Murray v. Aviva General Insurance, 2023 CanLII 87413

Licence Appeal Tribunal

Citation: Murray v. Aviva General Insurance, 2023 ONLAT 21-001492/AABS Licence Appeal Tribunal File Number: 21-001492/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:

Louis Murray Applicant

and

Aviva General Insurance Respondent

DECISION

VICE-CHAIR: Jeremy A. Roberts

APPEARANCES:

For the Applicant: Louis Murray, Applicant Kate Barretto, Counsel

For the Respondent: Suzanne Clarke, Counsel

HEARD: In Writing

OVERVIEW

1Louis Murray, the applicant, was involved in an automobile accident on March 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2On March 13, 2022, the applicant passed away. The application has been continued by his Litigation Guardian, Maria Jeanne Murray.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to attendant care benefits (ACB) of $3,332.13 per month (less amounts of approved) from March 10, 2021 to date and ongoing?

ii. Is the applicant entitled to $1,049.24 ($1,997.37 less $948.13 approved) for an occupational therapy (OT) in-home assessment, proposed by Functionability in a treatment plan dated February 8, 2021?

iii. Is the applicant entitled to $2,541.21 ($4,037.96 less $1,396.75 approved) for OT services, proposed by Functionality in a treatment plan dated February 12, 2021?

iv. 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?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to $602.14 per month for ACBs from March 10, 2021 to March 13, 2022.

5The applicant is entitled to $743.13 for an OT in-home assessment.

6The applicant is entitled to $1,995.25 for OT services.

7The applicant is entitled to interest.

8The applicant is not entitled to an award.

ANALYSIS

9The parties agree that the applicant is entitled to an ACB and to the treatment plans in dispute, which have all been partially approved, but disagree on quantum.

10On these quantum disputes, the issues turn on whether with the Tribunal prefers the findings of OT Leung (the applicant's position) or OT Oatman (the respondent's position).

11For the two treatment plans in dispute, the initial treatment plans utilized the catastrophic impairment hourly rates as outlined in the FSCO Professional Services Guideline, as the applicant then believed that he was catastrophically impaired. The applicant now concedes that he is not catastrophically impaired, meaning that these calculations need to be reduced based on the appropriate hourly rate.

The applicant is entitled to $602.14 per month for ACBs

12I find that the applicant is entitled to $602.14 per month for ACBs from March 10, 2021 to March 13, 2021. While I reject certain recommendations from the applicant's OT as not reasonable and necessary, I do find that OT Leung's recommendation for mobility support is reasonable and necessary.

13The issue in dispute is whether or not the applicant is entitled to ACBs at the rate proffered by OT Leung. Section 19 of the Schedule states that ACBs shall pay for all reasonable and necessary expenses that are incurred by or on behalf of an insured as a result of an accident for services provided by an aide, attendant or long-term care facility. The applicant bears the onus of proving on a balance of probabilities that the claimed ACBs are reasonable and necessary.

14The differences in OT Leung and OT Oatman's analyses of attendant care needs are summarized in this chart:

Functional Task	OT Leung (Applicant)	OT Oatman (Respondent)
Grooming	Recommended	Impairment not accident-related
Feeding	Recommended	Recommended
Mobility	Recommended	Not Required
Hygiene	Recommended	Impairment not accident-related
Basic Supervisory Care	Recommended	Recommended
Coordination Care	Recommended	Recommended
Exercise	Recommended	Recommended
Skin Care	Recommended	Not Required
Medication	Recommended	Recommended
Bathing	Recommended	Impairment not accident-related
Supplies/Equipment	Recommended	Not required

Given these differences, there are two questions which the Tribunal must consider in deciding the quantum of benefit owed: (1) Are the proposed costs for grooming, hygiene, and bathing related to the accident and, if so, are they reasonable and necessary?; and (2) are the proposed costs for mobility, skin care, and supplies reasonable and necessary?

15On question (1), the applicant argues that OT Oatman erred in not attributing all of the functional impairments to the accident. In particular, he argues that the functional impairments in dispute were caused by an increase in his general pain after the accident. In this regard, the applicant argues that the s. 44 assessment of physiatrist Dr. Oshidari, which found that some of the applicant's impairments were related to other medical issues as opposed to the accident, should not have been considered by OT Oatman given that Dr. Oshidari allegedly failed to canvass how the applicant's pain had changed post-accident. This omission, the applicant argues, undermines the argument that these functional impairments are not accident related.

16On question (2), of whether the proposed costs for mobility support, skin care, and supplies are reasonable and necessary, the applicant argues that OT Oatman neglected to consider the applicant's mobility outdoors where there may be limited objects available to help stay supported. He argues that ACB assistance to supervise the applicant outside the home is reasonable and necessary to assist in mobility outdoors. No submissions were made regarding skin care or the need for supplies.

17On question (1), the respondent argued that OT Leung only recommended assistance with grooming, hygiene, and bathing as a result of assessing the applicant while he was in the hospital for an unrelated liver issue. It argues that the applicant's difficulties with these functional tasks are as a result of his liver issues and an unrelated fall, and not the subject motor vehicle accident. It also argues that there is no medical evidence to substantiate the applicant's difficulties with these functional tasks as a result of the subject accident. The respondent argues that Dr. Oshidari did make specific reference to the Applicant's reported worsening of pain after the accident, but that this does not negate the arguments around causation advanced above.

18On question (2), when considering the need for mobility, the respondent argues that the applicant was able to ambulate using his walker or wheelchair without the need for any cueing or supervision during his assessment with OT Oatman. The respondent points out that the applicant made no submissions regarding the necessity of skin care support. The respondent made no submissions regarding the need for supplies.

19The parties also made submissions regarding the applicant's automatic entitlement to payment for ACBs incurred during the month of March 2021. The applicant argued that pursuant to s. 42(6) of the Schedule, upon receipt of a Form 1 an insurer shall begin payment of ACBs pending the receipt of a report from a s. 44 examination indicating otherwise. The applicant indicated that he incurred ACB for one month during March 2021 in the amount of $3,669.82. The respondent argued that there was no evidence presented to the Tribunal to demonstrate that this expense was incurred. Given the lack of evidence that this was incurred, I reject this argument by the applicant.

20In considering submissions from both parties on the causation of certain functional impairments (question (1)), it is incredibly difficult to parse out the issue of causation given the applicant's substantial medical history, which includes (but is not limited to): spinal stenosis, diabetes, hepatitis-c, seizures, a liver abscess, and a fall that required hospitalization. Much of the discussion turns on the report of Dr. Oshidari, who opines that "in relation to the motor vehicle accident, there is no structural or physiological abnormality. [...] from a physical point of view, there is no specific impairment due to the motor vehicle accident.".

21To establish causation, pursuant to Sabadash vs. State Farm et al., 2019 ONSC 1121, the applicant must establish that his impairments would not have occurred "but for" the accident. Apart from asserting that Dr. Oshidari did not consider the applicant's changing pain condition pre- and post-accident (which is incorrect, as Dr. Oshidari does this), the applicant does not advance a compelling case as to why these functional impairments in grooming, hygiene, and bathing would not have been present but for the accident. As such, I do not accept these items as part of the ACB quantum.

22When considering question (2), I arrive at a mixed conclusion. On the question of whether or not support for mobility is reasonable and necessary, I agree with the applicant. The respondent relies on OT Oatman, who does not question whether the applicant's mobility impairments are a result of the accident, but instead suggests that support in this area is unnecessary given that the applicant was observed ambulating throughout his apartment and building with the use of his walker and walls for support. However, as the applicant notes in their submission, this neglects to consider his mobility outside of the home, where extra supports to lean on (like a wall, etc.), may be in shorter supply. As such, I accept the applicant's submissions and am satisfied that this expense is reasonable and necessary. However, given that the applicant bears the positive onus of proving that the costs for skin care and supplies are reasonable and necessary, and given that no submissions were tendered on those issues, I do not find those expenses to be reasonable and necessary.

23Given this, I find that the applicant is entitled to the 637.00 total minutes per week for mobility support recommended by OT Leung in the Form 1. Using the calculation at the bottom of the Form 1, this would mean that the applicant is entitled to $602.14 for ACB from March 10, 2021 to March 13, 2022 (the date the applicant deceased) in addition to the amount already approved.

The applicant is entitled to $743.13 for an OT in-home assessment

24The applicant is entitled to $743.13 for an OT in-home assessment. I am satisfied based on his evidence and submissions that the costs recommended by OT Leung are reasonable and necessary.

25The issue in dispute is a medical and rehabilitation benefit. Sections 14 and 15 of the Schedule state than an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person's reintegration into his or her family, the rest of society or the labour market.

26The 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.

27Firstly, it should be noted that both parties now agree that the fees used in calculating this OT in-home assessment should not be the catastrophic impairment hourly rates. As such, the rates for OT Leung's OCF-18 must be reduced per the Professional Services Guideline from $119.92/hour to $99.75/hour. The revised total for OT Leung would be: $1,695.30 [(14.95 hours x $99.75) + $200.00 + $4.04]. This means that the amount in dispute is actually $747.17 ($1,695.30 less $948.13 approved).

28The differences between OT Leung and OT Oatman's analyses of reasonable costs for an OT in-home assessment are summarized in this chart:

Task	OT Leung	OT Oatman
Documentation (claim form)	1 hour	1 hour
Travel Time	2 hours	1 hour
Documentation (other)	6 hours	3 hours
Brokerage Service	3.95 hours	2 hours
PPE	$4.04	N/A
Assessment	3 hours	1.5 hours

29The applicant argued that the lengthier times recommended for travel time and assessment were a result of OT Leung needing to see the applicant in the hospital following a fall (unrelated to the subject motor vehicle accident). The applicant argued that the accident contributed to his condition in hospital, necessitating OT Leung's visit to the hospital before the applicant's return home. The applicant argued that the 6-hour documentation fee was reasonable as OT Leung produced a comprehensive 100-page document comprising a report, complete Form 1, 2 OCF-18s, and a medical history. Lastly, the applicant argued that the 3.95 hours for brokerage services was meticulously broken down to the minute by OT Leung to demonstrate his reasonable use of the time. No submissions were tendered on the reasonableness of the $4.04 charged for PPE.

30The respondent argued that extra time for travel and assessment in order to visit the applicant in hospital was not reasonable and necessary given that the applicant was hospitalized for non-accident-related reasons (a fall and liver abscess). It also argued that the hours proposed by OT Leung for documentation and brokerage services were excessive, based on OT Oatman's opinion. Lastly, it indicated that the proposed $4.04 for PPE was not a cost coverable by insurers.

31I agree with the applicant, in part. I find that a visit to the hospital by OT Leung was reasonable as it allowed him to see the applicant's functionality in a setting outside of the home and encompassing the full totality of his impairments (both accident related and non-accident related). Moreover, I am satisfied that the products of OT Leung's work in documentation and brokerage services (as evidenced by his report and file notes) demonstrate that the recommended hours were reasonable and contributed to a fulsome report. However, I do not find that the proposed $4.04 for PPE is a reasonable cost that can be covered under the Schedule, especially since the applicant is silent on this aspect.

32As such, the applicant is entitled to $743.13 ($747.17 less $4.04) in addition to the previously approved amounts for the OT in-home assessment.

The applicant is entitled to $1,995.25 for OT services

33The applicant is entitled to $1,995.25 for an OT treatment plan. The dispute here turned on whether I agreed with OT Leung or OT Oatman's proposed number of sessions required. Overall, I found OT Leung's recommendation to be reasonable and necessary.

34The test for entitlement is the same as set out in paras 24-25, above.

35Like the last issue, both parties now agree that the fees used in calculating this OT treatment plan should not be the catastrophic impairment hourly rates. As such, the rates for OT Leung's OCF-18 must be reduced per the Professional Services Guideline from $119.92/hour to $99.75/hour. The revised total for OT Leung would be: $3,424.32 [(32 hours x $99.75) + $200.00 + $32.32]. This means that the amount in dispute is actually $2,027.57 ($3,424.32 less $1,396.75 approved).

36On this issue, OTs Leung and Oatman disagreed on the number of sessions recommended for OT services. OT Leung recommended eight sessions, while OT Oatman recommended four sessions.

37The applicant argued five years of ongoing accident-related physical impairments make eight sessions reasonable and necessary to address the applicant's functional challenges. Moreover, he challenged OT Oatman's findings, arguing that she failed to explain why four sessions were more reasonable than eight sessions and that she later contradicted herself by approving a subsequent OCF-18 recommending a further 10 treatments, citing small improvements from treatment.

38The respondent does not make submissions on why four sessions of OT were more appropriate. Instead, it takes issue with OT Leung's breakdown of time, specifically arguing that his hours for travel, documentation, and brokerage services was excessive. Moreover, it argued that the proposed PPE cost was, again, not a cost covered by the insurer.

39I agree with the applicant, in part. Both parties agree that some level of OT services is a reasonable and necessary expense that had demonstrated some benefit for the applicant. The applicant has clearly demonstrated functional impairments, which both OTs link to the accident (as discussed above), and which demonstrate that the applicant could reasonably benefit from treatment aimed at ameliorating those impairments. I see no reason to disregard OT Leung's recommendation in favour of OT Oatman's, especially given that OT Oatman provides little rationale for her decision to recommend only four sessions. However, I again do not find that the proposed $32.32 for PPE is a reasonable cost that can be covered under the Schedule, especially since the applicant is again silent on this aspect.

40The applicant is entitled to $1,995.25 ($2,027.57 less $32.32) in addition to the previously approved amount for the proposed OT treatment plan.

The applicant is entitled to interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

42The applicant is owed interest on the amounts owing above.

The applicant is not entitled to an award

43The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Provide the basis for the award. Identify the response.

44The applicant argued that the respondent unreasonably withheld payment as they should have known that OT Oatman's "treatment recommendations were not supported by her own observations and conclusions regarding the applicant's functionality". The respondent objected to this claim, arguing that OT Oatman made sound recommendations based on the review of medical documentation.

45I agree with the respondent. There was nothing in evidence that suggested that the respondent acted unreasonably. This was a dispute between two reasonable positions advanced by OTs Leung and Oatman and on various issues I found both to be compelling. I do not find that the applicant is entitled to an award.

ORDER

46I order the following:

i. The applicant is entitled to $602.14 per month for ACBs March 10, 2021 to March 13, 2022.

ii. The applicant is entitled to $743.13 for an OT in-home assessment.

iii. The applicant is entitled to $1,995.25 for OT services.

iv. The applicant is entitled to interest.

v. The applicant is not entitled to an award.