R.M. v. Coachman Insurance Company, 2022 CanLII 8668

Citation: R.M. v. Coachman Insurance Company, 2022 ONLAT 20-005511/AABS

Licence Appeal Tribunal File Number: 20-005511/AABS

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

Between:

[R.M]

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Luke Hamer, Counsel

For the Respondent: Jamie R. Pollack, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant, [R.M], was injured as a result of an automobile accident on September 13, 2010 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Coachman Insurance Company, the respondent.

2The respondent initially did not agree that the applicant sustained a catastrophic impairment as a result of the accident. It also denied the applicant’s claim for certain medical and rehabilitation benefits. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on September 29, 2020 during which the respondent raised a preliminary issue. The respondent submitted that the applicant was statute-barred from proceeding with his claim for one of the disputed treatment plans because he failed to attend an insurer’s examination (IE) under s. 44 of the Schedule. Both the preliminary issue and the substantive issues were originally scheduled for a videoconference hearing. After the respondent deemed the applicant catastrophically impaired as a result of the accident, the remaining issues proceeded to a written hearing.

4On July 14, 2021, the respondent advised the Tribunal by way of email that the applicant’s claim for $3,619.15 for other goods and services set out in an August 13, 2019 treatment plan (OCF-18) was approved following the applicant’s attendance at IEs. Therefore, this substantive issue as well as the preliminary issue are no longer in dispute and do not require a determination by the Tribunal.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Is the applicant entitled to $4,097.85 for kinesiology services, occupational therapy services, and a Samsung tablet recommended by Ross Rehabilitation in an OCF-18 dated April 29, 2019?

(ii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant including, but not limited to, payment of $3,619.15 for other goods and services set out in the August 13, 2019 OCF-18?

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

RESULT

6I find that the applicant is not entitled to the April 29, 2019 OCF-18 or an award under Regulation 664. As a result, no interest is payable and this application is dismissed.

ANALYSIS

The April 29, 2019 Treatment Plan

7The applicant bears the onus of proving entitlement to the proposed April 29, 2019 OCF-18 by proving that the proposed services and Samsung tablet are reasonable and necessary on a balance of probabilities.²

8The April 29, 2019 OCF-18 was completed by Sam Bailey, occupational therapist, and sought the following:

(i) Ten 2-hour sessions of a functional cognitive activation program to be provided by Sarah Ethanafy, kinesiologist, in collaboration with Bailey;

(ii) Ten 30-minute sessions of documentation, support activity provided by Ethanafy;

(iii) Ten 30-minute sessions for planning, service, and liaising with occupational therapy team by Ethanafy;

(iv) Ten 1-hour blocks of travel time for Ethanafy to attend treatment sessions;

(v) Ten block fees for 79 kms for Ethanafy’s mileage to treatment sessions;

(vi) One block fee for 200 kms for the applicant’s transportation to treatment with Ethanafy which was later described in the additional comments as being community travel for Ethanafy to take the applicant out into the community as needed;

(vii) Five 30-minute sessions of planning provided by Bailey which was further described as time to liaise with Ethanafy regarding the applicant’s progress and to provide supervision;

(viii) $350.00 for a Samsung tablet; and

(ix) $200.00 for completion of the OCF-18.

9The goals of the treatment plan were to monitor the applicant’s safety, pain, and function to enable the applicant to return to and participate in meaningful activities of daily living, to access the community, to prevent further disability, and to facilitate the applicant’s community reintegration. The additional comments portion stated that the applicant continues to experience barriers in participation in his daily activities as a result of chronic pain, fatigue, sleep disruption, reduced tolerances for sitting, standing, walking, bending, low level positioning, lifting, and carrying. It also reported that the applicant requires ongoing support to initiate activities and to provide verbal cues as the applicant continues to experience cognitive, emotional, and behavioural changes and difficulty adjusting to his impairments and limitations. The applicant reportedly required ongoing assistance from his rehabilitation therapist to ensure that he is able to participate in his community safely and effectively as he requires supervision and guidance in handling his finances, housing needs, activity scheduling, planning, prioritizing, managing his administrative tasks, shopping, running other errands, and pursuing leisure interests.

10The OCF-18 also stated that the applicant would benefit from a Samsung tablet because it would:

(i) Assist the applicant with his functional goals such as researching information about his interests (i.e. cars, boats, bikes, etc.);

(ii) Be used in conjunction with the applicant’s rehabilitation therapist to schedule appointments given the applicant’s reduced memory as a result of his cognitive issues;

(iii) Help remind the applicant of the tasks that he needs to complete;

(iv) Aid the applicant with his cognition issues by allowing him to play games;

(v) Provide the applicant with a larger screen size for all of these activities as the applicant has reduced eyesight; and

(vi) Allow communication between the applicant and his friends and family through email.

11While I find that the April 29, 2019 treatment plan provided greater detail as to the reasons for the proposed treatment and Samsung Tablet, the only other evidence outside of the treatment plan that the applicant submitted for the hearing is outdated, with the most recent being dated July 25, 2015.³ These documents are not compelling contemporaneous evidence as to when the treatment plan was submitted to the respondent for consideration. It is well settled that the presence of objective supporting evidence to justify treatment is key in determining whether a benefit is reasonable and necessary. A treatment plan without anything more is not enough to establish entitlement.

12Moreover, while the applicant is critical of the July 18, 2019 Occupational Therapy In-Home Insurer’s Assessment report by Christine Phinney, occupational therapist,⁴ because Phinney was not provided with certain assessment reports from 2012 and 2015,⁵ the onus never shifts to the respondent to disprove entitlement. Further, the applicant’s submissions did not address his self-reported level of function to Phinney as described in her report. For example, the applicant reported to Phinney that he was independent with his personal care tasks, able to wash dishes daily, cut the grass using a gas mower weekly or bi-weekly, enjoys going outside, walks to a nearby park and along the river, watches sports on TV with his friends, golfed with a friend a week prior to the assessment, and participated in pool tournaments once or twice a week up until two years prior to the assessment.⁶ The applicant also reported to Phinney that he uses an E-bike to independently access the community and to travel to the mall, the grocery store, and to a YMCA.⁷ None of these reported levels of function are addressed by the applicant in his hearing submissions.

13On the evidence, the applicant has not met his burden of proving on a balance of probabilities that the April 29, 2019 treatment plan is reasonable and necessary.

Award

14Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

15As I have found in that there are no payment of benefits or costs owing regarding the April 29, 2019 OCF-18, there is no basis upon which to consider an award regarding this treatment plan.

16The applicant, however, maintained his claim for an award regarding an August 13, 2019 treatment plan that was previously in dispute between the parties but was approved by the respondent prior to the conclusion of this hearing.

17I find that the applicant is not entitled to an award regarding the August 13, 2019 treatment plan. The applicant only provided general submissions regarding his claim for an award and offered to provide further submissions with respect to the appropriate amount of the award if necessary. In addition to failing to direct me to specific evidence that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, which is required to attract an award under Regulation 664, parties are expected to put their best foot forward to discharge their onus in their hearing submissions. The applicant in this matter has failed to do so and, as a result, he is not entitled to an award under Regulation 664.

Interest

18As there are no benefits owing, no interest is payable.

CONCLUSION

19For the reasons outlined above, I find that:

(i) The applicant is not entitled to the April 29, 2019 OCF-18;

(ii) The applicant is not entitled to an award under Regulation 664;

(iii) No interest is payable; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24 and sections 14-16 of the Schedule.
3. 3July 25, 2015 Neuropsychiatric Assessment Report by Dr. R. van Reekun, neuropsychiatrist, Applicant’s Written Submissions, page 121.
4. 4Responding Submissions of the Respondent, tab 2.
5. 5Applicant’s Reply to Respondent’s Written Submissions, para. 4.
6. 6Supra note 4 at pages 17-18.
7. 7Ibid. at page 18.