Licence Appeal Tribunal File Number: 22-006498/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:
Davood Mirzaie
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR:
Jeffery Campbell
APPEARANCES:
For the Applicant:
Gary Mazin, Counsel
For the Respondent:
Catherine Korte, Counsel
HEARD:
In Writing
OVERVIEW
1Davood Mirzaie, the applicant, was involved in an automobile accident on September 14, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant’s injuries in the automobile accident included fractures to several parts of his body as well as injuries to his liver and kidneys. He was hospitalized for a period of two months and underwent various surgeries. He also sustained psychological injuries resulting in PTSD, anxiety disorder, substance abuse and suicidal ideations.
3Both parties recognize that the injuries sustained by the applicant in the 2011 automobile accident were of a serious nature, and the applicant was deemed to be catastrophically impaired in 2016.
ISSUES
4The issues in dispute are:
Is the applicant entitled to $146.00 for the payment of requested records, submitted on a claim form (OCF-6) submitted June 1, 2022 and denied June 6, 2022?
Is the applicant entitled to $406.80 for float therapy treatment, proposed by Float Escape Inc.in a treatment plan/OCF-18 (“plan”) submitted December 5, 2022 and denied December 5, 2022?
Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from February 1, 2023 to the date of this case conference and ongoing?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is entitled to $146.00, plus interest, for the payment of requested records;
6The applicant is entitled to $406.80, plus interest, for float therapy treatment;
7The applicant is entitled to $975.24 per month, plus interest on incurred amounts, for attendant care benefits from February 1, 2023 and onwards;
8The applicant is not entitled to an award.
PRELIMINARY ISSUES
9The respondent brought a motion for the exclusion of all documentation from the applicant’s document briefs and reference to those materials in the applicant’s written submissions. The grounds for the motion are that the said documents were served in non-compliance with the Order of Adjudicator Gerard Tillman in the Case Conference Report and Order dated February 25, 2023.
10The respondent submits that the late service of documents is prejudicial and caused inherent unfairness and prejudice to the respondent. The respondent submits that, due to the late service of the documents, it is unable to respond with s. 44 assessments and responding reports.
11At the case conference the Tribunal ordered, “by no later than 120 calendar days from the date of this case conference, both parties shall exchange all other documents not previously disclosed upon which they intend to rely at the hearing”. The deadline for the production of the documents was, therefore, June 6, 2023.
12The respondent submits that the following documentation was served late on the following dates:
i. Clinical notes and records of Dr. Kodsi, family physician, were served on July 6, 2023 and September 27, 2023;
ii. Clinical notes and records of psychiatrist were served on September 27, 2023;
iii. Clinical notes and records of Dr. Pezhman Mehrabian were served on September 27, 2023.
13On March 31, 2023, a Notice of Written Hearing was provided to the parties indicating that the written hearing would take place on November 10, 2023.
14The Case Conference Report and Order dated February 23, 2023 ordered that the written submissions and evidence of the applicant would be served and filed 30 calendar days prior to the hearing (that date being October 11, 2023), of the respondent 14 calendar days prior to the hearing (that date being October 27, 2023) and the applicant’s reply submissions 7 calendar days prior to the hearing (that date being November 3, 2023).
15The applicant submits that the records of Dr. Kodsi were requested on May 3, 2023 were received on June 30, 2023. These were served on July 6, 2023.
16While the records of Dr. Kodsi were requested 38 days after the Case Conference Report and Order, I do note that they were, nevertheless requested well before the deadline. Also, while they were served on the respondent one month after the deadline, I accept that the applicant did make efforts to obtain the records and did serve them relatively shortly after their receipt. Further, as the respondent did receive them more than three months prior to the deadline for submissions, and, as these were not expert reports, but records of the family doctor, I do not find that their late production overly, if at all, prejudiced the respondent. I will allow the records of Dr. Kodsi which were exchanged on July 6, 2023.
17The applicant submits that the updated records of Drs. Kodsi, Banoub and Mehrabian which were produced on September 27, 2023 did not exist before the deadline of June 6th and therefore could not have been produced by that date. The applicant also submits that the order of February 23, 2023 for documents not previously disclosed pertains to pre-existing records and not to new ones.
18I cannot agree with this argument. The deadline of 120 days was for the production of all documents which the parties intended to rely upon at the hearing. This is obviously for the production of documents which have never been exchanged (hence, not-previously disclosed, not, not previously existing). I do not accept this argument.
19The respondent submits that the updated records of Drs. Kodsi, Banoub and Mehrabian which were served on September 27, 2023 produce prejudice to the respondent as they do not allow sufficient time for it to respond in an adequate manner. I concur with the respondent in this regard, with the above exception of the records of Dr. Kodsi, which as noted, were requested before the production deadline As of the date of production, the respondent had only 30 days in which to respond to the reports of the specialists, Banoub and Mehrabian. This is an inadequate time for the respondent to analyse and answer the contents of those reports.
20Lastly, the applicant submits that to not allow the consideration of the documents of Drs. Banoub and Mehrabian as well as the updated records of Dr. Kodsi would be unfair to the applicant who has received and is still being diagnosed for serious injuries. This argument would have some legitimacy, except for the fact that, at the time of the producing of Dr. Kodsi’s updated records and those of the two new specialists, over 12 years had passed since the motor vehicle accident. Particularly considering that context, the late exchanging of those documents (over three months past the production deadline, one month prior to the submission deadline and 44 days preceding the date of the hearing) is prejudicial to the respondent. I also find that the applicants explanation of the late production of the specialist’s records not to be satisfactory.
21For the above reasons, I order that any documents or things exchanged beyond those served on July 6, 2023 will not be considered in this appeal.
ANALYSIS
Issue 1: The applicant is entitled to $146.00 for the payment of requested records
22Upon the respondent’s request, on February 24, 2022, the applicant produced the records of Broadway at Yew. The cost of those records was $171.00. On June 6, 2022, the respondent advised the applicant that they would only pay $22.00 for the records ($1.00 per page).
23The applicant submits that it is beyond their control as to what treatment providers invoice for their clinical notes and records. Further, the respondent did not advise the applicant of their policy of payment of $1.00 per page prior to their request for the records of Broadway at Yew until well after they were requested.
24I agree with the applicant in this regard. Medical practitioners have no consistent policy of invoicing $1.00 per page. Whether the amount of $171.00 for the records of Broadway at Yew is reasonable or not does not negate the fact that the respondent requested those records. The applicant should not bear the cost of a production that was required by the respondent.
25While I note that the difference between the cost of the records and the payment by the respondent is $149.00, the entitlement will be for the amount claimed by the applicant.
26The applicant is entitled to $146.00 for the payment of requested records.
Issue 2: The applicant is entitled to $406.80 for float therapy treatment
27The applicant submitted a treatment plan by psychologist Dr. Gloria Fiati for the cost of float therapy treatment in the amount of $406.80. In a Case Management Progress Report dated March 30, 2023, assessing psychologist Dr. Charles Rock noted that “studies indicate that floating increases your dopamine and endorphin levels, boosting your mood.” Dr. Rock further stated that he “continues to advocate for treatment that will be beneficial for the client’s recovery.” This is one of the treatments that Dr. Rock recommended that the applicant continue to receive for his recovery.
28The respondent submits a s. 44 psychiatric paper review by psychiatrist, Dr. Shreekant Sharma who opined that, “Float therapy, which involves floating in a tank of salt water in the dark, is not an evidence-based treatment for anxiety, depression or any other known psychiatric/psychological disorder, including the mental health diagnosis noted in the documentation. Therefore, it is not reasonable or necessary”.
29I do not find Dr. Sharma’s reasoning to be convincing. He provides no documentary evidence to substantiate that float treatment is experimental or deemed not useful in the treating of psychological diagnoses.
30I prefer the recommendations of the applicant’s treating psychologist, Dr. Fiati and assessing psychologist, Dr. Rock, who both attest to the value of float therapy with respect to the applicant.
31I find that the applicant is entitled to float therapy in the amount of $406.80.
Issue 3: The applicant is entitled to $975.24 per month for attendant care benefits from February 1, 2023 and onwards
32The issue of the applicant’s entitlement of attendant care benefits has been previously adjudicated by the Tribunal in December, 2018 by Adjudicator Hines and again in October, 2022 by Adjudicator Browse. In the December, 2018 hearing, Adjudicator Hines, in her decision of May 16, 2019, found that the applicant was entitled to attendant care benefits in the amount of $3,047.29 per month from May 1, 2019 and ongoing. In the October 2022 hearing, Adjudicator Browse, in his decision of March 26, 2023 denied the applicant’s request for attendant care benefits in the amount of $6,000.00 per month less amounts approved, from July 1, 2021 and ongoing.
33So as not to relitigate and reanalyze the prior Tribunal decisions on this issue, medical evidence which was not available to the previous adjudicators will be considered in this matter. This new evidence with respect to attendant care benefits consists of a s. 25 Assessment of Attendant Care Needs and Form 1, by Mr. Ashok Jain dated October 8, 2022 (“Jain Report & Form 1”), an Occupational Therapy Progress Report by Daniel Burdo dated July 20, 2022 (“Burdo Report), a Section 44 (In Person) Attendant Care Assessment by Linda Cottrell dated August 15, 2022 (“Cottrell Assessment”) and the updated records of Dr. Kodsi.
34The applicant submits that his condition is worsening since the last Tribunal decision, and that he requires increased attendant care in the amount of $6,015.63 per month.
35The respondent submits that the applicant’s condition has not worsened since the previous Tribunal decisions. The respondent submits that the present claim is an attempt to re-litigate the previous decision of Adjudicator Browse. The respondent submits that the amount of attendant care required by the applicant amounts to $705.55 per month.
36In the Jain Report & Form 1, occupational therapist Ashok Jain advised that “[The applicant] feels very depressed and continues to have suicidal thoughts. During the assessment, he had a few angry outbursts due to poor frustration tolerance. He often uses alcohol to manage his feelings of depression and loneliness. He requires support and companionship on daily basis to cope up with his symptoms of depression and loneliness.”
37In the Burdo Report, occupational therapist Daniel Burdo noted that the applicant continues to experience increased stress and anxiety, difficulties with sleeping due to high levels of stress, loss of independence, psych-emotional disturbances and constant racing thoughts. OT Burdo also advised that the applicant has had suicidal thoughts.
38In the Cottrell Assessment, occupational therapist Linda Cottrell stated that she terminated her assessment of the applicant due to his aggressive behaviour. Ms. Cottrell also stated that the applicant threatened to throw himself off of a bridge if her assessment caused him to lose the services of his PSW.
39The respondent submits that, in the Ford Report & Form 1, Mr. Ford concluded “The claimant does not demonstrate objective and verifiable evidence of a physical limitation that would necessitate attendant care assistance as of October 5 and November 21, 2022 [the dates of the assessment]. The claimant does not demonstrate a functional cognitive limitation that would necessitate attendant care assistance as of October 5 and November 21, 2022.”
40In comparison, the Jain Report & Form 1 and the Ford Report & Form 1 assessed the applicant’s attendant care needs in terms of minutes per week as follows. I also include my findings on this matter:
Jain Report & Form 1
Ford Report & Form 1
Finding
Part 1: Dressing: 140 Undressing: 140 Grooming: 55 Feeding: 840
Part 1: Feeding: 420
Feeding: 420 $448.49 per month
Part 2: Hygiene: 480 Coordination of Attendant Care: 60
Part 2: Hygiene: 210 Basic Supervisory Care: 210
Part 2: Hygiene: 255 Coordination of Attendant Care: 60 Basic Supervisory Care: 210 $526.75 per month
Part 3: Exercise: 210 Bathing: 140 Skilled Supervisory Care: 2100
Part 3: Nil
Part 3: Nil
Part 1
Dressing and undressing
41With respect to dressing and undressing, the Jain Report & Form 1 advises that the applicant “uses modified strategies that allow him to don his upper body clothes taking longer than usual time.” Regarding lower body dressing, the Jain Report indicates that, due to aggravated pain, he avoids or ignores changing his clothes and stand-by help is required to ensure that he changes his clothes daily.
42The Ford Report & Form 1 states that the applicant is “able to dress as needed and did not demonstrate a functional limitation…” It advises that any stand-by help is captured by amounts allowed under Part 2 of the Form.
43Both Reports indicate that the applicant has the ability to dress and undress (albeit with possible pain). I agree with the Ford Report that any stand-by assistance is captured in Part 2 of the Ford Report where attendant care is allowed for ensuring comfort, safety and security…” and “needs custodial care”. I find that the applicant is not entitled to attendant care for dressing and undressing.
Grooming
44Regarding grooming, the applicant states that he requires stand-by assistance with respect to grooming toenails. The respondent states that, as with dressing, any stand-by assistance is captured in Part 2 of the Ford Report & Form 1. I concur with the respondent in this respect. I find that no attendant care is required for grooming.
Feeding
45With respect to feeding, both the Jain Report & Form 1(840 minutes per week) & Ford Report (420 minutes per week) indicate a requirement for this category.
46The applicant submits that he is lactose intolerant as well as intolerant of highly processed and high fat foods. He submits that he requires sufficient attendant care time in order to ensure that he eats foods that are not only healthy but would not cause negative health reactions.
47In the Jain Report & Form 1, Mr. Jain notes, “[the applicant]” remains significantly limited with cooking a full meal due to limited physical tolerances and due to his cognitive deficits. He also avoided cooking due to lack of motivation from the symptoms of depression.”
48In the Ford Report and Form 1, Mr. Ford notes, “…from a behavioural perspective, the claimant demonstrates a need for assistance with complex meal preparation, budgeted at 60 minutes per day, seven days a week.”
49I note that his category was awarded at 420 minutes per week in the decision of the Tribunal dated May 16, 2019. This was the amount of time that the applicant was requesting at the time. The applicant has not provided any compelling evidence as to why he now requires double the amount of time for feeding. As such, I will allow 420 minutes per week for feeding.
Mobility
50Regarding the issue of mobility, the applicant submits that due to pain and psychological issues, public transportation is not a viable option for him. He submits that he requires personal means of transportation (passenger vehicles) and requires companionship and assistance with travel.
51In the Jain Report & Form 1, Mr. Jain advised that the applicant remains limited with his ability to use public transport and requires help with all travel needs. Mr. Jain recommends help for the applicant’s travel needs in the amount of 480 minutes per week.
52Mr. Ford, in the Ford Report and Form 1 concluded that the applicant “did not demonstrate a functional limitation that would necessitate attendant care assistance with mobility or transfers”.
53The respondent also submits that surveillance evidence (which includes a number of observations of the applicant operating a vehicle) attests to the applicant’s ability to independently drive and “navigate his community”.
54I agree with the respondent in this instance. Aside from Mr. Jain’s comments (which are derived from the applicant’s self-reporting) there is no evidence, medical or otherwise, before me with respect the applicant’s need for assistance with mobility.
55I find that no attendant care is required for mobility.
Part 2
Hygiene
56In the Jain Report and Form 1, Mr. Jain recommends 45 minutes per week for bathroom and bedroom cleaning and changing of the bed. Mr. Jain states that the assistance is required largely due to difficulties in bending and reaching. He also recommends 420 minutes per week (60 minutes per day) for ensuring comfort, safety and security in his environment. Mr. Jain advises that this amount is necessary in order keep the applicant’s apartment safe and free from clutter and to encourage him to manage his daily activities on his own.
57In the Ford Report and Form 1, Mr. Ford allocates no attendant care for bathroom and bedroom maintenance and minutes per week. Mr. Ford allocates 210 minutes per week (30 minutes per day) ensuring comfort, safety and security in the home environment stating that 30 minutes per day is sufficient.
58With respect to bathroom and bedroom maintenance, I find 45 minutes per week to be reasonable, considering the seriousness of the applicant’s injuries. I also do not agree with the Mr. Ford (and the respondent) that this is captured under Basic Supervision.
59Regarding ensuring comfort, safety and security in the home, I find that 30 minutes per day is sufficient for the applicant to keep his apartment safe and free from clutter and to encourage him to manage his daily activities on his own.
60I find that the applicant is entitled to 255 minutes per week for hygiene.
Coordination of Attendant Care
61The applicant claims 60 minutes per week (the maximum allowed) for assistance with coordination with attendant care. Mr. Jain’s only comment on this requirement is that the applicant needed help with arranging the personal support worker. Mr. Ford commented that the applicant demonstrated no “functional limitation of an emotional or cognitive nature that would result in the need for…coordinating his attendant care needs”. However, Mr. Ford did note that the applicant spoke of his PSW reminding him of appointments at times. As such, I conclude that 60 minutes per week is a reasonable amount for the coordination of attendant care.
62I find that the applicant is entitled to 60 minutes per week for coordination of attendant care.
Basic Supervisory Care
63Mr. Jain, did not recommend supervisory care.
64Mr. Ford allocated 210 minutes per week for this category citing behavioural concerns that would necessitate custodial care.
65Based upon Mr. Ford’s concerns, I find that 210 minutes per week for Basic supervisory care is reasonable.
66I find that the applicant is entitled to 210 minutes per week for basic supervisory care.
Part 3
Exercise
67The applicant claims 210 minutes per week with respect to exercise, advising that it is required that the PSW encourage him to exercise and to ensure that this is done on a daily basis.
68In the Ford Report and Form 1, Mr. Ford advises that this requirement is captured under custodial care, which has already been accounted for under the section of basic supervision. Mr. Ford advised that once exercising, the applicant did not demonstrate a functional limitation that would result in the need for assistance with the performance of a home exercise program.
69I agree with the respondent in this area. The applicant may require motivation to perform his exercises, but this is already captured under the heading basic supervision.
70I find that the applicant is not entitled to attendant care for exercise.
Bathing
71In the Jain Report and Form 1, Mr. Jain recommends 140 minutes per week for assistance with bathing while Mr. Ford, in the Ford Report and Form 1 recommends no assistance with this category.
72Mr. Jain noted that the applicant avoided taking a shower due to a lack of motivation from the symptoms of depression. Mr. Ford stated that the applicant had no physical, cognitive, and emotional presentation…that would necessitate attendant care assistance with showering or shower transfers.
73As the issue with bathing appears to be a mater of motivation rather than physical ability or lack thereof, I conclude that this is also best captured under the category of basic supervision, already accounted for.
74I find that the applicant is not entitled to attendant care for bathing.
Skilled Supervisory Care
75This is the major difference between the positions of the applicant and the respondent with respect to the applicant’s needs for attendant care. The applicant is requesting 2100 minutes per week for skilled supervisory care, while the respondent submits that no attendant care is required for this category.
76In the Jain Report and Form 1, Mr. Jain commented, “[The applicant] feels very depressed and continues to have suicidal thoughts. During the assessment, he had a few angry outbursts due to poor frustration tolerance. He often uses alcohol to manage his feelings of depression and loneliness. He requires support and companionship on daily basis to cope up with his symptoms of depression and loneliness. It is my recommendation that daily help should be available to him to provide companionship to cope with loneliness and depression.”
77Mr. Ford, in the Ford Form 1 and Reports noted, “The claimant spoke openly of his emotional frustration, but also noted compensatory techniques that are in place. The claimant indicated ongoing "depression" and "sadness", recognizing recently "there was a lot of suicidal thoughts", but noting that he has availability of the suicide hotline, and spoke of his "beautiful apartment" and "all my progress", as well as the support of his sister, preventing him from acting on any suicidal thoughts.”
78I note that the issue of the applicant’s possible psychological issues and suicidal ideations, his treatments for the same and medical documentation thereof have been considered in past Tribunal decisions. With respect to the present matter, there is no further medical evidence which would indicate an increased amount of attendant care to address the same is warranted.
79Further, I agree with the respondent who submits that symptoms of depression and loneliness, including suicidal ideations and substance abuse issues are best addressed by psychological treatments and interventions rather than companionship by individuals compensated under the heading of attendant care benefits.
80I therefore find that the applicant is not entitled to attendant care benefits for skilled supervisory care.
Total Attendant Care
81The applicant is entitled to the following attendant care:
a. Part 1: $448.49 per month
b. Part 2: $526.75 per month
c. Part 3: nil
Total: $975.24 per month
Was the attendant care incurred?
82Under subsection 3(7)(e) of the Schedule, in order for the applicant to receive payment for attendant care benefits, there must be evidence that the expense was incurred. An incurred expense requires that the following conditions be met:
I. The applicant received the service to which the expense relates;
II. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and
III. The person who provided the service did so:
A. in the course of their employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
B. sustained an economic loss as a result of providing the goods or services to the insured person.
83The applicant submits that he has not incurred the requested attendant care benefits as the respondent unreasonably withheld or delayed the payment or benefits of the attendant care. The applicant asks the Tribunal to deem the expenses incurred based upon s. 3(8) of the Schedule.
84Subsection 3(8) of the Schedule states:
If in a dispute described in subsection 380(1) of the Act, the Licence Appeal Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Licence Appeal Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
85The claim by the applicant that the amounts have not been incurred seem to be contradicted by invoices submitted for attendant care services performed by MedEx Health Services Inc for the months of February, 2023 to September, 2023.
86Nevertheless, I find that the respondent has not withheld or delayed the payment of the benefit unreasonably in the light of the Tribunal decision of March 16, 2023 in which Adjudicator Prowse ruled that the applicant was not entitled to attendant care benefits. Also, in the light of my finding that the applicant is entitled to attendant care benefits in the amount of $975.24 per month, and the respondent is not claiming a zero entitlement to attendant care, but one in the amount of $705.55, I do not find that the respondent has acted unreasonably. Therefore, I decline to deem the amount that I have awarded to be incurred.
Issue 4: Award
87The applicant is not entitled to an award.
88Section 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.
89The applicant submits that an award is warranted because the respondent maintained inadequate and unfounded denials and unreasonably withheld and/or delayed the applicant’s entitlement to much needed benefits. The respondent contends that it has acted reasonably and in good faith while adjusting the applicant’s claim, and states that no award is owing.
90I find that the respondent has not acted unreasonably, with the exception of their conduct with respect to the cost of the medical records.
91The respondent had scheduled s. 44 assessments with respect to the denied benefits and subsequently followed the recommendations of the assessors,. While I do find that the respondent has acted unreasonably with respect to the payment of medical records, that in itself is not enough to warrant an award.
Issue 5: Interest
92Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on issues 1, 2 and 3.
ORDER
i. The applicant is entitled to $146.00, plus interest, for the payment of requested records;
ii. The applicant is entitled to $406.80, plus interest, for float therapy treatment;
iii. The applicant is entitled to $975.24 per month, plus interest on incurred amounts, for attendant care benefits from February 1, 2023 and onward.
iv. The applicant is not entitled to an award.
Released: May 21, 2024
__________________________
Jeffery Campbell
Vice-Chair