[BK] v. The Guarantee Company of North America, 2021 CanLII 35565

Citation: [BK] vs. The Guarantee Company of North America, 2019 ONLAT 18-003505/AABS-A

Date: June 14, 2019

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

[BK]

Appellant(s)

and

The Guarantee Company of North America

Respondent

DECISION

PANEL:

Karina Kowal, Adjudicator

APPEARANCES:

For the Applicant:

Nick de Koning, Counsel

For the Respondent:

Kerry Figliomeni, Counsel

HEARD in Writing:

October 29, 2018

OVERVIEW

1The applicant was involved in a motor vehicle accident on January 13, 2002 (the “accident”). He applied for and received statutory accident benefits from The Guarantee Company of North America (“The Guarantee”) payable under the Statutory Accident Benefits Schedule –Effective November 1, 1996 (the “Schedule”).

2The parties agreed that the applicant suffered serious injuries. Indeed, he was deemed catastrophically impaired by the respondent on the basis of his Glasgow Coma Scale (“GCS”) score.

3Since the accident, the applicant has undergone many surgical procedures, extensive rehabilitation and retraining for an alternate career. He has returned to work as a full-time manufacturing engineer, is independent in his self-care, and has returned to many of his pre-accident housekeeping, home maintenance, social and recreational activities.

4Issues arose between the parties concerning the applicant’s entitlement to rehabilitation benefits under the Schedule. The Guarantee denied payment and the applicant appealed to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the “Tribunal”) for payment of these benefits.

ISSUES IN DISPUTE

5The issues before the Tribunal are as follows:

i. Is the applicant entitled to payment for rehabilitation benefits recommended by Annemarie McDonough in the following treatment plans:

a. $19,658.80 for workplace modifications and devices denied by the respondent on November 20, 2017,

b. $22,200.00 for a camper trailer denied by the respondent on November 20, 2017?

RESULT

6The parties have resolved the issue of workplace modifications and devices in the amount of $19,658.80 in advance of the written hearing. A decision is not required.

7The applicant is not entitled to payment in the amount of $22,200.00 for a camper trailer as he has not met the test under s. 16 of the Schedule for rehabilitation benefits. The applicant did not sufficiently demonstrate that the trailer was “reasonable and necessary” for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate his reintegration into his family, the rest of society or the labour market.

DISCUSSION

A) WORKPLACE MODIFICATION- $19,658.80

8The respondent indicated in its submissions and evidence that this matter had been resolved between the parties on September 18, 2018. The applicant did not make submissions on this issue, nor did he reply to the respondent’s suggestion that that this issue has been resolved. In the circumstances, therefore, I will assume that no decision is required.

B) CAMPER TRAILER: -$22,200.00

BACKGROUND

9The applicant is seeking payment for a new camper trailer. He asserts that camping is an important component in his rehabilitation program as it helps him reintegrate into his family and the rest of society. He has had previous disputes with the respondent over his entitlement to a camping trailer leading up to his current request. I will briefy review the previous dealings to provide background for the current dispute.

10According to Annemarie McDonough, the applicant’s occupational therapist, the applicant had returned to camping post-accident, first in a tent and later in a pop-up trailer he purchased. He greatly enjoyed camping, despite his physical condition.

11On July 17, 2013, Annemarie McDonough “petitioned” for the purchase of a “hardtop” trailer as the applicant’s previously owned pop-up trailer required replacement because it started leaking. An OCF-18 dated July 23, 2013 in the amount of $16,449.35 for a hardtop trailer was submitted to The Guarantee. This hardtop trailer was denied and the denial confirmed through occupational therapy, orthopaedic assessments and a functional abilities evaluation that the hard top trailer was not reasonable or necessary “for the purpose of reducing or eliminating the effects of any disability resulting from the applicant’s accident related impairments or to facilitate his reintegration into his family, the rest of society and/or the labour market.” Notwithstanding, the applicant went ahead and purchased the hardtop trailer on May 16, 2014 in the amount of $12,549.61 (the “Jayco trailer”).

12The applicant was dissatisfied with Guarantee's refusal and applied to the Financial Services Commission of Ontario (FSCO) for mediation. The dispute resolved wherein the respondent contributed $5,000.00 towards the hardtop trailer without “waiver of its right to question the reasonableness and necessity of any future purchases of hard-top campers and/or recreational vehicles”. The offer was accepted by the applicant.

13On September 5, 2017, the applicant purchased a new 2018 Heartland Mallard M33 camping trailer in the amount of $52,021.45 (after the trade-in allowance).

14On October 11, 2017, the applicant submitted an expense form (OCF-6) in the amount of $22,000.00 for a trade in/down payment on a camper (Heartland Mallard M33) along with a progress report from Ms. McDonough dated October 11, 2017. Ms. McDonough indicated that the applicant had issues manoeuvring around his trailer as his condition had deteriorated over the last 12 months. She advised that given these issues, he had purchased the new Heartland trailer.

15The respondent sent a letter dated November 2, 2017 informing that this expense needs to be submitted via a treatment and assessment plan (OCF-18) in order to be considered.

16On November 14, 2017, a treatment plan (OCF-18) dated November 13, 2017 was submitted by the applicant’s occupational therapist, Annemarie McDonough, in the amount of $22,200.00 for a camper as part of expense-sharing. ($22,000 for the camper, $200.00 for the OCF-18 documentation fee).

17The respondent conducted an occupational therapy insurer examination on December 18, 2017 and, on January 15, 2018, sent a letter confirming that the camper trailer was not reasonable and necessary.

I. INCURRED PRIOR TO SUBMISSION OF A TREATMENT PLAN

Respondent

18The respondent relies on s. 38(2) of the Schedule”- (Reg. 34/10)¹, that “an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan”, and submits that the applicant’s failure to submit this treatment plan prior to incurring this expense is a complete bar to the recovery of the incurred expense².

19The respondent also submits that a finding of whether the OCF-18 in question was reasonable or necessary is not permitted given the applicant’s non-compliance with s. 38(2) of the Schedule.

Applicant

20The applicant states that the respondent failed to warn the applicant of the consequences of incurring the cost of an expense prior to submission of a Treatment and Assessment Plan.

21After the applicant submitted the expense of $22,000.00 for the “Trade-in/down payment on camper”, the insurer did not inform that this claim for expenses was barred completely, but that “this expense should be submitted on an OCF-18 Treatment and Assessment Plan”. Further, the respondent subjected the treatment plan to an insurer examination for consideration.

Reasons

22I do not accept the applicant's submission on two grounds: the applicant incurred the $22,000 expenditure before notifying the respondent and therefore nothing the respondent did induced the expenditure; and, the respondent did cite s. 38(2) to the applicant in its initial correspondence. The fact that it also gave full considerarion to the applicant's OCF-18 when it was submitted did not negate its right to rely on s. 38(2).

23In reviewing the evidence, I note that the respondent did reference s. 38(2) on the correspondence to the applicant dated November 7, 2017, however it did not close the door to the claim at that time by denying the expense based on the fact that it was incurred prior to submission to the respondent.

24Rather, the respondent requested that the applicant submit his expense for the camper trailer on a treatment and assessment plan. This request to submit the expense properly on a treatment plan for consideration did not cause the applicant to incur the expense, and therefore did not prejudice the applicant.

25Once the treatment plan was received properly, the respondent had another opportunity to deny the plan on the basis that it was incurred prior to submission. As s. 38(2) reads that “an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit”. It does not stipulate “shall not pay”. It did not do so.

26Instead, I find that the respondent went a step further and subjected the treatment plan to an occupational therapy assessment to determine the reasonableness and necessity of the camper trailer. I find that the respondent did not waive its rights under s. 38(2) simply because it gave serious consideration to the applicant’s claim when he submitted the OCF-18.

II. REASONABLENESS AND NECESSITY OF A REHABILITATION BENEFIT

27The treatment and assessment plan for a trailer dated November 13, 2017 must be evaluated against the test for rehabilitation benefits found in s. 16 of the Schedule³:

16. (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. O. Reg. 34/10, s. 16 (1).

(3) The activities and measures referred to in subsection (1) are,...

(l) other goods and services that the insurer agrees are essential for the rehabilitation of the insured person, and for which a benefit is not otherwise provided in this Regulation…

Applicant

28The applicant asserts that he requires the trailer upgrade as a result of the accident. He cites Leonti and Security National,⁴ in which Arbitrator Blackman advised that the proper test was not whether the good or service remedied the injury completely, but whether it was a reasonable option for the Applicant to pursue. Further, Arbitrator Blackman stated, where neither party has met their respective obligations, where the cost of an expense has been incurred prior to the submission of a medical report or a treatment plan, the decision would need to be made on the merits of the case and the reasonableness of the expense.

29The applicant asserts that he has found immense benefit from the new trailer. He acknowledges that it has not completely eliminated the ongoing injuries and symptoms, but it has prevented additional re-injury, strain and exacerbation to his existing injuries that he was experiencing with the prior trailer.

30Ms. McDonough’s occupational therapy report dated October 11, 2017 ⁵ outlined that the applicant had increases in knee, foot and arm pain when manually assembling the prior Jayco trailer. Functional transfers in front of the toilet and beside the bed were challenging and also resulted in increased pain. The applicant purchased the Heartland trailer due to increased square footage making access, movement and functional activity less physically challenging. Set up is fully automatic so manual assembly is not required.

Respondent

31The respondent submits that the applicant failed to show evidence that the trailer was ”reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market”.

32Further, that the cost of the trailer does not fall under one of the enumerated activities or measures under s.16(3) of the Schedule. This is required for the expense to be considered reasonable and necessary.⁶

33The respondent submits that Ms. McDonough simply supported the purchase the applicant had already made. She did not provide any independent research or recommendations for trailers. She also did not provide the respondent with specific dimensions of the new trailer for comparison with the old trailer.

34The respondent submits that both occupational therapists, Ms. McDonough (the applicant’s) as well as Mr. Morgan ⁷(the respondent’s), concur that the applicant had returned to camping shortly after the accident and had remained engaged in this activity to date.

Reasons

35I agree with the respondent that the applicant did not provide any objective evidence to support his position that the camper was reasonable and necessary. Ms. McDonough, although she did provide a report in support of the need for the trailer, did not assess the applicant in the new trailer. The report only provided support based on subjective reporting of the applicant.

36Although the goal of “prevention of re-injury, strain and exacerbation to existing injuries” as indicated in Ms. McDonough’s report is important, it is not the test for a rehabilitation benefit. In the applicant’s reply submissions, he indicated that he submitted the treatment plan under s. 16(3)(l): “other goods and services that the insurer agrees are essential for the rehabilitation of the insured person, and for which a benefit is not otherwise provided in this Regulation. “

37I was not persuaded by the applicant’s submissions as to how the camper was essential for the rehabilitation of the insured person, as he had already returned to his pre-accident camping activities and had been doing so for approximately 14 years. According to the test for rehabilitation benefits, I do not consider the treatment plan reasonable and/or necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

III. AMOUNT OF THE TREATMENT PLAN

Applicant

38The applicant notes that due to his cognitive injuries such as severe brain injury and impulsive behaviour, he mistakenly provided Ms. McDonough the incorrect cost of the trailer. The amount that should have been indicated on the OCF-18 should have been $52,136.49 and not $22,200.00.

Respondent

39As to the applicant’s assertion of being “prone to impulsive behaviour” and cognitive injuries, the respondent states no evidence was submitted to support this. The cost was initially submitted through an OCF-6, and later via a treatment plan by the applicant’s occupational therapist. The figure of $22,200.00 was discussed at the Tribunal case conference and confirmed through the order. The respondent submits that amending this figure to $52,136.49 would be prejudicial to the respondent.

Reasons

40With respect to the amount of the treatment plan for the camper, I agree with the respondent. The applicant initially submitted the bill of sale via an OCF-6 expense form. He then went through the process of submitting the bill of sale to the occupational therapist, who filled out the treatment and assessment plan. Further, the applicant is represented. This treatment and assessment plan was discussed at the case conference by counsel and the amount was confirmed by the adjudicator. The applicant had ample opportunity to amend the amount in advance of the case conference. This was not done. I do not have any evidence before me that the applicant was impulsive, or suffers from current cognitive impairments that errors of this nature could be attributed to. On the contrary, the applicant is working full time as a manufacturing engineer. Changing the amount in dispute of the camper at the time of the hearing is prejudicial to the respondent. The amount remains as was identified throughout the dispute process at $22,200.00.

41In any event, the subject treatment plan, in its entirety, whether at $52,136.49 or at $22,200.00, is not reasonable and/or necessary as described in my reasons above.

Interest

42The treatment plan is not reasonable and/or necessary, no interest is payable.

Footnotes

1. 1Statutory Accident Benefits Schedule- O.Reg. 34/10, s. 38(2).
2. 2G.S. and Aviva Insurance Company of Canada, 2017, CanLii 33655 (ON LAT).
3. 3Statutory Accident Benefits Schedule – O.Reg. 34/10. S.16.
4. 4A99-000823 – Leonti and Security National (FSCO).
5. 5Occupational Therapy report- Annemarie McDonough- October 11, 2017.
6. 616-001811 v. Wawanesa Mutual Insurance Company, 2017 CanLii 44824 (ON LAT).
7. 7Occupational Therapy Evaluation Report, Joseph Morgan, OT, December 18, 2017.