Licence Appeal Tribunal File Number: 22-013806/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Julia Gomez
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
Timothy Porter
APPEARANCES:
For the Applicant:
Julia Gomez, Applicant (did not attend) Juan-Carlos Gomez Rivas (litigation guardian)
Nick de Koning, Counsel
For the Respondent:
Judith Matani, Adjuster
Brittanny Tinslay, Counsel
J.C. Rioux, Counsel
Court Reporter:
Joni Zhamo
HEARD: by Videoconference:
February 27, 2024
OVERVIEW
1Julia Gomez, (the “applicant”), was involved in an automobile accident on May 3, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2Following the accident, the applicant was designated as catastrophically impaired and began receiving an attendant care benefit (“ACB”) from Certas Home and Auto Insurance Company (the “respondent”) in the amount of $6,000.00 per month. The applicant then applied for medical benefits to cover fees charged by the facility where she resides and receives her attendant care. The respondent denied the applicant’s claim for these medical benefits. The applicant then applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
(i) Is the applicant entitled to a medical benefit in the amount of $2,701.61 per month, proposed by Ms. Kristen Wood (occupational therapist) in a treatment plan (the “OCF-18”) dated December 4, 2020?
(ii) Is the applicant entitled to a medical benefit in the amount of $2,701.61 per month, proposed by Ms. Wood in an OCF-18 dated August 4, 2021?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
4At the start of the hearing, the parties agreed, on consent, to amend issues (i) and (ii) above to reflect monthly amounts instead of lump-sum amounts as indicated in the case conference report and order for this matter.
5During closing submissions, the applicant withdrew the award claim indicated at issue 3 in the case conference report and order for this matter.
RESULT
6The applicant is not entitled to the disputed OCF-18s and no interest is payable.
ANALYSIS
7We find that the applicant is not entitled to the disputed OCF-18s.
8Normally, to prove entitlement to a medical benefit, the applicant would have to show the disputed OCF-18s are reasonable and necessary per section 15 of the Schedule. However, in this case, the parties do not dispute the reasonableness and necessity of these OCF-18s. Rather, the parties are disputing whether the OCF 18s are properly classified as a medical benefit under section 15, or as an ACB under section 19. As such, the applicant must prove that the goods and services proposed in the disputed OCF-18s constitute medical benefits per section 15 of the Schedule.
Submissions of the parties
9The parties submitted an agreed statement of facts that sets out the context of this dispute. The relevant aspects are:
i. The applicant is catastrophically impaired and has received the maximum payable attendant care benefit of $6,000.00 per month since she began residing at Trinity Long-Term Care (“Trinity”) in October 2020.
ii. The applicant requires round-the-clock attendant care services. The cost of these services, provided entirely by Angels Senior Care (“Angels”), exhausts the monthly ACB paid by the respondent.
iii. In addition to the monthly cost of care provided by the Angels, the applicant owes a monthly charge of $2,838.49 to Trinity. The applicant’s family members have paid the Trinity fee out of an account they manage in trust for the applicant.
iv. This dispute is whether the respondent is responsible to pay the monthly charge for Trinity in addition to the ACB.
10The applicant views the Trinity fee as medical or hospital expenses under section 15(1)(a) of the Schedule, or alternately as goods and services of a medical nature under section 15(1)(h) of the Schedule. The applicant relies on the testimony of the applicant’s litigation guardian, the assessment of attendant care needs (the “Form 1”) completed by Ms. Wood, and the corresponding attendant care reports and communications of Ms. Wood.
11The respondent views the Trinity fee as attendant care and reasons that since it is already paying the maximum ACB under the Schedule, the applicant is not entitled to further ACB.
The disputed OCF-18s do not propose services or goods that are consistent with medical or hospital expenses under section 15(1)(a) of the Schedule
12Section