Licence Appeal Tribunal File Number: 23-000168/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:
Raymond D. Westlake
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Daniel Durzo, Counsel
For the Respondent: Christopher Schnarr, Counsel
HEARD: By way of written submissions
OVERVIEW
1Raymond Westlake, the applicant, was involved in an automobile accident on September 1, 2019, 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 General Insurance Company, 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 an attendant care benefit (“ACB”) in the amount of $3,008.00 per month, from July 10, 2020 to December 31, 2021, less amounts paid?
ii. Is the applicant entitled to an ACB in the amount of $6,000.00 per month, from August 1, 2022 to December 31, 2022, less amounts paid?
iii. Is the applicant entitled to $20,970.68 for social rehab counselling, proposed by Genesis Community Rehabilitation Inc. (“Genesis”) in a treatment plan/OCF-18 (“plan”) submitted on December 1, 2022?
iv. Is the applicant entitled to $5,021.25 for hearing aids, proposed by Amplifon in a plan submitted on February 10, 2022?
v. Is the applicant entitled to $1,795.40 ($4,339.55 less $2,554.15 approved) for psychological treatment, proposed by Fox Psychological Services in a plan submitted on November 22, 2022?
vi. Is the applicant entitled to payment of invoices in the amount of $20,970.68 for rehabilitation support worker services (“RSW”), proposed by Genesis in a plan dated August 9, 2022, approved by the respondent on August 25, 2022, but for which invoices remain unpaid?
vii. Is the applicant entitled to payment of invoices in the amount of $20,970.68 for RSW, proposed by Genesis in a plan dated March 1, 2022, approved by the respondent on March 15, 2022, but for which invoices remain unpaid?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the ACBs listed as issues i and ii above.
4The applicant is not entitled to the plans listed as issues iii and iv above.
5The applicant is entitled to the remaining $1,795.40 for psychological treatment listed as issue v above.
6The applicant is entitled to payment of the invoices in relation to the plans listed as issues vi and vii above.
7The applicant is entitled to an award.
8The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUE
9The applicant submits that all references and submissions made in relation to the excerpts of a transcript of the applicant’s wife’s Examination Under Oath (“EUO”) conducted on April 17, 2024 should be excluded from this hearing. The applicant submits that the EUO of the applicant’s wife was conducted in relation to the wife’s claim for accident benefits, and not in relation to this application. The applicant relies on s. 33(5) of the Schedule, which sets out that the scope of an EUO is limited to matters that are relevant to the applicant’s (i.e. the applicant who is subject to the EUO) entitlement to benefits.
10The applicant further submits that he did not receive notice of the respondent’s intention to use his wife’s EUO in this matter until he received the respondent’s submissions on April 26, 2024, which were served outside the final deadline for productions of January 22, 2024, as set out in the Case Conference Report and Order dated September 1, 2023. In addition, the applicant argues that the parties agreed at the case conference that no affidavits would be submitted as evidence, and that the respondent is attempting to circumvent this agreement by relying on sworn statements as evidence, without the applicant having the opportunity to respond with sworn evidence of their own. As such, the applicant submits that he would be prejudiced if the evidence were to be admitted, as he does not have the opportunity to properly respond to these late productions. The applicant argues that this improperly served documentation should be excluded from the evidentiary record based on procedural fairness.
11I am excluding the transcript of the EUO. I find that the applicant did not have notice of it at the time of his submissions as it was only served on him at the time of the respondent’s submissions, and he is prejudiced as a result. Further, I note that the respondent did not bring a motion requesting to late serve productions.
12For these reasons, I have not considered any references or submissions made in relation to the excerpts of the transcript of the EUO conducted on April 17, 2024 in coming to my decision.
ANALYSIS
Attendant care benefits
13Section 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 because of an accident for 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 approved version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
14The applicant submits that the ACBs previously approved, have been incurred, and are payable. The respondent submits that the applicant has not provided proof of incurred attendant care expenses.
The applicant is not entitled to an attendant care benefit as set out in issues i and ii
15The applicant is not entitled to ACBs as set out in issues i and ii above.
16The issue in this case hinges on whether the applicant has demonstrated that he incurred the ACBs. I find, for the following reasons, that he has not.
17Section 3(7)(e) of the Schedule sets out that an insured has incurred an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.
18The applicant submits that on February 10, 2022, ACBs were approved by the respondent as of July 9, 2020 in the amount of $6,000.00 per month. He filed with the Tribunal a letter dated February 10, 2022 from the respondent to the applicant in that regard. The applicant submits that there is no dispute as it pertains to his entitlement to ACBs, and that he continues to receive them to date. He submits that what remains in dispute are time periods where properly submitted invoices to the respondent have not been paid and were unreasonably withheld or delayed.
19The applicant submits that on February 11, 2022, he submitted an OCF-6 for the period of July 2020 to January 31, 2022 in the amount of $3,008.00 per month for a total of $54,144.00, that included invoices from the provider KC Patterson along with his CV. The applicant further submits that on March 24, 2023, he submitted OCF-6s for attendant care services provided by Mr. Patterson for the period of August to December 2022 totalling $30,000.00.
20The applicant submits that the following invoices remain outstanding: July to October 2020, and December 2020 ($3,008.00 each month); November and December 2021 ($2,592.00 each month - revised amount); and August to December 2022 ($6,000.00 each month).
21The respondent submits that the first ACB claim from the applicant in the amount of $54,144.00 was submitted in February 2022, covering a period of 17 months between July 10, 2020 and January 31, 2022. The respondent submits the invoices indicated “Cash Paid” and did not provide particulars of what services were provided or for how long.
22The respondent refers to its letter to the applicant dated March 4, 2022 in which it requested a description of the tasks/duties completed by Mr. Patterson for all dates of service relating to the OCF-6 totalling $54,144.00. The respondent submits that the applicant provided a two-page typed description of services provided from January to October 2021, but he has never submitted a description of the services claimed for the periods of July to December 2020 and November to December 2021.
23The respondent further submits that following receipt of OCF-6s for attendant care totalling $30,000.00 covering the period of August 1 to December 31, 2022, on April 21, 2023, the respondent made a request for a statutory declaration from Mr. Patterson pursuant to s. 46.2 of the Schedule. The respondent submits that Mr. Patterson’s response did not provide clarification of his various contemporaneous employment, information regarding the services provided, or evidence of receipt of payment.
24The respondent further pointed to the July 21, 2023 transcript of the EUO of the applicant, where he testified that he did not deal with any payments and did not know how Mr. Patterson was paid.
25The respondent submits that Mr. Patterson’s CV listed three current employers in addition to the applicant. It filed a letter dated August 23, 2023 to the applicant, once again requesting clarification on the tasks/duties completed by Mr. Patterson from July to December 2020, November to December 2021, as well as from August to December 2022. The letter further requested clarification on Mr. Patterson’s status with the other current employers listed on the resume, as well as confirmation of cash deposit for the services provided. The respondent filed two other letters to the applicant dated January 4, 2024 and February 9, 2024 once again requesting similar information.
26Upon a review of the OCF-6 totalling $54,144.00, I find that the applicant did not provide a description of the services for July to December 2020 and November to December 2021. Although invoices for November and December 2021 were filed by the applicant, the OCF-6 only relates to January to October 2021.
27With respect to the OCF-6s totalling $30,000.00, I have reviewed the statutory declaration from Mr. Patterson and I find that where he was asked to “provide a daily breakdown of all services” provided (emphasis in original), including a list and duration of each type of service, he attached the OCF-6s that had already been provided, and a general typed summary of services provided, without a daily breakdown. In addition, Mr. Patterson indicated that he had a verbal contract with the applicant. When asked to list the agreed upon amount and frequency of the compensation for his services, he indicated the first name of the applicant. As such, I find that Mr. Patterson’s answer was unresponsive to the question. Further, where asked to state who paid for the services, the method of payment and the total amount paid, Mr. Patterson indicated “cash.”
28The applicant submits that Mr. Patterson’s invoices show a breakdown of hours per day and month, and payment of cash marked on a bi-monthly basis. He relies on the decision of S.K. v. Aviva Insurance, 2020 CanLII 94803 (ON LAT) (“S.K.”) where he submits the adjudicator dealt with a similar issue and found that the applicant had incurred attendant care services. I am not bound by other decisions of the Tribunal. Furthermore, I have reviewed the decision of S.K. and I find that it is distinguishable. In S.K., although there were issues with the log sheets and invoices, in that case the Tribunal found that the surveillance revealed that the applicant was receiving significant attendant care services, the applicant’s daughter testified that attendant care services were being provided, and the provider submitted a weekly log sheet to the respondent with a breakdown of the tasks completed in the seven hours per day. In this case the applicant has not provided a breakdown of the services provided each day, and the applicant did not provide proof of payment of the attendant care services as required by the Schedule.
29I find that the invoices from the provider lack particulars of the services provided. It is well established that sufficient particulars must be provided, such as what services were provided and when. I find that the applicant did not provide a description of the services for July to December 2020, November to December 2021, and from August 1 to December 31, 2022.
30Further, I find that the applicant has not provided sufficient evidence to prove that the ACBs in dispute have been incurred. Despite repeated requests from the respondent, the applicant did not provide proof to corroborate that cash was paid to or received from Mr. Patterson. I also note that the applicant has not provided the information requested by the respondent concerning Mr. Patterson’s other employers during the time he provided services to the applicant. Given the fact that Mr. Patterson’s invoices indicate that he provided services to the applicant from between 5 to 8 hours each day, I find that the respondent’s request regarding Mr. Patterson’s status with the other three current employers was reasonable.
31For these reasons, I find that the applicant is not entitled to ACBs as set out in issues i and ii above.
32To 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 the plan for social rehab counselling
33The applicant is not entitled to the plan for social rehab counselling in the amount of $20,970.68 as it is not reasonable and necessary. For the following reasons, I find that the applicant has not demonstrated on a balance of probabilities that the goals of treatment would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
34The plan for social rehab counselling dated November 28, 2022 was proposed by Claudia Maurice, occupational therapist. The plan involves the use of RSW. The plan proposes training, cognition and learning (skills), provider travel time to treatment, claimant transportation to treatment, activity expenses, “documentation, support activity for claim form,” “documentation, support activity,” and “brokerage, service.” The goals of the plan are to continue to support the applicant with gradually resuming participation in appropriate avocational and community outings post COVID-19 in person sessions, to review and reinforce safety/health precautions pertaining to COVID-19 with increased access to the community, to support the applicant with problem solving when encountering difficulties as well as to consider options to facilitate making good and safe choices in his daily activity routines, to support the applicant from an organizational and planning perspective to enhance productivity and quality of life, and to return to activities of normal living.
35The applicant submits that the overwhelming medical evidence supports the applicant’s need for social rehab counselling and that the plan is reasonable and necessary. The respondent submits that this plan is not reasonable and cannot be justified.
36The applicant relies on the two-page report of Dr. Philip Miller, psychologist, dated April 1, 2023, which he prepared after meeting with the applicant on March 24, 2023. Dr. Miller indicated that “there has been considerable backsliding emotionally” since he saw the applicant on August 18, 2022. He noted that the applicant is very depressed and irritable, and he is more socially isolated than before, rarely going out even with his wife or an RSW. The applicant’s wife reported that he has been considerably worse since funding for his RSW has been denied. Dr. Miller believed that this is the major reason for his current emotional decline and his social isolation, and that the applicant was psychologically dependent on the outings with his workers as a buffer to depression and for his overall mental health. Dr. Miller indicated that he read the psychological Insurer’s Examination (“IE”) report of Dr. Sarah Talebizadeh dated February 21, 2023, but notes that she does not give a reason why the recommended involvement of RSW was not necessary. Dr. Miller opined that the treatment is necessary because the applicant is vulnerable to depression and social anxiety because of a work-related accident two decades prior, and that another 2018 motor vehicle accident, as well as the accident in this case brought him to a very precarious place psychologically.
37Despite Dr. Miller’s concerns in his April 2023 report about the applicant’s “backsliding emotionally,” depression, and the fact that he rarely goes out even with his wife or an RSW, I note that Dr. Miller’s psychological report dated November 11, 2022 indicates that the applicant was highly anxious, reported significant depression, was very isolated, more impatient and irritable, and rarely left the house even in the company of his wife or RSW worker. I am not persuaded by Dr. Miller’s opinion in April 2023 that the applicant regressed because his report of November 11, 2022 demonstrates similar levels of psychological symptoms.
38I have read the report of Dr. Talebizadeh and I place no weight on her finding that the plan is not reasonable and necessary because she does not provide reasons.
39The applicant also relies on Ms. Maurice’s Occupational Therapy Report dated June 6, 2023, where Ms. Maurice indicates that the applicant and his wife have expressed significant concern that there has been a marked deterioration in his status since the rehabilitation services have been discontinued.
40The applicant also submits that he reported to Dr. Talebizadeh that the RSW workers who came to the house to help him with activation and engagement in activities were very helpful to him.
41The respondent submits that prior to preparing their reports dated April 1, 2023 and June 6, 2023, neither Dr. Miller nor Ms. Maurice reviewed the clinical notes and records (“CNRs”) from Genesis to consider whether the RSW resulted in increased independence or dependence. I have reviewed these reports and I find that there is no reference in Dr. Miller and Ms. Maurice’s reports to the CNRs from Genesis. The respondent also points out that there is no indication in Dr. Miller’s report that he reviewed the disputed plan or that he knew the amount of expenses being claimed.
42The respondent referred to Standard Benefit Statements issued by the applicant’s insurer for his 2018 motor vehicle accident, as well as CNRs from Genesis. The respondent submits that the applicant received the same services from Genesis that are outlined in the disputed plan, in the amount of $44,436.40 in 2020 and in the amount of $21,103.16 in 2021. The respondent further submits that prior to denying the plan in dispute, it approved $20,978.68 for RSW in March 2022, and $20,970.68 in August of 2022. The respondent submits that the disputed plan does not provide any information with respect to how the applicant benefited from the substantial expenses paid to date.
43I have reviewed the disputed plan and I note that in Part 9, Ms. Maurice does not indicate any information regarding the applicant’s improvement at the end of the previous plan, but rather states “Please refer to progress notes being sent via mail.” As such, I am not provided with any information with respect to the applicant’s progress, if any, from the prior treatment.
44While Dr. Miller and Ms. Maurice have indicated that the applicant’s condition has deteriorated since the RSW has been discontinued, I have not been directed to sufficient medical evidence that the RSW had the effect of improving the applicant’s condition. As set out above, Ms. Maurice does not indicate any information regarding the applicant’s improvement at the end of the previous plan. Further, Dr. Miller’s indication in April 2023 that the applicant was psychologically dependent on the outings with his workers as a buffer to depression and for his overall mental health contradicts the information in his November 2022 report that the applicant rarely left the house even in the company of his RSWs.
45For these reasons, and given the significant cost of the treatment, I find that the applicant has not demonstrated on a balance of probabilities that the goals of treatment would be met to a reasonable degree and that the overall costs of achieving them are reasonable. As such, the applicant is not entitled to the plan for social rehab counselling as it is not reasonable and necessary.
The applicant is not entitled to the treatment plan for hearing aids
46The applicant has not demonstrated on a balance of probabilities that the treatment plan for hearing aids is reasonable and necessary.
47The plan dated February 10, 2022 for hearing aids from Amplifon was proposed by Claudia Maurice. The goals of the plan are to assist with the management of the applicant’s tinnitus, to improve his overall hearing ability, and to return to activities of normal living.
48The applicant submits that he reported complaints of aggravation of ringing in his ears following the accident to various treatment providers and assessors. He further submits that the respondent applied the incorrect test on causation since the plan was denied because the goods and services do not appear to be reasonable or necessary, and solely, directly, or causally related to the accident of September 1, 2019. The applicant submits that the correct test is that the accident must be at least a necessary cause of the impairment but does not have to be the only cause. The applicant submits that the accident was a necessary cause of some, but not all his hearing impairments.
49The applicant refers to the CNRs from Amplifon, where he purchased the hearing aids to treat his tinnitus, but he does not make submissions in relation to the CNRs.
50The applicant directed me to the following evidence with respect to how the accident affected his hearing:
i. A hospital record dated September 1, 2019 notes that the applicant complained of ringing in his left ear;
ii. In an OCF-3 dated September 9, 2019 the applicant’s family physician, Dr. Stephen Springle, diagnoses the applicant with left ear tinnitus;
iii. The applicant reported to Dr. David Kurzman in an IE Neuropsychology Assessment on October 19, 2021 that he experiences constant ringing in his left ear which worsens when it is quiet; and
iv. The applicant’s wife reported to Dr. Miller on June 17, 2022 that the applicant had an aggravation of tinnitus when he went to the hospital on September 1, 2019.
51The respondent argues that the disputed plan is not reasonable and necessary. The respondent further submits that the applicant has not provided objective medical evidence as to whether any hearing impairment was sustained in the accident.
52The respondent referred to several reports of the applicant’s pre-accident hearing impairments in the CNRs:
i. The Neurological Consultation Report of Dr. M. Sourkes dated September 15, 2005 indicates that the applicant had persisting symptoms including tinnitus as well as possible hearing loss following a work injury on June 24, 2005. The applicant reported that he thought the hearing in his left ear had been affected because he could not hear well in noisy places.
ii. During an assessment on April 1, 2010 by Brain Injury Services, the applicant reported that he is deaf in his right ear and has ringing in his ears that “comes and goes.”
iii. The Emergency Patient Care Record from the hospital indicates that the applicant reported increased ringing in the ears following an accident on September 12, 2018.
iv. In a report dated September 1, 2019, the applicant’s social worker Adel Khalil reported that since the applicant’s 2018 accident he reported that his hearing has been severely affected in that he has been deaf in one ear and lost 80% of hearing in the other ear.
v. In the CNRs of Amplifon dated December 14, 2021, the applicant reported that he had a “dead right ear since childhood after a head injury.”
53The respondent submits that the OCF-18 seeking payment for the hearing aids did not disclose a prior condition in Part 7, despite the applicant’s history of impaired hearing.
54The respondent relies on the IE report dated November 6, 2023 by Dr. Guillermo Castillo, Otolaryngologist. Dr. Castillo spent over two hours assessing the applicant. The applicant reported that he had a deaf right ear since childhood, as well as mild tinnitus since he fell and hit his head in 2004. He reported that since the accident he had decreased hearing when background noises were present, and his tinnitus has markedly increased. He also reported that since he purchased hearing aids in February 2022, his hearing was improved, and his tinnitus disappeared. Dr. Castillo believed that the plan for hearing aids was not reasonable and necessary. He opined that the applicant’s tinnitus is psychosomatic in that it may have been exacerbated by his other issues such as anxiety and musculoskeletal pains, and as such his tinnitus was exacerbated by the accident. Further, Dr. Castillo indicated that from the Otolaryngology scope of practice, there is no objective evidence to support hearing aids.
55The respondent submits that there is no indication that the symptoms reported after the accident are any different than the symptoms documented since 2005. The respondent further submits that there is no corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the plan.
56I find that the applicant has not directed me to any CNRs from a treating physician indicating that his hearing loss and tinnitus were caused by the accident or recommending the use of hearing aids. I am persuaded by the CNRs referred to by the respondent that the applicant suffered from hearing loss well before the accident. I do find, based the applicant’s reports, and based on Dr. Castillo’s report, that the accident exacerbated the applicant’s tinnitus. However, I find that that the accident was not a necessary cause the tinnitus, because the applicant has reported tinnitus since 2005, well before the accident.
57In any event, even though I find that the accident aggravated the applicant’s tinnitus, I am not persuaded that the hearing aids are reasonable and necessary. The applicant did not direct me to any evidence from a treating physician that hearing aids would assist with tinnitus. Further, I accept Dr. Castillo’s opinion that there is no objective evidence to support hearing aids in the applicant’s case.
58For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for hearing aids is reasonable and necessary.
The applicant is entitled to the remaining $1,795.40 for psychological treatment
59The applicant has demonstrated on a balance of probabilities that the remaining balance of the plan for psychological services is reasonable and necessary.
60The plan for psychological treatment dated November 22, 2022 was proposed by Dr. Philip Miller, psychologist. The plan proposes sixteen 1.5-hour sessions of counselling, “document, support activity,” and relaxation materials/psychological workbooks. The goals of the plan are to address anxiety, traumatic anxiety, and social isolation.
61The respondent partially approved the plan for twelve one-hour sessions. The applicant submits that the full treatment plan is reasonable and necessary to prevent him from suffering a psychological setback and to maximize his recovery.
62The applicant relies on Dr. Miller’s Psychological Assessment Report dated November 11, 2022. After assessing the applicant on August 18 and November 10, 2022 and completing psychological testing, Dr. Miller diagnosed the applicant with aggravation of a pre-existing Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic of Moderate severity, as well as aggravation of a pre-existing Somatoform Pain Disorder, predominant pain, persistent.
63The applicant refers to the CNRs of Dr. Stephen Springle, who documented the applicant’s ongoing psychological complaints. On September 9, 2019, Dr. Springle noted that the applicant had completed an assessment with Dr. Miller. On November 21, 2019, Dr. Springle noted that the applicant was seeing Dr. Miller and was finding this helpful. On August 6, 2020, it is noted that the applicant was working with Dr. Miller regarding his anxiety.
64The applicant refers to the decision of C.M. v. Intact Insurance Company, 2020 CanLII 14419 (ON LAT) (“C.M.”), where the Tribunal held that the applicant’s treating psychologist is the most qualified person to determine how long each treatment session should be. The applicant submits that Dr. Miller would be in the best position to assess the applicant’s impairments.
65The respondent relies on Dr. Talebizadeh’s report, where she diagnosed the applicant with Major Depressive Disorder with Anxious Distress, opining that the accident materially contributed to this diagnosis. She recommended twelve one-hour counselling sessions because of the accident. The respondent submits that Dr. Miller has not explained why sixteen 1.5-hour sessions would be more appropriate than twelve one-hour sessions. Further, the respondent submits that there is no indication that the applicant has the attention and energy tolerance for such a lengthy session considering his decreased energy since his workplace accident.
66I find that Dr. Talebizadeh’s report was prepared to address the plan for social rehab counselling, and not the plan for psychological treatment. As such, I place little weight on it as I find that her recommendation for twelve one-hour counselling sessions was not made in relation to the plan in dispute. Further, although I am not bound by other decisions of this Tribunal, I agree with the reasoning in C.M.. Since Dr. Miller had been treating the applicant prior to the submission of the plan, I find that he is in the best position to determine how long each treatment session should be. As noted above, Dr. Miller recommended sixteen 1.5-hour sessions based on his knowledge of the applicant’s condition.
67For these reasons, I find that the applicant has established on a balance of probabilities that the remaining balance of the plan for psychological services is reasonable and necessary.
The applicant is entitled to payment of the invoices in relation to the plan dated August 9, 2022
68The applicant is entitled to payment of the invoices in relation to the plan dated August 9, 2022 for RSW.
69The applicant submits that the plan dated August 9, 2022 was approved by the respondent and was incurred. The applicant further submits that the respondent partially paid for the plan and that he is entitled to full payment.
70Both parties agree that the plan dated August 9, 2022 in the amount of $20,978.68 was entirely approved by the respondent. The applicant filed the plan which indicates that it was approved by the respondent on August 25, 2022. The plan includes “Brokerage, service,” “Documentation, support activity,” and “Claimant transportation to treatment.”
71The respondent relies on a letter to the applicant dated September 15, 2022, advising that the amounts on the plan relating to “brokerage, service,” “documentation, support activity” and “claimant transportation to treatment” were not being paid as they required a breakdown as to how the fees were arrived at for the services, along with the location and mileage/distance for each service date.
72The respondent relies on the decision of Osborne v. Aviva General Insurance, 2023 CanLII 101124 (ON LAT) (“Osborne”) for the proposition that an applicant seeking payment of “brokerage services” bears the onus of proving that the outstanding amount of an OCF-18 is reasonable and necessary. I am not bound by this decision, and in any event, I find that it is distinguishable. In Osborne, the Tribunal was dealing with a plan that was only partially approved at first instance, whereas in this case, the respondent approved the plan which included “brokerage, service” in full prior to the services being incurred.
73The respondent submits that it has not received the information requested and therefore cannot confirm that the expenses claimed are reasonable. The respondent further submits that without the particulars of where the applicant was transported and the distance, the expense cannot be reasonably considered.
74The respondent did not provide submissions with respect to why it approved the plan in full at the outset if it now takes the position that some of the expenses may not be reasonable.
75I find that since the respondent approved the plan in full, it is not open to it to pay the plan only partially once it was incurred.
76For these reasons, I find that the applicant is entitled to payment of the invoices in relation to the plan dated August 9, 2022 for RSW.
The applicant is entitled to payment of the invoices in relation to the plan dated March 1, 2022
77The applicant is entitled to payment of the invoices in relation to the plan dated March 1, 2022 for RSW.
78The applicant submits that the plan dated March 1, 2022 was approved by the respondent and was incurred. The applicant further submits that the respondent partially paid for the plan and that he is entitled to full payment.
79Both parties agree that the plan dated March 1, 2022 in the amount of $20,978.68 was entirely approved by the respondent. The applicant filed the plan which indicates that it was approved by the respondent on March 14, 2022. The plan includes “Brokerage, service,” “Documentation, support activity,” and “Claimant transportation to treatment.”
80The respondent relies on the letter dated September 15, 2022 requesting particulars as set out in paragraph 70 above, which was also sent to the applicant in relation to the plan dated March 1, 2022. The respondent makes the same submissions with respect to this plan that it did in relation to the plan dated August 9, 2022.
81For the reasons set out above, since the respondent approved the plan in full, it is not open to it to pay the plan only partially once it was incurred.
82As such, I find that the applicant is entitled to payment of the invoices in relation to the plan dated March 1, 2022 for RSW.
Interest
83Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue benefits.
Award
84The 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.
85The applicant submits that the respondent is liable to pay an award because it unreasonably withheld or delayed payments to the applicant since most of the issues in dispute have been approved by the respondent and have yet to be paid.
86Since I have found that no benefits were unreasonably withheld in relation to issues i, ii, iii, and iv, the applicant is not entitled to an award with respect to these issues.
87The applicant argues that it is a well accepted principle that an insurer has an ongoing duty to assess and reassess a claim as new information is available. With respect to the plan for psychological counselling, the applicant points out that the respondent did not specifically refer this plan to an IE, but rather partially approved it based on Dr. Taleizadeh’s report to address the plan for rehabilitation support counselling.
88Although I have placed little weight on Dr. Taleizadeh’s report as it relates to the number of sessions of psychological treatment that are warranted because the report was prepared in relation to a different plan, I find that it was not unreasonable for the respondent to rely on Dr. Taleizadeh’s report in partially approving the plan for psychological treatment. The plan for psychological treatment was submitted on November 22, 2022, and Dr. Taleizadeh’s psychological assessment was conducted within two months, in February 2023. I find that the respondent did assess the claim as it relates to the psychological treatment by considering Dr. Taleizadeh’s report recommending twelve sessions. It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Although I find that the respondent made an incorrect decision in relation to the psychological treatment, I also find that their conduct did not meet this high standard.
89For these reasons, I find that the respondent is not liable to pay an award as it relates to the plan for psychological treatment.
90The applicant submits that the respondent unreasonably withheld or delayed payment of benefits in relation to the unpaid amounts for the March 1, 2022 and August 9, 2022 invoices for RSW. The applicant relies on the decision of Samson v. Aviva General Insurance, 2023 CanLII 96312 (ON LAT) (“Samson”) where the Tribunal held that the respondent’s behaviour was unreasonable where it delayed approving the treatment plans, and delayed paying them for four months after they were approved. The Tribunal found that the respondent’s obligation to pay arose as soon as the plans were approved and properly invoiced.
91The respondent submits that if benefits are owed, they were not unreasonably withheld or delayed. The respondent argues that it requested further evidence to substantiate the claims for the RSW expenses given the lack of information provided about the particulars. The respondent points out that it did not deny the expenses outright, but asked for a breakdown as to how the fees were arrived at and submits that this should not be viewed as being unyielding or inflexible.
92I disagree with the respondent’s submissions for the following reasons.
93Although I am not bound by the Samson decision, I agree with its reasoning. I find that the respondent’s obligation to pay arose as soon as the approved plans were invoiced. In this case, I find that the respondent’s behaviour was unreasonable because it fully approved the plans at issue, and yet requested more information from the applicant once the plans were incurred. I find this conduct to be unyielding and inflexible. The plans were approved by the respondent at the outset, and I find that, the applicant was under no obligation to provide further information after the plans were incurred. As such, since payment of the outstanding amounts of the invoices has not been made to date, I find that it has been unreasonably withheld.
94The applicant did not propose an amount for the award but submits that it should be on the higher end of the possible amounts.
95For the reasons outlined above, I find on a balance of probabilities that the applicant is entitled to an award of 15% of the outstanding amount payable for the March 1, 2022 and August 9, 2022 plans.
ORDER
96The applicant is not entitled to the ACBs listed in issues i and ii.
97The applicant is not entitled to the plans listed in issues iii and iv.
98The applicant is entitled to the remaining $1,795.40 for psychological treatment.
99The applicant is entitled to payment of the invoices in relation to the plans listed as issues vi and vii.
100The applicant is entitled to an award of 15% of the outstanding amount payable for the March 1, 2022 and August 9, 2022 plans.
101The applicant is entitled to interest on any overdue benefits.
Released: February 14, 2025
Laura Goulet Adjudicator