Licence Appeal Tribunal File Number: 23-002418/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 Pospiech
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Michael Yermus, Counsel
For the Respondent:
Michelle Mainprize, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kathleen Pospiech, the applicant, was involved in an automobile accident on February 27, 2021, 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 the respondent, The Dominion of Canada Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was deemed catastrophically impaired by the insurer on August 30, 2023 following the submission of an OCF-19.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to attendant care benefits in the amount of $9,174.72 ($10,444.54 less $1,269.82 approved) per month from June 6, 2021 to date and ongoing?
ii. Is the applicant entitled to $200.00 ($499.24 less $299.24 approved) for cognitive treatment, proposed by Mind Connections in an OCF-18 dated June 18, 2023?
iii. Is the applicant entitled to $2,200.00 for an Attendant Care Assessment, proposed by Amanda Westbrook in an OCF-18 dated May 16, 2023?
iv. Is the applicant entitled to $2,200.00 for a Physiatry Assessment, proposed by Milan Unkaret in an OCF-18 dated May 31, 2023?
v. Is the applicant entitled to $2,842.59 ($6,932.45 less $4089.86 approved) for a Neuropsychological Assessment, proposed by Oshawa Physiotherapy & Rehabilitation Centre in an OCF-18 dated January 5, 2022?
vi. Is the applicant entitled to $7,740.50 ($28,532.50 less 20,792.00 approved) for catastrophic impairment assessments, proposed by Omega Medical Associates Ltd. in an OCF-18 dated December 15, 2022?
vii. Is the applicant entitled to $710.77 for eyeglasses, submitted on an OCF-6 dated March 21, 2021?
viii. Is the applicant entitled to $650.00 for eyeglasses, submitted on an OCF-6 dated August 11, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not proven entitlement to any additional attendant care going forward.
5The applicant is not entitled to any of the disputed treatment plans, any of the disputed OCF-6 expense forms, interest or an award under s.10 of O.Reg 664.
ANALYSIS
The applicant has not proven an entitlement to additional attendant care
6I find that the applicant has not proven, on the balance of probabilities an entitlement to attendant care above what had previously been approved.
7Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
8The original Form 1 was completed by Ms. Janice Kim, Occupational Therapist, on June 7, 2021. This Form 1 calculated attendant care needs at 167.97 hours per week. This report proposed attendant care at the cost of $10,347.60 per month.
9I note that this Form 1 was submitted before the applicant was deemed catastrophically impaired and therefore, at the time, would be subject to a limit of $3,000.00 per month, subject to the overall medical and rehabilitative limit of $65,000.00.
10In response, the respondent commissioned a s. 44 attendant care assessment and Form 1 completed by Mr. Harish Sharma, Occupational Therapist, on August 26, 2021. This report recommended 19.58 hours of attendant care per week at a cost of $1,269.82. The respondent approved attendant care at the amount of $1,269.82 per month effective September 9, 2021.
11The applicant has submitted two subsequent Form 1s: a second Form 1 from Ms. Kim dated April 4, 2022 and a subsequent Form 1 from Ms. Amanda Westbrook, Occupational Therapist, dated November 28, 2023.
12The applicant has not made any submissions or provided evidence for attendant care amounts previously incurred but not paid by the respondent. The Tribunal can only award past attendant care expenses which have been incurred. Therefore, without evidence or submissions outlining and detailing previously incurred care that the applicant has received, I cannot make an order in respect to attendant care amounts proposed or incurred in the past.
13The respondent acknowledges in their submissions three unpaid invoices over and above the amount of the approved Form 1. However, these invoices were not submitted as evidence, and there are no details outlining the type of care provided. The respondent further submits that it has no knowledge of any additional amounts for attendant care which have been incurred but not paid.
14The applicant made reply submissions to the Tribunal. However, these reply submissions did not address previously incurred attendant care.
15Therefore, given the lack of evidence, I am unable to order a remedy with regards any previously incurred attendant care amounts.
16On August 30, 2023, the applicant was deemed catastrophically impaired by the respondent on the submission of the OCF-19 and s. 25 catastrophic impairment reports.
17On November 28, 2023 Ms. Westbrook submitted a Form 1 that proposed 168 hours of attendant care. In response, the respondent arranged a s. 44 attendant care assessment with Ms. Shaynee Mehta, OT. Ms. Mehta completed a Form 1 dated April 4, 2023 for 60.47 hours of attendant care weekly at a cost of $3,691.69 plus HST.
18A summary of the six Form 1s submitted as evidence in this dispute is presented below:
19A significant difference between Ms. Mehta’s Form 1 and that of Mr. Sharma is that Ms. Mehta provided an allowance of seven hours per day of Basic Supervisory care as Level 2 care in contrast to the zero hours proposed by Mr. Sharma.
20Given that there is no evidence submitted to the Tribunal detailing incurred attendant care, I will be focusing my analysis on the attendant care entitlement going forward. This analysis will focus on the Form 1 relied on by the insurer from Ms. Mehta and the most recent Form 1 submitted by the insured from Ms. Westbrook.
21There is a discrepancy of between the 60.47 hours of care proposed by Ms. Mehta and the 168 hours of care proposed by Ms. Westbrook.
22Firstly, Ms. Westbrook proposed 19.68 hours per day of basic supervisory care contrasted with the 7 proposed by Ms. Mehta.
23The applicant submits that the additional 12.68 hours per day are reasonable and necessary as there are no references to cooking and leaving the stove on, forgetfulness and memory problems, double vision, hallucinations, multiple falls, balance issues and cognitive deficits that would render a person incapable of responding to an emergency situation that may arise at any unpredictable time.
24The respondent submits that none of the Occupational Therapists who have assessed the applicant noted that she was unable to respond to an emergency situation.
25I note the following from the Attendant Care assessment of Ms. Westbrook:
i. The applicant was observed to walk unassisted throughout her home.
ii. She was observed to walk outdoors unassisted.
iii. She is able to ambulate independent of aids indoors and outdoors.
iv. She was observed to transfer from sit to stand independently with fluid movements.
v. She is not required to negotiate stairs in her mother’s home (where she lives part time). She also resides part time at the home of her boyfriend, but this site has not been assessed or visited by the Occupational Therapist.
vi. She requires increased time and effort to engage in pre-accident tasks.
vii. When referencing personal care and safety, no mention is made of the applicant not being able to evacuate in an emergency.
viii. The applicant has forgotten to turn off the stove after cooking and as a result does not cook unless someone else is present.
26Ms. Westbrook justifies the basic supervisory care for the following reasons:
i. The applicant requires prompting to change her clothes and perform basic hygiene.
ii. She lacked proper footwear and wore slippers outdoors.
iii. She could not recall her last shower.
iv. She often had not eaten and reported no appetite.
v. She often had not slept well and could not stay awake.
vi. She was observed speaking incoherently.
vii. She is unable to manage her medical appointments and medications.
27I note that all of the above is addressed by the seven hours of basic supervisory care subsequently approved by the respondent. In addition to this, task-specific assistance such as daily care for dressing/undressing, meal preparation and monitoring of medication intake and effect has also been addressed and approved by the respondent.
28I further prefer the Form 1 of Ms. Mehta over that of Ms. Westbrook for the following reasons.
29Ms. Westbrook proposes 40 minutes of Level 3 care for bathing despite noting that the applicant can complete bathing independently from a physical perspective, however she does not bathe regularly without proper support. I note that providing the prompt to bathe does not justify 40 minutes of Level 3 care per week and note that the prompt to bathe should be covered under basic and supervisory care.
30Ms. Westbrook proposes 35 minutes of Level 3 care for weekly skin care. In her report, Ms. Westbrook justifies this as necessary assistance to engage is scar management techniques and to apply creams or oils. Again, the prompt for the applicant to engage in applying creams and oils is not a Level 3 activity and can be performed in the seven hours daily of basic supervisory care.
31Ms. Westbrook notes in her report that no assistance is required for the applicant to exercise but allocates 105 minutes of Level 3 care to assist the applicant with exercising.
32It is the applicant’s burden to prove the entitlement to benefits. The report of Ms. Westbrook, in conjunction with the associated Form 1, do not provide support to justify 24/7 attendant care.
33Therefore, as the respondent has approved attendant care to the amount approved by Ms. Mehta in her Form 1, there is nothing further for the Tribunal to address.
The applicant has not proven entitlement to any of the disputed OCF-18s
34To 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.
The applicant is not entitled to $200.00 for cognitive treatment
35The applicant has submitted that their 86% whole person impairment score and four marked impairments justify the disputed treatment plan.
36I note that these are the only submissions in reference to this disputed treatment plan. The disputed OCF-18 has not been submitted as evidence by either the applicant or the respondent.
37The respondent submits that the $200.00 in dispute was denied as duplicative. A $200.00 form fee was paid to the same treatment provider on a different invoice.
38The applicant has not addressed the respondent’s submission in their reply.
39The applicant bears the burden of proving that the expense is reasonable and necessary. As the applicant has not provided any evidence to substantiate their claim to the benefit, I find that the applicant is not entitled to the $200.00 fee in dispute.
The applicant is not entitled to a $2,200.00 for an attendant care assessment
40The applicant submits that an attendant care assessment is reasonable and necessary as the insurer has agreed to provide $3,691.69 per month in attendant care benefits.
41The respondent submits that the applicant has been assessed twice for s.25 attendant care assessments and there has been no evidence of deterioration since the last attendant care assessment. The respondent further submits that both prior attendant care assessments proposed similar attendant care benefits of more than $10,000.00 per month. Without a change in condition, the respondent sees no justification for a further assessment.
42The applicant has not addressed the respondent’s submission in their reply.
43The disputed OCF-18 has not been submitted as evidence by either the applicant or the respondent.
44In the absence of the OCF-18 there have been no submissions made to 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.
45The applicant bears the burden of proving that the expense is reasonable and necessary. As the applicant has not provided any evidence to substantiate their claim to the benefit, I find that the applicant is not entitled to the $2,200.00 attendant care assessment in dispute.
The applicant is not entitled to $2,200.00 for a physiatry assessment
46The applicant has submitted that their 86% whole person impairment score and four marked impairments justify the disputed treatment plan.
47I note that these are the only submissions in reference to this disputed treatment plan. The disputed OCF-18 has not been submitted as evidence by either the applicant or the respondent.
48The respondent submits that this physiatry assessment is duplicative as the applicant had undergone a s.25 physiatry assessment as part of the catastrophic assessment process.
49The applicant has not addressed the respondent’s submission in their reply.
50In the absence of the OCF-18 there have been no submissions made to 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.
51The applicant bears the burden of proving that the expense is reasonable and necessary. As the applicant has not provided any evidence to substantiate their claim to the benefit, I find that the applicant is not entitled to the $2,200.00 physiatry assessment in dispute.
The applicant is not entitled to $2,842.59 for a neuropsychology assessment
52The applicant has submitted that their 86% whole person impairment score and four marked impairments justify the disputed treatment plan.
53I note that these are the only submissions in reference to this disputed treatment plan. The disputed OCF-18 has not been submitted as evidence by either the applicant or the respondent.
54The respondent submits that the fees denied should be included within the $2,000.00 assessment cap. The respondent further submits that the 18 hours proposed for reporting was excessive and approved 10 hours.
55The applicant has not addressed the respondent’s submission in their reply.
56The applicant bears the burden of proving that the expense is reasonable and necessary. As the applicant has not provided any evidence to substantiate their claim to the benefit, I find that the applicant is not entitled to the $2,842.59 neuropsychology assessment in dispute.
The applicant is not entitled to $7,740.50 for catastrophic impairment assessments
57The applicant has submitted that their 86% whole person impairment score and four marked impairments justify the disputed treatment plan.
58I note that these are the only submissions in reference to this disputed treatment plan. The disputed OCF-18 has not been submitted as evidence by either the applicant or the respondent.
59The respondent submits that they have approved $22,792.00 for catastrophic impairment assessments. They denied a $2,000.00 intake/triage fee, as this is covered in the $2000.00 cap per assessment. The respondent further submits that the EMG, hearing test and vestibular test fees were duplicative and already included with the $2,000 ENT and neurology assessment approvals.
60The applicant has not addressed the respondent’s submission in their reply.
61The applicant bears the burden of proving that the expense is reasonable and necessary. As the applicant has not provided any evidence to substantiate their claim to the benefit, I find that the applicant is not entitled to the $7,740.50 for the outstanding items in dispute.
The applicant is not entitled to either of the OCF-6s submitted for eyeglasses
62Section 46.3(1) of the Schedule sets out the requirement for an insured to provide written confirmation that the goods or services were provided to the insured person.
63The applicant submits that the amounts claimed in the two OCF-6s for eyeglasses have not been incurred.
64The respondent submits that they have requested receipts for the purchase of eyeglasses subsequent to the accident. The receipts submitted were dated prior to the accident.
65The OCF-6 claim form is a form to claim expenses that have been incurred by the insured as a result of the accident. The applicant submits no eyeglasses have been purchased since the accident. Therefore, the insurer is not liable to pay the amounts in the OCF-6s as per s.46.3(1) of the Schedule.
Interest
66As there are no benefits owing, no interest is payable.
Award
67Section 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.
68As I have found in that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.
ORDER
69For the reasons above, I find that:
i. The applicant is not entitled to any further attendant care benefits above those previously approved;
ii. The applicant is not entitled to any of the treatment plans in dispute; and
iii. The applicant is not entitled to interest or an award under s. 10 of O.Reg 664.
Released: February 14, 2025
__________________________
Julian DiBattista
Vice-Chair