Licence Appeal Tribunal File Number: 21-006109/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:
Muhammad I. Awan
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Bhavpreet Saini, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Muhammad I. Awan (the “applicant”) was involved in a motor vehicle accident on February 24, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (the “respondent”) denied a claim for attendant care benefits (“ACB”) and a number of treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to ACB in the amount of $1,231.80 per month from February 24, 2018 to date and ongoing?
Is the applicant entitled to $1,220.55 ($4,852.98 less $3,632.43 approved) for psychological treatment, proposed by Alcat Medical, in an OCF-18/treatment plan denied on April 7, 2020?
Is the applicant entitled to $2,200.00 for occupational treatment, proposed by Alcat Medical, in an OCF-18/treatment plan denied on May 6, 2020?
3In correspondence dated November 18, 2022, the applicant withdrew issues listed as #3, #4, #6, #7, #8, #9, and #10 in the Case Conference Report and Order (“CCRO”) dated March 31, 2022 that set this matter down for a written hearing. Accordingly, they have been removed from the list of items in dispute.
4I have also adjusted the amount of issue #2 above from what was noted in the CCRO, as both the applicant and the respondent confirmed in their submissions that this treatment plan was partially approved.
RESULT
5The applicant is not entitled to ACB or the treatment plans.
ANALYSIS
Procedural Issue – Alleged Improper Submissions
6In submissions, the respondent argues that paragraphs #2-4 and #6-9 of the applicant’s written hearing submissions should be excluded from evidence. It contends that the applicant has provided no documentary evidence to support these paragraphs, and, additionally, that these paragraphs include statements that should have been provided by way of an affidavit. The respondent also points out that it was specifically noted in the CCRO dated March 31, 2022 that affidavits would not be submitted into evidence.
7The applicant does not comment on this matter in his initial submissions, and he did not file reply submissions.
8Despite the applicant’s silence, I exercise the authority granted to me by s. 15(1)(b) of the Statutory Power Procedures Act, R.S.O. 1990, c.22 (the “SPPA”) that allows me to admit “any document or other thing,” as I find that these paragraphs are “relevant to the subject-matter of the proceeding.” Further, the respondent has not provided specific examples of how the applicant ventured into areas most appropriately handled via affidavit in these paragraphs, and does not explain how these comments prejudice its ability to present its case.
9Accordingly, I decline to exclude paragraphs #2-4 and #6-9 of the applicant’s submissions from the evidentiary record.
Procedural Issue – New OCF-6 Issue
10I decline to address an Expenses Claim Form/OCF-6 matter listed by the applicant in submissions as an issue in dispute, as this is not an issue properly before the Tribunal.
11In the aforementioned correspondence to the Tribunal dated March 31, 2022 and in hearing submissions, the applicant withdrew all of the OCF-6 expenses issues noted in the CCRO. However, he then adds another OCF-6 in dispute to submissions, apparently for medication expenses. But the applicant does not note the amount being sought or include any supporting documentation, including the OCF-6 itself. Further, there is no indication that the applicant filed a motion with the Tribunal to add this issue.
12In its submissions, the respondent claims to be unaware of this expense, or that any OCF-6 claims still remained in dispute. Correspondingly, the respondent requests that this matter not be included as an issue in this hearing.
13I agree with the respondent, as the issue was not listed on the CCRO and the nature of it is quite unclear. As a result, I am not considering this additional OCF-6 in my decision.
Attendant Care Benefits (“ACB”)
14Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACB services provided by an aide or attendant.
15Section 42(1) of the Schedule provides that an application for ACB must be in the form of, and contain the information required to be provided in, an Assessment of Attendant Care Needs/Form-1.
16Section 42(5) establishes that an insurer may, but is not required to, pay an expense incurred before a Form-1 is submitted. Also, s. 20(1) of the Schedule sets 260 weeks from the date of the accident as the maximum period of ACB eligibility.
17Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, or is otherwise legally obligated to pay the expense. Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers who do so in the course of their ordinary employment, occupation, or profession in which they would have been engaged, but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.
18Lastly, s. 3(8) of the Schedule allows the Tribunal to find that an expense was incurred if the insurer unreasonably withheld or delayed payment of a benefit in respect on an expense.
19It is the applicant’s burden to demonstrate, on a preponderance of the evidence, that he is entitled to ACB, and that he has incurred the expense in accordance with the provisions of the Schedule noted above. Here, he claims entitlement on medical grounds, relying largely on clinical notes and records (“CNRs”) of his family doctor, a Form-1, physician assessment reports, and treatment plans detailing diagnoses and recommendations.
20The respondent submits that the applicant’s claim for ACB should be dismissed, as he has not adduced any evidence indicating that attendant care services have been incurred. It also challenges the eligibility period of the ACB claimed by the applicant, noting that the Form-1 was not submitted until April 29, 2020.
The applicant is not entitled to ACB as it has not been incurred
21I find that the applicant is not entitled to ACB, as he has failed to submit any evidence that attendant care services were incurred, pursuant to the requirement established in s. 19 of the Schedule.
22In his submissions, the applicant argues that ACB should be deemed reasonable and necessary based on his overall level of impairment as a result of accident-related injuries. Records of Dr. Olufemi Omiwole, family physician, indicate that the applicant was treated for complaints of neck pain, chest pain, lower back pain, right arm pain, and aggravation of right knee pain beginning three days post-accident in 2018 and continuing into 2020. A Disability Certificate/OCF-3 dated March 10, 2018 details similar injuries and sequelae, including sprain and strain of the cervical, thoracic, and lumbar spine; sprain and strain of ribs and sternum; radiculopathy (cervical); and headache.
23A Form-1 completed by Bushra Bayan, occupational therapist, and dated March 3, 2020 recommends a total of $1,231.80 in ACB per month. It lists 630 minutes per week in Level 1 attendant care for serving and providing meals; 135 minutes per week in Level 2 attendant care for hygiene (70 minutes for assisting with bathroom care, 20 minutes in assistance with bedroom chores such as making the bed and cleaning, and 45 minutes for assistance with clothing care); and 280 minutes per week in Level 3 attendant care (70 minutes in assistance administering medication, 35 minutes in assistance with transfers to and from bed and bath, 140 minutes for assistance bathing and drying, and 35 minutes for the application of creams, ointments, and lotions as required).
24However, I agree with the respondent that the applicant has submitted no evidence indicating that attendant care services were ever incurred as required by s. 19 of the Schedule and further defined in s. 3(7)(e). The applicant has submitted no invoices, no promissory notes, and no information about a service provider, whether that service provider be a professional or a non-professional such as a family member.
25Accordingly, as it is the applicant’s burden to demonstrate entitlement to ACB, I have no basis on which to find that he received goods or services for attendant care as recommended in the Form-1, that he has paid for any attendant care, or that he has promised to pay for any attendant care or is legally obligated to pay such expenses.
26Further, the applicant has not provided submissions on why the ACB expenses should be deemed incurred due to the insurer’s unreasonable withholding or delaying of the benefit, allowable under s. 3(8) of the Schedule. Accordingly, I do not deem ACB incurred, pursuant to s. 3(8).
27As the applicant has not met his burden and demonstrated that ACB was incurred, I decline to provide an analysis regarding the reasonable and necessary nature of the benefit, nor a ruling on the ACB eligibility period, as such is unnecessary.
28For the reasons detailed above, the applicant is not entitled to ACB.
The Treatment Plans
29To be entitled to a treatment plan under ss. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the plan for psychological treatment
30I find that the applicant is not entitled to the balance of the psychological treatment plan denied April 7, 2020, as he has not demonstrated it to be reasonable and necessary.
31This plan is apparently for psychotherapy treatment provided by Dr. Alana Tappin, psychologist. While the full $4,852.98 amount of this treatment plan was referenced in the aforementioned CCRO dated March 31, 2022, both parties make it clear that the insurer approved $3,632.43, leaving $1,220.55 in dispute. However, the applicant’s argument focuses on the entirety of the plan, not the components of the plan that were denied. He relies on the plan itself, along with a psychological consultation report dated February 18, 2020 that was completed by Dayana Romero, registered psychotherapist.
32The respondent counters that the applicant has not provided proper submissions that address the denied portion of this plan, and as such, he has not met his burden. It also notes that the applicant has not provided the OCF-18 in dispute, and for this reason the Tribunal cannot assess whether the plan is reasonable and necessary.
33I agree with the respondent.
34The applicant’s submissions do not address the denied portion of this treatment plan. Instead, and as the respondent correctly points out, the applicant addresses the totality of the plan by restating the rationale provided for the OCF-18 when it was submitted and partially approved. As the respondent has also noted—and substantiated with the production of an Explanation of Benefits letter dated April 7, 2020 that details what portions of this plan were being denied and why—the dispute is about specific factors involving client-related supervision services, a progress report, and goods and services related to planning, preparation, and brokerage in excess of $200.
35As the applicant does not address any of these issues in its submissions, I cannot find that he has met his burden here. Essentially, his argument is solely focused on the reasonable and necessary nature of the psychotherapy sessions, which the respondent has already approved and is not at issue.
36Due to this finding, I decline to make a ruling on the applicant’s failure to provide the OCF-18, as it is unnecessary.
37Accordingly, the applicant is not entitled to the psychological treatment plan.
The applicant is not entitled to the plan for an occupational/ACB assessment
38I find that the applicant is not entitled to the treatment plan for an occupational assessment denied on May 6, 2020, as he has not demonstrated that it is reasonable and necessary.
39Based on a review of submissions and the OCF-18 itself, this treatment plan is for an occupational/attendant care assessment regarding the applicant’s claimed ACB needs, not the occupational treatment listed in the CCRO dated March 31, 2022. It was completed by Ms. Bayan and dated April 8, 2020. Goals of this assessment are to evaluate the applicant’s attendant care needs due to activity limitations around the home described as “disruptions with self-care, housekeeping, outdoor maintenance, work and leisure secondary to post accident injuries.”
40The applicant submits that this plan should be found reasonable and necessary. He relies on the OCF-18 itself.
41The respondent argues that the OCF-18 on its own is not sufficient to prove the plan reasonable and necessary without the support of objective medical evidence. It also relies on an occupational therapy insurer’s examination (“IE”) report completed by Nicholas Livadas, occupational therapist, on September 22, 2020, where it was concluded that the applicant did not require attendant care. Additionally, the respondent also claims that the treatment plan was incurred before the submission of the OCF-18, and is not liable to pay this expense in accordance with s. 38(2) of the Schedule.
42I agree with the respondent’s characterization of the applicant’s argument and evidence. In submissions addressing this treatment plan, all the applicant provides is a summary of the recommendations contained in the plan and references the OCF-3 as support for the applicant’s listed injuries and sequelae. He does not direct me to any medical evidence substantiating a need for this assessment.
43I also agree that the applicant incurred this treatment plan before submitting the OCF-18 to the insurer. The referenced occupational therapy/attendant care assessment was included in the applicant’s submissions, and clearly shows that it was completed on March 3, 2020. The respondent has submitted further documentation in the form of its copy of the OCF-18 and the EOB denial letter dated May 6, 2020 indicating that it did not receive this plan until April 29, 2020. The applicant does not mention this issue in his initial submissions, and he did not submit reply submissions to address the matter as raised by the respondent.
44Accordingly, the applicant is not entitled to this treatment plan as he has not met his burden and demonstrated it to be reasonable and necessary. The respondent is also not liable to pay for this plan as it was incurred before the submission of the OCF-18, in contravention of s. 38(2) of the Schedule.
ORDER
45The applicant is not entitled to ACB or the treatment plans.
46The application is dismissed.
Released: December 6, 2023 2023
Brett Todd
Vice-Chair