Licence Appeal Tribunal File Number: 22-006612/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:
Khalaf Hamad
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Kathleen O'Hara, Counsel
Court Reporter:
Breanna Clancy and Prashanth Thambipillai
Interpreter (Arabic language):
Lina Alkabeer and Fanar Rafo
HEARD: by Videoconference:
June 5-8, 2023
OVERVIEW
1Khalaf Hamad, the applicant, was involved in an automobile accident on April 27, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule — Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (the “NEB”) of $185 per week from March 23, 2022, to April 27, 2023?
ii. Is the applicant entitled to assistive devices in the amount of $5,763.00, proposed by Meditecs Independent Medical Examinations in a treatment plan dated March 16, 2022?
iii. Is the applicant entitled to the assessments proposed by Meditecs In dependent Medical Examinations, as follows:
i. $6,920.04 for an in-home assessment, in a treatment plan dated March 16, 2022;
ii. $4,373.10 for a psychiatric assessment, in a treatment plan dated March 16, 2022; and
iii. $4,373.10 for a physiatry assessment, in a treatment plan dated March 16, 2022?
iv. Is the applicant entitled to psychological services in the amount of $6,444.98, proposed by Meditecs Independent Medical Examinations in a treatment plan dated March 16, 2022?
v. Is the applicant entitled to chiropractic, physiotherapy, and acupuncture services in the amount of $80.00 ($801.93 submitted less $721.93 approved), proposed by Spinetec Health on an invoice dated June 16, 2022?
vi. Is the applicant entitled to attendant care benefits in the amount of $2,992.55 per month from March 7, 2022, to date and ongoing?
vii. Is the respondent liable to pay an award under section 10 of O. Reg 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an NEB.
4The applicant is not entitled to an attendant care benefit.
5The applicant is not entitled to any of the disputed treatment plans for assessments or services, nor the invoiced expenses identified in paragraph 2(v) of this decision.
6Since there are no benefits payable, there is no award or interest that is payable.
PROCEDURAL ISSUES
The applicant seeks to exclude surveillance evidence from 2016 in an earlier and
separate claim
7The applicant submitted a notice of motion (dated May 29, 2023) that sought an order to prevent the respondent from relying on surveillance evidence at the hearing unless the investigators who performed the surveillance attended as witnesses. The respondent explained the applicant had been in an earlier accident in 2016, and that the insurance company that responded to the applicant’s claim arising from that accident had conducted surveillance on the applicant. The respondent clarified that the evidence at issue in the applicant’s motion was the 2016 surveillance evidence produced at that time by the responding insurance company. The respondent argued that the 2016 surveillance evidence was particularly relevant to the NEB issue now before the Tribunal.
8The applicant claimed he provided to the respondent, the names of the investigators who conducted the 2016 surveillance with the expectation these witnesses would be summonsed. The applicant claimed he would be prejudiced by the introduction of this surveillance evidence if he was not able to cross-examine the investigators and test the reliability of the evidence. The applicant added that, in all likelihood, more time would need to be added to the proceeding to accommodate the investigators, and that this would incur unnecessary extra costs to the parties, as well as delay timely resolution of the matter.
9The respondent argued that the applicant sent the names of three individuals via email with no context as to what action needed to be taken. The respondent said it was not clear that the applicant was requesting the respondent to summons these individuals as witnesses because the investigators were included on the witness list produced by the applicant.
10I denied the order requested by the applicant. In doing so, I noted the applicant had signalled he would be summonsing these investigators because they were included on his witness list, and that if their appearance was so important to his case, he ought to have owned responsibility to ensure their attendance. The applicant had plenty of time to summons the investigators, as the Tribunal had ordered the applicant to produce the 2016 surveillance to the respondent in its order dated January 16, 2023.
The respondent seeks to exclude witness and report evidence
11At the start of the hearing, the respondent sought an order to exclude the testimony and expert reports of Dr. Judith Pilowsky (psychologist) and Mr. Julian Amchislavsky (occupational therapist), based on the applicant’s failure to produce the clinical notes and records of these professionals as ordered by the Tribunal.
12The applicant confirmed he had no evidence to prove he sought clinical notes and records from Dr. Pilowsky and Mr. Amchislavsky as ordered by the Tribunal. However, he argued that it would be overly harsh to eliminate witnesses as a remedy for not providing disclosures, and reinforced that the Schedule was consumer protection legislation.
13I denied the order sought by the respondent. I reasoned that as long as the testimony of Dr. Pilowsky and Mr. Amchislavsky stayed within the boundaries of the reports that had been produced, no prejudice to the respondent should occur. Furthermore, the parties did not dispute the reports were provided in accordance with the timelines set out in the order.
ANALYSIS
Non-earner benefit
14The applicant claims entitlement to an NEB. Section 12(1) of the Schedule establishes the criteria for entitlement to an NEB. There are three critical considerations: (i) an insured must suffer an impairment as the result of an accident; (ii) the insured must suffer a complete inability to carry on a normal life as a result of, and within 104 weeks after, the accident; and (iii) the insured must not qualify for an income replacement benefit (the “IRB”).
15In this case, the applicant needs to prove the accident caused an impairment, and that he suffers a complete inability to carry on a normal life because of the accident.
16I find the applicant has not proved entitlement to an NEB. My reasons for this follow, and rely on the principles established in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391. These principles require me to:
i. Compare the applicant’s pre-accident activities and life circumstances to those post-accident;
ii. Assess those activities and life circumstances over a reasonable period that is suited to the facts of the case;
iii. Consider all the applicant’s pre-accident activities, but greater weight may be assigned to activities the applicant deems more important to his life;
iv. Establish whether the applicant has proven his accident-related injuries continuously prevent him (i.e., uninterrupted) from engaging in substantially all his pre-accident activities;
v. Interpret engaging from a qualitative perspective, where significant restrictions in performing an activity may not count as engagement, even if the applicant can still perform the activity; and
vi. Assess—where pain is the primary reason the applicant cannot engage in former activities—whether the degree of pain practically prevents the applicant from performing those activities.
The applicant’s circumstances and activities did not change before and after the accident.
17The applicant submits he is entitled to an NEB because his 2021 accident was a necessary cause of his impairments. He asserts the accident exacerbated pre-existing injuries and pain caused by an earlier motor vehicle accident on October 19, 2016, and that this is sufficient to meet his onus of proof.
18The respondent argues the applicant is not entitled to an NEB because every complaint the applicant attributes to the April 2021 accident predates to his October 2016 accident. The respondent asserts that the applicant’s impairment “baseline” was troubling to begin with, and that there is no credible evidence that any of the applicant’s current complaints were worsened in any material respect by his 2021 accident. The respondent submits there is insufficient medical evidence to establish any impairment caused by the 2021 accident, except perhaps a “temporary exacerbation” of symptoms at best.
19I find the applicant has not shown his life activities and circumstances changed because of his accident.
20During the hearing, the applicant provided many examples of activities he did prior to his 2021 accident, but can no longer do. The applicant did not indicate which of these activities were most important to him, but I will first address the applicant’s enjoyment of food and socializing with friends before moving to his activities of daily living.
21The applicant testified that prior to the accident, he enjoyed eating a varied diet that included solid foods like meat, as well as fishing trips with friends and social visits over coffee.
22The applicant claimed that after the accident, he was unable to do these things. He testified he cannot enjoy the foods he used to eat because he broke his jaw and lost most of his teeth in the accident. The applicant said he stopped socializing after the accident because his friends left him when he began experiencing memory problems and nervousness “around noisy things.” The applicant acknowledges there are dental issues and mental health issues that predate his accident, but he argues that all his symptoms became much worse after the accident.
23While I agree the applicant was experiencing difficulties after his accident, the evidence does not convince me his life circumstances and activities changed as a result of the accident or caused a complete inability to carry on a normal life. I find it more likely, on a balance of probabilities, that the applicant’s pre-accident life was characterized by the same difficulties he claims beset him only after the accident, and that these difficulties did not continuously persist to become worse.
24I will first deal with the applicant’s dental and eating difficulties. I was not presented with any medical evidence to confirm the applicant’s jaw was broken during the accident. In fact, during cross-examination, the applicant testified his jaw had been broken after the accident. Therefore, the relationship between the applicant’s jaw and his inability to eat solid foods was not an important consideration in determining his NEB eligibility.
25I accept that some of the applicant’s teeth were damaged because of the accident. The applicant first reported broken “dentures” to Dr. Michael Stephenson (family physician) on May 6, 2021. Dr. Stephenson confirmed, during an in-person assessment on May 18, 2021, that the applicant’s right upper dentures had been broken in the accident. Dr Stephenson also documented the applicant’s complaints of being unable to chew food during this appointment.
26However, there is insufficient compelling medical evidence to establish that the applicant’s broken teeth continuously prevented him from eating solid foods since the accident.
27On May 18, 2021, Dr. Stephenson made a referral for a dental exam to request replacement dentures for those broken in the 2021 accident, as well as an assessment of dental pain. From this point forward, Dr. Stephenson’s records do not show any further complaints from the applicant about not being able to eat or chew solid food. There are no referrals to dieticians or a recommendation for a special diet. There are no concerns documented about the applicant’s nutrition. There is no mention of a follow up on the applicant’s dental exam referral. There is only a May 2022 entry concerning “very poor dentition,” an abscess, and loose lower front incisors.
28Although the applicant testified, he did, in fact, attend a dental clinic with Ms. Aseel Yaseen (his ex-spouse) after his 2021 accident—and was told it would cost $36,000.00 to remedy his dental issues—there is no report in evidence to substantiate the applicant was still unable to eat solid food at that time.
29Dr. Stephenson’s testimony confirmed the applicant had a history of dental infections prior to the 2021 accident, and I reviewed multiple entries in his clinical notes and records that corroborate this testimony. However, Dr. Stephenson did not speak to whether the applicant remained unable to eat solid food since his May 2021 appointment.
30Ms. Yaseen testified that she visited the applicant in February 2023 and observed he was not eating properly after losing his teeth. This testimony, when considered together with that of the applicant’s testimony, is not persuasive because there is no corroborating medical evidence that shows the applicant’s eating difficulties continuously persisted after May 2021.
31Ms. Yaseen also shared she could not recall if the applicant suffered tooth pain from the 2016 accident, that she did not notice that any of the applicant’s teeth fell out before the 2021 accident, and that the applicant did not say anything to her about dental issues before the 2021 accident. However, I preferred evidence that references a July 2017 medical report by Dr. Ghada Al-Shurafa (dentist), and speaks to extractions he performed on four of the applicant’s teeth that were “broken to the gum lines” because of the 2016 accident. This evidence also helps explain the applicant’s testimony about being on a soup diet at least once prior to 2018 for “a little”—which I interpret to mean a short period—due to difficulty eating solid food.
32In my view, this evidence collectively establishes that, similar to after his 2016 accident, the applicant was only temporarily unable to eat solid foods after the 2021 accident. I am not convinced by the evidence that this impairment continued uninterrupted to the date of the hearing as claimed by the applicant. Therefore, I am not persuaded he has a complete inability to carry on a normal life that results from his inability to eat solid foods.
33In terms of the applicant’s social life, I find there is insufficient compelling evidence to establish he could no longer enjoy the company of his friends over coffee or while fishing because of psychological issues sustained in the accident. In fact, the applicant’s testimony—and that of Ms. Yaseen, who commented that he was mentally unwell and shy of people in February 2023, such that he was unable to attend the wedding of one of his daughters—was the only post-accident evidence put before me on this aspect of the applicant’s life.
34I considered too, that there was an abundance of evidence that established the applicant was socially isolated and had interpersonal difficulties well before his accident.
35Dr. Stephenson completed a Health Status Report (dated August 12, 2016) to assess the applicant’s eligibility for benefits under the Ontario Disability Support Program (the “ODSP”). The applicant provided a Self Report Form to complement Dr. Stephenson’s submission. In these documents, the applicant reports he was a victim of “politically motivated” violence and torture before coming to Canada in 2015. The applicant did not wish to speak further to this during the hearing. Dr. Stephenson notes the applicant suffered post-traumatic stress disorder that caused several impairments, including depressed mood, chronic anxiety and distress, nightmares, insomnia, and flashbacks. I note these symptoms are consistent with the applicant’s testimony about his life after his 2021 accident.
36Dr. Stephenson’s 2016 ODSP submission also indicates the applicant’s impulse and behaviour control was severely limited, and determined the applicant was continuously unable to participate in normal social interactions. This too strikes me as consistent with the applicant’s testimony of his post-accident condition in 2021 and onwards.
37During the hearing, Dr. Stephenson confirmed the applicant was experiencing psychological difficulties from torture and trauma prior to the applicant’s 2016 accident. In a written account of his life provided to support his ODSP application, the applicant described himself as constantly in a low mood and miserable due to “many horrendous years as the victim of violence in Iraq.” Dr. Stephenson added that mental distress from these experiences and his 2016 accident was the applicant’s most pressing issue leading up to the 2021 accident. He testified the applicant struggled with depression on and off, and that his impression was that the applicant had always had a lot of difficulty interacting with others.
38Dr. Stephenson added that the applicant’s mental health deteriorated significantly after 2016, but also became more evident after the 2021 accident. I was not pointed to any compelling medical evidence in Dr. Stephenson’s notes or otherwise that, in my opinion, corroborate worsening of symptoms after the applicant’s 2021 accident. I placed little weight on the two, translated, one-page letters obtained from Iraq’s Ministry of Health (both dated in January 2022) that are cited in Dr. Stephenson’s records on May 30, 2022. This is because I was not presented with sufficient evidence to substantiate what information—other than an examination of the applicant—the health ministry assessors relied on to arrive at their findings, or what testing, if any, was performed.
39To me, this evidence collectively establishes the applicant has long suffered serious psychological issues that rendered him continuously unable to participate in normal social interactions, and which has impacted his interpersonal relationships. As Dr. Stephenson indicates, this is a severe condition that was present from the time he first met the applicant n June 2015, and which persisted up to the applicant’s 2021 accident. I am not convinced the applicant’s situation became any worse for an uninterrupted period since the 2021 accident, and therefore I am not persuaded the applicant has a complete inability to carry on a normal life because he cannot sustain social activities with his friends.
40I now turn to the applicant’s activities of daily living.
41The applicant testified that prior to this accident, he would remove snow, organize garbage, cook light meals, wash clothes, shave every few days, brush his teeth, and iron his clothes. The applicant went on to say that worsening pain (notably in his lower back and knees), vertigo, and tinnitus made it impossible to do any of these things after the accident. But in my view, these difficulties were just as evident prior to the accident.
42The most compelling evidence of this is the occupational therapy reports by Mr. Amchislavsky. These reports are dated November 22, 2018, and February 7, 2022. During the hearing, Mr. Amchislavsky agreed there is no evidence to support his latest report relied on any file information after September 2018. He testified this report involved an in-home assessment of the applicant—which was performed on December 7, 2021, according to his report—during which he conducted an interview and observations.
43Mr. Amchislavsky’s testimony confirmed that, based on his latest assessment, the applicant’s ability to perform the daily living tasks he identified during his testimony remained unchanged from the time of his 2016 accident until after his 2021 accident. Mr. Amchislavsky agreed the applicant reported no change in any of his symptoms during the period between his reports, and confirmed the applicant’s tolerances were identical between the two reports, with a minor difference in the applicant’s ability to transfer in and out of the bathtub and shower. When asked by the respondent if the applicant’s activities of daily living were identical in 2018 and 2021, Mr. Amchislavsky indicated “they were written the same” and that the applicant’s challenges continue to persist.
44Both of Mr. Amchislavsky’s reports note the applicant presented with substantial self-care limitations. He was unable to complete any meal preparation tasks and could not wash himself without help due to balance issues that put him at risk of falling. He reported he did no housekeeping or home maintenance due to too much pain. Among numerous other complaints, the applicant described constant “incredibly painful” tinnitus, numerous falls due to dizziness, and constant back pain that radiated bilaterally down the sides of his legs and into his knees and feet.
45Dr. Stephenson’s clinical notes also provide compelling evidence about the applicant’s activities and circumstances.
46There is a record (dated August 19, 2015) from Dr. Stephenson that notes the applicant was “having a lot of low back pain radiating down both legs.” Another record (dated September 24, 2015) notes a consultation for dizziness. This record goes on to say the applicant “has had many years of episodic vertigo” and that he had fallen down several days earlier because of a sudden onset of intense vertigo. In fact, the applicant provided a written statement as part of his ODSP submission that said he was experiencing dizzy spells which interfered with his ability to complete daily tasks at the time he lived in Iraq. He mentions there too, that he had fallen numerous times, and that his family needed to care for him in all aspects of his life. Ongoing dizziness and another fall were documented by Dr. Stephenson on April 5, 2017.
47The applicant’s hearing complaints were apparent as early as September 2015, when Dr. Stephenson reported the applicant was awaiting a specialist referral to assess tinnitus. During cross-examination, the applicant agreed his tinnitus started before either of his 2016 or 2021 accidents.
48In conclusion, the evidence before me establishes that the applicant suffers many serious impairments in his life that arise from a variety of injuries and symptoms. However, the evidence also shows all of his impairments were evident well before his 2021 accident. There is insufficient compelling medical evidence to establish any of these impairments worsened because of the accident, or that his 2021 accident-related injuries continuously prevent him from engaging in substantially all his pre-accident activities. As such, I cannot find the applicant suffers a complete inability to carry on a normal life because of the accident.
Reasonableness and necessity of disputed medical benefits
49Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment because of an accident, and the medical benefit is a reasonable and necessary expense incurred by the applicant because of the accident.
50The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
51I find this treatment plan is not reasonable and necessary for reasons that follow.
52This plan recommends a back massager, a neck massager, an electrical heat pad, an Obus Forme back support, a long shoehorn, a cervical and long body pillow, a robotic vacuum, an orthopaedic mattress, and an infra-red heating dome. The applicant submits the plan is reasonable and necessary because these items were recommended by an occupational therapy expert and because the respondent failed to call an expert to prove otherwise.
53This evidence is insufficient to meet the applicant’s burden of proof. The applicant’s submission did not point me to medical evidence that supports the activity limitations listed by Dr. Paton in the plan. Dr. Paton did not articulate the goals of the plan, and the applicant did not point me to them in Mr. Amchislavsky’s report. It follows I have no way to assess the degree to which the plan’s goals can be met. There was no evidence put before me to establish the reasonableness of the costs. I am therefore not convinced as to the reasonableness or necessity of this treatment plan.
54I find this treatment plan is not reasonable and necessary for reasons that follow.
55The applicant submits that the goal of this plan is to improve functionality, cater to in-house needs, and reduce pain and barriers to recovery. The applicant explains this is important, given his limitations.
56This evidence falls short of what is required to prove reasonableness and necessity. The applicant did not point me to evidence in Mr. Amchislavsky’s report that supports this plan. This is important because the plan is tied directly to Mr. Amchislavsky’s recommendations. I found the description of proposed goods and services to be unclear, and the parts of Mr. Amchislavsky’s report included by Dr. Paton in the additional notes section of the plan did not help me decipher this information.
57Dr. Paton testified that this was an occupational therapy plan, and not a physiotherapy plan. But all the activity limitations in Part 8 of the plan are physical in nature. And all the goals in Part 9 of the plan relate to physical matters, such as pain reduction, increased range of motion and increases in strength. This incongruency does not make sense.
58Further, the plan seeks to achieve the applicant’s return to activities of normal living. But the applicant did not show me any evidence that confirmed the degree to which this outcome could be met. And again, no evidence was provided to establish the reasonableness of the costs. I am therefore not persuaded that this treatment plan is reasonable and necessary.
59I find this treatment plan is not reasonable and necessary for reasons that follow.
60The applicant submits this treatment plan is reasonable and necessary because it will enable him to function better by reducing his psychological symptoms. The applicant added that a psychiatrist would help determine where medication will assist in his recovery, and explained that alleviating mental hardships is an important goal. The applicant said he provided two decisions in his book of authorities that establish treatment does not have to cure the condition to be reasonable and necessary—it is enough that treatment provide temporary relief.
61This evidence is insufficient. The treatment plan goal is to determine the nature and extent to which the applicant is suffering from psychological difficulties, and to determine if those difficulties could be suitably treated by medication. But the plan does not specify any psychological impairments and conditions arising from the accident in Part 6. All the activity limitations listed in Part 8 of the plan are physical in nature. I therefore disagree that the plan’s goals are reasonable because they do not coherently align with the impairments and limitations identified in the plan. Further, the applicant’s submission did not point to evidence that convinced me he could derive even temporary relief by undertaking this plan, or that established the reasonableness of the plan’s costs. I therefore conclude this plan is not reasonable and necessary.
62I find this treatment plan is not reasonable and necessary for reasons that follow.
63The applicant submits this plan aims to look at his impairments from a musculoskeletal perspective, and that providing means or recommendations for temporary relief is reasonable and necessary.
64This evidence does not satisfy the applicant’s burden of proof. The goal of the plan is to complete a comprehensive medical evaluation of the claimant’s musculoskeletal and soft tissue injuries, neurological complaints, and pain syndromes to determine their current functional limitations. The applicant’s submission on this plan did not reference any compelling medical evidence that established these goals to be reasonable. I was not pointed to any parts of Mr. Amchislavsky’s report that speak to why he recommended a physiatry assessment.
65I am also uncertain as to what degree these goals can be met because the applicant provided no evidence of this. No submission on the costs of this plan was made by the applicant. I therefore cannot conclude that this treatment plan is reasonable and necessary.
66I find this treatment plan is not reasonable and necessary for reasons that follow.
67The applicant submits this treatment plan aims to decrease symptoms and assist with coping mechanisms. He believes it will provide temporary relief of the significant distress he experiences, as he has more bad days now than before and asks to die. The applicant also points to the diagnoses offered by Dr. Pilowsky, and asserts that any treatment plan for mental health should be granted, even for temporary relief.
68This evidence is insufficient to prove this plan is reasonable and necessary. There are no mental health impairments or diagnoses listed in Part 6 of the plan, and the activity limitations listed at Part 8 are all of a physical nature. As such, the treatment plan goal as stated by Dr. Paton—to help decrease the mental and emotional psychological symptoms and provide coping mechanisms to reduce any stress, anxiety, or depressive symptoms—is not reasonable given the applicant’s impairments and limitations as described in the plan.
69Further, the plan indicates that the degree to which the goals can be met will be measured in terms of an interview on the emotional and psychological impact of the accident, scoring and analysis of psychological tests to identify the extent of the applicant’s symptoms and diagnoses, providing an expert opinion around treatment recommendations to facilitate recovery, preparing a psychological report and completing the treatment if necessary. However, the plan is proposed to be executed by a social worker, and the applicant provided no compelling evidence to substantiate that social workers are, in fact, qualified to score and analyze psychological tests, identify diagnoses, or prepare psychological reports. Dr. Paton’s testimony—that social workers can do psychotherapy—did not convince me otherwise without corroborating evidence from the regulatory authority for psychotherapists.
70Owing to the fact this plan proposes goals that do not reflect the documented impairments and limitations, and the uncertainties around whether the proposed service provider is able to carry out all the required tasks to reasonably meet the goals, I cannot find this treatment plan to be reasonable and necessary.
Invoice for chiropractic, physiotherapy, and acupuncture services dated June 16, 2022: cost $80.00
71I find this invoice is not reasonable or necessary for reasons that follow.
72The invoice was submitted for $801.93. The respondent approved $721.93 of this cost. The remaining $80.00 in dispute pertains to what is described as “FISIOCREM” on the invoice, which the respondent denied because it was not included in the corresponding treatment plan (dated June 28, 2021). The link to more information on the invoice indicates the code used for this entry (GXX99) is an “other” category that requires a description of the goods or service. A clear description was not provided on the invoice as required, and the applicant did not address this sufficiently in his submissions.
73I cannot decipher what the remaining $80.00 on this invoice pertains to. I find the applicant has not met his onus of proof here and I am not persuaded that this expense is reasonable and necessary.
Attendant care benefits: cost $2,992.55
74I find the applicant is not entitled to attendant care benefits for reasons that follow.
75Section 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aide. Section 3(7)(e) of the Schedule provides that a person has “incurred” an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.
76The definition of “incurred” in section 3(7)(e) sets out two categories of attendant care providers:
i. Professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and
ii. Non-professional service providers who sustained an economic loss as a result of providing the goods and services.
77In addition, under section 19(3)4 of the Schedule, the amount of attendant care benefits payable is limited to the economic loss sustained by a non-professional care provider while, and as a result of, providing the attendant care.
78For insured persons who sustain a non-catastrophic impairment because of an accident, section 19(3)1. i. of the Schedule limits the amount of attendant care benefits payable to $3,000.00 per month.
79The applicant bears the onus of establishing entitlement to this benefit on a balance of probabilities.
The applicant did not establish proof of economic loss to provide attendant care
80In this case, the applicant must show economic loss was sustained by the family members who provided attendant care per section 19(3)4 of the Schedule. I find the applicant failed to do so.
81The applicant points to section 19(2) of the Schedule as what he needs to show to prove eligibility, and asserts he has done that. The $2,992.55 per month sought by the applicant is broken down in the Assessment of Attendant Care Needs (the “Form 1”) completed by Mr. Amchislavsky on December 7, 2021. Mr. Amchislavsky uses hourly rates in his calculation that appear to be based on the Superintendent’s Guideline (the “Guideline”).
82I do not accept this calculation. The persons alleged to have provided personal care to the applicant after his 2021 accident are immediate family members who would qualify as non-professional attendant care providers under section 3(7)(e) of the Schedule. As such, the rates prescribed by the Guideline do not apply because section 19(3)4 of the Schedule limits the amount of attendant care benefit payable to the amount of economic loss sustained by these family members.
83The applicant did not produce compelling evidence—whether through testimony or documentation—of economic loss sustained by the family members who provided him with attendant care. Mr. Amchislavsky indicated he did not provide any attachments to the Form 1 he completed. Therefore, the applicant has not shown proof of economic loss per section 19(3)4 of the Schedule.
84The applicant asserts that limiting the maximum entitlement to the economic loss of the service provider represents an absurd outcome because this calculation has no bearing on what the applicant actually needs, and because the applicant lacked the resources to pay for professional care. The applicant suggested his benefit should not be calculated per the limitations in the Schedule because the legislation does not intend absurd consequences.
85I disagree. It would be an error of law for the Tribunal to ignore the maximum entitlement limitations set out in the Schedule. I am unaware of any exception to section 19(3)4 of the Schedule that provides the Tribunal with jurisdiction to set aside the economic loss provision.
86I recognize the applicant’s family members have likely spent many hours providing attendant care to the applicant since his 2021 accident. And I am sensitive to the high value placed on this assistance by the applicant. However, the Schedule reflects a clear intention on the part of the legislature to compensate non-professional attendant care providers only up to the amount of their economic loss. The applicant bears the onus of establishing economic loss on a balance of probabilities and, in this case, has not produced any compelling evidence to meet this burden. Because the applicant failed to establish economic loss, he has not met his onus in proving he incurred $2,992.55 per month for attendant care, and I cannot grant the order he seeks.
Interest
87There are no benefits payable, therefore no interest is owing.
Award
88The applicant claims an award under Regulation 664 for unreasonably withheld or delayed benefits. The well-established standard for awards under Regulation 664 set out in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co. is conduct that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
89Since there are no benefits found to be owing, the applicant’s award claim is moot.
ORDER
90The application is dismissed.
Released: October 31, 2023
Michael Beauchesne
Adjudicator