronic despite the passage of time since the accident. The applicant’s functioning fluctuates and he has dysfunctional coping patterns.
12. 13Exhibit 2, Applicant’s Brief, Volume 2, Tab 12, Dr. Jones’ Report dated September 30, 2015.
13. 14Ibid, pg 6.
14. 15Exhibit 28, pg 10.
15. 16Exhibit 2, Applicant’s Brief, Vol 2, Tab 11, CNRS of Dr. Jones, pg 302.
16. 17Ibid, pages 301, 306, 308, 311,316,319,321,321,330 and 335.
17. 18Exhibit 2, Applicant’s Brief, Volume 2, Tab 13. Dr. Jones’ Reports dated February 23, 2016, pg 3 & 4.
18. 19Exhibit 7, Attendant Care Assessment and Form 1 of Heidi Ann Taylor dated October 4, 2016. Applicant’s Brief, Tab 27.
19. 20Ibid, pg 5.
20. 21Ibid, pg 6.
21. 22Ibid, pg 7.
22. 23Exhibit 2, Applicant’s Brief, Tab 14, Dr. Jones’ Progress Note dated November 14, 2015 (reporting period March 21 to May 12, 2016)
23. 25Exhibit 7: Applicant’s Brief, H Taylor’s report dated October 4, 2016.
24. 26Exhibit 5: JGS Health Consultants Team Meeting Summary dated August 28, 2017.
25. 27Exhibit 6: Homewood Discharge Summary report of Dr. Lalonde, dated July 27, 2017.
26. 28Exhibit 14: Surveillance - Investigation Report dated July 31, 2018.
27. 30Exhibit 2, Tab 16: Consultation Note of Dr. Jones dated January 24,2018 states the applicant has not attended work for the past month, has not been engaging in consistent self-care – symptoms of low mood. Exhibit 12: Solus Log Notes from January 2018 refer to the applicant being very busy at work.
28. 3117-005604 (BD) v. Wawanesa Mutual Insurance Company, 2018 ON LAT; S.M. and Intact Insurance Company (FSCO A-11-000666, November 8, 2013); T.N. and Personal Insurance Company of Canada (FSCO A06-000399, July 26, 2012); and J.K. and Wawanesa Mutual Insurance Company (FSCO A10-001397, November 16, 2012).
29. 32Claiborne Industries v. National Bank, 1989 CanLii 183 (ON CA).
30. 33Exhibit 22, Addendum report of D. Gauthier dated April 13, 2018.
31. 35The respondent had partially approved this benefit in the amount of $2,000.00 in advance of the hearing.
32. 36O.Reg.403/96, ss.24(1)(10) and 42.1(3).
33. 37O.Reg.34/10, s. 25(1)(5).
34. 38O.Reg.403/96, s.3.
35. 39O.Reg.403/96,s.2(2).
36. 40Ibid, s.25(1), (3), (4) and (5).
37. 41Sidhu v. State Farm Mutual Automobile Insurance Company, 2014 ONCA 920; State Farm Automobile Insurance Co. v. Kulaveerasingam, 2017 ONSC 6278.
38. 7The incident involving the suicide attempt on New Years Eve 2015 will be dealt with when I discuss whether the applicant requires 24-7 supervision.
39. 24Since both of the applicant’s Form 1s essentially address the applicant’s need for 24-7 supervision, I will be addressing the applicant’s claims for $5,226.90 per month, from July 2017 to December 2017 as well as his claim for $5, 345.43 per month in ACBs under the heading of 24-7 supervision.
40. 29Exhibit 12: Solus Log Notes. Both parties referred to a high volume of the Solus notes throughout the hearing. I will not be referencing pages numbers in my discussion on this section.
41. 34After receiving closing submissions I sent the parties LAT decision 18-001406 and asked for further submissions on its relevance in this matter. While 18-001406 dealt with the claimant’s entitlement to a catastrophic rebuttal report in essence it addressed which Schedule applies to entitlement to cost of examinations for claims made after August 30, 2010.