Citation: Butler v. Allstate Insurance, 2021 ONLAT 19-013444/AABS

Release date: 2021/03/17

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:

Kirby Butler

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Baldeep Virk, Counsel

For the Respondent:

Nawaz Tahir, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant, Kirby Butler (“Mr. Butler”), was injured as a pedestrian in an automobile accident on September 24, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Allstate Insurance (“Allstate”), the respondent.

2Allstate denied Mr. Butler’s claims for attendant care benefits, physiotherapy services, occupational therapy services and some psychological services. As a result, Mr. Butler submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on May 14, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Mr. Butler entitled to attendant care benefits from September 24, 2017 to date and ongoing and, if so, in what amount?

(ii) Is Mr. Butler entitled to physiotherapy recommended by Heather Jones, physiotherapist, as follows:

(a) $1,780.46 ($4,624.54 less $2,844.08 approved) in a treatment plan (“OCF-18”) dated January 16, 2018, and partially approved on January 19, 2018?

(b) $3,541.63 in an OCF-18 dated January 12, 2020, denied on February 27, 2020?

(iii) Is Mr. Butler entitled to $4,130.19 for occupational therapy services, recommended by Michelle Hayes in an OCF-18 dated March 26, 2018, and denied on April 17, 2018?

(iv) Is Mr. Butler entitled to $374.01 ($1,995.29 less $1,621.28 approved) for psychological services, recommended by Dr. E. Warriner in an OCF-18 dated July 12, 2018, and denied on July 18, 2018?

(v) Is Mr. Butler entitled to interest on any overdue payment of benefits?

RESULT

5I find that Mr. Butler is:

(i) Not entitled to attendant care benefits for the period of September 24, 2017 to December 26, 2017, as no Assessment of Attendant Care Needs form had been completed prior to December 27, 2017;

(ii) Not entitled to attendant care benefits from December 27, 2017 to date and ongoing because he has failed to prove that he has incurred any expenses for ACBs. I also decline to use my discretion under s. 3(8) of the Schedule to deem any ACBs expenses incurred. As a result, I find that no ACBs are payable to Mr. Butler;

(iii) Entitled to $1,196.96 plus interest in accordance with s. 51 of the Schedule for 16 transportation sessions of 45 minutes each for provider travel time to treatment as set out on the January 16, 2018 OCF-18 for physiotherapy treatment;

(iv) Not entitled to $199.50 for “planning, service” and $384.00 for provider mileage to treatment on the January 16, 2018 OCF-18;

(v) Entitled to $3,392.00 of the January 12, 2020 OCF-18 for physiotherapy services, which represents the total amount of the treatment plan less $149.63 for the amount sought for planning service, plus interest in accordance with s. 51 of the Schedule;

(vi) Not entitled to the March 26, 2018 OCF-18 for occupational therapy services; and

(vii) Not entitled to the unapproved portions of the July 12, 2018 OCF-18 for psychological services.

ANALYSIS

Attendant Care Benefits (“ACBs”)

6Section 19 of the Schedule requires an insurer to 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.

7Section 3(7)(c) defines “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:”

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

8For an expense to be considered incurred, all three elements of the test must be met. Further, if the person who provided attendant care services is a family member, as opposed to a professional service provider, any ACBs payable are limited to the economic loss incurred by the family member.²

9Section 42 of the Schedule sets out the rules for applying for ACBs. An application for ACBs must be made on the prescribed form entitled, “Assessment of Attendant Care Needs,” known as a Form 1, and completed by an occupational therapist or registered nurse.³ Section 42(5) states that an insurer may, but is not required to, pay an ACB expense incurred before a properly completed Form 1 is submitted to the insurer.

10Mr. Butler submitted two Form 1s to Allstate – one dated December 27, 2017 and one dated March 26, 2018. As Mr. Butler is claiming ACBs from September 24, 2017 to date and ongoing, the following are the three distinct periods of time that I must review to determine his entitlement to ACBs:

(i) September 24, 2017 to December 26, 2017;

(ii) December 27, 2017 to March 25, 2018; and

(iii) March 26, 2018 to date and ongoing.

11On the evidence, I find that Mr. Butler is not entitled to ACBs for the period of September 24, 2017 to December 26, 2017, as no Form 1 was completed prior to December 27, 2017. I also find that Mr. Butler is not entitled to ACBs from December 27, 2017 to date and ongoing because he has failed to prove that he has incurred any expenses for ACBs. I also decline to use my discretion under s. 3(8) of the Schedule to deem any ACBs expenses incurred. As a result, I find that no ACBs are payable to Mr. Butler.

September 24, 2017 to December 26, 2017

12In his submissions, Mr. Butler confirms that the first Form 1 in this matter was not completed until December 27, 2017.⁴ As such, Allstate is not required to pay ACBs for the period of September 24, 2017 to December 26, 2017 pursuant to s. 42(1) and s. 42(5) of the Schedule. Therefore, I find Mr. Butler is not entitled to payment for ACBs prior to December 27, 2017.

December 27, 2017 to March 25, 2018

13Mr. Butler’s first Form 1 was completed by Michelle Hayes, occupational therapist, and dated December 27, 2017. In this Form 1, Ms. Hayes recommended that Mr. Butler receive ACBs in the amount of $8,235.36 per month.

14On January 4, 2018, Allstate approved ACBs for Mr. Butler in the maximum amount of $3,000.00 per month for a non-catastrophic injury in accordance with s. 19(3) of the Schedule. Allstate advised that ACBs were payable beginning on December 27, 2017 and requested documentation from Mr. Butler in accordance with s. 46.2 of the Schedule showing the following:

(i) The name, address and telephone number of the attendant care service provider;

(ii) The date, times and types of services performed; and

(iii) The amount charged per hour.

15Allstate submits that it never received the requested documentation as set out above from Mr. Butler.⁵ Mr. Butler did not dispute that the requested documentation was not provided to Allstate. In fact, this documentation was also not submitted as evidence for the written hearing.

16Overall, I have no evidence before me to support a number of factual allegations set out in Mr. Butler’s submissions regarding his claim for ACBs. For example, Mr. Butler submitted that his son, Mark Butler, provided him with attendant care services and, as a result, Mark Butler incurred expenses with respect to lodging, feeding and loss of income attributable to time missed from work to take Mr. Butler to various appointments and to provide care. Assuming that Mr. Butler’s son provided ACBs to Mr. Butler that were not within the course of his employment, occupation or profession, I find that Mr. Butler has not satisfied his onus of proving that any expenses were incurred for the purposes of s. 3(7)(e) as there is no evidence before me that Mr. Butler’s son sustained any economic loss as a result of providing attendant care services to Mr. Butler. Even if I am wrong and Mr. Butler’s son was providing attendant care services to Mr. Butler as part of his employment, I find that there is no evidence to show that Mr. Butler’s son provided the services as recommended in the December 27, 2017 Form 1.

17The analysis does not end here, however. I may deem an expense to have been incurred pursuant to s. 3(8) of the Schedule if I find that Allstate unreasonably withheld or delayed payment of ACBs.

18During the period of December 27, 2017 to March 25, 2018, I find that there is no evidence of a withholding of ACBs by Allstate, as Allstate had approved the maximum amount of ACBs payable for non-catastrophic injuries under the Schedule. Therefore, I find no reason to deem ABCs incurred during this period and, as a result, I find that ACBs are not payable to Mr. Butler from December 27, 2017 to March 26, 2018.

March 26, 2018 to date and ongoing

19Mr. Butler filed a second Form 1 with Allstate dated March 26, 2018. This Form 1 was also completed by Ms. Hayes and she recommended that Mr. Butler receive $8,861.29 per month in ACBs.

20Allstate denied payment of ACBs to Mr. Butler on April 17, 2018 as it believed that the services outlined in the March 26, 2018 Form 1 were not reasonable and necessary. Allstate also questioned the monthly amount of ACBs recommended on the March 26, 2018 Form 1 as it was greater than the monthly amount of ACBs recommended on the December 27, 2017 Form 1. According to Allstate, the amount of monthly ACBs on the March 26, 2018 Form 1 was inconsistent with Mr. Butler’s anticipated recovery and accident-related diagnoses. Allstate also advised Mr. Butler of his required attendance at an insurer’s examination (“IE”) to determine if ACBs were still required and, if so, in what monthly amount.

21Following an IE assessment with Jeff Perrier, occupational therapist, Allstate advised Mr. Butler that it approved ACBs in the amount of $448.49 per month on June 14, 2018.

22Even if I were to find that Mr. Butler was entitled to some amount of ACBs for the period starting on March 26, 2018, I find that Mr. Butler’s claim for ACBs fails under s. 19 of the Schedule which requires ACB expenses to be incurred. Mr. Butler has submitted no evidence that any ACBs were incurred under any of the prongs of s. 3(7)(e) from March 26, 2018 and beyond. There are no invoices, no promissory notes, no affidavits speaking to services provided, the level of care or the rate of care. Accordingly, as it is Mr. Butler’s burden, there is no evidence before me to find that Mr. Butler received the goods or services to which the ACB expenses relate at any point beginning on March 26, 2018, that he has paid any ACB expenses, that he has promised to pay any expenses or is otherwise legally obligated to pay any expenses, or that any person provided the goods or services in the course of their employment or, in the case of his son, sustained an economic loss as a result of providing the goods or services to Mr. Butler. Further, Mr. Butler has not offered analysis on why s. 3(8) may apply to deem the expenses incurred for the period beginning on March 26, 2018.

23For the reasons set out above, I find that Mr. Butler is not entitled to payment for ACBs during the period of March 26, 2018 to date and ongoing as he has not proven on a balance of probabilities that any ACBs were incurred in accordance with the Schedule or that they should be deemed incurred pursuant to s. 3(8).

24Sections 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.

25I find that Mr. Butler is entitled to the following benefits as he has met his onus of proving that these services are reasonable and necessary on a balance of probabilities:

(i) $1,196.96 for 16 transportation sessions of 45 minutes for provider travel time to treatment as set out on the January 16, 2018 OCF-18 for physiotherapy; and

(ii) $3,392.00 of the January 12, 2020 OCF-18 for physiotherapy, which is the total amount of the treatment plan less $149.63 for the amount sought for the planning service.

26I find that Mr. Butler is not entitled to the remainder of the January 16, 2018 OCF-18, the March 26, 2018 OCF-18 for occupational therapy services or the unapproved portions of the July 12, 2018 OCF-18 for psychological services as he failed to prove on a balance of probabilities that these benefits are reasonable and necessary.

Physiotherapy

27There are two treatment plans for physiotherapy in dispute in this matter. The first OCF-18 was dated January 16, 2018 and was completed by Ms. Jones.

28On January 19, 2018, Allstate partially approved the January 16, 2018 OCF-18 in the amount of $2,844.08. The portions of the treatment plan that Allstate did not agree to pay for were as follows:

(i) $199.50 for 1 two-hour session of “planning, service;”

(ii) $384.00 for provider mileage to treatment; and

(iii) $1,196.96 for 16 transportation sessions of 45 minutes each for provider travel time to treatment.

29Allstate informed Mr. Butler that it would not fund the planning services as this item was “considered the cost of doing business,” and that Allstate was not liable to pay for any administration or other costs, overhead, fees, expenses, charges or surcharges that result in an increase in the permitted hourly rate or the maximum fees payable for form completion pursuant to the Financial Services Commission of Ontario’s (“FSCO’s”) Professional Services Guideline (the “Guideline”).⁶ Allstate also noted that mileage was not payable for treatment provider travel and it had no information to indicate the need for the physiotherapist to travel. Allstate requested further information if in-home physiotherapy was required.

30I find that Mr. Butler has failed to prove on a balance of probabilities that the “planning, service” was reasonable and necessary. While Mr. Butler submitted that these funds were a reasonable expense that was necessary to effectively deliver Mr. Butler’s therapy, he has not directed me to any evidence to support this submission. The January 16, 2018 OCF-18 also does not provide any explanation or details as to the reasonableness and necessity of the “planning, service” portion of Mr. Butler’s proposed treatment.

31I find that Mr. Butler is also not entitled to provider mileage to treatment in the amount of $384.00 as there is no provision in the Schedule for payment of mileage expenses for service providers.⁷

32However, I do find that Mr. Butler has established on a balance of probabilities that it was reasonable and necessary for his physiotherapy treatment to take place in-home. Therefore, Mr. Butler is entitled to $1,196.96 for provider travel time to treatment for each of the 16 physiotherapy sessions that were approved by Allstate as part of the January 16, 2018 OCF-18.

33As a result of the accident, Mr. Butler sustained a fractured right hip, a fractured right shoulder, pain in his bilateral lower extremities, significant bruising in his bilateral legs and right elbow, and an acetabular both column fracture with some articular displacement.⁸ As a result of his injuries, Mr. Butler required the use of a rollator walker and was only able to bear weight as tolerated on his right lower extremity.⁹ Mr. Butler reported the following regarding his mobility to Mr. Jeff Perrier, occupational therapist, which formed part of Mr. Perrier’s June 12, 2018 IE Occupational Therapist’s Report:¹⁰

(i) He was unable to walk around the community independently and he did not walk outside unsupervised;¹¹

(ii) He was only able to walk 7 minutes outside with his physiotherapist using his rollator walker;¹²

(iii) He was not able to take public transit or drive;¹³ and

(iv) He solely relied upon his son to drive him places for community mobility.¹⁴

34While I acknowledge that Mr. Perrier’s June 12, 2018 report was not in existence at the time the January 16, 2018 OCF-18 was submitted to Allstate for consideration, there is no indication that Mr. Butler’s mobility was better prior to Mr. Perrier’s June 12, 2018 IE report. Moreover, even Mr. Perrier opined that given Mr. Butler’s need for a rollator walker for mobility at all times, that Mr. Butler’s community mobility had been impacted as a result of the accident.¹⁵

35For all of the reasons set out above, I find that Mr. Butler has proven on a balance of probabilities that it was reasonable and necessary for the physiotherapist to travel to Mr. Butler to provide the approved physiotherapy services given Mr. Butler’s well-documented mobility limitations.

36Furthermore, Allstate filed a Google Maps result in its submissions showing both the mileage and travel time from the treatment provider’s clinic to Mr. Butler’s residence. This map reflects that the approximate duration of a one-way trip was between 18 to 20 minutes. Therefore, I find that 45 minutes total for travel time for each approved physiotherapy session was reasonable. As such, Mr. Butler is entitled to the $1,196.96 for 16 transportation sessions of 45 minutes for provider travel time to treatment as set out on the January 16, 2018 OCF-18.

37The second OCF-18 in dispute for physiotherapy was dated January 12, 2020 and was also completed by Ms. Jones. This OCF-18 sought funding in the total amount of $3,541.63 for 1 ninety-minute “planning service” ($149.63); 16 one-hour and 15-minute physiotherapy sessions ($1,995.04); 16 forty-five minute transportation time for provider travel to treatment ($1,196.96); and completion of the OCF-18 ($200.00). The goals of the treatment plan were pain reduction, increase in strength, increase in range of motion, increase in endurance, increased balance and a return to activities of normal living. The OCF-18 also noted that as it was a subsequent treatment plan, Mr. Butler’s mobility (endurance, gait and speed) had improved since the end of the previous plan along with his balance scores.

38On February 27, 2020, Allstate denied the January 12, 2020 OCF-18 in full on the basis of the February 26, 2020 IE Orthopaedic Surgeon’s report by Dr. Greg Jaroszynski, orthopaedic surgeon.¹⁶ Allstate advised that as a result of Dr. Jaroszynski’s opinion that Mr. Butler had achieved maximal medical recovery, that the March 26, 2018 OCF-18 was not reasonable and necessary as there would be no further clinical benefit of treatment at this point.

39I find that Mr. Butler has proven on a balance of probabilities that the benefits sought on the January 12, 2020 OCF-18, except for “planning service,” were reasonable and necessary for the following reasons:

(i) The January 12, 2020 OCF-18 referred to a January 12, 2020 Physiotherapy Progress Report by Ms. Jones.¹⁷ Ms. Jones’ January 12, 2020 report confirmed that the stated goals of treatment of increased strength, endurance and balance were being achieved, as Mr. Butler demonstrated improvements in his mobility and that he was less reliant upon his rollator walker in his home over the previous treatment period;¹⁸

(ii) Ms. Jones’ January 12, 2020 Progress Report also showed that the stated goal of pain reduction was being met, as Mr. Butler reported that pain in his lower extremity was reduced after physiotherapy treatment;¹⁹

(iii) I give little weight to Dr. Jaroszynski’s report in determining the reasonableness and necessity of the proposed physiotherapy treatment because Dr. Jaroszynski only commented on the clinical benefits of the proposed treatment plan and failed to address Mr. Butler’s reported benefit of pain reduction following physiotherapy treatment;

(iv) Additionally, Dr. Jaroszynski’s opinion that Mr. Butler reached maximum medical recovery from his accident-related orthopaedic injuries,²⁰ which formed the basis of Allstate’s denial of the January 12, 2020 OCF-18, contradicts Ms. Jones’ reports that Mr. Butler had not yet plateaued in his recovery. Ms. Jones reported that Mr. Butler was still making slow but meaningful gains with physiotherapy treatment in her January 12, 2020 report but Dr. Jaroszynski failed to provide any discussion on this portion of Ms. Jones’ report in relation to his opinion despite listing Ms. Jones’ report as a document that he reviewed as part of his assessment of Mr. Butler;²¹

(v) The amount sought for provider travel time on the January 12, 2020 OCF-18 is reasonable and necessary for the continuation of in-home physiotherapy services. Both Dr. Jaroszynski and Ms. Jones noted that Mr. Butler still required the use of his rollator walker for outside mobility²² and it was reported in the April 16, 2018 Occupational Therapy Re-Assessment of Attendant Care Needs – Form 1 Report by Ms. Hayes²³ that Mr. Butler was still reliant upon his son for all of his transportation needs;²⁴ and

(vi) Finally, there is no explanation provided regarding the reasonableness and necessity of the $149.63 sought for the planning session. I find that Mr. Butler has failed to prove that this portion of the January 12, 2020 OCF-18 is reasonable and necessary especially in light of Ms. Jones’ completion of the January 12, 2020 Physiotherapy Progress Report which outlined the ongoing focus and components of Mr. Butler’s physiotherapy treatment.

40For all of the reasons set out above, I find that Mr. Butler is entitled to $3,392.00 the January 12, 2020 OCF-18, which is the total amount of the treatment plan less $149.63 sought for the planning service.

Occupational Therapy Services

41The March 26, 2018 OCF-18 was completed by Ms. Hayes and sought funding for eight sessions of occupational therapy, provider travel time to treatment, planning service, documentation and report writing, file research and completion of the OCF-18. The goals of the treatment plan were to provide occupational therapy services to maximize functional restoration, to address barriers impeding normal daily function, to return to activities of normal living, to return to modified work activities and to implement programming aimed at addressing restored normal life roles and pursuits.

42The March 26, 2018 OCF-18 referred to the April 16, 2018 Occupational Therapy Re-Assessment of Attendant Care Needs – Form 1 Report by Ms. Hayes²⁵ in support of the proposed occupational therapy. In her report, Ms. Hayes recommends occupational therapy intervention to: monitor possible increasing psycho-emotional impairments and Mr. Butler’s need for counselling; direct a rehab support worker to support Mr. Butler’s participating in therapeutic activities and fill Mr. Butler’s time with productive, safe and meaningful activities; screen for cognitive function to address ongoing cognitive concerns; provide strategies and modifications to tasks and the environment to allow for decreased pain and associated exacerbations; provide education and support around the use of effective relaxation strategies; assist Mr. Butler in establishing a healthier sleep schedule, develop improved habits to achieve a greater level of restorative sleep and make recommendations regarding sleeping postures; and assist with housing.²⁶

43I find that Mr. Butler is not entitled to the March 26, 2018 OCF-18 as he has failed to prove that the treatment plan is reasonable and necessary on a balance of probabilities for the following reasons:

(i) There is no explanation provided as to why Mr. Butler’s family physician could not monitor Mr. Butler for any psycho-emotional impairments and any need for counselling;

(ii) No funding was sought for a rehab support worker in the March 26, 2018 OCF-18 for the occupational therapist to supervise;

(iii) Mr. Butler denied experiencing any cognitive impairments to Ms. Hayes and, therefore it is unclear why further cognitive screening was required;²⁷

(iv) Mr. Butler declined in-home care services through Community Care Access Centre (“CCAC”) when he was offered a referral for these services on May 3, 2018.²⁸ This decline for CCAC care indicates to me that he did not require strategies and modifications to decrease pain while completing tasks in his home;

(v) In Ms. Hayes’ report, Mr. Butler reported sleep disturbances and waking 1-2 times per night.²⁹ However, no reasons were provided for the waking and sleep difficulties. Therefore, it is unclear if his sleep disturbances arose as a result of his injuries or for another reason; and

(vi) Mr. Butler was not considering a move back into his own home rather than living with his son at the time that this OCF-18 was submitted for consideration by Allstate.³⁰ Therefore, there was no need to assist Mr. Butler with any housing at that time; and

(vii) I also agree with Mr. Perrier in his June 12, 2018 IE Occupational Therapist’s Report³¹ that Mr. Butler’s required use of a rollator walker for mobility prevented him from participating in housekeeping/home maintenance tasks and in community leisure activities.³² Therefore, Mr. Perrier opined that at the time of his assessment that it would not be useful for Mr. Butler to receive occupational therapy treatment.³³ I agree. There is also no information on how Mr. Butler’s reliance on his rollator walker would have allowed the stated goals of the treatment plan of returning to activities of normal living and restoring normal life roles and pursuits to be achieved.

44For all of the reasons set out above, I find that Mr. Butler is not entitled to the March 26, 2018 OCF-18 for occupational therapy services.

Psychological Services

45The July 12, 2018 OCF-18 was completed by Dr. Justine Spencer, psychologist, and sought funding in the total amount of $1,995.29 for an intake interview, completion of the OCF-18, 6 sessions of psychological treatment, 6 sessions of preparation, 6 sessions for “documentation, support activity,” completion of a progress note and fees for brokerage service, which was further described as collaboration with Mr. Butler’s interdisciplinary team, as needed.

46On July 18, 2018, Allstate partially approved the July 12, 2018 OCF-18 in the amount of $1,621.28. Allstate denied payment for brokerage services/collaboration with Mr. Butler’s interdisciplinary team ($149.61) and the funding sought for “documentation, support activity” ($224.40).

47I find that Mr. Butler is not entitled to the unapproved portions of the July 12, 2018 OCF-18 as he has failed to prove that they are reasonable and necessary on a balance of probabilities for the following reasons:

(i) Mr. Butler submitted that the denied portions of this treatment plan were reasonable and necessary expenses for “the therapist to properly implement the very treatment which the respondent has accepted as reasonable and necessary,”³⁴ and that the “preparation, service funds” were necessary in order to effectively delivery Mr. Butler’s therapy. Mr. Butler, however, failed to reference any evidence to support these submissions;

(ii) The additional comments section of the July 12, 2018 OCF-18 noted that Mr. Butler was seen by Dr. Spencer for a consultation appointment to assist with the preparation of the OCF-18. While further details are provided as to the reasonableness and necessity of psychological treatment for Mr. Butler on the OCF-18, there is no explanation or rationale provided for the brokerage fees/collaboration with other treatment providers or the funds sought for documentation services; and

(iii) I agree with Allstate that on its face, the amount sought for documentation appears to be a duplication of services as Allstate agreed to fund preparation services which were also requested on the July 12, 2018 treatment plan.

48Therefore, Mr. Butler is not entitled to the unapproved portions of the July 12, 2018 OCF-18 for psychological services.

Interest

49Mr. Butler is entitled to interest in accordance with s. 51 of the Schedule on the following amounts:

(i) $1,196.96 for 16 transportation sessions of 45 minutes each for provider travel time to treatment as set out on the January 16, 2018 OCF-18 for physiotherapy; and

(ii) $3,392.00 of the January 12, 2020 OCF-18 for physiotherapy, which represents the total amount of the treatment plan less $149.63 for the amount sought for the planning service.

ORDER

50For the reasons outlined above, I find that Mr. Butler is:

(i) Not entitled to attendant care benefits for the period of September 24, 2017 to date and ongoing;

(ii) Entitled to $1,196.96 plus interest in accordance with s. 51 of the Schedule for 16 transportation sessions of 45 minutes each for provider travel time to treatment as set out on the January 16, 2018 OCF-18 for physiotherapy;

(iii) Not entitled to $199.50 for “planning, service” and $384.00 for provider mileage to treatment on the January 16, 2018 OCF-18;

(iv) Entitled to $3,392.00 of the January 12, 2020 OCF-18 for physiotherapy, which represents the total amount of the treatment plan less $149.63 for the amount sought for the planning service, plus interest in accordance with s. 51 of the Schedule;

(v) Not entitled to the March 26, 2018 OCF-18 for occupational therapy services; and

(vi) Not entitled to the unapproved portions of the July 12, 2018 OCF-18 for psychological services.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Schedule, s. 19(3)4.
3. 3Schedule, s. 42(1).
4. 4Submissions of the Applicant, para. 12.
5. 5Responding Submissions of the Insurer, para. 46.
6. 6September 2014, Superintendent’s Guideline No. 03/14.
7. 7See 17-006293 v Certas Home & Auto Company, 2018 CanLII 98286 (ON LAT) at para. 20 and C.A. v Aviva Insurance Company, 2019 CanLII 119767 (ON LAT) at para. [44](iii).
8. 8December 28, 2017 Initial Occupational Therapy Submission & Hospital Discharge Planning Letter by Michelle Hayes, occupational therapist, Submissions of the Applicant, tab 5, page 2.
9. 9Ibid.
10. 10Submissions of the Applicant, tab 12.
11. 11Ibid. at pages 19 and 23.
12. 12Ibid. at page 19.
13. 13Ibid. at page 23.
14. 14Ibid. at page 20.
15. 15Ibid. at page 19.
16. 16Responding Submissions of the Insurer, tab M.
17. 17Applicant’s Submissions, tab 13.
18. 18Ibid. at pages 1-2.
19. 19Ibid.
20. 20Supra note 16 at page 27.
21. 21Ibid. at page 2.
22. 22Ibid. at page 25 and supra note 17 at page 1.
23. 23Applicant’s Submissions, tab 11.
24. 24Ibid. at page 19.
25. 25Supra note 23.
26. 26Ibid. at pages 19 and 25-26.
27. 27Ibid. at page 13.
28. 28North Hamilton Community Health Centre Clinic note dated May 3, 2018 by Caitlin Maddocks, registered nurse, Applicant’s Submissions, tab 17.
29. 29Supra note 23 at page 13.
30. 30Ibid. at page 19 and June 12, 2018 IE Occupational Therapist’s Report by Mr. Jeff Perrier, Applicant’s Submissions, tab 12, page 12.
31. 31Applicant’s Submissions, tab 12.
32. 32Ibid. at page 22.
33. 33Ibid.
34. 34Submissions of the Applicant, para. 54.