Citation: Kireev v. Certas Home and Auto, 2024 ONLAT 21-009788/AABS
Licence Appeal Tribunal File Number: 21-009788/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:
Michael Kireev
Applicant
and
Certas Home and Auto
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Sherilyn J. Pickering, Counsel
For the Respondent: Adam Fox, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Michael Kireev (“the applicant”) was involved in an automobile accident on September 25, 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 Certas Home and Auto (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a medical benefit in the amount of $4,853.60 (less approved) for a bio-feedback assessment proposed by Enhanced Care Medical Walk-In Clinic in a treatment plan/OCF-18 (“plan”) submitted December 14, 2020 and denied February 17, 2020?
ii. Is the applicant entitled to a medical benefit in the amount of $2,045.38 for occupational therapy services proposed by Rehab First in a plan submitted January 7, 2021 and denied January 11, 2021?
iii. Is the applicant entitled to a medical benefit in the amount of $709.40 ($3,403.15 less $2,693.75 approved) for occupational therapy services proposed by Rehab First in a plan submitted March 18, 2021 and denied March 23, 2021?
iv. Is the applicant entitled to a medical benefit in the amount of $2,002.65 ($2,961.66 less $959.01 approved) for assistive devices proposed by Rehab First in a plan submitted April 19, 2021 and denied April 21, 2021?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the following, including interest in accordance with s. 51 of the Schedule:
i. $2,045.38 for the occupational therapy services in the plan submitted January 7, 2021;
ii. $598.50 for the occupational therapy services in the plan submitted March 18, 2021;
iii. $327.63 for the assistive devices in the plan submitted April 19, 2021;
4The applicant has not met his onus to establish entitlement to the balance of the bio-feedback assessment.
5The respondent is not liable to pay an award.
PROCEDURAL ISSUES
Issues in dispute
6The case conference report and order dated December 20, 2022 identifies a further 26 issues, but is somewhat vague as to whether they are actually in dispute for this hearing. In any event, the applicant indicates in his reply submissions that these issues are withdrawn, which is his right.
Respondent’s motion to exclude medical reports
7The respondent filed a motion seeking to exclude the report of Dr. Mark Friedlander, dated August 7, 2023 and the report of Dr. Irina Valentin dated July 30, 2023 on the basis that they were disclosed late. Both reports were served on the respondent by email after business hours on September 6, 2023.
8The applicant did not make any submissions on the motion, however the applicant did not include either report as evidence with their submissions. Therefore, the respondent’s request is moot.
Exclusion of Surveillance Reports
9In its submissions, the respondent included surveillance reports dated December 23, 2021 and July 6, 2023 and a letter dated May 24, 2023 purporting to serve the reports on the applicant. In reply, the applicant objected to the surveillance and submits that it ought to be disregarded because the actual video footage was not provided, so it is impossible to determine the veracity of the investigator’s summary, and further that it was never served. The letter of May 24, 2023 was in relation to a different claimant. Also, it would be impossible to serve a surveillance report dated July 6, 2023 of footage taken in June 2023 on May 24, 2023.
10I agree with the applicant that without the video footage, the investigative reports are less reliable. Given that they were also not served within the timelines set out in the case conference report and order, the respondent is also in breach of Rule 9.4. I have excluded the surveillance reports from my analysis.
The treatment plan for assistive devices
11The case conference report and order lists as issue #4 a treatment plan for assistive devices for amount noted above, however it indicates that it was submitted February 19, 2021 and denied February 21, 2021.
12In his submissions, the applicant indicates that the treatment plan was mis-identified, that it was actually submitted April 19, 2021 and partially approved on July 22, 2021.
13The respondent submits that there is no treatment plan in dispute related to assistive devices submitted February 19, 2021, and the applicant did not inform the respondent that it intended to change the issue in dispute, nor filed a motion to change or clarify the issue or amend the case conference report and order. The respondent submits it has been blindsided with a new issue without notice, and can only speculate that a plan dated April 19, 2021 and approved in part on April 21, 2021 is the plan addressed in the applicant’s submissions.
14The applicant submits that the application and case conference summaries of both parties correctly identified the treatment plan and date, that the date on the case conference report and order was a typographical error by the adjudicator. He submits that there was no “blindside”, there are matching amounts and consistent listing of the correct date by both parties, and the argument that the applicant should be barred from pursuing this dispute because of a typographical error is disingenuous.
15I agree with the applicant. Both the application to the Tribunal and the insurer’s response as well as both parties’ case conference summaries correctly identify the date of the treatment plan. While it is unfortunate that there was an error on the case conference report and order, and the proper procedure would be to request an amendment of the order, it would be highly prejudicial to the applicant to prevent him from proceeding with this claim when both parties understood the dispute was in relation to that specific treatment plan.
ANALYSIS
16To 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 treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Issue 1: The bio-feedback assessment
17The treatment plan dated December 14, 2020 completed by Dr. Taher Chugh, general practitioner, proposed a bio-feedback assessment in the amount of $4,853.50. It is for an assessment of heart rate variability and relaxation, biofeedback assessment of musculature with surface EMG biofeedback technology, psychotherapy for anxiety and stress reaction, consultation and collaboration between providers, and cognitive assessment. It also included a buffalo treadmill protocol to test the system under exertion in order to develop a home exercise clinic. The goals of the plan included improved cognitive processes, decreased headaches, improved energy, reduced pain, and improved balance, gait and mental health. The functional goals included improving his mental health to help him return to activities of normal living, return to work activities, among others.
18The plan was initially denied because the respondent took the position that the applicant’s injuries fell within the definition of a minor injury according to the Minor Injury Guideline (“MIG”). He was subsequently removed from the MIG in February 2021.
19The respondent approved the plan in part on February 23, 2021 in the amount of $4,155.10. Fees for documentation and planning were denied on the basis that the applicant was not catastrophically impaired, so he was not entitled to medical reviews or team conferences. The applicant incurred part of the plan per the approval, and two invoices were paid. A third invoice in the amount of $1,800.00 was not paid, because the payee was reportedly missing, and the provider listed on the invoice was no longer licenced by FSCO. The respondent confirmed that once the missing information is provided the outstanding payments will be made. The respondent submits that the onus is on the applicant to provide the information, and therefore no payment is overdue and thus no interest is owed.
20The applicant submits that the explanations provided to the applicant were vague, stating only that “there is a problem with the billing information of the provider”. The applicant provided some additional information with their reply submissions including the full name of the facility and the FSCO licence number. Presumably, with this missing information the respondent will issue payment for the approved services.
21The applicant did not make any submissions on why the additional fees for documentation and planning services were reasonable and necessary. Accordingly, I find that he has not established his entitlement to the denied portion of this plan.
Issue 2: the in-home occupational therapy assessment
22This plan dated January 7, 2021 was completed by Lindsay Schawlm, occupational therapist, and proposed an in-home occupational therapy assessment to evaluate the applicant’s level of functioning, safety and independence with his pre-accident activities of normal living in his home and community. The assessment was intended to identify occupational performance and participation issues, and make recommendations for assistive devices, home supports, or rehabilitation services.
23The respondent submits that Ms. Schawlm was not qualified to provide the diagnoses listed on the treatment plan, which included psychological symptoms, cognitive issues, and concussion, among others. However, the OCF-18 does not ask for diagnoses, it requires a description of complaints, injuries, and sequelae. The diagnosis of concussion had already been made by Dr. Chugh.
24The plan was initially denied because the applicant’s injuries were found to fall within the MIG. Subsequently, the applicant was removed from the MIG in early 2021. The applicant underwent the occupational therapy assessment, completed by Nadia El Jerbi, dated April 8, 2021.Ms. El Jerbi made recommendations for attendant care services including dressing, grooming, mobility supervision bathroom and bedroom hygiene, basic supervision, assistance with bathing and exercise, at the rate of $10,320.04 per month. She also recommended assistive devices, ongoing medical and rehabilitation treatment, audiology services, vision therapy, speech language pathology, occupational therapy, and rehabilitation support work.
25After the applicant was removed from the MIG, the applicant underwent insurer’s examinations (IE) with Dr. Williams (physiatry), Dr. Desai (neurology), Delize Roberts (occupational therapist), and Kendra Robinson (registered kinesiologist). Ms. Roberts completed an in-home occupational therapy assessment. She found that the applicant had full, active ranges of motion, and that while some of the recommended devices were already provided to the household, some of the goods and services were reasonable and necessary.
26Given that even the respondent’s assessor found that some of the recommendations made in the course of the occupational therapy assessment were reasonable and necessary, I find that the assessment itself was also therefore reasonable and necessary. The applicant’s physical, neurological and functional restrictions were impacting his ability to work, care for his family, and complete his other activities. Identifying and remediating these impacts is a reasonable goal, and the cost of the assessment is reasonable as it is $2,045.38, comprised of $1,745.63 for the assessment, $200.00 for documentation and $99.75 for the provider’s travel, as such, is within the maximum payable for assessments as per s. 25(5)(a) of the Schedule.
Issue 3: occupational therapy services
27After Ms. El Jerbi completed her assessment, she proposed the plan dated March 19, 2021 proposing six in-person occupational therapy sessions in the amount of $3,403.15.
28The respondent partially approved the plan for a total of $2,693.75. It denied the portion of a plan for personal protective equipment (“PPE”); a progress report; two hours of telephone communication/support, research and consultation; and 1.5 hours of collaboration activities between providers.
29The respondent submits that PPE is not payable as, as it is considered “expenses related to the professional services” under the Schedule, and administration and overhead costs are not payable. It relies on the Tribunal decision in Vila v. Aviva Insurance Company, 2023 CanLII 50529 (ON LAT).
30I agree with the respondent, the PPE is captured in the administrative and overhead costs, and in the absence of submissions form the applicant on this issue, I find that it is not payable.
31With respect to the other denied services, the respondent submits that these services are classified as case management services, and that pursuant to the Schedule, case management services only apply to those who are found to be catastrophically impaired. The applicant submits that these portions are not case management services. He submits that preparing a progress report is to keep the adjuster and treatment team informed of his progress. He submits that collaboration of clinical practices and communication, support, research is required because treatment providers must collaborate to ensure a consistent approach is being taken. The communication includes with other providers and with the applicant himself.
32I agree with the applicant that the progress report is reasonable and necessary, to keep the adjuster and treatment team informed of his progress. Telephone communication/support, research and consultation is reasonable and necessary, because it relates to services provided to the applicant and is not co-ordination of services such that it could be considered case management services.
33I find that the balance of the proposed plan for 1.5 hours of collaboration activities between providers is not reasonable and necessary. I find the services described fall under the category of case management services. The Schedule describes the services of a case manager as services related to the co-ordination of goods or services for which payment is provided by a medical, rehabilitation, or attendant care benefit.
34The balance of treatment plan is partially reasonable and necessary for a total of $598.50.
Issue 4: assistive devices
35The treatment plan for assistive devices, submitted April 19, 2021 proposed $2,961.66. It was partially approved for $959.01, leaving $2,002.65 in dispute.
36The proposed devices include a hands-free vacuum, a removable handheld shower hose/head, a wheeled grocery cart, bathtub scrubber, non-slip bathmat, and exterior non-slip bathmat, a back support, long-handled toilet brush cleaner, car back support, and an 8-week food subscription. There were also fees for Ms. El Jerbi to provide education on how to use the items in an ergonomic and safe fashion, or how to install them; as well as time to source the items; and a documentation fee for preparation of the OCF-18.
37The respondent denied the time for sourcing the items, as well as the shower hose/head, the bathtub scrubber, the non-slip bathmats, the back support, the car back support, and the meal subscription.
38The respondent submits that the applicant’s spouse (who was also injured in the subject accident) was supplied by the respondent with some of the same items related to household maintenance as was proposed in the subject plan. The respondent submits that multiple copies of the same tool are not reasonable or necessary. While replacement, once worn out is a reasonable concept, having two toilet brushes or bathmats is not reasonable when the applicant lives with his spouse in a two-bedroom, one bathroom apartment.
39I find that the proposed assistive devices are partially reasonable and necessary. While it initially appears that there is a duplication of services, as both line 1 and 2 services are for “education” as listed in the line items, there is a further explanation under “additional comments” section that explains that line 1 on the plan is for education on the devices, while line 2 is for planning, sourcing, contacting vendors, and facilitating payment of ordered devices. I find that the additional fee is reasonable and necessary. The devices must be sourced, ordered, and paid for before they can be provided to the applicant.
40Ms. Roberts opined that the handheld shower hose/head was not reasonable and necessary as his spouse had already been provided with one. However, Ms. El Jerbi noted that the one they had had begun to leak, which was why she recommended a replacement. Accordingly, I find that a replacement handheld shower hose/head is reasonable and necessary.
41I am also persuaded that the back supports are reasonable and necessary. The applicant reports constant neck and upper back pain, and intermittent lower back pain. The respondent denied the back supports on the basis of Ms. Roberts’ opinion that it would not support the neck and upper back where he reported he has pain. I agree with the applicant that a back support would promote proper posture and spinal alignment to reduce the pressure on his spine, including his upper back and neck. I am persuaded that the back supports are reasonable and necessary to support prolonged sitting and increase his tolerance for driving.
42I find that the bathmats and bath scrubber, while reasonable, are not necessary. I appreciate that these devices were intended to promote safety and a return to his pre-accident activities. However, these devices were already available to the applicant in his household, having previously been provided by the respondent to the applicant’s spouse. I therefore find that it was not necessary for the applicant to receive the devices the household already owned.
43I am also not persuaded that the food subscription service is reasonable or necessary. The applicant reported limitations with fatigue, dizziness, balance and prolonged standing. He was able to complete basic meal preparation such as toast, but otherwise were frequently ordering food as a result of difficulty with meal preparation. Ms. El Jerbi recommended provision of a “meal-replacement service” in her April 8, 2021 report. However the service proposed on the plan is really an ingredient delivery service. The subscription service still requires him to perform preparation such as chopping of the vegetables, and this is what he reported he was not able to perform. I am not persuaded that the provision of this service would assist in reaching the overall goals of the treatment plan to a reasonable degree. With respect to the applicant’s argument that he also struggled with the weight of carrying groceries, I note that the respondent approved a wheeled grocery cart.
44Ms. Roberts agreed that the applicant required assistance with complex meal preparation activities. He reported difficulty standing to prepare more complex meals and looking down. I am persuaded that with the use of a high stool and the food processor that was already recommended for the household through his spouse, the applicant would be able to perform this task independently with pacing and energy conservation techniques. I find that the food subscription is not reasonable and necessary.
45The balance of the treatment plan for assistive devices is partially reasonable and necessary, the applicant is entitled to the costs of the back support, the car back support, and the removable handheld shower hose/head, as well as the expense for planning, sourcing, contacting vendors, and facilitating payment of ordered devices, for a total of $327.63, plus interest.
Interest
46Having determined that certain benefits are payable, it follows that interest applies pursuant to s. 51.
Award
47The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that the respondent failed to reconsider the denial of the bio-feedback assessment after the applicant was removed from the MIG, and while it reconsidered the denial of the in-home assessment it denied it on the basis of incorrect medical information. He submits that the respondent denied the occupational therapy services for unclear and inaccurate reasons, and relied on an IE that was “clearly flawed” to the exclusion of all other evidence in denying the assistive devices. He submits that this behaviour should attract an award.
48The bar is high for an award, and the applicant is not necessarily entitled to an award just because I have found that some of the denials are payable. An insurer should not be held to a standard of perfection, but to a standard of reasonableness.
49I am not persuaded by the applicant’s submissions, I do not find that the respondent’s conduct was stubborn, inflexible, or unreasonable.
50I do not agree with the applicant that the respondent failed to reconsider the denial of the bio-feedback assessment. The respondent approved the plan in part on February 23, 2021 in the amount of $4,155.10. Although it seems there has been some issues with the payment of an invoice due to some missing information, it appears the respondent approved it and attempted to pay it in good faith. With the information provided with the applicant’s reply, presumably the balance of the invoices for approved potion of the plan can be paid.
51After the applicant was removed from the MIG, the respondent reconsidered its position with respect to the treatment plans in dispute, arranged insurer’s examinations, and partially approved several plans. I do not find that the insurer’s conduct amounted to bad faith, an award will not be granted.
ORDER
52The applicant is entitled to the following, including interest in accordance with s. 51 of the Schedule:
i. $2,045.38 for the occupational therapy services in the plan submitted January 7, 2021;
ii. $598.50 for the occupational therapy services in the plan submitted March 18, 2021;
iii. $327.63 for the assistive devices in the plan submitted April 19, 2021;
53The applicant is not entitled to the balance of the bio-feedback assessment.
54The respondent is not liable to pay an award.
Released: April 29, 2024
Kate Grieves
Adjudicator