Licence Appeal Tribunal File Number: 21-013389/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:
Kathleen D'Souza
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR:
Sarah Sheaves
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Jane Lo, Counsel
HEARD:
In Writing
OVERVIEW
1The applicant was rear-ended while travelling eastbound on Highway 401, on April 10, 2016. At the time of the accident, she was 74 years old and retired.
2The applicant applied for various benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The Applicant was denied benefits by the respondent, Jevco Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,200.00 for an Occupational Therapy In-Home Assessment proposed by Somatic Assessments and Treatment Clinic, in a treatment plan (‘plan’) dated June 25, 2019?
ii. Is the applicant entitled to $7,712.81 ($16,112.81 less $8,400.00 approved) for Catastrophic (‘CAT’) Impairment Assessments proposed by Somatic Assessments and Treatment Clinic, in a plan dated November 15, 2019?
iii. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payments and benefits?
RESULT
4The applicant hasn’t proven entitlement to any of the benefits in dispute.
5As there is no entitlement to benefits, there is no basis to consider whether interest or an award are payable.
ANALYSIS
The applicant hasn’t proven entitlement to the treatment plans in dispute
6The applicant hasn’t proven entitlement to the plans in dispute in this appeal.
7The applicant has the burden of proving entitlement to the benefits she has claimed on a balance of probabilities. She must outline how the goods and services in dispute are reasonable and necessary because of the motor vehicle accident of April 10, 2016. This involves making submissions on each issue in dispute and directing the adjudicator to evidence that supports her submissions.
8Section 15 of the Schedule says that an insurer shall pay for all reasonable and necessary medical expenses.
9Section 16 of the Schedule says that an insurer shall pay for all reasonable and necessary rehabilitation benefits.
10Section 25 of the Schedule says an insurer shall pay reasonable fees associated with assessments performed by an occupational therapist, or for the purposes of determining CAT impairment.
11The respondent isn’t required to disprove the applicant’s entitlement to the benefits in dispute.
The applicant isn’t entitled to an In-Home Assessment proposed on June 25, 2019
12I find that the applicant hasn’t proven entitlement to an In-Home Assessment, proposed in a plan dated June 25, 2019.
13It is settled law at the Tribunal that the applicant is responsible for identifying the goals of the treatment or assessment, how the goals would be met to a reasonable degree, and that the overall costs of achieving the goals are reasonable. This is the test to meet to receive medical and rehabilitation benefits under the Schedule.
14The applicant focused her submissions on the medical records of her family doctor, and the CAT impairment assessments conducted in February 2020, eight months following the submission of this disputed plan. She appears to suggest that the complaints found in the family doctor’s records and the findings made in the CAT impairment assessments support her entitlement to the plan.
15The respondent’s submissions outlined a lengthy pre and post accident medical history, appearing to suggest causation is a significant factor for assessing whether the plan was reasonable and necessary because of the subject accident. It also relies upon an examination conducted pursuant to s. 44 of the Schedule, which determined there were no objective musculoskeletal or neurological impairments resulting from the accident, and that the disputed plan wasn’t reasonable or necessary.
16I haven’t been provided with any submissions from the applicant as to the goals or rationale for the assessment. There were no direct submissions made by the applicant about why the plan was reasonable and necessary at the time it was written. There were no submissions on the cost of the plan.
17The plan itself is also vague. The goal of the plan was to assess the need for attendant care and to return the applicant to activities of normal living. The author of the plan didn’t know if the applicant’s impairments were affecting tasks of employment or activities of normal life. The author said there were no prior or subsequent medical conditions that could affect the applicant’s response to treatment.
18The plan listed the applicant’s impairments as phobias, headaches, dizziness, nightmares, sleep disorder and anger/irritability. No physical impairments were listed.
19The applicant submitted the clinical notes and records of Dr. Cheng for the period of September 2018 to December 2020, as evidence to support the need for the disputed assessment. There was no specific reference to an entry or document within the records that supported the need for the assessment.
20Despite the lack of reference or direction, I reviewed the records and there was no mention of a need for an In-Home Assessment. There was no indication of difficulty with completion of activities of daily living. There was one notation that the Applicant has pain in her right shoulder when brushing her hair. Right shoulder pain wasn’t listed as an impairment in the disputed plan.
21The disputed assessment was requested 38 months following the motor vehicle accident. The applicant didn’t address the length of time following the accident, and why the assessment would be reasonable 38 months after the accident occurred, in her submissions. The respondent confirmed the applicant had not made an application for attendant care benefits or submitted a Form 1 prior to the submission of the disputed plan.
22No medical evidence was provided by the applicant for the 29 months immediately following the accident. No change in circumstances, such as a worsening of her condition, was indicated in the submissions or the evidence submitted.
23The respondent provided pre and post accident medical records with its submissions. The medical records confirm the applicant was involved in additional motor vehicle accidents in 2014, 2015, 2017, and 2018. She was also involved in at least four slip and fall accidents, resulting in various injuries and fractures in February 2015, October 2015, June 2016, and November 2016. Four of these incidents occurred after the subject accident, and before the submission of the disputed plan.
24The medical records submitted by the respondent confirm that the applicant’s complaints following the subject accident in April 2016 were similar to symptoms and conditions she was experiencing prior to the accident.
25The CAT report of Dr. Vachhrajani dated February 25, 2020, confirmed the applicant was still being treated for her 2014 accident when the subject 2016 accident occurred, and there were no new injuries.
26The Applicant had an opportunity to reply to the respondent’s submissions and to address the prior and subsequent accidents and resulting conditions and elected not to do so.
27Even if I were to find that the applicant’s conditions could result in functional limitations for performing activities of daily living, which I am not due to lack of evidence, the issue of causation is significant and hasn’t been addressed by the applicant.
28There is no evidence or submissions from the applicant to address the subsequent motor vehicle and slip and fall accidents after April 2016, which likely contributed to the Applicant’s level of function and impairment as of June 2019, when the plan was submitted.
29There is no evidence contemporaneous to the submission of the plan in June 2019, to suggest there was impairment of function affecting activities of daily living and personal care at that time.
30The applicant relied upon the CAT assessment reports in relation to the plan in dispute. These assessments included an In-Home Assessment Report from the same practitioner who submitted the disputed plan that is the subject of this appeal. The CAT assessment is dated February 18, 2020.
31The applicant didn’t address how an assessment completed 8 months following the submission of the disputed plan was relevant.
32I don’t find that the CAT assessments are relevant or reliable evidence to support a finding that the plan was reasonable and necessary because they were conducted 8 months later.
33I note that the In-Home Assessment dated February 18, 2020, suggests the applicant enjoyed “good health” prior to the April 2016 accident, with no functional restrictions. The assessor doesn’t mention the prior or subsequent accidents, or the impairments listed in the clinical notes and records of the family doctor. On this basis I find the report is unreliable evidence to establish the reasonableness of an In-Home Assessment, as the assessor failed or refused to account for documented existing impairments when formulating an opinion.
34The applicant hasn’t met the burden of proving entitlement to an In-Home Assessment in June 2019, on a balance of probabilities. There is no contemporaneous medical evidence to suggest the plan was reasonable at the time it was written, 38 months following the accident. There are no submissions as to the goals or costs of the plan by the applicant. There are also significant causation issues that the applicant has failed to address in her submissions.
The applicant isn’t entitled to the disputed balance of $7,712.81 for the CAT Assessments proposed on November 15, 2019
35The applicant isn’t entitled to the balance owing for the CAT assessments proposed on November 15, 2019.
36The applicant didn’t make any direct submissions about how the plan was reasonable and necessary. It appears the applicant’s argument is that the assessments were done, and the assessors made a determination of CAT impairment, therefore the assessments were reasonable and necessary. This is what I can infer from the submissions.
37The applicant has failed to submit the disputed plan. As a result, I am unable to determine the goals and suggested outcome. The applicant hasn’t provided a breakdown of the amounts claimed or approved and didn’t provide the details that there was a partial approval of the plan in her submissions.
38The only information I have about the content of the disputed plan and what is in dispute was provided in the respondent’s submissions, which are uncontradicted.
39The original amount of the plan submitted was $16,112.81, according to the respondent.
40The respondent advises that it denied a neurological assessment, four charges related to file review, and two charges related to transportation. The balance in dispute was $7,712.81.
41The respondent advises that it subsequently approved the neurological assessment in the amount of $2,000.00, and that the current amount in dispute is $5,712.81. The respondent didn’t provide an approval date, nor a copy of any document approving the assessment. However, the applicant didn’t reply to the respondent’s submissions to suggest this information was inaccurate.
42Based on the respondent’s submissions, the remaining amounts in dispute relate to charges for reviewing file content and transportation.
43The applicant hasn’t made any submissions specifically relating to the amount in dispute for the CAT assessments. There is no breakdown of the disputed amount. The only reference to these assessments in the applicant’s submissions relate to the findings made by the assessors about her level of impairment.
44There are no submissions as to why the disputed amount of the plan is reasonable or necessary. As there are no submissions on the amounts in dispute and why they are reasonable, the applicant hasn’t met the burden to demonstrate entitlement.
45The respondent submitted that it has paid the maximum amounts required by the Professional Services Guideline and the Schedule. It argues that file reviews are included in the assessment fee it agreed to pay. It also submits that the applicant hasn’t provided any receipts for the cost of transportation.
46Section 25 of the Schedule says that an insurer isn’t liable to pay for expenses that exceed the maximum amount set out in the Professional Services Guideline. It also says that an insurer shall not pay more than $2,000.00 plus tax for any one assessment.
47No submissions or evidence were submitted to me to suggest a need for transportation assistance to assessments for the applicant.
48As the amounts claimed for transportation haven’t been provided, I am unable to determine if they are reasonable, even if I were to find a need for transportation assistance, which I have not.
49The applicant hasn’t proven entitlement to the balance of a plan for CAT assessments. The applicant hasn’t provided a copy of the plan or discussed the rationale or goals for it. There is no breakdown of the amount in dispute and no submissions on why the disputed amounts are reasonable and necessary. As a result, the applicant hasn’t met the burden to prove her entitlement.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find there are no overdue benefits to which interest applies.
Award
51The applicant sought an award under s. 10 of Reg. 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 didn’t identify the award as still being in dispute in her submissions. The applicant also didn’t make any specific submissions about an award for me to consider.
52The burden of proof rests on the applicant to establish entitlement to an award. The applicant has failed to meet the burden of proof. Further, as I have found no entitlement to benefits, there can be no award for unreasonably withheld or delayed payments.
ORDER
53For the reasons provided, I order as follows:
i. The applicant isn’t entitled to $2,200.00 for an in-home assessment.
ii. The applicant isn’t entitled to $7,712.81 ($16,112.81 less $8,400.00 approved) for the balance of catastrophic determination assessments.
iii. The applicant isn’t entitled to interest.
iv. The applicant isn’t entitled to an award.
Released: August 27, 2024
Sarah Sheaves
Adjudicator