Lafrance v. The Co-operators General Insurance Company, 2024 CanLII 10539

Licence Appeal Tribunal

Citation: Lafrance v. The Co-operators General Insurance Company, 2024 ONLAT 21-010547/AABS

Licence Appeal Tribunal File Number: 21-010547/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:

Eric Lafrance

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Sherilyn J. Pickering, Counsel

For the Respondent:

Daniel M. Himelfarb, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Eric LaFrance (the “applicant”) was involved in an automobile accident on June 23, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by The Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant has optional benefits with a cap of $1,000,000.00. As of June 2, 2023, the respondent has paid $57,817.86 for medical and rehabilitation benefits and $3,280.00 for attendant care benefits.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to $4,517.32 for visitor expenses, mileage, a wrist splint, and a boot, submitted on a claim form (OCF-6) dated April 24, 2020?

2. Is the applicant entitled to $12.74 for case management services, proposed by Rehab First Inc. in a treatment plan/OCF-18 (“treatment plan”) dated August 16, 2021?

3. Is the applicant entitled to $48.57 for social rehab counselling services, proposed by Wright Rehab in a treatment plan dated September 7, 2021?

4. Is the applicant entitled to $26.99 for case management services, proposed by Rehab First Inc. in a treatment plan dated September 23, 2021?

5. Is the applicant entitled to $1,678.83 for social rehab counselling services, proposed by Wright Rehab in a treatment plan dated November 15, 2021?

6. Is the applicant entitled to $97.14 for social rehab counselling services, proposed by Wright Rehab in a treatment plan dated February 2, 2022?

7. Is the applicant entitled to $57.14 for social rehab counselling services, proposed by Wright Rehab in a treatment plan dated March 4, 2022?

8. Is the applicant entitled to $140.00 for social rehab counselling services, proposed by Wright Rehab in a treatment plan dated May 5, 2022?

9. Is the applicant entitled to $2,651.17 for rehabilitation therapy, proposed by Rehab First in a treatment plan dated April 20, 2022?

10. Is the applicant entitled to $448.88 for occupational therapy services, proposed by Rehab First in a treatment plan dated September 3, 2019?

11. Is the applicant entitled to $299.25 for physiotherapy services, proposed by Therapeutic Mobility in a treatment plan dated August 28, 2019?

12. Is the applicant entitled to $603.00 for occupational therapy services, proposed by Rehab First in a treatment plan dated September 30, 2019?

13. Is the applicant entitled to $594.00 for occupational therapy services, proposed by Rehab First in a treatment plan dated November 7, 2019?

14. Is the applicant entitled to $299.25 for physiotherapy services, proposed by K.A. Tossios Physiotherapy Professional Corporation in a treatment plan dated November 12, 2019?

15. Is the applicant entitled to $448.87 for occupational therapy services, proposed by Rehab First in a treatment plan dated April 27, 2020?

16. Is the applicant entitled to $199.50 for physiotherapy services, proposed by Therapeutic Mobility in a treatment plan dated July 14, 2020?

17. Is the applicant entitled to $467.16 for social work counselling, proposed by Therapeutic Mobility in a treatment plan dated November 30, 2020?

18. Is the applicant entitled to $523.71 for physiotherapy services, proposed by K.A. Tossios Physiotherapy Professional Corporation, in a treatment plan dated November 3, 2020?

19. Is the applicant entitled to $1,355.97 for psychological services, proposed by Therapeutic Mobility in a treatment plan dated February 17, 2021?

20. Is the applicant entitled to $299.25 for occupational therapy services, proposed by Rehab First in a treatment plan dated March 10, 2021?

21. Is the applicant entitled to $224.46 [$967.78 less $743.32 approved] for physiotherapy services, proposed by K.A. Tossios Physiotherapy Professional Corporation in a treatment plan dated March 4, 2021?

22. Is the applicant entitled to $48.57 for social work counselling, proposed by Wright Rehab in a treatment plan dated April 7, 2021?

23. Is the applicant entitled to $437.11 for social work counselling, proposed by Wright Rehab in a treatment plan dated March 8, 2021?

24. Is the applicant entitled to $145.71 for social work counselling, proposed by Wright Rehab in a treatment plan dated June 2, 2021?

25. Is the applicant entitled to $97.14 for social work counselling, proposed by Wright Rehab in a treatment plan dated July 7, 2021?

26. Is the applicant entitled to $97.14 for social work counselling, proposed by Wright Rehab in a treatment plan dated August 5, 2021?

27. Is the applicant entitled to $169.99 for social work counselling, proposed by Wright Rehab in a treatment plan dated May 5, 2021?

28. Is the applicant entitled to $1,742.42 for case manager services, proposed by Rehab First in a treatment plan dated January 31, 2020?

29. Is the applicant entitled to $22.37 for case manager services, proposed by Rehab First in a treatment plan dated April 15, 2020?

30. Is the applicant entitled to $54.77 for case manager services, proposed by Rehab First in a treatment plan dated March 29, 2021?

31. Is the applicant entitled to $42.43 for case manager services, proposed by Rehab First in a treatment plan dated February 25, 2021?

32. Is the applicant entitled to $38.19 for case manager services, proposed by Rehab First in a treatment plan dated May 3, 2021?

33. Is the applicant entitled to $25.84 for case manager services, proposed by Rehab First in a treatment plan dated June 7, 2021?

34. Is the applicant entitled to $11.18 for case manager services, proposed by Rehab First in a treatment plan dated July 12, 2021?

35. Is the applicant entitled to $312.95 for cost of a helmet, submitted on an OCF-6 dated April 25, 2020?

36. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4For the reasons that follow, I find that:

1. The applicant is entitled to $312.95 for the cost of a helmet.

2. The applicant is entitled to $262.80 for visitor expenses.

3. The applicant is not entitled to the cost of a wrist splint, a boot, and prescription expenses.

4. The applicant is not entitled to the unapproved balances of the disputed treatment plans for physiotherapy services.

5. The applicant is not entitled to the unapproved balances of the disputed treatment plans for occupational therapy services.

6. The applicant is not entitled to the unapproved balance of the disputed treatment plan for rehabilitation therapy services.

7. The applicant is not entitled to the unapproved balances of the disputed treatment plans and invoices for case management services.

8. The applicant is not entitled to the unapproved balances of the disputed treatment plans and invoices for social rehabilitation counselling services and social work counselling.

9. The applicant is entitled to interest for any overdue amount relating to the cost of a helmet and to the visitor expenses.

10. The respondent is not liable to pay an award.

ANALYSIS

Background

5On June 23, 2019, the applicant was riding his motorcycle, travelling straight in his lane, when another driver suffered a medical issue, lost control of his vehicle, and entered the applicant’s lane, striking him. The applicant was ejected from his motorcycle and thrown several feet.

6There is no dispute that the applicant sustained significant injuries as a result of the accident. However, the respondent indicates that the applicant has made a significant recovery and is functioning well on a day-to-day basis.

Cost of a Helmet

7Section 24(1) of the Schedule provides that the respondent shall pay for all reasonable expenses incurred by or on behalf of the applicant in repairing or replacing clothing worn by the applicant at the time of the accident that was lost or damaged as a result of the accident.

8The applicant submits that he is entitled to the replacement cost of a helmet pursuant to s. 24(1) of the Schedule. He notes that although the Schedule does not define the term “clothing”, according to the Cambridge Dictionary, clothing is defined as “things you wear to cover your body”, “a piece/item/article of clothing”, or “clothes or a particular type, especially of a type made to protect the wearer against cold, heat, water, or machinery”. The applicant argues that a helmet is a thing you wear to cover a part of your body, i.e. the head, that is meant to protect the wearer. As such, a helmet constitutes clothing pursuant to s. 24(1) of the Schedule.

9The respondent submits that the replacement cost of a helmet is not reimbursable under the Schedule. It argues that it was not the legislature’s intention to include helmets or safety equipment in s. 24 of the Schedule. Further, the Schedule does not define the term “clothing”.

The applicant is entitled to $312.95 for the cost of a helmet

10I find that the applicant has demonstrated, on a balance of probabilities, that he is entitled to the replacement cost of a helmet in the amount of $312.95.

11I agree with the applicant and find that a helmet worn by a motorcyclist at the time of an accident constitutes clothing pursuant to s. 24(1) of the Schedule. Further, the applicant has provided sufficient evidence to support that he has incurred the reasonable replacement cost of a helmet as a result of the accident. Indeed, the applicant included a receipt from Barrie Harley-Davidson dated February 15, 2020 with his OCF-6 dated April 25, 2020.

12Accordingly, the cost of a helmet is payable.

Visitor Expenses

13Section 22(1) of the Schedule provides that if the applicant sustains an impairment as a result of an accident, the respondent shall pay for reasonable and necessary expenses incurred not more than 104 weeks after the accident by the following persons as a result of the accident in visiting the applicant during his treatment or recovery: the spouse, children, grandchildren, parents, grand parents, as well as brothers and sisters of the applicant.

14The applicant submits that expenses, such as travel costs (e.g. mileage, train, bus, etc.) and food costs, incurred by his spouse, children, siblings, and step-children are reimbursable pursuant to s. 22(1) of the Schedule. The applicant claims that his relatives incurred $1,805.75 for mileage and public transit and $2,439.45 for meals.

15The respondent submits that the expenses identified on the OCF-6 dated April 25, 2020 do not match the supporting documents provided by the applicant. Specifically, the OCF-6 does not match the supporting documents for meals or the mileage listed in the mileage chart. The respondent indicates that it requested further information from the applicant regarding these discrepancies, and no additional information was provided by the applicant.

The applicant is entitled to $262.80 for visitor expenses

16I find that the applicant has demonstrated, on a balance of probabilities, that he is entitled to visitor expenses in the amount of $262.80. I find that the applicant has not demonstrated that the balance of the visitor expenses claimed has been incurred and that the expenses are reasonable and necessary.

17I find that the applicant has provided sufficient evidence to support that his spouse, Elaine Ranger, and his daughter, Amanda Sherrington, incurred travel expenses in the amount of $262.80. These expenses are supported by a Presto Card summary from the Toronto Transit Commission for the period of June 23, 2019 to August 26, 2019, a short-term parking ticket from Indigo Park Canada Inc. dated July 6, 2019, a Presto receipt for the Toronto Transit Commission dated July 27, 2019, and Bus Tickets from Ontario Northland from Barrie to Toronto and from Toronto to Barrie dated June 23, 2019, June 24, 2019, July 5, 2019, July 19, 2019, and August 6, 2019.

18I find that there is insufficient evidence to support that the balance of the travel expenses claimed by the applicant has been incurred as no receipts were provided for these expenses. Further, based on the description provided for some of these expenses, there is insufficient evidence to support that these travel expenses were reasonable and necessary to visit the applicant during his treatment or recovery.

19As for the meal expenses in the amount of $2,439.45, these expenses were not identified on the OCF-6 dated April 24, 2020 or any OCF-6 before the Tribunal. There is insufficient evidence to support that these meal expenses were incurred as limited receipts were provided. Also, based on the description provided, there is insufficient evidence to support that these meal expenses are reasonable and necessary expenses incurred to visit the applicant during his treatment or recovery.

20Accordingly, I find that the applicant has established that he is entitled to be reimbursed for visitor expenses in the amount of $262.80.

Assistive Devices

21Sections 14 and 15 of the Schedule provide that the respondent shall pay medical benefits to, or on behalf of, the applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

22Pursuant to s. 38(2)(c) of the Schedule, the respondent is not liable to pay an expense in respect to a medical benefit that was incurred before the insured person submits a compliant treatment and assessment plan unless the expense is reasonable and necessary as a result of the impairment sustained by the insured person for (i) drugs prescribed by a regulated health professional, or (ii) goods referred to in clauses 15(1)(d) to (f) and 16(3)(h) to (j) with a cost of $250 or less per item.

23Further, per s. 47(2) of the Schedule, payment of a medical benefit is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

24The applicant submits that $37.28 for a wrist splint, $150.00 for a boot, and $19.76 for prescription expenses is reasonable and necessary as the applicant fractured his wrist and leg as a result of the accident.

25The respondent submits that the wrist splint, boot, and prescription expenses are not payable pursuant to s. 47(2) of the Schedule as the applicant failed to provide information confirming that he had first submitted these expenses to his extended health care provider.

The applicant is not entitled to the cost of a wrist splint, a boot, and prescription expenses

26I find that the applicant has failed to demonstrate, on a balance of probabilities, that he is entitled to be reimbursed for the cost of the wrist splint, boot, and prescription expenses.

27The applicant has not provided any evidence that the expenses were submitted to his extended health care provider. Further, the applicant did not include in the evidentiary record any receipts from St. Michael’s Hospital to support that the wrist splint and boot were incurred. Also, while the applicant provided a receipt from Shoppers Drug Mart dated September 6, 2019 for prescription expenses, the applicant has not directed me to any evidence that explains what prescriptions were bought and whether they were connected to the accident.

28Accordingly, I find that the applicant has not discharged his evidentiary onus to demonstrate that he is entitled to be reimbursed for the cost of the wrist splint, a boot, and prescription expenses.

The Treatment Plans

29To 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. To do so, the applicant should identify the goals of the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

30The applicant submits that due to the severity of his accident-related impairments, the disputed treatment plans are reasonable and necessary. He requires coordinated care amongst his treatment providers, and the time for providing feedback, updates, and guidance on next steps is invaluable to the applicant’s recovery.

31In response, the respondent submits that it partially approved the treatment plans in dispute and argues that the overall costs of the treatment plans are not reasonable and necessary. The respondent submits that the applicant has not met his evidentiary burden to prove that the unapproved balances of the treatment plans are reasonable and necessary. It relies on Butler v. Allstate Insurance, 2021 CanLII 28679 (ON LAT).

The unapproved balances of the treatment plans for physiotherapy services are not reasonable and necessary

32I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balances of the treatment plans for physiotherapy services are reasonable and necessary. As such, the applicant is not entitled to $299.25 for the treatment plan dated August 28, 2019, $299.25 for the treatment plan dated November 12, 2019, $523.71 for the treatment plan dated November 3, 2020, $224.46 for the treatment plan dated March 4, 2020, and $199.50 for the treatment plan dated July 14, 2020.

33The treatment plan dated August 28, 2019 in the amount of $3,192.53 proposes an assessment and completion of the treatment plan, one hour twice weekly physiotherapy sessions for twelve weeks, twelve 15-minute service planning sessions between the applicant’s healthcare team, and a physiotherapy assessment and progress report to be completed part way through the treatment plan. The respondent partially approved the treatment plan in the amount of $2,893.28 and denied the cost of the physiotherapy assessment and progress report to be completed part way through the treatment plan in the amount of $299.25.

34The treatment plan dated November 12, 2019 in the amount of $3,062.23 proposes a reassessment and completion of the treatment plan, one hour twice weekly physiotherapy sessions for twelve weeks, twelve 15-minute service planning sessions between the applicant’s healthcare team, and a physiotherapy progress report for the applicant’s treating healthcare team. The respondent partially approved the treatment plan in the amount of $2,763.28 and denied the cost of the physiotherapy progress report in the amount of $299.25.

35The treatment plan dated November 3, 2020 in the amount of $1,267.03 proposes a reassessment and completion of the treatment plan, one hour weekly physiotherapy sessions for six weeks, twelve 15-minute service planning sessions between the applicant’s healthcare team, and physiotherapy progress report for the applicant’s treating healthcare team. The respondent partially approved the treatment plan in the amount of $743.32. It reduced the cost for service planning sessions to $74.82, and it denied the cost of the physiotherapy progress report in the amount of $299.25.

36The treatment plan dated March 4, 2020 in the amount of $967.78 proposes a reassessment and completion of the treatment plan, one hour biweekly physiotherapy sessions for six sessions, and twelve 15-minute service planning sessions between the applicant’s healthcare team. The respondent partially approved the treatment plan in the amount of $743.32.

37I find that the applicant’s submissions and evidence are lacking in demonstrating that the overall cost of the treatment plans is reasonable and necessary. The applicant argues that he requires coordinated care amongst his providers due to his injuries, and he affirms that this can be accomplished either by way of progress reports or treatment planning calls and meetings. However, the applicant has provided no evidence to support the completion of a physiotherapy assessment and a progress report part way through treatment. Further, the applicant has provided no evidence to support the need for a progress report when details on the applicant’s progress can be outlined in the subsequent treatment plan.

38Additionally, while the applicant claims that two 15-minute planning calls for each physiotherapy sessions is required to ensure the applicant’s progress and safety, no explanation has been provided to support an increased number of planning calls per session when the applicant’s physiotherapy sessions have and continue to be reduced.

39I further find that the applicant’s submissions and evidence is lacking in demonstrating his entitlement to the unapproved balance of the treatment plan dated July 14, 2020. After reviewing the parties’ written submissions and evidence, I note that the treatment plan was not filed with the Tribunal. Further, neither party made submissions relating to the applicant’s entitlement to the unapproved balance of $199.50. As there is no evidence before me that this treatment plan remains in dispute and that the unapproved balance is reasonable and necessary, I find that the applicant has not met his evidentiary burden to establish his entitlement to the unapproved balance of this treatment plan.

40As such, I find that the applicant has not met his evidentiary burden and proven that the unapproved balances of the treatment plans for physiotherapy services are payable.

The unapproved balances of the treatment plans for occupational therapy services are not reasonable and necessary

41I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balances of the treatment plans for occupational therapy services are reasonable and necessary. As such, the applicant is not entitled to $448.88 for the treatment plan dated September 3, 2019, $603.00 for the treatment plan dated September 30, 2019, $594.00 for the treatment plan dated November 7, 2019, $448.88 for the treatment plan dated April 27, 2020, and $299.25 for the treatment plan dated March 10, 2021.

42The treatment plan dated September 3, 2019 in the amount of $2,344.63 proposes five occupational therapy sessions, including time for planning/preparing for each session, session notes, progress report, consultation with allied health professionals as required for a total of 15 hours, travel time for the provider, collaboration and provision of clinical practices and activities, and completion, review, and certification of the treatment plan. The respondent partially approved the treatment plan in the amount of $1,895.75, reduced the time allotted for the occupational therapy sessions to 12 hours, and denied the cost of collaboration and provision of clinical practices and activities in the amount of $149.63.

43The treatment plan dated September 30, 2019 in the amount of $2,240.50 proposes four occupational therapy sessions, including time for preparation, coordination, consultation with other care providers, and documentation for a total of 16 hours, travel time for the provider, Theraputty, delivery fees, collaboration and provision of clinical practices and activities, and completion, review, and certification of the treatment plan. The respondent partially approved the treatment plan in the amount of $1,646.50, reduced the time allotted for the occupational therapy sessions to 12 hours, and denied the cost of collaboration and provision of clinical practices in the amount of $195.00.

44The treatment plan dated November 7, 2019 in the amount of $2,190.52 proposes four occupational therapy sessions, including time for preparation, coordination, consultation, and documentation, for a total of 16 hours, travel time for the provider, collaboration and provision of clinical practices and activities, and completion, review, and certification of the treatment plan. The respondent approved the treatment plan in the amount of $1,596.52, reduced the time allotted for the occupational therapy sessions to 12 hours, and denied the cost of collaboration and provision of clinical practices in the amount of $195.00.

45The treatment plan dated April 27, 2020 in the amount of $2,358.72 proposes four occupational therapy sessions, including time for preparation, coordination, consultation, and documentation, for a total of 16 hours, travel time for the provider, collaboration and provision of clinical practices and activities, assistive devices, including a laptop riser, vertical mouse, and foot rest, delivery fees, and completion, review, and certification of the treatment plan. The respondent approved the treatment plan in the amount of $1,909.85, reduced the time allotted for the occupational therapy sessions to 12 hours, and denied the cost of collaboration and provision of clinical practices in the amount of $195.00.

46The treatment plan dated March 10, 2021 in the amount of $1,995.52 proposes four occupational therapy sessions, including time for preparation, coordination, consultation, and documentation, for a total of 16 hours, travel time for the provider, and completion, review, and certification of the treatment plan. The respondent partially approved the treatment plan in the amount of $1,696.27, and reduced the time allotted for the occupational therapy sessions to 13 hours.

47I find that the applicant’s submissions and evidence are lacking in demonstrating that the overall cost of the treatment plans are reasonable and necessary. While the applicant argues that progress reports are lengthy, complex, and detailed, and that they require more time to complete, he has provided no evidence to support that more than 0.5 hours for planning/preparation and consultation with allied health professionals for every 1.5 hours of treatment is reasonable and necessary and that additional time for progress report writing is reasonably required. Further, while the applicant argues that collaboration is required, he has provided no evidence to support that the proposed cost of collaboration and provision of clinical practices and activities is reasonable and necessary.

48As such, the applicant has not met his evidentiary burden and proven that the unapproved balances of the treatment plans for occupational therapy services are payable.

The unapproved balance of the treatment plan for rehabilitation therapy services is not reasonable and necessary

49I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for rehabilitation therapy services is reasonable and necessary. As such, the applicant is not entitled to $2,651.17 for the treatment plan dated April 20, 2022.

50The treatment plan in the amount of $4,758.06 proposes rehabilitation therapy services, including twice weekly in person sessions, preparation, planning, documentation, and report preparation for a total of 36 hours, travel time for the provider, professional collaboration and provision of clinical activities, and completion, review, and certification of the treatment plan. The respondent partially approved the treatment plan in the amount of $2,106.89, reduced the time allotted for rehabilitation therapy services to 19 hours, reduced the count of the provider’s travel time, and denied the cost of professional collaboration and provision of clinical activities and the provider’s milage cost.

51I find that the applicant’s submissions and evidence are lacking in demonstrating that the overall cost of the treatment plan is reasonable and necessary. The applicant has provided insufficient evidence to support that the applicant requires more than one rehabilitation therapy session per week and that additional time for progress report writing is required. While the applicant argues that he requires two rehabilitation therapy sessions per week since he no longer sees his physiotherapist, it is noteworthy that in the additional comments of a treatment plan dated March 4, 2020, Kathy Tossios, the applicant’s treating physiotherapist, indicated that the applicant would commence an independent program with only monthly physiotherapy reassessments. As such, there is insufficient evidence to support that a reduction in physiotherapy sessions correlates to an increase in weekly rehabilitation therapy sessions.

52Additionally, the applicant has provided no evidence to support that the proposed cost of collaboration and provision of clinical practices and activities is reasonable and necessary. Also, the applicant has provided no evidence or submissions to suggest that the unapproved travel costs are reasonable and necessary.

53As such, the applicant has not met his evidentiary burden and proven that the unapproved balance of the treatment plan for rehabilitation therapy services is payable.

The unapproved balances of the treatment plan and invoices for case management are not reasonable and necessary

54I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balances of the treatment plan and invoices for case management services are reasonable and necessary. As such, the applicant is not entitled to $1,742.42 for the treatment plan dated January 31, 2020 nor is he entitled to the eight invoices (OCF-21) for case management services.

55The treatment plan in the amount of $5,599.63 proposes case management services, including in-person meetings and telephone support with the applicant, his healthcare providers, research, collaboration, and documentation for a total of 35 hours, travel time for the provider, case management collaboration and provision of clinical practices, disbursements fees (e.g. parking), and completion, review, and certification of the treatment plan. The respondent partially approved the treatment plan in the amount of $3,857.21, reduced the hourly rate of the case management services provider to $91.43 per hour, and denied the cost of professional collaboration and provision of clinical activities as well as disbursement fees.

56I find that the applicant’s submissions and evidence are lacking in demonstrating that the overall cost of the treatment plan is reasonable and necessary.

57I do not find that the applicant has met his onus to prove, on a balance of probabilities, that $130.00 per hour for case management services to be provided by a social worker is reasonable and necessary. While the applicant relies on R.O. v. Aviva Insurance Company of Canada, 2019 CanLII 122721 and SK v. Aviva Insurance Company of Canada, 2020 CarswellOnt 17551 and argues that the Tribunal has accepted an hourly rate of $130.00 and $135.00 for social workers, I am not bound by these decisions.

58It is well established that the Professional Services Guidelines issued by the Financial Services Commission of Ontario as Superintendent’s Guideline No. 03/14 (the “PSG”) sets out the maximum expenses payable for a range of healthcare services under the Schedule. Although the PSG does not provide an hourly rate for social workers, it provides that the maximum hourly rate for unregulated providers such as case managers is $58.19 per hour. The respondent approved the hourly rate of $91.43 per hour, which exceeds the rate for case managers. Given that the PSG is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be, and if they are unable to do so, the Tribunal must decide.

59I do not find that the case manager should be paid the higher hourly rate of $130.00 per hour in the circumstances. As a result, I accept that $91.43 per hour is a reasonable hourly rate for a social worker to provide case management services.

60I further find that the applicant has provided insufficient evidence and explanation to support that the proposed cost of professional collaboration and provision of clinical activities and disbursement fees are reasonable and necessary.

61As such, the applicant has not met his evidentiary burden and proven that the unapproved balances of the treatment plan and invoices are payable.

[62]

The unapproved balances of the treatment plans and invoices for social rehabilitative counselling services and social work counselling are not reasonable and necessary

63I find that the applicant has failed to demonstrate on a balance of probabilities, that the unapproved balances of the treatment plans and invoices for social rehabilitative counselling services and social work counselling are reasonable and necessary. As such, the applicant is not entitled to $467.16 for the treatment plan dated November 30, 2020, $1,678.83 for the treatment plan dated November 15, 2021, $1,355.97 for the treatment plan dated February 17, 2021 nor is he entitled to the ten invoices (OCF-21) for social rehabilitative counselling services and social work counselling.

64The treatment plan dated November 30, 2020 in the amount of $3,666.00 proposes social work services, documentation for weekly/session updates, brokerage and session planning, brokerage, educational material (e.g. hand-outs, books), social work assessment report, preparation of the treatment plan, and consultation, research, collaboration, and coordination of supports. The respondent partially approved the treatment plan in the amount of $1,987.17, reduced the hourly rate of the social worker to $91.43 per hour, and denied the cost of documentation for weekly/session updates, brokerage and consultation, research, collaboration, and coordination of supports.

65The treatment plans dated November 15, 2021 and February 17, 2021, both in the amount of $3,526.00, propose social work services, documentation for weekly/session updates, brokerage and session planning, brokerage, educational material (e.g. hand-outs, books), social work assessment report, and preparation of the treatment plan. The respondent partially approved these treatment plans, both in the amount of $2,170.03, reduced the hourly rate of the social worker to $91.43 per hour, and denied the cost of documentation for weekly/session updates.

66I find that the applicant’s submissions and evidence are lacking in demonstrating that the overall cost of the treatment plans and invoices are reasonable and necessary.

67I do not find that the applicant has met his onus to prove, on a balance of probabilities, that $140.00 per hour for rehabilitation services to be provided by a social worker is reasonable and necessary. Although the PSG provides that the maximum hourly rate for psychologists and psychological associates is $149.61 per hour, as indicated above, the PSG does not provide an hourly rate for social workers. Further, the maximum hourly rate for unregulated providers such as rehabilitation counsellors is $58.19 per hour. The respondent approved the hourly rate of $91.43 per hour, which exceeds the rate for rehabilitation counsellors.

68I do not find that a rehabilitation counsellor should be paid the higher hourly rate of $140.00 per hour in the circumstances. As a result, I accept that $91.43 per hour is a reasonable hourly rate for a social worker to provide rehabilitation counselling services.

69I further find that the applicant has provided no evidence to support that the proposed cost of documentation for weekly/session updates, brokerage and consultation, research, collaboration, and coordination of supports is reasonable and necessary.

70As such, the applicant has not met his evidentiary burden and proven that the unapproved balances of the treatment plans and invoices are payable.

Interest

71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for any overdue amount relating to the cost of a helmet and to the unapproved balance of the visitor expenses.

Award

72Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit.

73The applicant submits that the respondent unreasonably withheld benefits by unilaterally deciding what constitutes a reasonable and necessary expense, by failing to consider the need for a coordinated approach in light of the applicant’s injuries, and by setting rates for treatment below what case law has found to be reasonable.

74The respondent submits that it adjudicated the applicant’s accident benefit claim fairly and responsively in accordance with the information and documentation received. The respondent denies that it acted in a manner that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

75It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. In this case, I find that there is no evidence that the respondent’s actions rose to a level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

76Accordingly, the respondent is not liable to pay an award.

ORDER

77For the reasons outlined above, I find that:

1. The applicant is entitled to $312.95 for the cost of replacing a helmet.

2. The applicant is entitled to $262.80 for visitor expenses.

3. The applicant is not entitled to the cost of a wrist splint, a boot, and prescription expenses.

4. The applicant is not entitled to the unapproved balances of the disputed treatment plans for physiotherapy services.

5. The applicant is not entitled to the unapproved balances of the disputed treatment plans for occupational therapy.

6. The applicant is not entitled to the unapproved balance of the disputed treatment plan for rehabilitation therapy services.

7. The applicant is not entitled to the unapproved balances of the disputed treatment plan and invoices for case management services.

8. The applicant is not entitled to the unapproved balances of the disputed treatment plans and invoices for social rehabilitation counselling services and social work counselling.

9. The applicant is entitled to interest for any overdue amount relating to the cost of a helmet and to the visitor expenses.

10. The respondent is not liable to pay an award.