Ciyayi v. Economical Insurance Company, 2023 CanLII 9229

Ciyayi v. Economical Insurance Company

Citation: Ciyayi v. Economical Insurance Company, 2023 ONLAT 19-005222/AABS

Licence Appeal Tribunal File Number: 19-005222/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:

Celal Ciyayi (By his Litigation Guardian, Metin Ciyayi)

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant: Saloumeh Baghbani, Counsel

For the Respondent: Lisa Armstrong, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant, Celal Ciyayi, was involved in an automobile accident on July 31, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the respondent, Economical Insurance Company, and he applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in this hearing are as follows:

a. Is the applicant entitled to attendant care benefits in the amount of $3,000 from July 31, 2016 to July 31, 2018?

b. Is the applicant entitled to $3,691.40 for physiotherapy services recommended by C.E.S. Physiotherapy & Rehabilitation in an OCF-18 submitted on March 9, 2017?

c. Is the applicant entitled to $2,662.94 ($5,978.84 less $3,315.90 approved) for physiotherapy and pool therapy recommended by Brain Injury Rehabilitation in an OCF-18 submitted on June 21, 2018 and denied on July 19, 2018?

RESULT

3The applicant has not discharged his evidentiary burden with respect to the disputed benefits. He has not established that he has incurred expenses for attendant care or that he is entitled to the medical benefits in dispute. The application is dismissed.

ANALYSIS

4The applicant must prove, on a balance of probabilities, that he is entitled to the benefits he seeks.² The applicant claims attendant care benefits and medical benefits. I will deal with each type of benefit in turn.

Attendant care benefits

5Section 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) provides that a person has “incurred” an attendant care 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.

6The definition of “incurred” in s. 3(7)(e) of the Schedule sets out two categories of attendant care providers:

a. 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

b. non-professional service providers.

7For the services of a non-professional care provider to be compensable under the Schedule, s. 3(7)(e)(iii)(B) stipulates that the care provider must have sustained an economic loss as a result of providing the goods and services. In addition, under s. 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.

8For insured persons who sustain a non-catastrophic impairment as a result of an accident, s. 19(3)1.i. of the Schedule limits the amount of attendant care benefits payable to $3,000.00 per month.

9The applicant submits he incurred expenses for attendant care provided by his brother, Yilmaz Ceyayi, between August and December 2016. He also submits he incurred expenses attendant care provided by Complex Care Medical and Health Services between June 2017 and April 2018.

The applicant has not established that he incurred non-professional attendant care

10Yilmaz Ceyayi, the applicant submits, is a non-professional service provider. As such, the Schedule requires proof that he sustained an economic loss while, and as a result of providing attendant care to the applicant. The applicant submits that Yilmaz Ceyayi sustained an economic loss of $3,164.44 monthly as a result of providing him with attendant care, which exceeds the $3,000.00 maximum he is entitled to claim per month for this benefit.

11The applicant submits that Yilmaz Ceyayi was forced to leave his job within two weeks of the accident to assist him with his attendant care needs. He relies on a letter from Maple Stucco dated September 14, 2016 which states that Yilmaz Ciyayi left his job “effective August 12, 2016” due to “family obligation reasons.” He submits that between April 18 and July 29, 2016, Yilmaz Ceyayi earned a total of $12,657.75 while working for another employer, Boot’s Landscaping.

12The respondent submits that according to Yilmaz Ceyayi’s Record of Employment (ROE) from Boot’s Landscaping, he left that job a week before the applicant’s accident. Therefore, it submits, it cannot be said that Yilmaz Ceyayi left his employment as a result of the accident, or that any economic loss he suffered from leaving his employment was as a result of providing the applicant with attendant care.

13The letter from Maple Stucco confirms that Yilmaz Ciyayi left his employment with that company in August 2016 due to family obligations, but despite the respondent’s request for an ROE or 2016 T4 from Maple Stucco, the applicant failed to provide this information.

14In my view, the applicant has not shown on a balance of probabilities that his brother Yilmaz Ceyayi sustained an economic loss as a result of providing attendant care. It is unclear why the applicant has not provided Yilmaz Ceyayi’s T4 or ROE from Maple Stucco, but these documents might have been helpful in establishing the extent of any economic loss Yilmaz Ceyayi sustained due to providing attendant care.

15The records of Yilmaz Ceyayi’s earnings from Boot’s Landscaping do not establish an economic loss related to attendant care, since Yilmaz Ceyayi’s employment with Boot’s terminated before the accident. The applicant submits that he has met his evidentiary onus, yet he has not made submissions or tendered evidence to show, for example, that Yilmaz Ciyayi had to forego other employment because of his attendant care responsibilities.

16The applicant has not argued that Yilmaz Ceyayi could have returned to employment with Boot’s or another employer after the accident and was prevented from doing so. However, even if I were to accept that possibility, the applicant has not shown that Yilmaz Ciyayi would otherwise have been earning employment income during the last five months of 2016 were it not for the applicant’s accident-related care needs. Without proof of economic loss, expenses for attendant care provided by a non-professional are not compensable under the Schedule. Therefore, the $15,000.00 claimed in attendant care from Yilmaz Ceyayi is not payable.

17Further, even if the applicant had proven that Yilmaz Ceyayi sustained an economic loss, the evidence he has tendered to show that attendant care was incurred does not indicate what services were provided, for how long, and when. The applicant has simply tendered two Expense Claim Forms (OCF-6s) and signed “promises to pay” Yilmaz Ceyayi for services provided. These records do little to demonstrate that the services provided by Yilmaz Ceyayi align with the services identified as necessary in the applicant’s October 2016 Assessment of Attendant Care Needs (Form 1). This information is necessary to determine whether the expenses claimed are “reasonable and necessary” under s. 19 of the Schedule.

The applicant has not established that he incurred professional attendant care

18The applicant submits he has received $33,275.00 in attendant care services through Complex Care. In support of his claim, the applicant has tendered an account summary from the clinic for care provided between June 2017 and April 2018, and a signed declaration from his litigation guardian that services were delivered during this period.

19The account summary contains 11 entries identified as invoices for attendant care in the amount of $3,025.00 per month from June 2017 to April 2018 inclusive. No further details are provided. The account summary does not indicate the nature or duration of the services the applicant received, and from whom.

20The evidence provided by the applicant does not establish that he received attendant care of the nature approved in his October 2016 Assessment of Attendant Care Needs (Form 1). Presumably, the care providers arranged through Complex Care were providing services in a professional capacity, but their names and occupations are not identified in the account summary, nor anywhere else in the evidentiary record. In the absence of this information, it is not possible to assess whether the services meet the definition of incurred under the Schedule.

The applicant has not complied with the respondent’s s. 42.6 requests

21Additionally, under s. 42.6 of the Schedule, an insurer is entitled to request particulars to properly assess an attendant care claim. An applicant will be barred from proceeding with such a claim if he does not comply with a s. 42.6 request, and that failure to comply prevents the insurer from determining its liability for an amount payable under an invoice. The respondent made multiple requests of the applicant under s. 42.6.

22The applicant failed to comply with those requests. The applicant submits the respondent has all the information it needs to assess his attendant care claim. I disagree. I find that the requests included information that the respondent reasonably required to determine the amount of attendant care benefits payable, including details of the services provided by both Yilmaz Ceyayi and Complex Care, and the names and occupations of the service providers who provided attendant care through Complex Care.

23For these reasons, the claim for attendant care cannot succeed. It is not necessary to engage with the respondent’s arguments on the applicant’s participation in the insurer’s examinations it requested, or its submissions on the applicant’s credibility.

Medical benefits

24The applicant bears the onus of establishing, on a balance of probabilities, that he is entitled to the medical benefits he seeks. Section 15 of the Schedule provides that medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.

25The applicant seeks payment for two treatment plans (OCF-18s). The first, dated March 9, 2017, is for physiotherapy services in the amount of $3,691.40. The respondent has fully approved this plan. The second plan, dated June 21, 2018, is for pool therapy and physiotherapy services in the amount of $5,978.84. The respondent has approved $3,315.90 of this plan.

26The applicant submits that despite the respondent approving the first treatment plan in full, it has not paid the invoices submitted by the clinic (one invoice was only partially paid, and another was not paid at all). The respondent submits that it has already paid for more sessions of physiotherapy under the first treatment plan than the applicant attended. In addition, it submits that the treatment notes from the clinic do not support the amounts invoiced, as the invoice includes dates when the applicant did not attend for treatment.

27The notes from CES Physiotherapy and Rehabilitation support the respondent’s submission that the applicant only attended five physiotherapy sessions (on March 9, 16, and 20, April 11, and June 9, 2017). It submits that these visits, according to the fees set out in the Professional Services Guideline, would amount to $498.75. The parties agree that the respondent has already funded $723.71 under this treatment plan.

28The applicant seeks an order that the respondent pay the $2,967.69 remaining under the plan, $872.85 of which it submits has already been incurred, and the rest he submits he will be entitled to when it is incurred in the future. On this point, the applicant relies on Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”).

29First, the respondent is only obligated to pay for services in accordance with the Professional Services Guideline. The applicant has not addressed in his submissions the respondent’s position that it has already paid more than the Guideline amount for the five sessions he attended. He submits that the respondent has not paid his invoice for the June 9, 2017 session, for which the clinic invoiced $174.57. The applicant has failed to demonstrate that he is entitled to more than the Guideline amount for an hour-long session of physiotherapy.

30Based on the evidence before me, I accept the respondent’s submissions that it has already paid more than the incurred amounts under the first treatment plan, and that it has fulfilled its payment obligations as set out in the Professional Services Guideline. It is unnecessary for me to make an order that the respondent pay the amounts the applicant may incur under this plan in the future. The applicant misapprehends the holding in Suarez. In that case, the court held that the insurer improperly refused to approve the treatment plans until they had been incurred. Here, the insurer approved the plan in full. The dispute is whether services have been provided in accordance with the plan, and whether the service provider has been properly reimbursed. On the evidence before me, I find that the respondent has fulfilled its obligations.

31The respondent has partially approved the second treatment plan based on the recommendations of Dr. Gilbert Yee. It did not approve the fee for a rehabilitation coach as Dr. Yee did not consider this necessary. The respondent submits that the applicant has never attended the pool therapy it agreed to pay for, and that this supports a finding that the applicant has no interest in attending pool therapy.

32I accept the conclusions stated in Dr. Yee’s August 13, 2018 Orthopaedic Assessment (Paper Review) that the proposed pool therapy is reasonable to permit the applicant to continue to rehabilitate with less impact to his right ankle. While he considered rehabilitation exercises with a physiotherapist reasonable, Dr. Yee did not see the need for a rehabilitation coach. Although the applicant refers me to the recommendations of Nathan Wong and Dr. Yee that he pursue aqua therapy, he has only made submissions, and not presented evidence, that the services of a rehabilitation coach are reasonable and necessary. Absent countervailing evidence, I accept Dr. Yee’s clinical opinion and recommendations. I find the plan reasonable and necessary as approved. The applicant has fallen short of his onus of establishing that the services of a rehabilitation coach are reasonable and necessary.

33Whether the applicant has demonstrated an interest in attending pool therapy to date is, in my view, irrelevant to a determination of whether the proposed treatment is reasonable and necessary.

34To conclude, the first treatment plan is reasonable and necessary as a result of the accident. Given that it has already been approved, it is payable upon being incurred in accordance with the Schedule and the Professional Services Guideline. On the facts before me, there are no amounts currently outstanding and payable, and the respondent has fulfilled its obligations to pay.

35I find that the second treatment plan is reasonable and necessary as a result of the accident, but only in part. The applicant has not proven that the services of a rehabilitation coach are necessary. Given that the plan has already been partially approved, it is payable upon being incurred in accordance with the Schedule and the Professional Services Guideline. No expenses have been incurred to date under the plan, and therefore, the respondent is under no obligation to make payment.

CONCLUSION

36The applicant has failed to demonstrate, on a balance of probabilities, that he is entitled to the benefits he seeks in this application. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v Belair Insurance, 2015 ONSC 3635.