21-005179/AABS
Licence Appeal Tribunal File Number: 21-005179/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:
Davood Mirzaie
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Terry Prowse
APPEARANCES:
For the Applicant:
Davood Mirzaie, Applicant
Manreet Pabla, Counsel
For the Respondent:
Debbie Sawyer, Adjuster
Korte Catherine, Counsel
Heard by Videoconference:
October 3, 4, 5 and 6, 2022
BACKGROUND
1Davood Mirzaie, (“applicant”), was involved in an automobile accident on September 14, 2011. The Wawanesa Mutual Insurance Company (“respondent”) subsequently deemed him to be catastrophically impaired.
2The applicant sought certain benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, which were denied. He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution to the dispute.
ISSUES IN DISPUTE
3Following a case conference and several motions, the parties agreed that the following issues were in dispute:
a. Is the applicant entitled to $87,300.00 for other goods and services, proposed by Valiant Recovery in Kelowna, BC in a treatment plan/OCF 18 (“plan”), submitted on February 19, 2021?
b. Is the applicant entitled to attendant care benefits (ACB) of $6,000.00 per month, less amounts approved from July 1, 2021 to date and ongoing?
c. Is the applicant entitled to $65,312.65 for the cost of a new vehicle, proposed by Deborah Melamed, OT, in a plan dated July 8, 2021?
d. Is the applicant entitled to $1,525.00 for physiotherapy services, proposed by the Broadway at Yew Clinic in an OCF-6 dated November 1, 2021?
e. Is the applicant entitled to Air BnB rental expenses in the amount of $5,281.26 in Vancouver for the period of December 15, 2021 to January 17, 2022?
f. Is the applicant entitled to $22,472.54 for Air BnB rental expenses, proposed by James Moorthy in a plan dated November 2, 2021?
g. Is the applicant entitled to $276.85 for physical pain relief, 60 minutes float treatment and nutrition follow-up, submitted on an OCF-6 claim form on April 4, 2022?
h. Is the applicant entitled to $24,047.48 for a rehab support worker, proposed by James Moorthy in a plan dated Sep 22, 2021?
i. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
j. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I conclude that the applicant is not entitled to any of the items sought in this application.
MOTIONS
5Both parties submitted Notices of Motion that were heard and decided prior to moving to the substantive issues in dispute.
Motion to include the witness notes of James Moorthy
6The applicant requested that the notes of James Moorthy, occupational therapist (OT), be admitted into evidence. The applicant argued that the notes were relevant because Mr. Moorthy was the treating OT during the period in question and had completed the attendant care assessment and Form 1 in dispute. The applicant stated that it thought the notes would be available in a document set that was requested from the assessment company, but discovered they were not. The applicant submitted that there was no prejudice to the respondent, as it was always aware that the OT would be called as a witness. If I determined that there was prejudice to the respondent, the applicant argued that it would be minimal and easily cured with the respondent’s ability to cross examine James Moorthy on his 22 pages of notes.
7The respondent objected on the basis that the notes were not produced by the production exchange date of May 10, 2022 that was set by the Tribunal in its August 11, 2021 Case Conference Report and Order. The respondent submitted that the applicant knew that James Moorthy was to testify and had ample time to request his records. The respondent claimed that it would be prejudiced, in part, because the notes include entries that are not contained in the report, and therefore include information that was not available to the respondent or its witnesses.
8I admitted the notes of James Moorthy into evidence. While the notes were not produced by the ordered exchange date, s. 15(1) of the Statutory Powers Procedure Act (“SPPA”) permits the Tribunal to admit any document or thing as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, that is relevant to the subject matter of the proceeding. I find that the notes are relevant, as the OT treated the applicant and completed some of the OCF-18 Treatment Plans (“Plan”) in dispute. If required, the notes may clarify why James Moorthy made the recommendations he did, which is the very reason why expert witnesses are called to testify. Further, the respondent’s acknowledgement that the notes contain information that was not in James Moorthy’s reports clearly indicates that it already reviewed the notes. I see no prejudice to the respondent that cannot be alleviated by having an opportunity to review the notes further, if required, and cross-examine the OT. In this instance, the probative value of the notes outweighs any perceived prejudicial impact.
Motions to exclude the Attendant Care Needs report and testimony of Ashok Jain, OT
9The Attendant Care Needs report and testimony of Ashok Jain are excluded.
10On June 9, 2022, the applicant submitted a supplemental hearing brief that contained a s. 25 Attendant Care Needs report by Ashok Jain. On July 12, 2022, the applicant submitted Ashok Jain’s curriculum vitae and Acknowledgement of Expert’s Duty form. On August 2, 2022, the applicant emailed an amended witness list schedule to the respondent and Tribunal, which now included the name of Ashok Jain.
11On July 29, 2022, the respondent submitted a Notice of Motion requesting that the notes and testimony of Ashok Jain, OT, be excluded. The respondent stated that the applicant submitted the notes on June 9, 2022, which was beyond the May 10, 2022, cut-off date ordered by the Tribunal. The respondent noted that within four days of receiving the notes, it scheduled a responding s. 44 insurer’s examination by Linda Cottrell, OT. However, the examination and report would not be available by the time of the hearing, originally set to commence on August 8, 2022. The responded submitted that it would be prejudicial to allow the notes and testimony of Ashok Jain, in the absence of competing reports and testimony.
12The hearing was adjourned to October 2022. On September 9, 2022, the respondent submitted a supplementary Notice of Motion. The respondent added that according to Linda Cottrell’s report, she attended the applicant’s home in August 2022, to conduct the s. 44 attendant care assessment. The applicant spoke in an inappropriate volume and used profanity, which she perceived as offensive. The OT wrote that the applicant threatened to throw himself off the Danforth Bridge if her report caused him to lose his attendant care services. She considered this a direct threat to what she could and could not write. She further reported that the applicant refused to engage in any physical or functional testing whatsoever because he found it degrading. Without this information, the OT was unable to opine on the attendant care needs of the applicant and was required to terminate the assessment. The respondent was unable to book a second assessment with the same company because they would not undertake another session with the applicant. The respondent notes that over the years, the applicant participated in several s .25 assessments when they were performed by his own assessors.
13The applicant submits that his filing of the report complies with Rule 9.2 of the LAT Rules, which states that all documentary evidence must be disclosed at least 10 days before the hearing. He states that it is also in compliance with Rule 10 of the LAT Rules, which requires disclosure of expert witness names, reports, and identifications at least 30 days before the hearing. The applicant claims that it was due to his unstable mental and behavioural condition that the s. 44 IE was not completed.
14The applicant denies that there is any prejudice to the respondent that cannot be remedied through a review of the report and questioning of Ashok Jain, or in the alternative, by giving the respondent additional time to complete another s. 44 IE that it had already scheduled in two days time. He submits that the report and testimony are necessary for the applicant’s claim for attendant care benefits. The applicant asks the Tribunal to use its discretion to include the s. 25 Attendant Care Assessment and Form 1 and allow Ashok Jain to testify.
15As stated, s. 15(1) of the SPPA authorizes the Tribunal to admit any document or thing as evidence at a hearing that is relevant to the subject matter of the proceeding. However, logically relevant evidence may be excluded if its probative value is outweighed by its prejudicial effect: the Tribunal exercises its discretion to balance these factors when deciding whether to admit evidence.
16In this case, the applicant applied to the Tribunal based on a Form 1 and Attendant Care Needs report by James Moorthy, whose notes, report and testimony are available to the parties. The applicant later obtained a s. 25 assessment in further support of his claim. As was its right, the respondent answered by scheduling a competing s. 44 OT assessment. Had those events occurred, there would have been no need for this motion.
17But that is not what occurred. The applicant participated in the s. 25 OT assessment in support of his claim but refused to actively participate in the insurer’s s. 44 OT assessment, which included important functional testing. I do not accept that his refusal to participate was due to his mental health, as no evidence has been submitted to support that theory and he was certainly willing and capable of being assessed by his own assessors when required. His statements to the s. 44 assessor in question reflect more on him not wanting to lose benefits.
18With no competing s. 44 assessment, the respondent would be left to respond to the claim with its own dated information and functional testing data, while the applicant was supported by new information and functional testing data. The applicant’s submission that any prejudice can be alleviated by allowing him to participate in the second s. 44 assessment is not reasonable. It would cause an excessive delay to the hearing schedule to undertake the assessment, wait for and receive the OT’s final report, and provide ample time for the respondent to consider a reply. In this instance, I must conclude that the probative value of the evidence is outweighed by its prejudicial impact to the respondent.
ANALYSIS
Issues a, e, f and h: Valiant Recovery rehabilitation treatment plan, Air BnB expenses and RSW services
19I find that the applicant has not met his burden of demonstrating that the treatment plan for $87,300.00, relating to rehabilitation services in Vancouver, BC, or the expenses associated with an Air BnB rental were reasonable and necessary. Further, the provision of a rehabilitation support worker during the period when the applicant was in British Columbia was not necessary.
20To be entitled to the medical/rehabilitation treatment plans claimed, the applicant bears the onus to show that they are reasonable and necessary. To be reasonable and necessary, the goals of the treatment plan must be reasonable, the goals must be reasonably met, and the cost of the treatment plan must be reasonable. The applicant did not meet his onus.
21I accept that the applicant’s submission that he requires in-patient treatment for alcohol addiction. The respondent did as well, given that it authorized more than $58,000.00 for it in July 2022, at a location in the province where the applicant resides. However, I cannot accept that it would be reasonable or necessary for it to be undertaken in British Columbia.
22The applicant’s submissions regarding whether treatment in British Columbia would be reasonable and necessary were limited. He did not submit evidence to suggest that treatment in that province would somehow be better for his recovery or that the costs would be more conducive to his ongoing care. He did not submit evidence, including that from any treating healthcare professionals, who believed that treatment in BC would be a reasonable and/or preferred option. From the applicant’s own testimony, he decided to travel to potentially meet someone.
23In my view, I find the respondent’s arguments for why medical/rehabilitation treatment in BC was not reasonable or necessary to be more persuasive. Although the respondent accepted that the applicant required medical/rehabilitation care for his alcohol addiction, and indeed authorized more than $58,000.00 of it at a facility in Ontario, his case manager wrote that the applicant chose not to pursue it. While there were no medical/mental health professionals who supported treatment in BC, there were several who recommended treatment in Ontario facilities such as Bellwood or the Canadian Centre for Addictions. This includes Dr. Zielinski, the s. 44 psychiatric assessor, who considered both options and preferred the Ontario facilities, specifically because the applicant would be potentially less successful when distanced from his family and support network.
24Regarding the applicant’s claim for $24,047.48 for RSW services, there was disagreement between the parties as to whether the RSW services were to be performed in-person or virtually, while the applicant was in BC. I conclude that the issue is moot, given my finding above. If the RSW services were to be performed in-person in Toronto, the applicant was not in the province to receive them. If they were to be performed virtually, there should have been no requirement for an additional claim beyond the services already provided. If the services were to be performed in BC, I’ve concluded that treatment at that location was not reasonable and necessary.
25As I have found that none of the services above were reasonable or necessary, it follows that any temporary housing in BC for said services would not be reasonable or necessary either.
26The treatment plans associated with medical/rehabilitation treatment, occupancy of an Air BnB and RSW services while the applicant was in Vancouver, British Columbia are not reasonable or necessary.
Issue b: Attendant Care Benefit
27The applicant has not met his burden of showing that the treatment plan is reasonable or necessary.
28To establish entitlement to an ACB, the applicant bears the burden to prove that the ACB expenses are reasonable and necessary and are incurred pursuant to section 19(1) of the Schedule. Under section 3(7)(e)(iii), an expense is not considered incurred unless the person who provides a service did so in the course of his or her employment, occupation or employment in which he or she would ordinarily have been engaged but for the accident or sustained an economic loss as a result of providing the goods or services to the insured person.
29The applicant argues that he requires an ACB of $6,000.00 per month, less amounts approved. He relies on an Assessment of Attendant Care Needs form completed by James Moorthy on November 5, 2020, and an Assessment of Attendant Care Needs Report completed by the same OT on November 12, 2020. A similar claim was denied by the Tribunal in May 2019. In essence, the applicant argues that beyond physical assistance, he also requires 24 hours per day of skilled supervisory care.
30The respondent denies that the ACB claim is reasonable. It alleges that the applicant’s claim that his condition has worsened is contradicted by the evidence and is a re-argument of a similar application that was denied by the Tribunal in 2018. It notes that the applicant reported rather significant improvements to his physical and emotional symptoms and improved in both anxiety and depression symptoms during testing with Dr. Zielinski, in March 2021. It points to the June 8, 2021 s. 44 report by Katherine Blaney, who found that the applicant’s psycho-emotional symptoms had improved. Apparently, the applicant agreed with her.
31First, I can certainly accept that the applicant requires a degree of attendant care assistance for his daily functioning, as the respondent did. However, I cannot conclude that the entirety of the evidence remotely suggests that he requires skilled supervisory care, to the degree claimed. Second, he is clearly able to operate a vehicle without supervision. He was capable of traveling to BC and living in that location without skilled supervisory care. Third, there are no documented concerns by any medical professional related to him falling from the balcony due to intoxication, as his OT suggested.
32Finally, of most concern is the information provided by James Moorthy in his November 12, 2020 report. Only one paragraph was dedicated to his findings related to the applicant’s need for 24-hours per day of skilled supervision, all of which was subjective and speculative. Mr. Moorthy clearly acknowledged that the applicant had not disclosed any plans to end his life. However, that detail appears to have been unimportant because he then made a speculative leap, finding that because the applicant had a history of binge drinking, he could be “at great risk” of falling from his balcony on days when he was inebriated. This was the primary reason for recommending 24-hours per day of skilled supervision at the exorbitant cost of $10,120.48 per month. This, notwithstanding there being no evidence of such previous incidents by the applicant. That portion of the report is not at all credible.
33The ACB is denied.
Issue c: $65,312.65 for the cost of a new vehicle
34The applicant has not met his burden of showing that the treatment plan is reasonable or necessary.
35The applicant argues that a new vehicle is necessary to regain a sense of independence and help return to pre-accident level of function. He has not submitted supportive medical evidence. He relies on driver/passenger assessments conducted by Deborah Melamed, and her follow-on July 19, 2021 treatment plan to support the purchase of a new vehicle. However, Ms. Melamed’s assessment was targeted solely to the investigation and purchase of a new vehicle and provided little-to-no consideration for other options.
36The respondent contends that the treatment plan is not reasonable and necessary because it did not take into consideration the applicant’s substance abuse, or public safety. It submits that the treatment plan is inconsistent with the March 22, 2021 report of Dr. Zielinski, who found that the applicant continued to engage in the hazardous use of drugs and alcohol, and his operation of a motor vehicle would be unsafe.
37Given clear evidence of the applicant’s substance abuse, reported driver/passenger anxiety and no guarantee that the issues will be overcome, I am perplexed why a new vehicle was apparently the OT’s sole consideration. A fulsome assessment to support the applicant’s rehabilitation and independence should have included all reasonable options, such as public transportation services, leasing a vehicle, or driver services where required. No such analysis was provided in this case, and I cannot conclude that the treatment plan considered all available options. Therefore, it was not reasonable and necessary.
Issue d: $1,525.00 for Physiotherapy Services
38The applicant is not entitled to the disputed services.
39Section 38 of the Schedule deals with claims for medical or rehabilitation benefits, as this is. Subsection 38(2) is clear; the respondent is not liable to pay for a medical or rehabilitation expense that was incurred before the applicant submits a treatment plan.
40The applicant undertook physiotherapy, massage and chiropractic treatment while he was temporarily located in BC, as recorded in an OCF-6 expense claim. The applicant admits that an OCF-18 was not submitted to the respondent prior to incurring the treatments, arguing that the treatment provider did not have access to HCAI. The applicant notes that the respondent authorized and continues to pay for the applicant’s physiotherapy treatment and submits that his pain symptoms remain undisputed.
41The respondent disagrees that the applicant is entitled to the denied treatment, quoting section 38(2) of the Schedule as the basis for denial.
42I do not accept the applicant’s reasoning for not submitting a treatment plan to the respondent. He understood he was traveling to BC, should have known that he would require ongoing treatment while there, and could have arranged such treatment with his treatment team in Toronto. That did not occur.
43Whether the respondent previously authorized the same treatment in the applicant’s city of primary residence is of little persuasion. Under section 38(2)(a) of the Schedule, without express, prior notification from the respondent that it would pay medical/rehabilitation expenses without a treatment plan, it was not required to do so.
Issue g: $276.85 for float escape therapy
44The applicant has not established entitlement to the disputed treatment.
45The applicant submits that he has attended a few sessions of float therapy, which were beneficial to his chronic pain. He argues that the respondent’s denial for this specific treatment session is contradicted by a previous approval for identical expenses. He relies on an April 4, 2022 OCF-6 Claim Form.
46The respondent disagrees. It observes that no treatment plan was submitted by the applicant, and no health practitioner completed a treatment plan certifying that the therapy was reasonable and necessary. The respondent stated that the treatment was denied because float therapy is experimental.
47I agree with the applicant’s statement that the respondent is required to provide clear reasons as to why it denied a treatment plan. It would have also been helpful for the applicant to know why identical treatment was approved in 2021 yet denied in 2022. However, in this case, the respondent did clearly indicate that the specific treatment session was denied because it was experimental.
48I disagree with the applicant's inference that treatment should be authorized on the basis that it had been approved before. Section 15(2)(a) clearly indicates that an insurer is not liable to pay for goods and services that are experimental in nature. While the respondent had authorized identical treatment in the previous year, that could have been in error, albeit in the applicant’s favour. Further, the mere fact that the respondent authorized prior treatment does not necessarily lead to the authorization of the current treatment plan. If the applicant disagreed that the treatment was experimental, he should have presented medical evidence/opinions stating so. He did not.
49Further, as stated above, under section 38(2)(a) of the Schedule, the respondent is not liable to pay medical/rehabilitation expenses without a treatment plan, unless it has provided notification to the insured that it will do so.
50The benefit for float therapy treatment is denied.
Issue i: Award
51The applicant is not entitled to an award.
52Section 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.
53The applicant submits that a 50% award is warranted because the respondent unreasonably withheld or delayed payments of benefits or expenses. The respondent contends that it has acted reasonably and in good faith while adjusting the applicant’s claim, and states that no award is owing.
54While the respondent denied the claim, I cannot conclude that it did so unreasonably. Its stated reasons for the denial are supported by the Schedule.
Issue j: Interest
55Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
56The applicant is not entitled to the claimed cost of a new vehicle, ACB, Air BnB expenses, or medical/rehabilitation expenses. An award is not warranted, and interest is not payable. The application is dismissed.
Released: March 16, 2023
__________________________
Terry Prowse
Adjudicator