Arts v. Certas Home and Auto Ins. Co., 2022 CanLII 23402

Citation: Arts v. Certas Home and Auto Ins. Co., 2022 ONLAT 20-007733/AABS

Licence Appeal Tribunal File Number: 20-007733/AABS

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:

Isabella Arts

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Carlos Bernal, Paralegal Elvis Viskovic, Paralegal

For the Respondent: Rosalind Eastmond, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant sustained physical and psychological injuries as a result of an accident on July 23, 2019, and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010 (“Schedule”). The applicant was denied the benefit in dispute because Certas determined it was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2According to the Case Conference Order, the following issues are in dispute:

a. Is the applicant entitled to $5,140.00 for Case Manager Services, recommended by Angela Fleming Occupation Therapy Corporation in a treatment plan (OCF-18) dated October 8, 2019, and denied on October 23, 2019?

b. Is the applicant entitled to interest on any overdue payment of benefits?

c. Is the applicant entitled to an award under s. 10 of Regulation 664 for unreasonably withheld or delayed payment of benefits?

RESULT

3The applicant has not demonstrated that the OCF-18 is reasonable and necessary or payable. An award and interest are not applicable.

ANALYSIS

The applicant is not entitled to payment for Case Manager Services

4Pursuant to s. 17(1)(b) of the Schedule, an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident for services provided by a qualified case manager in accordance with a treatment plan under s. 38, if the insured purchased optional medical, rehabilitation and attendance care benefits or sustained a catastrophic impairment. The Schedule defines “qualified case manager” as “a person who provides services related to the co-ordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit.”

5In order to prove that a treatment plan is reasonable and necessary, it is well-settled that the applicant must demonstrate that the goals are reasonable, that the goals would be met to a reasonable degree and whether the costs to achieve those goals are reasonable.

6The applicant purchased optional benefits, which was confirmed by Certas in correspondence dated August 13, 2019. On October 6, 2019, the OCF-18 in the amount of $5,140.00 was submitted, proposing Case Management Services for the applicant as a result of injuries sustained in the accident. On October 23, 2019, Certas denied the OCF-18. Since March 19, 2020, the applicant has, and continues to receive, payment for a Non-Earner Benefit (“NEB”), meaning Certas has accepted that she sustained a complete inability to carry on a normal life as a result of the accident.

7The applicant’s accident-related impairments include a concussion, a displaced forearm fracture, strain and sprain, whiplash, anxiety and stress, a mild closed head injury, post-traumatic headaches and adjustment-like disorder. She relies on her OCF-3 Disability Certificate, various reports diagnosing her impairments and the clinical notes and treatment records from her family physician and her Cobourg Orthopaedic & Sports Injury Clinic. She submits that the Case Manager Services are reasonable and necessary to assist in her recovery from her accident-related injuries.

8In response, Certas submits that the applicant has not demonstrated that the OCF-18 is reasonable and necessary and that the expenses are excessive. It argues that the OCF-18 was authored without supporting reasons for the proposed expenses, that it was proposed prematurely, that the Occupational Therapist who proposed it exhibited little familiarity with the applicant’s injuries and prognosis, that it would be “risky” and “unsafe” for the Tribunal to make an order for such services based on limited information and that the applicant has demonstrated functional ability to pursue post-accident treatment without the aid of a Case Manager at the costs proposed.

9I agree with Certas. Other than outlining her impairments and stating that she purchased optional benefits, the applicant has not demonstrated why the Case Manager Services at the costs proposed are reasonable and necessary. Her submissions do not engage with the different parts of the OCF-18, and it does not appear that the services were ever incurred, or that the services were required where she has engaged in considerable treatment post-accident without a case manager. Put another way, while the purchase of optional benefits entitles the applicant to case management services without a catastrophic designation, this benefit is not automatically payable to the applicant unless she is able to demonstrate that it is reasonable and necessary. The sole additional comment in the OCF-18 states: “This OCF-18 reflects the request for case management services, as per presence of additional benefits on Ms. Arts’ policy.” It is unclear who requested the case management services, and the presence of additional benefits alone is not sufficient grounds to justify payment.

10Further, on review, I agree with Certas’ position that the OCF-18 was likely premature, as it was submitted three months post-accident and identifies “concussion” as the only impairment, which does not capture the true nature of the applicant’s condition. The OCF-18 does not provide additional comments to support how the stated goal of “evaluate for required supports and services to increase engagement in ADLs” would be met, which is concerning when over half of the treatment plan ($2,600) is allocated for unexplained brokerage services that it does not appear the applicant required. In addition, where the applicant’s functional impairments are not addressed anywhere in the OCF-18 or in the additional comments and where Part 8 indicates that the applicant’s activities of normal life are “unknown,” it is difficult to find that the OCF-18 was tailored to the applicant’s specific circumstances.

11While communication with the applicant’s proposed support team is important for a case manager, that the applicant has been able to arrange and attend for treatment in the years since the OCF-18 was proposed is an indication, in my view, that the over $4,000 allocated to planning and brokerage services are not reasonable expenses. As Certas submits, by the time the OCF-18 was submitted, the applicant’s rehabilitation clinic had already completed an initial assessment which did not include case management services. Based on the clinical notes of the family physician, it appears that there was regular communication with “Warren,” the applicant’s treating practitioner at the Cobourg Clinic. Where the applicant underwent several additional assessments and regularly attended for treatment twice weekly and then once per week, I agree with Certas that her treatment was being adequately managed by her family physician and treating practitioners, which calls into question the need for a case manager. Indeed, based on the clinical notes of her family physician pre- and post-accident, it appears that the applicant received regular consultation and attentive monitoring. I was not directed to a referral for case management services at the time the OCF-18 was submitted or in any of the notes to date.

12Where the treatment provider proposed in the OCF-18 is also a social worker, the identified rate of $130.00 per hour is well beyond the prescribed Guidelines rate of $89.07 per hour. It is also unclear what the $780 in documentation pertains to or why it was required where the applicant underwent various assessments after the date the OCF-18 was submitted. The applicant’s submissions do not fill in any of these gaps. In this vein, I struggle to find how the goals of the OCF-18 are reasonable, how the goals would be met to a reasonable degree and how the cost of same is reasonable considering the frequency with which the applicant received treatment and care through her family physician without the aid of a case manager.

13Finally, while I am alive to the fact the applicant continues to receive payment for a NEB, this does not automatically render the services of a case manager reasonable and necessary. Indeed, it appears the applicant has been receiving physiotherapy, acupuncture, massage and progressing without the services of a case manager, and as a retiree, she has the time to pace herself and continues to drive herself and attend appointments on a weekly basis, which she describes as helpful. She has undergone several assessments to monitor her progress without the aid of a case manager and, according to Dr. Langis’ report dated March 6, 2020, her prognosis for recovery is good to excellent.

14For these reasons, I find the applicant has not demonstrated that payment for a social worker who provides co-ordination services of goods or services for medical and rehabilitation benefits is reasonable and necessary. Where no benefits are owing, it follows that no interest applies under s. 51. While a s. 10 award was identified as an issue in dispute, the applicant failed to make specific submissions to support her claim and, in any event, where no benefits are owing, it follows that no benefits were unreasonably withheld to justify an award.

CONCLUSION

15The applicant has not demonstrated that the OCF-18 is reasonable and necessary or payable. An award and interest are not applicable.