Released Date: 07/14/2021
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:
Melanie Duval
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR: Monica Chakravarti
APPEARANCES:
For the Applicant: Celeste Courville, Counsel
For the Respondent: Alexander Hartwig, Counsel
HEARD: Via Written Submissions
OVERVIEW
1The applicant was involved in motor vehicle accident on October 13, 2018. As a result of the accident, the applicant claimed benefits from the respondent under the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule'').
2Specifically, the applicant submitted treatment plans seeking medical and rehabilitation benefits and sought attendant care benefits. The respondent denied the treatment plans and the attendant care benefits because it determined the benefits sought are not reasonable and necessary. The applicant disagreed with the respondent and commenced an application at the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the disputed treatment plans and the attendant care benefits (“ACBs”).
3The parties participated in a case conference where the issues in dispute were confirmed and included a treatment plan for physiotherapy, however, the issue of the physiotherapy treatment plan was withdrawn by the applicant.
ISSUES TO BE DECIDED
4The issues to be decided in this hearing are:
a. Is the applicant entitled to ACBs of $1,030.84 per month from June 12, 2019 to date and ongoing?
b. Is the applicant entitled to $2,982.56 for an orthopedic mattress and pillow recommended by Jane Gobbo, Registered Nurse (“RN”), in a treatment plan (OCF-18) submitted on December 12, 2019 and denied on January 27, 2020?
c. Is the applicant entitled to $102.79 for medicinal cannabis on March 27, 2019 and denied on March 28, 2019?
d. Is the respondent liable to pay an award under Regulation 664 because it unreasonable withheld or delayed payments to the applicant?
e. Is the applicant entitled to interest on any overdue payment of benefits?
5The respondent raises a procedural issue of the applicant being in non-compliance with the case conference order because the applicant failed to provide particulars of the special award, failed to produce her employment file, and did not comply with the layout requirements and page limits for the submissions.
6With respect to the submissions, while I agree that the applicant has exceeded the page limits and did not adhere to the spacing requirements, which contributed to the applicant’s submissions exceeding the page limits I find that there is no prejudice to the respondent but there is a potential prejudice to the applicant if the Tribunal refuses to consider the submissions in their entirety as the Schedule has a consumer protection goal and pursuant to Rule 3.1 of the Tribunal’s Rules I find that a varying of the procedural requirements will facilitate fair participation by all parties.
7With respect to the respondent’s submissions regarding the employment file, I agree that the applicant is in breach and that a negative inference, if required, will be drawn. With respect to the applicant not providing particulars of the special award, I find that the case conference order states that the applicant is to provide further particulars of the award. Therefore, the issue will proceed forward as the order implies that some particulars were provided. Even if I am incorrect, based on the reasons below there is no basis for an award and therefore the issue of whether the applicant’s issue of an award can be heard as part of this hearing is moot.
RESULT
8For the reasons noted below, the applicant has not met her onus to show that the mattress, pillow and medicinal cannabis treatment plans are reasonable and necessary. The applicant however has met her onus to show that the ACBs are partially reasonable and necessary and she is entitled to ACBs in the amount of $537.00 per month. However, the respondent did not unreasonably withhold the ACBs and therefore the ACBs from June 12, 2019 to date are not deemed to be incurred.
9The applicant as well has not shown that the respondent acted unreasonably in the delaying and withholding of payment and therefore the respondent is not liable to pay an award. As the applicant is entitled to ACBs any interest that may be payable on the monthly amount of $537.00 is payable pursuant to s. 51.
ANALYSIS
10Sections 14, 15 and 16 of the Schedule provides that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. Similarly, section 19 of the Schedule provides that insurer is liable to pay for ACBs that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits she seeks are reasonable and necessary.
Orthopaedic mattress and pillow
11The applicant submits that following the accident she required a firm mattress and pillow as a result of her accident related injuries. The applicant submits that this is recommended by Ms. Gobbo, RN, in her assessment of February 7, 2019. The treatment plan (“Plan”) is submitted on December 12, 2019 by Ms. Tassone, occupational therapist (“OT”), and is based on the recommendations of Ms. Gobbo.
12The respondent argues that the orthopedic mattress and pillow is not reasonable and necessary and in fact is submitted as an after-thought. The respondent points to the fact that the orthopaedic mattress and pillow were first submitted for reimbursement on an OCF-6 dated August 1, 2019 and then the disputed Plan followed. However, the respondent points out that the mattress and pillow was purchased at Leons the morning following the accident before any treatment and assessment plans were submitted for consideration. The purchase the morning after the accident was for a king size mattress along with king sized bed panels, dresser, door chest and a portrait mirror. The report of Ms. Gobbo was then authored months following this purchase at Leons. The pillow and the mattress identified on the receipt from Leons as well shows the purchase of two standard queen sized pillow, and not orthopaedic pillows, and an “iComfort” brand mattress, again not an orthopaedic mattress. The respondent as well points to the fact that the mattress and pillows were purchased in non-compliance with s. 38(2) as it was incurred prior to a treatment plan being submitted and therefore the respondent is not liable to pay this expense. Further, none of the exceptions in s. 38(2)(a)-(d) that allow for incurring of expenses before a treatment plan are applicable. Lastly, the respondent points to the s. 44 assessment of Dr. Cisa, orthopaedic surgeon, who opined that the treatment plan for the mattress and pillow are not reasonable and necessary.
13The applicant has the onus of proving that the treatment plan is reasonably necessary. The applicant has not met her onus. The applicant relies on the report of Ms. Gobbo, RN. The applicant posits that Ms. Gobbo recommends an orthopaedic mattress and pillow in her assessment of February 2019. However, Ms. Gobbo does not make this recommendation, but she merely reports that a new mattress was purchased. Specifically, Ms. Gobbo in her report states:
Ms. Duval had to purchase a new orthopaedic mattress post-accident as her mattress was too soft for her back and did not provide the support that was required for proper positioning and alignment to assist with recuperation.
14I acknowledge that page 7 of the report of Ms. Gobbo states that a firm orthopaedic mattress is recommended to promote recovery with proper support for alignment on spine. But again, it is unclear if this is a recommendation being made by Ms. Gobbo or self-reporting by the applicant that she purchased it and then an endorsement by Ms. Gobbo. As Ms. Gobbo then notes in her assessment that the applicant reported sleeplessness, tossing and turning due to pain and has a difficult time to settle. This reported sleeplessness is after the applicant purchased the mattress thereby indicating that the mattress was not assisting with accident related injuries. As well, the credibility of the applicant requesting and advising Ms. Gobbo about the need for the mattress and pillow are dubious given that the mattress was purchased the morning after the accident and prior to any medical recommendations for such a purchase. It is even unclear if the purchase was made before or after the applicant attended any medical clinic for her immediate accident related injuries, as the applicant has failed to provide her clinical notes and records or any treating medical clinical notes and records for the months following the accident.
15The claim for the mattress and pillow is made even more suspect because an OCF-6 is provided on August 1, 2019, nine months following the purchase of the items and the accident. When this OCF-6 is rejected on the basis that there is no treatment plan, a treatment plan is submitted on December 12, 2019 based on a report that was authored in February of 2019. Further Ms. Gobbo notes in her report that a new mattress was purchased but the applicant still had issues with sleep and pain, thereby making her recommendation for a mattress less persuasive as it is evident that this new mattress was not assisting the applicant.
16The Plan also does not assist in identifying goals that are reasonable and necessary. The treatment plan recommends an orthopaedic mattress and pillow and the goals listed in the treatment plan are to “implement assistive devices recommended from the in-home assessment.” The treatment plan also indicates that the “in-home assessment” that is being referenced is that of February 7, 2019 completed by Ms. Gobbo, RN, which as noted above does not make a recommendation but simply reports that a mattress was purchased.
17Other than the report of Ms. Gobbo the applicant has provided no evidence of the reasonableness or necessity of a mattress and pillow as a result of the accident related injuries and impairments. The Plan itself is not sufficient as it makes no recommendations as to why one is required and any goals that it will achieve. Therefore, based on the above the applicant has not met her onus to show that the treatment plan is reasonable and necessary.
18I need not make a finding as to whether the respondent is liable to pay the expense pursuant to s.38(2) as the applicant is not entitled to the mattress and the pillow therefore the respondent is not liable to fund same.
Medicinal Cannabis
19The applicant submitted an OCF-6 (claim for expenses) for medicinal cannabis. The applicant submits that the same was recommended by Dr. Edward Bassis, treating psychologist, Dr. Matheson, s.44 psychologist, and Ms. Hiebert, nurse practitioner. The applicant submits that her family doctor recommended medical cannabis as well and that Dr. Bassis’ recommendation for the cannabis was to help with the applicant’s chronic pain and insomnia.
20As pointed out by the respondent there is no evidence that Dr. Bassis made a recommendation for medicinal cannabis. There are no notes or any reports from Dr. Bassis with this recommendation. Submissions are not evidence and the applicant submits, without evidence, the recommendations of Dr. Bassis. Further, there is also no recommendation made by Dr. Matheson for CBD Oil. It is merely the self-reporting of the applicant to Dr. Matheson that her family doctor and the OT recommended medicinal cannabis.
21The applicant submits the “Written Order” of Ms. Hiebert, nurse practitioner, which is titled “Health Care Practitioner Information and Consultation Address” as evidence of a recommendation for medicinal cannabis. This document simply provides the name of the Health Care Practitioner, Ms. Hiebert, the applicant’s name and address and “the order” (not a prescription) of High CBD oil for chronic pain and THC. This does not advise of the goals of the treatment, does not relate the recommendations to the accident and the applicant has provided no evidence as to the recommendation for medical cannabis to treat accident related injuries.
22As the onus is on the applicant, more is required than simply providing the Health Care Practitioner Information and Consultation Address. The applicant has provided no evidence that any of her treating medical practitioners recommended medicinal cannabis, what injuries this modality will treat, and the goals of the treatment. Therefore, the applicant has not shown on a balance of probabilities that the medical cannabis is reasonable and necessary as a result of accident.
Attendant Care
23Section 19 of the Schedule provides that ACBs shall be paid for all reasonable and necessary expenses that are incurred as a result of the accident. The onus is on the applicant to show that the ACBs are reasonable and necessary and to prove that they are incurred.
Are the attendant care expenses reasonable and necessary?
24The onus is on the applicant to prove on a balance that she requires ACBs and the amount of same. To that end the applicant submits and relies on the assessment of attendant care needs Form of February 11, 2019 completed by Ms. Gobbo, RN (“Disputed Form 1”).
25The Disputed Form 1, like all Form 1s, contains three heads of care: Part 1 is routine personal care (i.e. dressing, grooming, feeding etc.); Part 2 is supervisory functions (i.e. basic hygiene, basic supervisory care etc.); Part 3 is complex healthcare and complex hygiene functions (i.e. bathing, bowel care etc.). The hourly rate that is allotted to the attendant care provider for each part differs.
26In the Disputed Form 1 Ms. Gobbo assessed the ACBs at $1,030.48 per month. As of February of 2019, the respondent accepted and properly paid the ACBs at the rate they were actually incurred.
27The respondent as well completed a Form 1 pursuant to section 44 and completed assessments regarding the applicant’s ACBs needs. The s.44 Form 1 was completed by Ms. Tandon, OT, and a s.44 orthopedic assessment was also completed. Based on the s.44 Form 1 and the s.44 orthopedic assessment and OT report the ACBs were determined to be $0.00 per month. Thus, as of June 13, 2019 the respondent advised that no further ACBs would be payable.2
28The applicant submits that the ACBs are reasonable and necessary and the respondent unreasonably withheld the ACBs causing her not to incur the cost of the attendant care she required. The applicant is seeking the ACB on an ongoing basis and that ACBs since the denial of June 13, 2019 be deemed incurred.
Is the attendant care reasonable and necessary?
29The applicant submits that she is entitled to attendant care benefits because she requires personal care assistance with things that requires her to move physically such as dressing, shaving her legs, meal preparation, hygiene in the bedroom and bathroom etc. The applicant submits that she requires this due to amongst other things, the pain and tingling in her hand and fingers, pain in her shoulder, back pain, and neck pain.
30The respondent argues that the evidence and specifically the reports of Dr. Cisa and Ms. Tandon do not support ACBs beyond June 12, 2019. The applicant continues to work as a law clerk following the accident, a job that presumably requires typing and extensive use of her arms. She also remains capable of running a household and raising two children by herself during long periods while her husband was away with work. The only personal care difficulty that the applicant consistently reported - difficulty tying certain items of clothing behind her back – does not seem overly substantial. The respondent relies on the surveillance evidence that they submit show the applicant performing various errands and while the surveillance does not show the applicant engaging in overly physically demanding tasks, they do not show a person who requires over $1,000 per month in ACBs.
31In the report that accompanied the Disputed Form 1 Ms. Gobbo finds the applicant attendant care needs are as follows:
Part 1: Dressing due to issues with the shoulder and back impacting the applicant’s ability to reach to her back to fasten buttons or zippers and requires partial assistance. She recommends 35 minutes per week for assistance with dressing (i.e. 5 minutes per day) and 35 minutes per week for assistance with undressing for a total of 70 minutes per week.
Grooming: assistance with shaving, hair styling and toenail trimming, due to inability to sustain bending and reaching. The recommendation is 85 minutes per week in assistance (10 minutes four times per week for shaving, 10 minutes four times per week for hair styling, and 5 once a week for toenail trimming).
Feeding: unable to sustain gripping and grasping and is at increased risk due to numbness and tingling in both arms and deficit with lifting and carrying pots and pans and requires assistance due to neck, back and shoulder deficits. She recommends assistance of 45 minutes per day for a weekly amount of 315 minutes per week.
Part 2: Hygiene: unable to complete hygiene requirement such as cleaning up after the use of the bathroom. She recommends 5 minutes each day for assistance (35 minutes per week). As well Ms. Gobbo recommends 10 minutes per day (70 minutes per week) for ensuring comfort, safety and security for bedroom hygiene. The total amount of weekly minutes recommended is 105 minutes per week.
Part 3: Bathing: supervision while transferring in and out of the bath/shower and jacuzzi tub. She is higher risk for falling due to her pain, headaches, decreased attention level related to fatigue and shoulder and back deficits. She recommends a total of 280 minutes per week consisting of transfers to bathtub (70 minutes weekly), bathe and dry the applicant (210 minutes per week).
32The information reviewed by Ms. Gobbo was the self reporting of the applicant and an OT Progress report of December 24, 2018. Ms. Gobbo reports no other documents that she reviewed and makes no mention of reviewing any clinical notes and records and there are no indications in her report that other any further information was provided other than the OT Progress report and the self-reporting of the applicant.
33Ms. Gobbo’s physical assessment of the applicant revealed slight decrease range of motion in the right shoulder and decreased mobility in the lumbar spine with movement, and in the right hand/fingers decreased grip and grasp noted with decreased ability to lift and carry in the right hand/fingers.
34Her assessment also revealed functional range of motion in the applicant’s cervical spine/neck, elbows, forearms, wrists, hands/fingers, hips, knees and ankles with pain complaints only on the cervical spine and decreased grip and grasp of the right hand. Ms. Gobbo recommended attendant care benefits in the amount of $1,030.84 per month.
35The respondent requisitioned reports pursuant to s. 44 with an orthopaedic surgeon, Dr. Cisa. Dr. Cisa noted in his report that the applicant had complaints of pain in her lumbar spine, cervical spine, headaches, shoulders, and thoracic spine. She did not report any limitations with movements but pain with movements.
36With respect to her hands and upper and lower extremities the applicant described to Dr. Cisa pins and needles and mild tremors with an aching feeling after use of her hands. In the physical examination Dr. Cisa noted mild tremor of her hands when the applicant held them in front, he also noted decreased range of motion in the cervical spine and decrease range of motion on the right shoulder and she could not reach to behind her. On the left when reaching behind the applicant was able to reach the T5 level with her thumb, however on the right she was only able to reach L2, a difference of 25 cm. The applicant’s examination showed decreased rotation of the thoracic spine. She also had decreased range of motion in the lumbar spine specifically on flexion and rotation.
37Dr. Cisa concluded that the applicant had several musculoskeletal impairments as a result of injuries from the October 13, 2018 accident. He found that there were no overreactions or symptom magnification. He concluded that the applicant has a substantial inability to perform housekeeping and home maintenance tasks. He agreed with the s.44 OT report of Ms. Tandon wherein she recommended 30 minutes per week for kitchen cleaning and 20 minutes per week for bathroom cleaning. He confirms that meal preparation is very difficult for the applicant due to her injuries. He recommended that the applicant limit physical activities such as repetitive movements of the upper extremities, lifting heavy weight or walking on uneven surfaces.
38Although Dr. Cisa answers no to the question of attendant care, it is clear that he was speaking of the use of a personal aide or assistant for personal care duties as opposed to assistance with things like meal preparation.
39The s.44 OT report finds that there is no attendant care required based on the OT observation of the applicant putting on her jacket (dressing), frying an egg and chopping an onion and carrot (meal preparation). The OT as well concluded that for bathroom hygiene that although the applicant reported symptom aggravation with heavier handling, sustained crouching, kneeling and reaching postures that the applicant did not require attendant care but required assistive devices along with 20 minutes of assistance per week in housekeeping to clean the bathroom after use. Further with respect to kitchen cleaning 30 minutes per week of assistance was recommended and again was categorized as housekeeping and not attendant care. I find that Ms. Tandon’s report demonstrates that the applicant has functional limitations with respect to sustained kneeling crouching and reaching and that Ms. Tandon endorses that the applicant does require assistance with hygiene tasks, although categorized as housekeeping tasks.
40The respondent provides further s.44 assessments with Dr. Cisa on December 10, 2019 which essentially echo his original remarks that the applicant has ongoing impairments and he states in his reports of that she has not reached maximal medical improvement.
41As well a subsequent report was done by Ms. Gobbo on June 2, 2020 wherein, she recommends 15 hours of attendant care services per week, however, there is no breakdown or attached Form 1. I find this report helpful in demonstrating that the applicant has made consistent reports of impairments, that she does requires some assistance, and that her injuries continue; however, the general amount of 15 hours is not helpful in calculating attendant care needs as there is no breakdown provided as to what the specific needs the applicant are.
42The applicant has demonstrated that she has consistently reported symptoms of pins and needles in her hands, neck pain, shoulder pain, and back pain to her own assessors, treating specialist, and to the s.44 assessors like Dr. Cisa, and Ms. Tandon, OT. The reports of Ms. Gobbo, Dr. Cisa and Ms. Tandon show that there are functional issues with respect to the applicant’s upper extremities. Dr. Cisa specifically recommends that the applicant limit the use of her upper extremities and avoid repetitive movements, he notes the ongoing pain and limits her ability to lift heavy weights (although he does not define same). Further it is clear that the applicant has issues with reaching behind her. She has consistently reported ongoing back pain. The surveillance evidence does show the applicant completing errands however it does not show sustained bending, or prolonged gripping and grasping, which the applicant reports are issues for her. Therefore, based on the evidence the applicant has demonstrated that attendant care is reasonable and necessary.
43I find however that the Form 1 of Ms. Gobbo is only partially reasonable and necessary for in the amount and reasons noted below:
Part 1: 470 Minutes per week is reasonable
Dress and undress: Ms. Gobbo notes that the applicant requires 5 minutes of assistance each day for dressing and 5 minutes for undressing. The above reports note that the issue is the reaching behind. As confirmed by Dr. Cisa, the applicant has issues with reaching behind for dressing and undressing. Ms. Tandon in her report fails to take the inability of the applicant to reach behind to fasten and unfasten her bra, blouse, zippers etc. into account. Based on the evidence noted above and the limitations of the applicant in being able to reach behind I find that the 70 minutes per week recommended for dressing and undressing is reasonable and necessary.
Grooming: The assistance for grooming and specifically with shaving and toe nail trimming is reasonable and necessary as the above reports of Ms. Gobbo notes impairments with sustained bending and reaching requiring assistance as well Dr. Cisa confirms that the pins and needles in her upper extremities make things difficult and that she should also limit repetitive movements. With respect to hair styling given the above impairments noted in the applicant’s arms and hands and the fact the recommendation by Dr. Cisa that the applicant limit her repetitive upper extremity movements, I find that the recommendations for hair styling of ten minutes per day four days per week to be reasonable and necessary. Therefore the 85 minutes per week allotted for in the Form 1 by Ms. Gobbo for grooming is reasonable and necessary.
Feeding: The Disputed Form 1 indicates assistance with respect to preparing and serving including cleanup. The reports of Ms. Gobbo and Dr. Cisa confirm that meal preparation is difficult for the applicant due to her accident related impairments. As well given that the applicant had consistent help with meal preparation following the accident and the recommendation of limiting movements of upper extremity and given that Ms. Tandon as well confirms that the kitchen clean-up is a task that the applicant requires ongoing assistance, I find that applicant has shown that the 315 minutes per week allotted for feeding to be reasonable and necessary.
Part 2: 35 minutes per week is reasonable and necessary
Hygiene: Ms. Gobbo and Ms. Tandon agree that the applicant requires assistance with bathroom clean up. While they differ on the number of minutes, given that Ms. Gobbo’s assessment accounts for five minutes each day after her use and Ms. Tandon provides no details on how she arrives at 20 minutes per week, I find that on a balance that the 5 minutes per day (35 minutes per week) following the applicant’s use of the bathroom to be reasonable and necessary. I do not find that the 70 minutes per week allotted for in the Disputed Form 1 for bedroom comfort, safety, and security is reasonable and necessary. There is no evidence that the applicant requires supervisory or security and the applicant herself reports no issues with safety and security.
Part 3: No Assistance required
Bathing: Ms. Gobbo in her report and the Disputed Form 1 recommended supervision while the applicant bathes. The applicant herself reports no issues with transferring in and out of the tub, or shower. She reports no issues with bathing and/or drying. While initially the applicant may have had issues I find that based on the assessments noted above, the self reporting of the applicant of headaches but no dizziness and the fact that she was been able to do these transfers ongoing without assistance since the accident and reports no fear or inability, no reported falls or loss of balances that the 280 weekly minutes allotted for bathing and specifically for assistance with transferring and assistance with bathing is not reasonable and necessary.
Calculation of ACBs
44Based on the above the applicant is entitled to the following ACB if incurred as per the Schedule:
Hours per week
Hours per month
Hourly rate
Total per month
Part 1
470 min/60 min = 7.8333 hr/week
7.8333 x 4.3 week = 33.683hr/month
$14.90/hr
$501.88
Part 2
35 min/60 = 0.5833 hr/week
0.5833 x 4.3 week = 2.508333 hr/month
14.00/hr
$35.12
Part 3
0
0
$21.11/hr
0.00
TOTAL
$537.00
45Thus, based on the reasons above the applicant is entitled to ACBs in the amount of $537.00 per month which is payable pursuant to s.19 of the Schedule.
Were the ACBs from June 13, 2019 onward “Incurred”?
46Section 3(7)(e) provided that an expense for good or services under the Schedule is not “incurred” unless the person has received the goods or services or has paid the expense or has promised to pay or is obligated to pay.
47Section 3(8) allows the Tribunal to deem the expense incurred if the Tribunal finds that the applicant did not incur the expense because the respondent unreasonably withheld or delayed payment of a benefit.
48The applicant submits that the ACBs should be deemed incurred under s.3(8) because the respondent unreasonably withheld or delayed payment of the benefit. Further the amount that should be deemed incurred is not the monthly amount sought but a monthly average amount that is equivalent to what was paid prior to June 13, 2019, when the respondent denied the ACBs.
49With respect to the incurred, the respondent submits that it did not unreasonably delay or withhold benefits, rather it relied on the medical evidence and the assessments of Dr. Cisa and Ms. Tandon. The respondent submits that even if the Tribunal comes to the opposite conclusion of the respondent, the question still remains as to whether the respondent acted unreasonably and the answer to that question is negative.
50The applicant admits that the expenses for ACBs following June 13, 2019 have not been incurred. While the applicant states that she relies on her husband and her fourteen year old, there is no argument that these services were provided in the ordinary course of employment or that it resulted in an economic loss and there is no evidence that her husband and children provided ACBs, there are submissions made but no evidence. Further the applicant as well has not provided specific evidence that the reason why the ACBs were not incurred was because of the denial of the ACBs.
51In terms of whether the ACBs expenses are deemed incurred the applicant has the onus of proving on a balance of probabilities that the respondent unreasonably withheld or delayed the benefit and because of the unreasonably withholding the applicant could not incur the costs of the benefits. This a two- part test.
52For the first part of the test the applicant does not point to any specific evidence or point to anything that the respondent did not do that would raise it to the level that the respondent acted unreasonably. The applicant argues that the respondent failed in obtaining sworn evidence from the applicant and therefore the respondent did not rely on all other available evidence in making its determination to terminate ACB.
53The applicant however, points to nothing specific in the evidence to show the unreasonableness of the respondent. The applicant does not point to medical information that the respondent had as of the date of denial that the respondent ignored, did not consider, was unyielding or acted stubbornly about. The applicant makes a submission that a sworn statement should have been taken, but the applicant did not provide sworn evidence during this hearing either.
54The events as shown by the evidence filed was that the Disputed Form 1 was provided, the respondent then did s.44 assessments regarding ACBs and the s.44 assessments differed from the applicant’s assessments of ACBs. In the interim however, the respondent accepted the applicant’s entitlement to ACBs and paid the ACBs between the Disputed Form 1 of February of 2019 until the denial of June 13, 2019. The denial was then based on the review of the multidisciplinary assessment wherein the consensus of two assessors was that ACBs were not warranted. The applicant points to no flaws as to how the assessments were conducted; however, I did note that there were items that were categorized as housekeeping instead of attendant care. This does not mean that the respondent acted unreasonably especially when the respondent paid housekeeping based on the multidisciplinary assessments. This in my opinion shows that the respondent acted reasonably in that it considered the reports and the opinions therein and acted on the reports by paying the housekeeping and denying the attendant care.
55Further the success of the ACBs was not fully in favour of the applicant as the full amount of ACBs as per the Disputed Form 1 was only partially accepted. This lends to the reasonableness of the respondent’s decision making as even the Tribunal did not accept the Dispute Form 1 in entirety based on the medical information filed.
56Further the applicant has not provided evidence that she was unable to incur the ACBs due to the denial by the respondent. The invoices from Home Instead, who were providing attendant care show that prior to the denial they were providing ACB in the amount of $96.11 per week. There is no evidence from the applicant that she could not afford this amount at any point between the denial and the hearing. I am mindful that there is a risk in paying or promising to pay for a benefit where there is no guarantee of reimbursement from the respondent, the Schedule in s.3(8) however does require that the applicant to show that she did not incur the expense because the applicant (unreasonably) withheld the benefit. The applicant has not shown that the withholding is the direct cause of her not incurring $96.11 per week at any time to date and she provides no evidence on this point.
57Therefore, based on the above I find that the expense of ACBs is not deemed incurred as per s.3(8) of the Schedule.
Award and Interest
58The respondent is not liable to pay an award pursuant to s.10 of Regulation 664 because the respondent did not unreasonably withhold the benefits. As stated above there was no withholding of the benefits for the mattress and pillow and no withholding of the benefit for the medicinal cannabis, therefore there is no award. With respect to the ACBs as noted above the decision to not pay the benefit was not unreasonable and therefore there is no award.
59The applicant is entitled to interest on the monthly ACB amount above in accordance with s.51 of the Schedule.
CONCLUSION AND ORDER
60The applicant is entitled to attendant care benefits in the amount of $537.00 and interest pursuant to s.51 of the Schedule. The applicant is not entitled to any further benefits in dispute and the respondent is not liable to pay an award.
Released: July 14, 2021
__________________________
Monica Chakravarti
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Neither party provided the notice of denial, however the respondent does not object to this denial and/or stoppage date.