G.H.M. v. Wawanesa Mutual Insurance Company, 2022 CanLII 33192

Citation: G.H.M. v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-009986/AABS

Licence Appeal Tribunal File Number: 20-009986/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:

G.H.M.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

APPEARANCES:

For the Applicant:

Deanna S. Gilbert, Counsel

For the Respondent:

James Brown, Counsel

HEARD: by Videoconference:

December 13 and 14, 2021

OVERVIEW

1G.H.M. (the “applicant”), a minor, was a passenger in a vehicle involved in an automobile accident on May 28, 2015. The applicant’s litigation guardian sought benefits (on behalf of G.H.M.) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The applicant was denied certain benefits by Wawanesa Mutual Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a two-day videoconference hearing. On behalf of the applicant, I heard the testimony of the applicant’s mother and Dr. Ahmad, the applicant’s treating psychologist. On behalf of the respondent, I heard the testimony of the insurer examination (IE) assessor, Dr. Costa El-Hage, psychologist.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

1. Is the applicant entitled to the following rehabilitation benefits for tuition and other expenses for the applicant’s brother to attend [The school] recommended by Dr. Ahmad in the following treatment plans (“OCF-18s”): (i) $30,340.00 submitted on September 27, 2018; (ii) $21,600.00 submitted retroactively on January 15, 2020. (iii) $21,272.00 submitted retroactively on January 15, 2020.

2. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4After considering both parties’ submissions and all of the evidence, I find:

(i) The disputed OCF-18s are reasonable and necessary, however, the respondent is not liable to pay for same as the applicant did not comply with s.38(2) of the Schedule and incurred the OCF-18s prior to submitting them to the respondent.

(ii) Interest is not payable as I do not find that any payments are overdue.

(iii) The respondent is not liable to pay an award.

BACKGROUND

5On May 28, 2015, the applicant, a six-year-old girl, was involved in an accident in which she sustained a significant brain injury and other impairments. As a result of the accident, she has been deemed to be catastrophically (CAT) impaired under both Criteria (7) and (8). Under Criterion (8) she sustained three marked mental or behavioural impairments in the domains of Activities of Daily Living, Social Functioning, and Adaptation. It was also determined that she met the threshold of attaining a 55% whole person impairment under Criterion (7).

6The applicant’s accident-related impairments have had a significant impact on her ability to function in her daily, social, and academic activities. Post-accident she has become fearful of people, socially withdrawn and has impaired verbal and written communication skills. She speaks in an inaudible voice and is preoccupied with dark themes. This case is unique as traditional treatment options have had a negative impact on the applicant. For example, the involvement of occupational and speech language therapists and assessors has triggered a serious emotional response from the applicant which has resulted in self-harm, suicidal threats, and other destructive behaviour.

7Following the accident, the applicant kept attending her regular public school. In the Spring of 2017, the school advised her parents that it was unable to meet the applicant’s academic and safety needs. Consequently, the respondent approved an OCF-18 for the applicant to attend [The school]. Attending this school resulted in some improvement to the applicant’s social interaction but she was still speaking in an inaudible voice and was preoccupied with dark thoughts. A one-on-one personal educational assistant (EA) was recommended which would have required additional funding. The parents looked into other private schools which could address the applicant’s special needs. It was determined that [The school] was a better fit as the school offered one-on-one support and the applicant would not be centred out.

8The applicant submitted an OCF-18 for tuition for [The school], which was approved, and the applicant started attending this school in September 2018. This case is also unusual as the applicant has a twin brother. As twins, the applicant and her brother have a special bond as they have shared all of life’s events and milestones together and had always attended the same school.

9The applicant’s parents made the decision to send the applicant’s brother to [The school] as his presence at the school resulted in positive rehabilitative benefits for the applicant. For example, there were significant improvements to her communication skills as she began speaking in an audible voice and it also resulted in improved social engagement. Consequently, three treatment OCF-18s were submitted requesting funding for tuition for the applicant’s brother to attend [The school], which have all been denied by the respondent. These treatment plans are the subject of this dispute. Both parties agree that if I determine that the initial OCF-18 is reasonable and necessary then all of the OCF-18s would be deemed to be reasonable and necessary.

ANALYSIS

Are the OCF-18s for rehabilitation benefits for tuition and other expenses for the applicant’s brother to attend [The school] recommended by Dr. Ahmad reasonable and necessary?

10I find the OCF-18s recommending funding for private school tuition at [The school] for the applicant’s brother to be reasonable and necessary.

11Section 16 of the Schedule states that the insurer will pay for rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person…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.

12The first OCF-18 submitted September 28, 2018 completed by Dr. Ahmad was in the amount of $30,340.00 and included $24,200.00 for tuition, $2,000.00 for registration, $2,775.00 for busing costs and $1,365.00 for a food program. The goal of the OCF-18 was to reduce distress and support client within a private school environment.

13The applicant argues that the OCF-18s for private tuition for the applicant’s brother are reasonable and necessary because the plans fulfilled their rehabilitative goal of reducing the effects of the applicant’s disability. The applicant relied on the opinion of Dr. Ahmad, the applicant’s treating psychologist who recommended the OCF-18s. The applicant’s mother also testified about the positive impact the brother’s attendance at [The school] has had for both of her children.

14The respondent relied on the opinion of Dr. Costa El Hage who determined that the OCF-18s were not reasonable and necessary. In her IE report dated December 12, 2018, the doctor raised ethical concerns about using the applicant’s brother as a rehabilitative tool and whether it would have an adverse impact on him emotionally and academically. The doctor also inquired about whether the applicant’s brother gave informed consent to be used as a rehabilitative tool. In addition, Dr. Costa El Hage indicated that the brother’s attendance at the same school might have a negative impact on the siblings’ relationship as the brother may have compassion fatigue and come to resent his sister. Furthermore, the applicant may become overly dependent on her brother for her future academic success. For the following reasons, I agree with the applicant and find the OCF-18s to be reasonable and necessary.

15As a starting point, I find that this case is unique as the applicant has responded negatively to conventional treatment, which has resulted in significant harm to her and has been a disruption to her whole family.

16The evidence also supports that the applicant’s brother’s attendance at [The school] has resulted in significant improvements to the applicant’s communication skills as since his transfer she has been able to communicate in an audible voice. Her brother’s presence at [The school] has also resulted in a positive impact on the applicant’s social engagement with her peers. These improvements have been reported by staff at [The school] to the applicant’s parents and Dr. Ahmad. In addition, both Dr. Ahmad and Dr. Costa-El Hage agree that the applicant’s brother’s attendance at [The school] has resulted in therapeutic benefits to the applicant. Therefore, I find the plans will achieve their stated goals of reducing the effects of the applicant’s disability.

17Much was made by Dr. Costa El Hage about the fact that Dr. Ahmad referred to the applicant’s brother as a rehabilitative tool. Dr. Ahmad clarified in a letter dated November 7, 2018, and in her testimony that the brother’s participation was not to treat any injury or fulfill any treatment role. He was simply fulfilling his natural role by attending the same school as his twin sister. I also agree with the applicant that as a minor it is up to the applicant’s parents to make decisions about how medical and rehabilitation benefits are allocated. I agree that the applicant’s brother would not have the capacity at his age to provide informed consent. Nor do I agree that informed consent is required to simply attend the same school. In my view since the applicant’s brother’s attendance at the same school has worked when other treatment has not, I find the OCF-18s to be reasonable and necessary.

18Dr. Costa El Hage did not specifically address the question of whether the OCF-18 was reasonable and necessary for the applicant. I also agree with the applicant that many of the issues raised by Dr. Costa El Hage in her report regarding the potential adverse impact on the applicant’s brother were based on speculations not evidence. At the time of Dr. Costa El Hage’s IE, the applicant’s brother had already been attending [The school] for a year and a half. In my view, the respondent could have requested consent from the applicant’s parents for the disclosure of the applicant’s brother’s medical and academic records. However, it did not.

19The applicant’s mother testified that both children have thrived since attending [The school] and they are both involved in extracurricular activities and have won awards. The respondent argues that no evidence was submitted to support this. I find the applicant’s mother to be a credible witness and find there is no reason for me to doubt her testimony as not being truthful. Therefore, I accept that there has not been any adverse impact on the applicant’s brother for attending the same school as his sister.

20Finally, the respondent did not deny the plans on the basis that the costs were excessive. However, the respondent did highlight that the value of the plans totalled $97,979.00, which would come out of the applicant’s medical and rehabilitation policy limits. Considering that traditional treatment has not been successful in addressing the applicant’s impairments and her brother’s attendance at the same school has achieved positive results, therefore, I find the cost to be reasonable. Having said that, the respondent has raised a valid argument that the OCF-18s are not payable because they were incurred prior to being submitted, which I will address now.

Is the applicant entitled to payment of the disputed treatment plans as they were incurred prior to the submission of the treatment plan?

21The respondent is not liable to pay for the disputed OCF-18s as they were incurred prior to being submitted to the respondent.

22Section 38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates; or

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(i) drugs prescribed by a regulated health professional, or

(ii) goods with a cost of $250 or less per item. O. Reg. 34/10, s. 38 (2).

23The applicant did not dispute that she incurred all of the OCF-18s in dispute before they were submitted to the respondent. She relied on the Court of Appeal’s decision in Smith v. Co-operators¹ in support of her position that the Schedule is consumer protection legislation and funds should be allocated to where they are needed. The respondent argues that regardless of whether or not I determine the OCF-18s are reasonable and necessary they are not payable because the applicant did not comply with s. 38(2) of the Schedule. I agree. The respondent relies on the Tribunal’s decision in B.K. v. The Guarantee Company² in support of its position. This decision highlights that non-compliance with s.38(2) precludes an insured person from receiving payment for treatment plans incurred prior to being submitted.

24While I agree with the applicant that the Schedule is consumer protection legislation, the applicant did not submit any relevant case law in support of her position that the respondent is liable to pay for retroactive treatment plans. I find the provisions set out in 38(2) of the Schedule are mandatory and the exceptions set out in s.38(3) do not apply to the circumstances of the applicant’s case. Consequently, the respondent is not liable to pay for any of the OCF-18s.

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

25I do not find that the applicant is entitled to interest.

26Section 51 (1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that the applicant incurred the OCF-18s before they were submitted the respondent is not liable to pay for them. Since no payments are overdue, I find that interest is not payable.

Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

27I do not find that the respondent is liable to pay an award for the following reasons.

28Regulation 664, R.R.O. 1990 (Reg. 664) states at section 10 that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

29The onus is on the applicant to prove on a balance of probabilities that the insurer was unreasonable in withholding or delaying payments of accident benefits.

30As a starting point, I have determined that the respondent is not liable to pay for the OCF-18s in dispute because the applicant incurred the plans prior to submitting same. Therefore, I have determined that no payments are overdue. Consequently, an award is not payable. If I am wrong on this point, I will address the applicant’s remaining arguments for her claim for an award.

31The case law is well established that unreasonable behavior by an insurer in withholding or delaying payments can be seen as behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.³

32The applicant argues that the respondent is liable to pay an award as it relied on the flawed IE report of Dr. Costa El Hage in denying the plans for tuition expenses for the applicant’s brother. In particular, she maintains that Dr. Costa El Hage stepped outside of her mandate in determining that the plans were not reasonable and necessary based on speculative concerns about the applicant’s brother. In addition, Dr. Costa El Hage did not answer the referral question asked of her regarding whether the OCF-18s were reasonable and necessary to reduce the impact of the applicant’s disability. Finally, the respondent breached its duty of good faith to the applicant by failing to pay her claim within a timely manner.

33The applicant submits that I should order an award of 50% for the respondent’s withholding of $97,979.00 for the total cost of the OCF-18s. She submits that her family has been prejudiced by the respondent’s withholding of these benefits as they have not had the financial resources to go on family vacations or complete home renovations.

34The respondent argues that an award is not appropriate in this case. This case involves a unique situation, and no relevant case law exists addressing a similar fact scenario. The applicant submitted case law addressing the criteria to consider in assessing whether an award is payable.⁴ The applicant also relied on the Tribunal’s decision in Applicant v. Portage La Prairie⁵ in support of her position that relying on an IE is not protection against an award if the insurer closes its mind to other information available which may have impacted its decision. I do not find these decisions relevant or helpful to the applicant’s claim for an award as the scenarios in those decisions are distinguishable from the present case. The respondent relied on the Reconsideration Decision of the Executive Chair of this Tribunal in F.P. v. Pilot⁶ in support of its position that an award is not payable because it relied on the medical opinion of an assessor in denying a benefit. Further, in relying on that opinion the respondent’s decision did not exceed the limits of what is reasonable.

35I agree with the respondent and do not find that its conduct in denying the OCF-18s meets the threshold for an award. While I do not find Dr. Costa El Hage’s IE persuasive, the fact that the respondent relied on this opinion is not behaviour that I consider to be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Nor was the respondent’s conduct part of a pattern for how it adjusted the applicant’s file as it approved the OCF-18s for the applicant’s private school tuition. I also agree with the respondent that this case is unique as the treatment being requested is unconventional. The fact that the respondent questioned the proposed method of treatment or the fact that I prefer the opinion of the applicant’s doctor do not meet the threshold for behaviour that is worthy of an award.

ORDER

36For all of the above-noted reasons, I order as follows:

(i) I find the OCF-18s to be reasonable and necessary, however, the respondent is not liable to pay for same as the applicant failed to comply with s. 38(2) of the Schedule.

(ii) Interest is not payable as I do not find that any payments are overdue.

(iii) The respondent is not liable to pay an award.

Footnotes

1. 1Smith v. Co-operators General Insurance Company, 2000 CanLII 4138 (ON CA).
2. 2B.K. v. The Guarantee Company of North America, 2021 CanLII 35565 (ON LAT).
3. 3Foucada v. Coachman Insurance Company, 2021 CanLII 120889 (ON LAT).
4. 4Ibid, paras 75 to 85.
5. 5Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT) at paras 73,74-76.
6. 616-002861 v. Pilot Insurance Company, 2018 CanLII 141006 (ONLAT) (Reconsideration Decision).