Licence Appeal Tribunal File Number: 21-013790/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:
Alfredo Felipe
Applicant
and
Chubb Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Ryan Naimark, Counsel
For the Respondent:
Christopher McCormack, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Alfredo Felipe, (the “applicant”), was involved in an automobile accident on April 1, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Chubb Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Immediately after the accident, the applicant was transported via ambulance to Mackenzie Richmond Hill Hospital. X-rays of his right hip confirmed an oblique right hip fracture and spiral fracture through the proximal femoral diaphysis. The records indicate that on April 1, 2020, the applicant underwent surgery for right femur open reduction internal fixation with cephalomedullary nail, right femur cerclage wire, and local bone graft. At the time of the parties’ submissions, the applicant had received $26,070.34 for medical/rehabilitation benefits, $0.00 for attendant care benefits, (“ACB”), and continued to receive Income Replacement Benefits.
PRELIMINARY ISSUES
3The following preliminary issues were raised by the parties:
i. Should the applicant be permitted to add two additional issues to this hearing?
ii. Should the applicant’s particulars for a special award (“particulars”) be excluded from this record?
SUBSTANTIVE ISSUES
4The issues in dispute are:
i. Is the applicant entitled to the remaining balance of $1,074.64 proposed by HealthBound in a treatment plan (“OCF-18”) for chiropractic treatment, which was denied on August 7, 2020?
ii. Is the applicant entitled to the remaining balance of $1,194.89 proposed by HealthBound in an OCF-18 for chiropractic treatment, which was denied on July 9, 2020?
iii. Is the applicant entitled to $1,562.01 proposed by Mackenzie Medical in an OCF-18 for chiropractic treatment, which was denied on June 8, 2020?
iv. Is the applicant entitled to the remaining balance of $411.18 proposed by HealthBound in an OCF-18 for chiropractic treatment, which was denied on September 23, 2020?
v. Is the applicant entitled to the remaining balance of $9.13 proposed by Function Ability in an OCF-18 for occupational therapy services (“OT services”), which was denied on May 5, 2020?
vi. Is the applicant entitled to $3,523.18 proposed by HealthBound in an OCF-18 for physiotherapy and massage services, which was denied on May 18, 2021?
vii. Is the applicant entitled to the remaining balance of $1,080.00 proposed by HealthBound in an OCF-18 for chiropractic and massage services, which was denied on December 22, 2020?
viii. Is the applicant entitled to $8,478.16 for expenses, submitted in an OCF-6 which was denied on July 30, 2020?
ix. Is the respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
PRELIMINARY ISSUE 1- New Issues Raised by The Applicant’s Submissions
5On April 22, 2022, the parties attended a case conference and on consent determined the issues in dispute. On April 27, 2022, a Case Conference Order (“Order”) was sent to the parties and listed the issues in dispute for this hearing. Despite the Order, the applicant made submissions with respect to the below OCF-18s (“new issues”) that were not listed as issues in dispute:
(a) Is the applicant entitled to an OCF-18 in the amount of $512.98 for OT Services proposed by Christine Low, Occupational Therapist (“OT”) dated November 25, 2021; and;
(b) Is the applicant entitled to an OCF-18 in the amount of $3,523.18, proposed by Dr. Patel dated February 11, 2021, for physiotherapy and massage services;
6I find that it would be highly prejudicial to the respondent if the applicant was allowed to add the new issues to this hearing as the respondent was deprived of the opportunity to consider and prepare for the new issues in advance of the hearing. I disagree with the applicant that the case conference summary in which the new issues were listed as issues to be added was sufficient notice to the respondent that he intended to proceed with the new issues for the purposes of this hearing. The Order that was released by the Tribunal after the case conference, did not have the new issues listed, and the applicant failed to take any steps to add the new issues prior to his submissions being filed.
7I further disagree with the applicant that the respondent was able to make fulsome submissions with respect to the new issues. At the Case Conference, a 15-page limit was agreed to address entitlement to ACB, the disputed OCF-18s, OCF-6, an award and interest. While I acknowledge that the applicant has now withdrawn his claim for ACB, there remains a narrower claim for AC expenses submitted in an OCF-6 and as such, the respondent had to address the applicant’s entitlement to ACB.
8Considering the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issues raised by the applicant. In these circumstances, I find that it is unfair to the respondent who had a fairly short time to consider and respond to the new issues. I find that it would be procedurally unfair to require the respondent to defend against an issue that was not listed in the Order. If any party wishes to have new issues added, it should be done before the hearing to allow the other party the chance to respond accordingly. It affords the other party the chance to challenge the issues or concede to issues before the hearing. This will ensure just results and provides for procedural fairness. At this juncture, the applicant cannot expect to add new issues to a proceeding without proper notice or the permission of the Tribunal. In accordance with Rule 3.1 and 3.2 of the Licence Appeal Tribunal Rules, 2023, I will not be granting the applicant permission to add these new issues to the hearing.
9For the reasons outlined above, I will not allow the new issues to form part of the hearing before me.
Preliminary Issue 2- The Applicant’s Particulars of a Special Award
10The applicant tendered his particulars of a special award (“particulars”) as evidence for this hearing which were 5 pages in length.
11The Tribunal’s order following the case conference was clear that the applicant was to provide his particulars to the respondent no later than 120 calendar days from the case conference. Further, the parties agreed on consent during the case conference to set the page limit for initial submissions to 15 pages. Subsequently, the applicant brought a motion to extend the deadline for providing the particulars. On September 13, 2022, the Tribunal ordered that the applicant shall provide the particulars within 30 days of the Motion Order being released. The applicant did not submit his particulars to the respondent until November 22, 2022, which is noncompliant with both of the Tribunal’s Orders.
12The respondent submits that the applicant failed to provide these particulars within the timelines as stated in two Tribunal orders and since it did not contain documentary evidence, it should be included in the page limit for submissions and not as an exhibit. The respondent submits it would be prejudiced as the applicant would have an additional 5 pages meanwhile it is subjected to 15 pages.
13The applicant submits in reply that there was no prejudice brought to the respondent by the late disclosure of the particulars as the respondent was aware that an award was in dispute for the purposes of this hearing.
14I agree with the respondent that the particulars provided by the applicant are submissions and not documentary evidence. As such, the applicant should have included the particulars in his submission page limit and not as an exhibit. It is evident that the applicant has failed to comply with the page limits, thereby breaching the previous Order. However, the respondent has failed to demonstrate any prejudice that it sustained as it was aware of the particulars prior to the hearing and was able to respond. When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter. As such, I will not exclude the applicant’s particulars as requested by the respondent. However, I remind the applicant that non-compliance with Tribunal Orders is strongly discouraged, and it was solely within my prerogative to permit these additional submissions into the record.
Preliminary Issue 3- Further Clarification Required from The Parties
15On September 19, 2023, The Tribunal reached out to the parties to clarify the exact amounts that remained outstanding for issues: 1,2,4,5, and 7, as the submissions from the parties were unclear. The Tribunal also asked the parties to confirm when the Form 1, dated April 26, 2020, was submitted to the respondent, and for a complete copy of the denial letter, dated May 6, 2020.
16On September 21, 2023, the respondent’s representative advised that the remaining balance for the OCF-18s pertaining to issues: 1,2,4,5, and 7 were as follows:
a. Issue 1: the amount in dispute was $1,074.64.
b. Issue 2: the amount in dispute was $1,194.89.
c. Issue 4: the amount in dispute was $411.18.
d. Issue 5: the amount in dispute was $9.13; and
e. Issue 7: the amount in dispute was $1,080.00.
17On September 26, 2023, the applicant’s representative sent an email which advised that he disagreed with the respondent with respect to the outstanding amounts for issues: 1,2,4,5, and 7. The applicant’s representative submits that the remaining balance for these issues is as follows:
a) Issue 1: $2,879.60.
b) Issue 2: $3,225.46.
c) Issue 4: $1,764.90.
d) Issue 5: $607.63; and
e) Issue 7: $3,621.72.
18I agree with the respondent with respect to the amounts in dispute pertaining to issues: 1,2,4,5, and 7. On February 4, 2022, the respondent sent a letter to the applicant and approved the outstanding transportation costs pertaining to issues: 1,2,4, and 5, which the applicant’s representative did not consider in his response. With respect to issue 7, I agree with the respondent that the remaining balance of the OCF-18 is $1,080.00. On December 14, 2020, an OCF-18 was submitted for $6,121.38. On December 22, 2020, the respondent partially approved the OCF-18 for $2,499.66. On March 5, 2021, the respondent sent a further letter which advised that it was now approving the remaining portion of the OCF-18 with the exception of the transportation costs. The respondent advised that it now approved the OCF-18 up to $5,041.38. As such, it is clear that the remaining balance for issue 7 is $1,080.00.
19The respondent’s representative further submitted that the Form 1, dated April 26, 2020, was submitted via Health Claims for Auto Insurance system (“HCAI”) on May 1, 2020. Moreover, the respondent’s representative enclosed an Explanation of Benefits (“EOB”) dated May 6, 2020. There is a typographical error in the EOB regarding the date of the Form 1 and the date of receipt by the respondent. However, as the applicant’s representative agreed that the Form 1 was submitted on May 1, 2020, I find that is the date that the respective Form 1 was submitted.
RESULT
20With respect to the preliminary issues, I will not be allowing the applicant to add the new issues to the hearing before me. However, I will not be excluding the applicant’s particulars.
21I find that the applicant is entitled to the OCF-18 for OT services with a remaining balance of $9.13 and interest pursuant to s.38(11)2 of the Schedule.
22I find that the applicant is partially entitled to the OCF-18, dated April 15, 2021, in the amount of $3,523.18 for physiotherapy and massage services, and interest; and
23I find that the applicant is not entitled to the remaining OCF-18s or interest on that.
24I find that the applicant is not entitled to the costs associated in the OCF-6.
25Lastly, I find that, the applicant is not entitled to an award pursuant to s.10 of Regulation 664.
ANALYSIS
SUFFICIENCY OF THE DENIALS OF THE OCF-18s
Were the Respondent’s denials with respect to issues 1, 2, and 5 in compliance with the Schedule?
26I find that the denial letter dated May 5, 2020, regarding issue 5, was non-compliant with s.38(8) of the Schedule and the applicant is entitled to the OCF-18 for OT services with a remaining balance of $9.13. I further find that the denial letters dated July 9, 2020, and August 7, 2020, for issues 1 and 2 were compliant with s.38(8) of the Schedule.
27The applicant submitted that the respondent’s denials of the disputed OCF-18s for issues 1, 2, and 5 failed to comply with s. 38(8) of the Schedule. As a result, the applicant’s position is that he is entitled to the disputed OCF-18s on the basis that the denial letters were unclear and equivocal. The applicant further submits that the respondent was aware that he had difficulties with understanding English and the denial letters, dated May 5, 2020, July 9, 2020, and August 7, 2020, did not clearly advise what services were being approved or denied by the respondent.
28The respondent submits that its denial letters, were compliant with s.38(8) of the Schedule and caselaw. The respondent acknowledges that there were minor typographical errors in the denial letters. However, the respondent submits that these minor errors were insufficient to make the denials non-compliant pursuant to s.38(8) of the Schedule.
29Neither party provided any authorities to support their positions, however I find that I must determine whether the respondent’s denial letters were proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.
30Accordingly, Smith requires the denials to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person.
31I agree with the applicant that the denial letter dated May 5, 2020, for issue 5 was unclear and confusing at best, as the denial stated that it was partially approving an OCF-18 for an In-Home assessment, when in fact the OCF-18 submitted was for OT services. The language used in the correspondence would not allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial. Moreover, the respondent did not refer me to a denial letter that rectified this deficient denial letter. Therefore, the respondent is obliged to pay for the remaining balance of $9.13 pursuant to s.38(11)2 of the Schedule as the respondent no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.
32While I acknowledge that the applicant submits that the OCF-18 was incurred. I find that in any event, the applicant is entitled to the OCF-18 with a balance of $9.13 pursuant to s.38(11) of the Schedule, as the respondent failed to refer me to a subsequent denial letter that rectified its error. As I have determined that this OCF-18 is payable pursuant to s.38(11), I do not need to determine whether the OCF-18 is reasonable or necessary.
33In conclusion, I disagree with the applicant that the denial letters dated July 9, 2020, and August 7, 2020, for issues 1 and 2 did not clearly advise what treatment was being approved or denied by the respondent. The denial letters clearly stated how much the respondent was approving and a justification for the partial approvals. The denial letters clearly advised the applicant that the respondent would be paying the hourly rate in accordance with the Superintendent’s Professional Service Guideline No. 03/14 ("PSG"); that there was insufficient information with respect to the costs of a team meeting; that the additional costs of pre and post preparation services were not being approved; and that it was partially approving the travel time costs based on the FSCO rates.
34Lastly, I agree with the respondent that the typographical errors with respect to the amount being approved was insufficient to trigger the consequences pursuant to s.38(8) and 38(11)2. The respondent’s denials in the beginning paragraphs clearly outlined the total amount of treatment being approved and the reasons for the partial approvals. As I have determined that the denial letters for issues 1 and 2 were compliant with s.38(8) of the Schedule, I will consider below whether these OCF-18s are reasonable and necessary.
Section 15 of the Schedule
35Pursuant to s.15(2)(b) of the Schedule, the respondent is not liable for paying for services that exceed the PSG.
36The PSG establishes the maximum expenses payable under the Schedule related to the services of the health care professionals and providers listed. The PSG states that expenses related to professional services as referred to in the Schedule and in the PSG include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges, or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the PSG.
The applicant is not entitled to the remaining balance of $1,074.64 for an OCF-18 for chiropractic services
37I find that the applicant has failed to demonstrate that the remaining balance of the disputed OCF-18, for chiropractic services is reasonable and necessary.
38On July 28, 2020, an OCF-18 was submitted in the amount of $5,836.33. On August 7, 2020, the respondent partially approved the OCF-18 to $2,956.73.
39The applicant submits that Line 1, Line 10, and Line 12 in the OCF-18 remains in dispute. However, the respondent provided a copy of a correspondence, dated February 4, 2022, which confirmed that it approved $1,804.96 for the provider’s travel time which was listed as Line 12 in the OCF-18. As such, I find that for the purposes of this hearing, Line 1 and Line 10 of the OCF-18 remain in dispute. Line 1 pertains to 16 procedures of manipulation by a chiropractor billed at $141.01 per procedure and Line 10 pertains to preparation services costs in the amount of $564.16. On August 7, 2020, the respondent partially approved funding for chiropractic services at the hourly rate of $112.81.
40The applicant submits that the hourly rate of $141.01 is reasonable and necessary as the service provider was providing treatment at the applicant’s home. The applicant further submits that the respondent approved the higher hourly rate for the OCF-18 in dispute listed as issue 4 for the purposes of this hearing and as such, the respondent should pay the higher rate for this OCF-18 as well. The applicant did not provide any submissions on why the preparation service costs are reasonable and necessary and what they pertain to.
41The respondent submits that it is not liable to pay medical benefits for services that exceed the maximum rate as established in the PSG which is $112.81 per hour for chiropractors. The respondent further submits that it never agreed to pay a higher hourly rate as suggested by the applicant. Lastly, the respondent submits that the applicant has failed to demonstrate that the preparation service costs are reasonable and necessary.
42The applicant did not address any of these concerns raised by the respondent in his reply.
43I agree with the respondent and find that the hourly rate as mandated under the PSG is $112.81 for chiropractors and there was no agreement to pay a higher hourly rate. The disputed OCF-18 proposes 16 procedures of an unknown duration, to be billed at a per-procedure rate of $141.01. The applicant’s submissions are silent on how long each procedure for Line 1 of the OCF-18 will be. The respondent has already approved the maximum hourly rate of $112.81 for chiropractors. In contrast, the OCF-18 listed as issue 4 proposed chiropractic treatment at the rate of $141.01 per 1.25 hours. This is completely different from this OCF-18 which has proposed the rate of $141.01 per procedure, and it is not clear how long the procedure will be in length. As such, I find that the remaining balance with respect to Line 1 of the OCF-18 is not payable as the hourly rate pursuant to the PSG is $112.81 for chiropractors and there was no agreement by the respondent to pay a higher hourly rate.
44Pursuant to the PSG, insurers are not liable for any administration or other costs, overhead, fees, expenses, charges, or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the PSG. I further agree with the respondent that the applicant has failed to provide a breakdown or explanation with respect to the preparation service costs, and as such, has failed to demonstrate that it is reasonable and necessary, or that it is payable pursuant to the PSG.
45Accordingly, and for the reasons outlined above, I find that the applicant has not demonstrated that the remaining balance for this OCF-18 is reasonable and necessary.
The applicant has failed to demonstrate that the remaining balance of $1,194.89 in the OCF-18 is reasonable and necessary
46I find that the applicant has failed to demonstrate that the remaining balance of the OCF-18 is reasonable and necessary.
47On June 30, 2020, an OCF-18 was submitted in the amount of $6,729.24. On June 30, 2020, the respondent partially approved the OCF-18 to $3,504.27. On February 4, 2022, the respondent approved the total cost of transportation in the amount of $2,030.58. As such, the amounts that remains in dispute pertain to Line 1 and 15. Line 1 of the OCF-18 proposes 18 procedures of an unknown duration to be billed at a per-procedure rate of $169.22 and Line 15 pertains to a team meeting. The additional comments section of the OCF-18 indicate that Line 15 proposed a team meeting. The respondent in its letter dated June 30, 2020, advised that it was able to pay up to $112.81 per hour for chiropractic treatment, based on the PSG and that a team meeting was not reasonable and necessary.
48I have already determined above that the hourly rate as mandated pursuant to the PSG is $112.81 for chiropractors and there was no agreement by the respondent to pay a higher hourly rate. As the respondent has approved the maximum of $112.81 per hour for chiropractors and there is no indication from the applicant on the length of each procedure, I find that the remaining balance with respect to Line 1 of the OCF-18 is not payable.
49In addition, the applicant has failed to demonstrate that the team meeting is reasonable and necessary or payable under the PSG. The applicant did not make any submissions on why a team meeting was reasonable or necessary or whether it is payable pursuant to the PSG.
50Accordingly, and for the reasons outlined above, I find that the applicant has not demonstrated that the remaining balance for this OCF-18 is reasonable and necessary.
The OCF-18 with a remaining balance of $1,562.01 has been fully approved by the respondent.
51I find that this OCF-18, dated June 8, 2020, with a remaining balance for transportation costs is no longer in dispute for the purposes of this hearing as the respondent on February 4, 2022, approved the remaining balance and as such, the OCF-18 has been paid in full.
The applicant has failed to demonstrate that the remaining balance of $411.18 for chiropractic services is reasonable and necessary
52I find that the applicant has failed to demonstrate that the remaining balance of the OCF-18, dated September 17, 2020, for chiropractic services is reasonable and necessary.
53On September 18, 2020, the OCF-18 was submitted to the respondent in the amount of $4,384.95. On September 23, 2020, the respondent partially approved this OCF-18 for $2,620.05. Contrary to the applicant’s submissions, the letter clearly stated that the respondent approved the proposed chiropractic sessions of 1.25 hours at $141.01, which amounts to $112.81 per hour. Further, there is no mention of the respondent agreeing to pay a higher hourly rate than what is mandated in the PSG. On February 4, 2022, the respondent approved the outstanding transportation costs proposed in the amount of $1,353.72. The remaining balance of the OCF-18 pertains to Line 10 and 14. Line 10 pertains to preparation service costs, and Line 14 pertains to a team meeting.
54The applicant failed to provide any evidence or submissions which provided a breakdown of the preparation services costs or the team meeting. As such, the applicant has failed to discharge his onus, that the remaining balance of $411.18 in the OCF-18 is reasonable and necessary or payable pursuant to the PSG.
55Accordingly, and for the reasons outlined above, I find that the applicant has not demonstrated that the remaining balance for this OCF-18 is reasonable and necessary.
The applicant is partially entitled to the OCF-18 in the amount of $3,523.18 for physiotherapy, and massage services
56I find that the applicant has demonstrated that this OCF-18 for physiotherapy services, and massage services is partially reasonable and necessary.
57To receive payment for a treatment and assessment plan under s. 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. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.
58The OCF-18 in dispute proposed costs associated with physiotherapy and massage treatment which were denied by the respondent on May 18, 2021.
59I agree with the applicant that the medical evidence of Dr. Fanaei (family physician) and Dr. Backstein (orthopaedic surgeon) demonstrate that the proposed treatment will help provide relief for his accident-related hip and femur pain, and left shoulder pain. On October 9, 2021, Dr. Fanaei noted that the applicant had pain over the site of the proximal right femur fracture and weakness over the right leg. As a result, Dr. Fanaei recommended physiotherapy and massage therapy. On November 8, 2021, the applicant met with Dr. Fanaei and advised he had leg/hip pain and Dr. Fanaei noted that a recommendation for physiotherapy and massage treatment had already been made.
60On November 29, 2021, Dr. Backstein noted that range of motion testing performed caused pain in the applicant’s right hip over the proximal-lateral right thigh and lateral right knee. The applicant further reported left shoulder pain which was exacerbated by overhead use of his arm. There is no evidence before me that the applicant had left shoulder pain prior to this accident. Further, Dr. Backstein recommended massage and physiotherapy treatment for his left shoulder pain. Dr. Backstein’s findings are supported by Dr. Fanaei’s records, dated June 29, 2020, and July 14, 2020, where the applicant made pain complaints with respect to his left shoulder following this accident and Dr. Fanaei recommended physiotherapy treatment.
61I prefer the evidence of Dr. Fanaei over s.44 assessor, Dr. Safir (orthopaedic surgeon). On January 20, 2021, Dr. Safir concluded that the applicant had not reached maximum medical recovery with respect to his right hip, and he approved the treatment recommended in an OCF-18 dated December 10, 2020. On February 9, 2022, Dr. Safir deferred a prognosis with respect to the applicant’s right femur fracture and concluded that the applicant had already received physical rehabilitation and had reached maximum therapeutic benefit with the remaining injuries. This is inconsistent with the record of Dr. Fanaei, dated October 9, 2021, and November 8, 2021. Dr. Fanaei is the applicant’s family physician, so he would have more intimate knowledge regarding the applicant, and he recommended the proposed treatment. As such, I find that the proposed treatment is reasonable and necessary to address his accident-related hip, femur, and left shoulder pain.
62I disagree with the respondent that this OCF-18 is a duplication of services. The respondent submits that an OCF-18, dated December 10, 2020, proposed similar services which were approved on March 5, 2021. I find that the OCF-18 in dispute is not the same as the OCF-18 dated December 10, 2020. The OCF-18 dated December 10, 2020, proposed multidisciplinary rehabilitation to be provided by chiropractors, massage therapist, and an occupational therapist, meanwhile this OCF-18 is for physiotherapy and massage services.
63Further, I acknowledge that the applicant had a pre-existing right knee patellar fracture in 2018, however the records of Mackenzie Richmond Hill Hospital and Dr. Fanaei clearly demonstrate that the applicant had a fractured right femur and hip and left shoulder pain as a result of this accident. Moreover, Dr. Fanaei has recommended the proposed treatment to treat these pain complaints.
64Lastly, I find that the applicant is not entitled to Line 14 and 15 of the OCF-18. Line 14 was for expenses associated with file and medical documentation review and Line 15 was for costs associated with telephone contact with other healthcare providers. The applicant failed to provide any submissions on why these extra expenses would be payable pursuant to the PSG. The PSG clearly states that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rate. The applicant failed to provide any submissions on why these expenses would be payable.
65Accordingly, and for the reasons outlined above, I find that the applicant has demonstrated that this OCF-18 is partially reasonable and necessary.
The applicant has failed to demonstrate that he is entitled to $1,080.00 for transportation costs.
66The applicant has failed to discharge his evidentiary onus that the transportation costs proposed in the OCF-18 are payable.
67The OCF-18 for chiropractic and massage services in the amount of $6,121.38 was submitted on December 14, 2020. The respondent responded to this OCF-18 on December 22, 2020, February 16, 2021, and March 5, 2021. On March 5, 2021, the respondent approved all the benefits except for transportation costs in the amount of $1,080.00 as it was not liable to pay for the first 50 kilometres of transportation unless the applicant sustained a catastrophic impairment as a result of the accident.
68It is undisputed that s. 15(2)(c) of the Schedule states that an insurer is not liable for transportation expenses “other than authorized transportation expenses.”
69Section 3(1)(a) provides that “authorized expenses” are calculated by applying the rates set out in the Transportation Expenses Guidelines published by FSCO in The Ontario Gazette. Section 3(1)(b) further provides that unless the insured is catastrophically impaired, transportation expenses are only payable after the first 50 kilometres of a trip.
70The applicant did not provide any initial or reply submissions on why he would be entitled to transportation expenses for the first 50 kilometres. There is also no evidence before me that the applicant has sustained a catastrophic impairment as a result of the accident.
71Accordingly, and for the reasons outlined above, I find that the applicant has not demonstrated that the remaining balance in the OCF-18 is reasonable and necessary.
OCF-6 in the amount of $8,478.16
72The OCF-6 dated July 6, 2020, listed: Attendant Care (“AC”) expenses for two months at $6,800; courier for belongings (later corrected as ambulance fee) at $200.57; bath seat at $71.99; walker at $57.72; cane at $49.99; ambulance expenses at $35.00; and damaged items at $1,172.99. Further, the applicant included receipts for prescriptions in the amount of $134.29 but did not list it as an expense in the submitted OCF-6. On July 30, 2020, and August 24, 2020, the respondent approved all the costs with the exception of the AC expenses, costs associated with 5 damaged items, and prescription costs. As such, I will be considering below whether the applicant is entitled to these three different expenses.
The applicant has failed to demonstrate that he is entitled to the AC expenses
73I find that the applicant is not entitled to the AC expenses as he has provided inconsistent evidence with respect to receiving or incurring the AC expenses. The applicant is claiming AC expenses for the time period of April 15, 2020, to June 15, 2020.
74Firstly, I agree with the respondent that pursuant to s. 42(5) of the Schedule, it is not required to pay the AC expenses from the time period of April 15, 2020, to May 1, 2020, as the assessment of attendant care needs (“Form 1”) was not submitted to the respondent until May 1, 2020. The applicant made no submissions on why the AC expenses were allegedly incurred prior to submitting the Form 1. The Tribunal has allowed retroactive AC claims only in very narrow circumstances. In this case, the applicant has not established the required urgent circumstances or provided a reasonable explanation for why he should be permitted to claim expenses incurred prior to submitting a Form 1. I find that as the applicant has failed to provide any submissions addressing this issue, he is not entitled to any AC expenses that were allegedly incurred prior to submitting the Form 1.
75As such, I will now consider below whether the AC expenses for the time period of May 2, 2020, to June 15, 2020, are payable pursuant to the Schedule.
76Section 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. Section 19(2) also states that the hourly rate should not exceed the maximum hourly rate as established under the Guidelines.
77Section 3(7)(e) of the Schedule provides that: (e) subject to subsection (8), an expense in respect of goods and services referring to in this Regulation is not incurred by an injured person unless,
i. the insured person has received the goods or services to which the expense relates,
ii. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
iii. the person who provided the goods or services,
did so in the course of the employment, occupation or profession 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.
78The applicant submits that the AC services were provided by Registered Nurse (“RN”), Ms. Noemi Abacan. The applicant further submits that these AC expenses were incurred as he submitted a statement to the respondent that showed he was provided with AC services for 20 hours/week from April 15, 2020, to June 15, 2020, at the hourly rate of $43.00.
79I find that the applicant has failed to provide consistent evidence to demonstrate that he received or incurred the AC expenses for the time period of May 2, 2020, to June 15, 2020. While I acknowledge that the applicant had significant injuries to his right hip and femur which required surgery which resulted in mobility issues and has a language barrier, and difficulty communicating; he has failed to adequately address the inconsistent evidence. Ms. Warman OT’s report dated April 27, 2020, noted that the applicant did not speak English and a Tagalog translator was used which would address the applicant’s issues with communication and a language barrier. Ms. Warman in her report noted that the applicant advised that his wife was providing all AC services at this time.
80On May 6, 2020, the adjuster spoke to Ms. Warman over the phone who advised that the applicant’s wife was doing everything as they were concerned about the virus. On May 21, 2020, Ms. Warman spoke with the applicant with his wife translating, and noted that the applicant was not using Personal Support Worker (“PSW”) services and still used his wife to provide all assistance with AC and did not note a language barrier while receiving this information. Moreover, the applicant advised that he did not want a PSW in his home due to COVID-19 but was willing to consider it in the future once his wife returned to work. On May 25, 2020, the adjuster spoke to Ms. Lauren Ryan, the applicant’s second OT over the phone. Ms. Ryan advise the adjuster that the applicant was choosing not to use the PSW for his AC needs. Moreover, it was noted that due to the applicant’s language barrier, Ms. Ryan spoke with the applicant’s wife mostly.
81I acknowledge that Ms. Abacan is a nurse and not a PSW, however the applicant clearly advised Ms. Warman that he was only receiving AC assistance from his wife at that time. More problematic, it appears that the applicant was not provided with any translation services before he signed the statement with the alleged AC services. On July 30, 2020, the respondent requested the applicant to provide further confirmation of the AC services due to his inconsistent self-reporting. Despite this, the applicant has not produced any objective evidence (such as bank statements or receipts) to prove that he was provided with these services from May 2, 2020, to June 15, 2020. Further, the applicant has not provided any evidence that he promised to pay for these AC expenses.
82Accordingly, and for the reasons outlined above, I find that the applicant is not entitled to the AC expenses.
The applicant has failed to demonstrate that he is entitled to expenses associated with damaged clothing
83I find that the applicant has failed to produce sufficient evidence to support his claim for damaged clothing.
84The applicable part of s. 24 of the Schedule states that an insurer is liable to pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing clothing worn by the insured person that was damaged or lost as a result of the accident.
85The applicant has not provided any evidence that he incurred expenses to replace or repair clothing worn at the time of the accident. The applicant provided vague photographs from unknown websites with different prices for each item. I find the photographs are insufficient as they do not prove that he owned these items at the time of the accident or that he replaced these items as a result of them being damaged in the accident. On July 30, 2020, the respondent requested: receipts, credit card statements, bank statements of the damaged items or confirmation of purchase from the store they were purchased, as well as photographs of the applicant wearing these items. To date, the applicant has not provided this evidence that supports his claim for damaged clothing.
86Accordingly, and for the reasons outlined above, I find that the applicant is not entitled to expenses in relation to his alleged damaged clothing.
The applicant has failed to demonstrate that he is entitled to prescription expenses
87I find that the applicant has failed to demonstrate that he is entitled to the prescription expenses.
88The applicant has failed to provide any evidence of the types of prescriptions he incurred; that the prescriptions were reasonable and necessary as a result of the accident; and the applicant has not provided any evidence that the expenses were submitted to his extended health care provider. The only evidence before me is the receipt from Shoppers Drug Mart, dated April 10, 2020. I find this receipt unpersuasive as it does not tell me the name of the prescriptions and as such, I am unable to consider whether these expenses are related to the accident. The applicant has not directed me to any evidence that explains what prescriptions were bought and whether it is connected to the accident. Further, on July 30, 2020, the respondent sent a letter to the applicant which advised that the prescription costs must be submitted to his extended health care provider first. Although, the applicant submitted a reply, his submissions were completely silent on these issues.
89As such, I find that the applicant has not discharged his evidentiary onus to demonstrate that the prescription costs are reasonable and necessary as a result of the accident.
90Accordingly, and for the reasons outlined above, I find that the applicant is not entitled to the expenses in relation to alleged prescription costs.
Interest
91Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As such, I find the applicant is entitled to interest on any overdue payment of benefits for the OCF-18, dated April 27, 2020, with a remaining balance of $9.13. Further the applicant is partially entitled to interest on the OCF-18, dated April 15, 2021, in the amount of $3,523.18.
92The applicant is not entitled to interest on the remaining OCF-18s, and OCF-6.
Award
93I find that the applicant is not entitled to an award. It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order for an award to be awarded, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.
94Section 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.
95Although, I found the applicant is entitled to the OCF-18, dated April 15, 2021, I do not find the respondent’s reliance on the IE reports of Dr. Safir to amount to behavior that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. At best, the particulars provided by the applicant were confusing, as he made allegations against Aviva, who is not the respondent insurer in this matter. Further, the applicant failed to advise when the relevant documentation was provided to the respondent. I also acknowledge that the respondent has an ongoing obligation to assess the claim, however I would like to point out that insurers are not required to seek an IE for every piece of new evidence.
96The applicant for the first time in his reply submissions submitted that he should be entitled to an award on the further basis that the transportation costs associated with the OCF-18s listed as issues 1,2,4, and 5, were approved after he submitted his application to the Tribunal. While the respondent did not raise the issue, I find that the applicant’s reply was improper with respect to paragraphs 14-15. It is well settled that the purpose of reply submissions is for the party who bears the onus in the dispute to respond to any issues that were raised in the opposing party’s submissions, which could not have been reasonably raised in initial submissions. Reply submissions do not present an opportunity to raise new issues that should have been addressed in initial submissions, or, as it relates to the subject proceeding, to restate submissions, evidence and arguments.
97It would also be a procedural unfairness pursuant to Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 for me to consider these submissions, as the respondent does not have the right of further reply. For these reasons, the applicant’s reply submissions at paragraphs 14-15 are struck and will not be considered when rendering my decision with respect to an award.
ORDER
98For the reasons set out above, I find that:
i. The applicant is partially entitled to the OCF-18, dated April 15, 2021, in the amount of $3,523.18 and interest;
ii. The applicant is entitled to the OCF-18 dated April 27, 2020, with a remaining balance of $9.13 and interest;
iii. The applicant is not entitled to the remaining OCF-18s or OCF-6; and
iv. The applicant is not entitled to an award pursuant to Regulation 664.
Released: October 19, 2023
Tanjoyt Deol
Adjudicator