A.A. v. Unifund Assurance Company
RECONSIDERATION DECISION
Before: Ian Maedel, Vice Chair
Tribunal File Number: 18-008999/AABS
Case Name: A.A. v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Frank E. McNally, Counsel
For the Respondent: Arthur R. Camporese, Counsel
OVERVIEW
1On June 10, 2020, the respondent submitted a request for reconsideration of the Licence Appeal Tribunal’s decision dated May 20, 2020 by Adjudicator Punyarthi regarding the applicant’s claim for benefits under the Statutory Accident Benefits Schedule, O. Reg. 34/10. That decision found that the applicant was entitled to attendant care benefits at a reduced rate, expenses for services provided by Whole Therapy and interest. The applicant was not entitled to the other medical benefits claimed.
2This matter proceeded via written submissions for the treatment plans at issue, and via an in-person hearing on October 9-11, 2019 in relation to the claim for attendant care benefits.
3Relying on Rule 18.2(b) of the Tribunal’s Common Rules of Practice and Procedure, the respondent submits the Tribunal made errors of fact or law such that the Tribunal would have likely reached a different result had the errors not been made.
4The respondent is seeking an order:
a. That the Tribunal’s decision be varied to conclude the applicant is not entitled to attendant care benefits for meal preparation of sixty minutes per day, three times a week; and
b. That the Tribunal’s decision be varied to conclude the applicant is not entitled to the expenses in the amount of $7,725.90 for services provided by Whole Therapy.
PARTIES’ POSITIONS
5The respondent submits the adjudicator erred in making the inference that because the applicant continues to meet the threshold for catastrophic impairment, she continues to meet the test for attendant care benefits. The respondent further submits the adjudicator failed to apply the proper ‘but for’ test for causation. Had the adjudicator properly applied the ‘but for’ test, she would have concluded there was no causal link between meal preparation assistance and the accident.
6The respondent further submits the adjudicator erred in making the inferential link between approval of travel expenses and the Whole Therapy treatment. The respondent submits there is no causal link between this treatment and the accident. Even if the causation and reasonableness and necessity are proven, a lesser amount should be awarded given the applicant’s failure to comply with s. 38(2) of the Schedule regarding incurred treatment expenses.
7The applicant submits the respondent has failed to illustrate any errors of fact or law that would have otherwise caused the Tribunal to reach a different decision. The applicant submits this is an attempt to re-weigh the evidence, and the respondent has not provided any caselaw to illustrate this matter was inappropriately decided or which of the Schedule’s requirements were misinterpreted. The applicant submits the adjudicator adequately addressed causation and appropriately weighed the various expert evidence adduced, directly linking the impairments suffered to the accident. The applicant submits there was ample evidence regarding the requirement for meal preparation assistance.
8In relation to the Whole Therapy treatment, the applicant submits it was not solely determined by previous approval of travel expenses. These expenses were amply supported by the medical evidence. Causation and the reasonableness and necessity were met and considered by the adjudicator. In relation to s. 38(2), the applicant submits it has a reasonable explanation pursuant to s. 34 of the Schedule, as to why the treatment plan was not submitted prior to the incurred treatment.
ANALYSIS
9The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules. Reconsideration is warranted only in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
Attendant Care Benefits and Meal Preparation
10I am not satisfied the adjudicator made any errors of fact or law that would have otherwise led the Tribunal to reach a different decision related to attendant care benefits and meal preparation assistance.
11This reconsideration is not otherwise an opportunity to substitute my decision for that of the hearing adjudicator, nor an attempt to re-weigh the evidence. However, I have examined the submissions provided and the evidence they are based upon.
12The respondent objects to the adjudicator’s inference at paragraph 14 that because the applicant was found to be catastrophically impaired, it is possible she may also require functional assistance in her home. While the use of the word “inference” may have been unfortunate in this case, I am not persuaded the adjudicator relied solely on the catastrophic impairment when determining whether the test for attendant care benefits were met.
13The adjudicator clearly canvasses the functional and medical evidence that was determinative in her decision. This included evidence of chronic pain, psychological diagnoses like PTSD, somatic symptom disorder, and major depressive disorder, a possible traumatic brain injury, and the opinions of three occupational therapists. The adjudicator then provides commentary on the consistency of that evidence when determining if the test for attendant care benefits was met.
14I agree with the respondent that the actual ‘but for’ test related to causation is not clearly referenced by the adjudicator in the decision. At paragraph 8, she finds the claim for attendant care was caused by the accident and cites an evidentiary approach to determining causation.
15The adjudicator clearly summarizes and weighs the evidence adduced on behalf of both parties. On a balance of probabilities, she then concludes the claim for attendant care arises from impairments suffered in the accident.
16However, the adjudicator clearly references the “causation test” at paragraph 20 and links these impairments directly to the accident. To me, this denotes a clear understanding of the ‘but for’ test and causation linked to the accident pursuant to the claim for attendant care benefits.
17At paragraph 25, the adjudicator again uses the word “inferences”, which suggests she is making an inferential leap between the evidence and her conclusion that the applicant is entitled to meal preparation assistance. However, I view this simply as a misnomer, as it is clear from the remainder of this section that she has made a reasoned decision based on the evidence.
18I cannot conclude there was no causal relationship between the meal preparation assistance sought and the medical or psychological evidence adduced at the hearing. Unlike the hearing adjudicator, I was not present at the oral portion of the hearing, nor do I have the full panoply of evidence before me. However, given the evidence regarding the applicant’s traumatic brain injury, cognitive impairments, lack of energy, fatigue, and pain, I can identify how the adjudicator concluded there was sufficient evidence to support a claim for meal preparation assistance.
Medical Benefits Provided by Whole Therapy
19I am persuaded the adjudicator made an error in fact and law when she relied on the respondent’s previous approval of travel expenses to find this treatment was reasonable and necessary and caused by the accident.
20The respondent’s submissions on this point are persuasive. The previous approval of mileage expenses for the applicant’s travel to this treatment is irrelevant and cannot be determinative of causation. Each treatment plan should be evaluated on whether the treatment can be causally linked to the accident and whether the treatment is reasonable and necessary.
21This is problematic, as the adjudicator specifically states at paragraph 84 that she was not persuaded by the medical evidence of chronic pain, PTSD, and depression that the treatment plans were reasonable and necessary. It was only with the previous approval of the mileage expenses that the adjudicator relied upon to find this treatment was required due to the accident and was reasonable and necessary. I consider the inferential link made between the approval of mileage and denial of this medical treatment a significant error of law.
22First, by operation of s. 38(2), I am not persuaded the majority of the Whole Therapy treatment is payable in the amount of $6,328.90 ($7,725.90 - $1,397.00 = $6,328.90). This treatment was incurred prior to submission of any treatment plan to the insurer.
23Second, I am not persuaded that the applicant has proven the remaining treatment plan dated February 2, 2016 in the amount of $1,397.00 was causally linked to the accident or that it was reasonable and necessary.
24I now turn to the evidence tendered in relation to the treatment provided by Dr. George Surko and Whole Therapy. This treatment encompassed chiropractic treatment and massage. A treatment plan (OCF-18) was first submitted February 2, 2016. The respondent denied the treatment plan on February 3, 2016, as the non-catastrophic treatment limit had already been reached. Additional treatment was submitted to the insurer in an OCF-18 dated October 25, 2018, and then finally in an Expenses Claim Form (OCF-6) dated June 26, 2019.
25The treatment plan dated February 2, 2016 was in the amount of $1,397.00. The applicant admits that after this treatment plan was denied, she incurred additional treatment for a total of $7,725.90.
26The applicant admits in both its written hearing submissions and in the reconsideration submissions that she incurred treatment after February 2, 2016 without first providing the treatment plan to the insurer. This is clearly in contravention of s. 38(2), which requires a treatment plan to be submitted to an insurer prior to it being incurred. This deprived the respondent of the opportunity to adjust the claim in real time.
27The applicant submits there is discretion to overlook this non-compliance as per s. 34 of the Schedule, as the applicant had a reasonable explanation for incurring the treatment prior to submitting additional treatment plans. The applicant submits there were “unique circumstances”, as the applicant had reached the $50,000.00 treatment limit, and her injuries had not yet been deemed catastrophic. In the applicant’s view, it defies logic that a treatment provider must continuously submit treatment plans in accordance with s. 38 after an insurer has denied treatment pursuant to reaching the treatment limit.
28Like the hearing adjudicator, I am not persuaded by this argument, nor do I agree there are “unique circumstances”. Every claimant who reaches the $50,000.00 cap or the “non-MIG and non-CAT” treatment limit must continue to submit treatment plans pursuant to s. 38(2). This section permits an insurer to continue to adjust a file, even if the treatment limit has been reached.
29Given the admitted non-compliance with s. 38(2), the Whole Therapy treatment in the amount of $6,328.90 is denied.
30In relation to the initial treatment plan dated February 2, 2016 in the amount $1,397.00, I must now consider whether the treatment was in relation to injuries suffered as a result of the accident and determine if this treatment is reasonable and necessary.
31In reviewing her written submissions on these expenses, as per paragraphs 38-45 of her written submissions, the applicant does not make any causal link to the accident in dispute, nor does she provide any basis for whether this treatment is reasonable and necessary. Specifically, the applicant does not articulate the purposes, goals, or benefits of this treatment, alluding only to the clinical notes and records at paragraph 41.
32In her written reply submissions, the applicant instead focuses on s. 45(6) and the payment of incurred expenses following a catastrophic impairment determination. This argument was specifically rejected by the hearing adjudicator at paragraphs 61 and 62 of the decision. Like the hearing adjudicator, I conclude that s. 45(6) does not entitle the applicant to an automatic payment of the incurred benefits. The applicant must still demonstrate the treatment is causally related to the accident and is reasonable and necessary.
33Given the evidence, I am not persuaded the remaining $1,397.00 is payable. I am not satisfied on a balance of probabilities that this treatment would have been necessary but for the accident and I am not satisfied it is reasonable and necessary
CONCLUSION
34The respondent’s request for reconsideration related to the attendant care benefits and meal preparation assistance is denied.
35The respondent’s request for reconsideration of the Whole Therapy treatment is granted in part. The Tribunal’s decision is varied, as the Whole Therapy treatment in the amount of $7,725.90 is denied.
Ian Maedel
Vice Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Date of Issue: February 24, 2021