Rupani v. Travelers Insurance Company of Canada, 2023 CanLII 7293
Licence Appeal Tribunal File Number: 21-004893/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:
Malaika Rupani
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Wendy Sokoloff, Counsel
For the Respondent: Jane Cvijan, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Malaika Rupani (“M.R.”) was involved in an automobile accident on July 30, 2018, and sought benefits from the respondent, Travelers, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Travelers denied the benefits on the basis that it determined they were not reasonable and necessary. M.R. disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is:
a. Is M.R. barred from proceeding with her housekeeping benefit claim pursuant to section 55(1) of the Schedule?
ISSUES IN DISPUTE
3The issues to be decided in this hearing are:
a. Is the medical benefit in the amount of $3,355.00 for lidocaine injections, proposed by ORI Institute in a treatment plan (OCF-18), submitted June 25, 2019, reasonable and necessary?
b. Has M.R. sustained a catastrophic impairment as defined by the Schedule?
c. Is the rehabilitation benefit in the amount of $5,593.87 for an emotional support dog, proposed by Okell Rehabilitation Services in an OCF-18 dated June 2, 2021, reasonable and necessary?
d. Is M.R. entitled to housekeeping and home maintenance benefits of $100.00 per week from July 30, 2018 to date and ongoing?
e. Is Travelers liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to M.R.?
f. Is M.R. entitled to interest on any overdue payment of benefits?
4Travelers raised a preliminary issue that M.R. is barred from proceeding with her claim for the housekeeping benefit, with respect to her mother’s claim for housekeeping benefits.
5In her submissions, M.R. confirmed that her mother will be withdrawing her claim for housekeeping benefits. Accordingly, the preliminary issue is no longer in dispute.
RESULT
6M.R. has not established that the disputed OCF-18s are reasonable and necessary. No interest or an award is payable.
BACKGROUND
7M.R. was deemed catastrophically impaired in November of 2020. She was deemed to have a Class 5, Extreme Impairment, in all four spheres of functioning.
8As such, it is not necessary for me to make a determination as to whether M.R. suffered a catastrophic impairment as a result of the accident. This decision will focus on the remaining substantive issues in dispute.
ANALYSIS
Housekeeping and Home Maintenance
9Section 23 of the Schedule states that an insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
10The parties agreed that M.R. is entitled to a housekeeping benefit as a result of being deemed catastrophically impaired.
11However, the disagreement arises as it pertains to whether the services were provided by professionals doing so in the course of the employment in which they would have ordinarily been engaged, but for the accident.
12M.R. did not provide a detailed history of her regular housekeeping and home maintenance tasks that she was responsible for pre-accident. My determination of whether or not M.R. is entitled to the benefit turn on whether or not the services were incurred pursuant to s. 3(8) of the Schedule.
13In order to meet the definition of “incurred” M.R. must satisfy the following three criteria:
a. She must have received the services to which the expense relates;
b. She must have paid the expense or promised to pay the expense or is otherwise legally obligated to pay the expense;
c. The person(s) who provided the service did so:
i. In the course of his or her employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
ii. Sustained an economic loss as a result of providing the goods or services to the insured person.
14On November 16, 2021, Travelers brought a Motion for productions regarding incurred housekeeping. In a December 13, 2021 Order, Vice-Chair Hunter ordered that a week-to-week breakdown of the requested housekeeping benefit, along with evidence that the service providers were providing services in the scope of the employment they were ordinarily engage in.
15M.R. submits that she has provided all the information in her possession pertaining to the service providers. I note that the service providers advertised their services on Kijiji, and aside from claiming they are certified, there is no evidence that they meet the criteria for a professional as it pertains to “ordinarily have been engaged, but for the accident.”
16M.R. submits that the services provided by Sagroz Makhani, health care aid and Jayavani Jayakkumar, personal support worker, are payable for the period of April 4, 2021 to September 4, 2021. In this vein, she relies on Expense Claim Forms (OCF-6s) dated April 30, 2021 for services provided by Ms. Makhani; and July 2 and August 31, 2021 OCF-6s from Ms. Jayakkumar.
17Travelers submits that M.R. has failed to point to evidence that satisfies that Ms. Makhani and Ms. Jayakkumar ordinarily work in the capacity they advertise to so do.
18I agree with Travelers. While the OCF-6s have evidence of services rendered, I find this is not enough to satisfy that these are services that both providers are ordinarily engaged in. Travelers requested documentation to support this claim, however, at best, M.R. is only able to submit that, “to her knowledge Ms. Makhani and Ms. Jayakkumar were providing services in the scope of the employment they were ordinarily engaged in.”
19I find this does not establish that services advertised on Kijiji by service providers claiming to be certified, is sufficient evidence of ordinarily engaging in a claimed profession. The December 13, 2021 Order of Vice-Chair Hunter specifically indicated that M.R. was to obtain “evidence that the service providers were providing services in the scope of the employment they ordinarily engage in.” While there is no legislative requirement for certification for the services provided by a personal support worker or health care aid, there is also no evidence that this was a line of work that these services providers were ordinarily engaged in, but for this accident. The latter was a requirement on M.R. to establish by way of the December 13, 2021 Tribunal Order.
20On the evidence, I find that M.R. has not satisfied this requirement, by failing to direct me to any evidence that confirms the work that Ms. Makhani and Ms. Jayakkumar did prior to them providing their respective services to M.R. Consequently, M.R. has failed to meet her onus to establish on a balance of probabilities that her claim for housekeeping and home maintenance is reasonable and necessary.
Emotional Support Dog
21Section 38(2) of the Schedule sets out that an insurer is not liable to pay a medical or rehabilitation benefit, or an assessment or examination which was incurred by an insured person prior to the insured person submitting a treatment plan which satisfies the requirements set out within s. 38(3). There are four exceptions noted within s. 38(2).
22I find that the June 2, 2021 OCF-18 for an emotional support dog or the related expenses is not payable, as a result of M.R.’s failure to comply with the requirements set out in s. 38(2) of the Schedule.
23The OCF-18 was incurred on May 21, 2021, prior to submitting the OCF-18 to Travelers for approval. M.R. did not make any submissions regarding whether the exceptions listed in s. 38(2) apply, and I find that none of those exceptions are applicable in this matter. While I appreciate that M.R. incurred the expense and may actually find some benefit to having an emotional support dog, the requirements set out in s. 38(2) are clear. As such, due to her non-compliance with s. 38(2), M.R. is not entitled to payment for the OCF-18.
Lidocaine Injections
24Sections 14-16 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. M.R. bears the onus of proving on a balance of probabilities that recommended treatment is reasonable and necessary. I find that M.R. has not established that the OCF-18 for lidocaine injections is reasonable and necessary.
25There is no dispute that M.R. received lidocaine injections for approximately six months before submitting the OCF-18. M.R. submits that as her family physician diagnosed her with fibromyalgia and her physiatrist, have recommended the treatment, further lidocaine treatment is reasonable.
26In response, Travelers relied on the August 26, 2019 insurer examination (“IE) report of Dr. Oshidari, physiatrist, who opined that on physical examination, he was unable to find any structural or physiological abnormality. Dr. Oshidari also noted that M.R.’s response to lidocaine was only “30% improvement for two weeks”.
27I find M.R. has failed to meet her onus for several reasons. First, Dr. La Croix, general practitioner, notes in a report dated November 20, 2018 that the “cause of her pain is unknown at this time and appears to be more than what would be expected by her accident.” Dr. La Croix opined that her fibromyalgia may have been triggered by the accident, however, there is no definitive finding in the report that connects the fibromyalgia to the accident. Second, M.R. reported to her family physician, Dr. Cheng, in February 2019, that there was no improvement from recent lidocaine treatments. In February 2020, she reported to Dr. Cheng that she wanted to stop the lidocaine injections as “she did not think they provided lasting benefit.” At a November 26, 2019 visit to Dr. La Croix, M.R. reported that she missed her last lidocaine treatment session and felt that it does not seem to make much difference. I find her reports of the efficacy of the lidocaine treatments are not consistent, as she continued to report ongoing pain to her various treatment providers, while undergoing lidocaine treatments. Lastly, Dr. Oshidari’s determination that lidocaine injections are not reasonable and necessary for individuals experiencing depression and fibromyalgia is supported by the medical records.
28For the reasons above, I find that M.R. has failed to satisfy her onus to establish on a balance of probabilities, that the OCF-18 for lidocaine treatment is reasonable and necessary.
AWARD
29Having found that M.R. is not entitled to any benefits, Travelers cannot have been found to have unreasonably withheld or delayed payment of any benefits.
30Accordingly, no award is payable.
CONCLUSION
31M.R. has not established that the disputed OCF-18s are reasonable and necessary. No interest is payable.
32M.R. is not entitled to an award.
Released: January 30, 2023
Derek Grant
Adjudicator