Licence Appeal Tribunal File Number: 20-003931/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:
Elaine Mattie
Applicant
and
CAA Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Joseph Falconeri, Counsel
For the Respondent: Ken Yip, Counsel
HEARD: In Writing
BACKGROUND
1Elaine Mattie, (“the Applicant”), was involved in an automobile accident on November 1, 2016, and sought benefits from CAA Insurance, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issues to be decided at the hearing are:
Preliminary Issue:
- Is the applicant barred from proceeding with her claim for issue #11 listed below for a benefit in the amount of $28,283.66 because she failed to submit to an insurer’s examination under section 44 of the Schedule?
Substantive Issues
Is the applicant entitled to a medical benefit in the amount of $1,356.00 ($12,397.93 less $11,041.93 approved by the Respondent) for transportation expenses recommended by Element Support Services in a treatment plan dated August 9, 2018?
Is the applicant entitled to $1,006.14 for food expenses ($2,296.42 less $1,290.28 approved) submitted via OCF 6 dated September 26, 2018?
Is the applicant entitled to $215.05 for taxi expenses submitted via OCF 6 dated November 27, 2018?
Is the applicant entitled to $1,470.38 for nursing services recommended by Motion Physio in a treatment plan dated June 24, 2017?
Is the applicant entitled to $830.24 for assistive devices ($5,583.96 less $4,753.72 approved) recommended by Excel Care in a treatment plan dated January 28, 2019?
Is the applicant entitled to $411.14 for medication expenses ($1,371.80 less $960.66 approved) submitted via OCF 6 dated April 4, 2019?
Is the applicant entitled to $2,330.04, $4,706.28 less $1,523.10 approved by the Respondent, for a Vitamix blender, winter boots, internet services, a front-door security camera, and a portable mattress recommended by Rehab Results Inc. in a treatment plan dated on September 24, 2019?
Is the applicant entitled to $29.99 for assistive devices ($2,389.90 less $2,359.91 approved) recommended by Rehab Results Inc. in a treatment plan dated November 21, 2019?
Is the applicant entitled to $70.00 for phone disconnection and connection fees ($1,135.52 less $1,065.52 approved) submitted via OCF 6 dated October 17, 2019?
Is the applicant entitled to $28,283.66 for rehabilitation therapy recommended by Element Support Services in a treatment plan dated May 25, 2020?
Is the applicant entitled to attendant care benefits in the amount of $4,255.68 for services in June 2020?
Is the applicant entitled to attendant care benefits in the amount of $4,255.68 for services in July 2020?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant withdrew her claim for the rehabilitation therapy treatment plan, dated May 25, 2020, listed as issue 11. Thus, the issue and preliminary issue are resolved.
4The internet services expense in the amount of $588.00 is reasonable and necessary as a result of the accident. The Applicant is entitled to payment for same, plus interest pursuant to section 51 of the Schedule.
5The Applicant is not entitled to the remaining benefits in dispute, interest, or an award.
BACKGROUND
6The Applicant was struck by a vehicle when she was crossing the street with a friend. Sadly, the Applicant’s friend passed away as a result of the collision. The Applicant sustained multiple fractures to her right leg and shoulder, as well as a head injury with intracranial bleeding, all as a result of the collision. The Applicant has endured multiple surgeries following the accident and developed complex regional pain syndrome in her right arm.
7There is little dispute between the parties regarding the Applicant’s injuries – they both agree that she was catastrophically impaired as a result of the subject accident.
8At issue is whether the treatment and assessment plans in dispute are reasonable and necessary as a result of the subject accident. The onus is on the Applicant to demonstrate that the treatment and assessments she seeks are reasonable and necessary as a result of the accident. For plans proposing rehabilitative treatment, the Applicant must demonstrate that the treatment goals are reasonable and can be met to a certain degree and the overall costs of achieving the goals of treatment should be reasonable.
ANALYSIS
Transportation Expenses in the amount of $12,397.93, less $11,041.93 approved
9This plan proposed rehabilitation support worker services. The dispute pertains to a fee related to transportation in the amount of $1,200.00 plus HST. I find that the fee is not payable for the following reasons.
10The fee in dispute, as stated on the treatment plan, is for transportation of the Applicant to treatment. The Applicant, in her submissions, claimed that the Superintendent’s guideline No. 04/16: Transportation Expense Guideline allows for the transportation of the Applicant to treatment. The Respondent agreed and noted that the services were provided in-home, negating the need for transportation. The Applicant changed her position in reply and stated that the transportation fees are related to when the service providers use their own vehicle to take the Applicant out into the community. To support the position, the Applicant produced an email from the company that provides the services, sent to counsel for the Applicant on September 14, 2021, about a week after the Respondent made submissions.
11I find the Applicant’s submissions and evidence tendered in reply to be improper and place no weight upon them. The opportunity for reply is to respond to the arguments raised in the response submissions, not to raise new arguments or tender new evidence. The Applicant provides no rationale to explain why she changed her position or was unable to get the information from the service provider prior to the deadline to exchange documents for this hearing.
12I find that the Applicant has not met her onus to demonstrate that the transportation fee in dispute is reasonable and necessary. The treatment plan states that the fee is for transportation of the Applicant to treatment and there is no indication in the treatment plan that the fee is for transporting the Applicant out into the community. Instead, the plan describes the fee as: “claimant transportation to treatment” in one instance and “Mileage- 100 km per session-from worker Location to clients location” (sic) in another instance. Neither explanation indicates that the fee is to transport the Applicant out into the community. In any event, I am satisfied the services were provided in the Applicant’s home and service provider mileage is not an authorized transportation expense. Additionally, the Respondent approved funding for the service providers travel time.
Food Expenses in the amount of $2,296.42, less $1,006.41 approved
13I find that the Applicant has not met her onus to demonstrate that the food expenses are a reasonable and necessary accident-related expense.
14The Applicant claimed entitlement to various food expenses incurred while she was living in a hotel due to an inability to live at her residence as a result of her injuries. She submits that she was forced to buy prepared and restaurant food because she had limited access to cooking facilities and limited ability to prepare meals. She suggests that these expenses are reasonable and necessary because the Respondent previously paid for some room charges for food.
15I agree with the Respondent and find that the food charges are not a medical or rehabilitative expense. Food is an everyday expense which the Applicant would be required to incur, regardless of whether she was involved in an accident. She provided no compelling reason for the expenses. As noted, she claimed that she had limited access to cooking facilities. Yet, invoices related to the Applicant’s hotel stay indicate that her suite included a kitchen and a hot breakfast meal plan. This suggests that she had access to cooking facilities. In addition, the Applicant has been entitled to claim attendant care benefits since the accident, which would include assistance with meal preparation.
Taxi Expenses in the amount of $146.00
16The Applicant claims entitlement to parking expenses on the grounds that the taxi services were used to attend a doctor’s appointment and pick up prescription medication. The Respondent paid a portion of the expenses upon receiving the Applicant’s submissions and evidence. $146.00 remains in dispute pertaining to taxi charges as follows: $60.00 and $30.00, incurred on December 23, 2016 and two charges of $28.00 on February 16, 2017.
17The Respondent refused to pay the remaining amounts because the Applicant’s prescription summary does not have prescription dates which correspond with the dates the taxi expenses were incurred. The Applicant, in reply, submits that prescription dates relate to the date the prescription was written and not the date which the medication was picked up from the pharmacy. She directs me to section 156(i)(h) of the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. F.4.
18I find that the evidence does not support the Applicant’s claims that the taxi expenses were to pick up prescription medication.
19Section 156(1)(h) of the Drug and Pharmacies Regulation Act provides that the person dispensing the prescription must record the date on which the drug is dispensed. This is contrary to the Applicant’s submission that the date recorded in the date the drug is prescribed. As a result, the Applicant’s argument fails as there is no evidence to suggest that the taxi expenses were for a medical purpose, such as picking up prescription medication.
Nursing services in the amount of $1,470.38
20The Respondent approved funding for a treatment and assessment plan in the amount of $5,137.22. The Applicant incurred $4,201.42 of the treatment plan, which the Respondent paid, leaving an unconsumed balance of $935.80. However, with respect to the balance of the treatment plan, the Applicant incurred $1,470.38 instead of $935.80. The invoice associated with the claim states that the fee is for “brokerage, service”.
21I find that the Applicant has not met her onus to demonstrate entitlement to the benefits claimed.
22The Applicant agrees that she incurred services above the approved amount however, she submits that there is no reason why the remaining $935.80 could not be paid. The Respondent submits that this dispute pertains to an invoice and not a benefit and that it requires more detail to determine which of the $1,470.38 in goods and services relate to the unconsumed $935.80.
23The Respondent’s position suggests that this dispute is over the denial of liability to pay an amount under an invoice on the grounds that it requested information from the provider under section 46.2(1) of the Schedule. Section 46.2(1) permits the Respondent to request information from a service provider in order to assist it in determining its liability for the payment. Pursuant to section 55(1)3, the Applicant shall not apply to the Tribunal if this circumstance exists.
24With respect to the Respondent’s position, I find that the Respondent has not satisfied the requirements of section 55(1)3 because it provided no evidence that it requested additional information from the service provider to determine the liability. The Respondent, in order to rely on the exclusion in section 55(1)3 of the Schedule, must first demonstrate that it requested information from a provider under subsection 46.2(1). The Respondent has not provided any evidence demonstrating that it requested information from the related provider to determine its liability.
25With respect to the Applicant’s position, I am unable to determine if the services that the Applicant claims payment for is captured in the approved treatment plan. The approved treatment plan is not before me. As a result, I am unable to confirm whether the incurred goods and services relate to the approved plan. I am unable to order payment of the invoice without knowing if the incurred goods and services were approved by the Respondent.
26However, in light of the above, and considering that the Respondent agreed to fund the treatment plan, I trust that it will fulfill its obligation in the event that case management services were included in the related treatment plan, or if the service provider offers the information required by the Respondent.
Assistive Devices in the amount of $830.24
27The Applicant claims entitlement to the unapproved balance of this treatment plan, which relates to a treadmill. The Applicant sought funding for a treadmill in the amount of $999.99 plus HST and delivery fees in the amount of $350.00 plus HST. The Respondent approved funding for a treadmill in the amount of $425.00 plus HST and deliver fees in the amount of $150.00 plus HST. The Respondent also offered to order a treadmill through a preferred vendor.
28I find that the Applicant has not met her onus to demonstrate that the treadmill she claims is reasonable and necessary.
29The Applicant provided no explanation as to why she requires the treadmill that she proposes, instead of a less expensive unit. Both sides agree that a treadmill and the related installation charges are reasonable and necessary, and it is incumbent on the Applicant to demonstrate why her preferred treadmill is a reasonable and necessary medical expense in light of the Respondent’s agreement to fund a treadmill that is less expensive. Yet, the Applicant has not offered any information on the treadmill, be it make or model, or why one is preferred over the other as a result of her accident-related injuries.
Medical expenses in the amount of $411.14
30The Applicant claimed reimbursement for various medical expenses. In response, the Respondent submits that it paid the expenses on July 19, 2019 and provided the Tribunal with a letter of the same date which indicates payment is to be made via separate cheque, but did not include a copy of the cheque or other information to indicate that it paid the expenses. In reply, the Applicant submits that she needs proof of the payment before she will withdraw the issue.
31I struggle to find the reason why the parties were unable to resolve this issue in advance of this hearing. The Respondent agreed that the expenses are reasonable and necessary as a result of the accident and agreed to pay for same. Thus, there is no disputing the Respondent’s liability as it pertains to these expenses. If the Respondent has not done so already, it shall issue payment immediately.
Assorted Assistive Devices in the amount of $2,330.04
32The Applicant claims entitlement to a Vitamix blender, winter boots, internet services, a front-door security camera, and a portable mattress.
33I find that the Applicant has not met her onus to demonstrate that a Vitamix blender is reasonable and necessary. While the parties agree that a blender is reasonable and necessary, the Applicant provides no evidence to support her claim that she requires a Vitamix. She submits that her occupational therapist recommended a Vitamix specifically because it can blend most consistencies. According to the Applicant, the Vitamix can expand the variety of healthy foods she can prepare, including smoothies and soup, and the device can also heat soups with friction. However, the Applicant provided no evidence of the recommendation. The reports by occupational therapists, L. MacPhee, and S.J. Bromley, dated December 30, 2018 and January 31, 2021, respectively, discussed the Applicant’s feeding needs and made no recommendations for a blender of any kind. The Applicant’s submissions are not evidence, and I am unable to find in favour of the Applicant on this issue as a result.
34I find that the Applicant has not met her onus to demonstrate that winter boots are a reasonable and necessary medical expense. The December 30, 2018 report by occupational therapist MacPhee does not recommend winter boots, as the Applicant submits. Instead, it lists the boots in a different category, under “additional considerations”. I presume the boots are not listed under the recommended goods and services because the winter boots are not required for outdoor ambulation. The body of the report states that the Applicant is “able to ambulate outside using assistive devices (cane/brace)”.
35The Respondent approved funding for removable winter boot grips. I agree with the Respondent that winter boots are required in the region and there is no evidence that suggests the proposed boots would be superior to the approved grips. The Applicant’s claim that she is unable to attach the grips due to her poor dexterity is not supported by any evidence. In addition, I note that the Applicant receives regular attendant care services which can assist with attaching boot grips, when necessary.
36I find the internet charges in the amount of $588.00 to be a reasonable and necessary expense as a result of the accident. The parties agree that the Applicant did not have a home internet connection at the time of the accident and requires it following the accident to connect with her community and other supports. The Respondent’s position that it is liable for only 50% of the internet service fee because it approved mobile data plans and because most Canadians have at-home internet, is unpersuasive. The fact that the Applicant has access to the internet via other devices does not reduce her need at home, which both parties agree is required to access services. Considering she never had home internet service before, I find that it would be unreasonable to force the Applicant to pay 50% of the associated costs simply because at-home internet is commonplace in Canada. Thus, I find the internet charges to be a reasonable and necessary expense as a result of the accident and the Applicant is entitled to payment for same, plus interest pursuant to section 51 of the Schedule.
37I find that the Applicant has not met her onus to demonstrate that a front-door security camera and intercom is reasonable and necessary as a result of the accident. The Applicant provided no medical recommendation for the device but submits that the device is for safety purposes because the Applicant is physically unable to prevent entry to an unwanted visitor. I find the Applicant’s position unpersuasive because it could apply to virtually any person, regardless of accident-related injuries, and the argument does not connect the Applicant’s need for a security camera to her accident-related impairments. I agree with the Respondent that a security camera is not reasonable and necessary because there is no evidence demonstrating that the Applicant is unable to access her front door. Additionally, I note that the Applicant uses a key lock box which enables in-home service providers to access the Applicant’s residence.
38I find that the Applicant has not met her onus to demonstrate that a portable mattress is a reasonable and necessary medical expense as a result of the accident. The Respondent agreed to fund up to $200.00 for a portable mattress and I find that there is no medical requirement for the mattress sought by the Applicant. The Applicant provided no medical recommendation for the mattress. Instead, she submits that she requires 24-hour care and needs a mattress for the ACB service providers to sleep on in order to provide adequate care and that she can also use the mattress if required. Submissions, without medical evidence to support them, are unpersuasive.
Assistive devices in the amount of $29.99 ($2,389.90, less $2,35601 approved)
39I find that the Applicant has not met her onus to demonstrate that the non-slip matting product and grip jar openers are reasonable and necessary as a result of the accident.
40The Applicant provides no medical recommendation for the non-slip matting product or the grip jar openers. The occupational therapy reports dated December 30, 2018 and January 31, 2021 include no recommendation for these items.
41Funding additional openers is redundant. The Respondent previously approved funding for three jar openers and an easy grip. The Applicant provides no rationale for why additional openers and grips are reasonable and necessary medical expenses.
$70.00 for phone connection fees ($1,135.52 less $1,056.42 approved)
42I find that the Applicant has not met her onus to demonstrate that the phone connection fees are reasonable and necessary as a result of the accident.
43The Applicant claims that the fees are associated with switching to a less expensive mobile phone provider. The Respondent approved a mobile phone plan with one provider, but the Applicant claims that she found a less expensive provider and made the switch, which is in keeping with the Respondent’s practice of approving goods and services at the lowest cost available. The Respondent, in reply, noted that it pays for a mobile phone plan and the Applicant’s decision to change carriers is personal and not medical.
44I agree with the Applicant that switching to less expensive mobile phone carrier is a prudent and reasonable decision and could potentially prolong her access to benefits. However, the Applicant provides no evidence to support her claim. She provides no evidence to compare the cost of her prior plan with the cost of the new phone plan. I am unable to find the expenses to be reasonable and necessary without evidence to substantiate the claims.
Rehabilitation Therapy in the amount of $28,283.66
45The Applicant withdrew this issue from the application. Thus, a determination of the related issue and preliminary issue is unnecessary.
Interest Related to Attendant Care Benefits in the amount of $4,255.68
46The Applicant withdrew this issue from the application but maintains her claim to interest on the overdue payment of these benefits. The claim refers to attendant care expenses incurred. The Applicant submits that she presented invoices to the Respondent on July 1 and August 1, 2020 and the invoices were not paid until October 23, 2020. She calculates interest starting on July 11 and August 11, 2020, respectively. The Respondent submits that the invoices lacked the requisite detail and it asked for more information, which it received on August 28, 2020. The Respondent further notes that the Schedule is silent on when an invoice for incurred attendant care expenses must be paid, but it suggests that 30 days is reasonable in light of comparable provisions in section 38(15) of the Schedule.
47I find that the Applicant has not met her onus to demonstrate that she is entitled to interest on the overdue payment of benefits.
48The Applicant provides no authority on when payment for incurred expenses is required. This is a required step in the process for claiming interest because, pursuant to section 51 of the Schedule, a benefit is overdue if the Respondent fails to pay it within the time required under the Schedule. Here, the Applicant directs me to no authority governing the payment of ACB, or any other expenses. Instead, she provided a calculation on the interest with the due date being 10 days following submission of the invoice with no further explanation. As a result, the Applicant has not met her onus.
49I prefer the Respondent’s method for calculating interest and find that 30 days is a reasonable deadline to remit payment for an expense like ACBs. I am unaware of any provision in the Schedule which directs the Respondent to pay ACBs within 10 days of receipt of an invoice. Further, I find 10 days to be unreasonably short in light of section 38(15), which is comparable and compels the Respondent to pay for goods and services within 30 days after receiving the invoice. In addition, and as noted previously, the Respondent is permitted to seek additional information to clarify its liability of an expense.
AWARD
50Entitlement to an award is listed as an issue in dispute for this hearing however, the Applicant made no submissions on the issue and neither did the Respondent. It follows that the Applicant has not met her onus to demonstrate that she is entitled to an award. Thus, no award is payable.
CONCLUSION
51The Applicant was struck by a vehicle and suffered catastrophic injuries as a result of the collision, as agreed by the parties.
52I find that the Applicant is entitled to internet service fees of $588.00, plus interest pursuant to section 51 of the Schedule.
53I find that the Applicant has not met her onus to demonstrate that she is entitled to the remaining issues in dispute, interest, or an award.
Released: October 18, 2022
Brian Norris
Adjudicator