Licence Appeal Tribunal File Number: 23-002549/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:
Cameron Patton
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Maia Abbas, Counsel
HEARD: By way of written submissions
OVERVIEW
1Cameron Patton, the applicant, was involved in an automobile accident on November 23, 2020, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
(a) Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from February 9, 2021, to date and ongoing?
(b) Is the applicant entitled to an occupational therapy assessment in the amount of $2,190.50, proposed by Rehab First Inc. in a treatment plan submitted December 21, 2020?
(c) Is the applicant entitled to occupational therapy services in the amount of $2,231.18, proposed by Rehab First Inc. in a treatment plan submitted March 26, 2021?
(d) Is the applicant entitled to social work services in the amount of $2,169.63, proposed by Rehab First Inc. in a treatment plan submitted May 26, 2021?
(e) Is the applicant entitled to physiotherapy services in the amount of $2,693.79, proposed by Bergin Motion in a treatment plan submitted June 1, 2021?
(f) Is the applicant entitled to physiotherapy services in the amount of $2,793.54, proposed by Bergin Motion in a treatment plan submitted July 28, 2021?
(g) Is the applicant entitled to physiotherapy services in the amount of $698.28 ($2,394.53 less $1,696.25 approved), proposed by Bergin Motion in a treatment plan submitted October 13, 2021?
(h) Is the applicant entitled to physiotherapy services in the amount of $1,047.41 ($2,643.91 less $1,596.50 approved), proposed by Bergin Motion in a treatment plan submitted November 3, 2021?
(i) Is the applicant entitled to physiotherapy services in the amount of $2,344.66, proposed by Bergin Motion in a treatment plan submitted November 9, 2021?
(j) Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Fox Psychological Services in a treatment plan submitted June 18, 2021?
(k) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
(l) Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions, the applicant withdrew issues 3(d), 5, 6, 8, 9, 10, 11, 12, and 13, which were previously listed as issues in dispute in the Case Conference Report and Order dated October 31, 2023 (“CCRO”). Further, issue (d) above was identified in the CCRO as occupational therapy services, but the treatment plan proposes social work services. I have revised the issue accordingly.
RESULT
4The applicant has not established his entitlement to attendant care benefits (issue (a)).
5With respect to the treatment plan for an occupational therapy assessment submitted on December 21, 2020 (issue (b)), the applicant is entitled to $1,995.50 out of the $2,190.50 in dispute.
6With respect to the treatment plan for occupational therapy services submitted on March 26, 2021 (issue (c)), the applicant is entitled to $1,995.50 out of the $2,231.18 in dispute.
7The applicant is entitled to social work services in the amount of $2,169.63, proposed in a treatment plan submitted May 26, 2021 (issue (d)).
8With respect to the treatment plan for physiotherapy submitted on June 1, 2021 (issue (e)), the applicant is entitled to $1,696.28 out of the $2,693.79 in dispute.
9With respect to the treatment plan for physiotherapy submitted on July 28, 2021 (issue (f)), the applicant is entitled to $1,696.28 out of the $2,793.54 in dispute.
10Of the $698.28 denied with respect to the treatment plan for physiotherapy submitted on October 13, 2021 (issue (g)), the applicant is entitled to $299.28.
11Of the $1,047.41 denied with respect to the treatment plan for physiotherapy submitted on November 3, 2021 (issue (h)), the applicant is entitled to $349.91.
12With respect to the treatment plan submitted on December 13, 2021 (issue (i)), the applicant is entitled to $1,945.66 out of the $2,344.66 in dispute.
13The applicant is entitled to $2,200.00 for a psychological assessment proposed in a treatment plan submitted June 18, 2021 (issue (j)).
14The respondent is liable to pay an award of $600.00 to the applicant, plus interest (issue (k)).
15The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule (issue (l)).
Motions
Respondent’s Motion to Increase Submission Pages
16The respondent requests leave to increase the page numbers permitted for this hearing. This hearing was originally scheduled as a video hearing, however after the applicant withdrew the issue of catastrophic impairment it was converted to a hearing in writing by way of an order dated June 14, 2024. The order stipulated that each party would be permitted 10 pages for their submissions, although neither party was provided the opportunity to make submissions on the page length. The applicant’s submissions were comprised of 10 pages of argument, and 8 pages of endnotes. The respondent’s submissions were 14 pages long and included footnotes.
17The respondent submits that, given the extensive list of issues in dispute, had the parties been provided the opportunity to make submissions, both parties would have opposed the 10-page requirement. The applicant does not oppose the respondent’s request to increase the page limit for submissions, and also seeks to increase the page limit.
18The order indicates that the hearing adjudicator may choose not to consider submissions which exceed the page limits. Further, Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) indicates that I must ensure that they are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
19Given the issues in dispute, the fact that the parties did not have an opportunity to address the page limit issue, and the fact that both parties are seeking to increase their submissions’ page numbers, I exercise my discretion and will consider all pages of both parties’ submissions.
20I note, however, that in a subsequent motion, the respondent opposed the page length of the applicant’s reply submissions. The order of June 14, 2024, stipulated that the applicant’s reply submissions were limited to 5 pages. The applicant’s reply submissions are comprised of 5 pages of argument plus 4 pages of endnotes. The respondent requests that the applicant’s reply submissions be struck in order to comply with the order.
21I am not prepared to exclude pages from the applicant’s reply submissions on the basis that they exceeded the page limit set out in the order. The respondent requested that the page limits set out in the order be increased for the reasons above, and I am in agreement. I find that it is appropriate to allow more pages for the reply submission as well, in order to address the lengthier submissions of the respondent.
Respondent’s Motion to Strike the Applicant’s Reply Submissions
22The respondent moves to strike portions of the applicant’s reply submissions. It submits that the applicant has improperly included new evidence and arguments in his reply submissions. It argues that it was well within the applicant’s ability to provide the new evidence prior to the hearing and could have been included in his initial submissions, and that the reply is not the appropriate venue to make new arguments with new evidence. The applicant opposes the respondent’s request, arguing that new evidence and arguments are permitted if necessary to rebut arguments made in the respondent’s submissions.
23I note that, despite being permitted to file reply submissions with respect to this motion, the respondent did not do so.
24The Supreme Court of Canada in R. v. Krause, [1986] 2 SCR 446, set out what may be included in reply submissions. The applicant may be allowed to call evidence in reply where the respondent has raised some new matter or defence which the applicant has had no opportunity to deal with and which he could not reasonably have anticipated. Rebuttal is not permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the applicant’s case which could have been brought before the respondent’s submissions were made. It will be permitted only when it is necessary to ensure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.
25The respondent submits that Tab 1 of the applicant’s reply Book of Evidence (“BOE”), a progress note dated September 13, 2019, should be excluded as it was never provided to the respondent prior to his reply, nor referred to in his initial submissions. It also requests that the second to seventh sentences of the applicant’s reply submissions be struck on that basis. The applicant submits that the respondent raised an issue in its submissions of the applicant sustaining an overdose, but failed to explain how it occurred and took it out of context in an effort to portray him as having more severe pre-accident impairments than he did. The applicant argues that he could not have anticipated this argument prior to receiving the respondent’s submissions.
26The respondent has not made an argument as to why the applicant could have reasonably anticipated that it would focus on his pre-accident health, especially where it does not otherwise raise an argument with respect to causation. I accept that this document was provided in order to address a claim made by the respondent that the applicant did not have the opportunity to deal with previously. I accordingly will not strike Tab 1 or the associated reply submissions.
27The respondent requests that Tab 5 of the applicant’s reply BOE, comprised of a document from the American Congress of Rehabilitation Medicine, be excluded, as well as sentences 2-3 of paragraph 3 in the applicant’s reply submissions. It argues that this document was not provided prior to the applicant’s reply nor cited in his initial submissions. The applicant submits that this is a publicly available document, and was submitted in response to the respondent’s efforts to throw doubt on the diagnosis of a Traumatic Brain Injury (“TBI”). He argues that he could not have anticipated the respondent doing so given that the respondent’s own expert diagnosed a TBI.
28I agree with the applicant that this was properly raised on reply because it addressed the respondent’s suggestion that he did not sustain a head injury. The issues in dispute are not directly related to whether the applicant was diagnosed with a TBI. The respondent has not persuaded me that the applicant should have anticipated this argument. I accordingly will not strike Tab 5 or the submissions that refer to it.
29The respondent requests that Tabs 7-31 of the applicant’s reply BOE, comprised of authorities regarding traumatic brain injuries and SPECT scans and blank requisition forms for MRI/SPECT scans, be excluded, as well as the last sentence of paragraph 3 in the applicant’s reply submissions. It argues that these documents were not provided prior to the applicant’s reply nor cited in his initial submissions. The applicant submits that these documents were served on January 27, 2022, and included in his document brief. He argues that these documents were included in his reply in order to address the respondent’s attempts to sow doubt over the use of MRI/SPECT scans to diagnose a TBI. He submits that he could not have anticipated that the respondent would do so as he believed the diagnoses were accepted given that it had been diagnosed by the respondent’s experts, he did not rely on the MRI/SPECT scan in his submissions, and the treatment plan for the MRI/SPECT scan was withdrawn. He explained that when the respondent suggested that the MRI/SPECT scan was improper, he had to reply.
30As the documents had been previously provided to the respondent, and they were referred to in order to address the respondent’s claims regarding the diagnosis of a TBI, I will not strike these tabs nor the submissions that refer to them.
31The respondent requests that Tab 32 of the applicant’s reply BOE, comprised of a resignation of the applicant, be excluded, along with the last sentence of paragraph 4 in the applicant’s reply submissions. It submits that this document was served on July 25, 2024, and is untested and undated. It argues that it is inappropriate and prejudicial to include this document as the applicant’s status in 2024 is not relevant to the issues in dispute. The applicant submits that it is unclear how this evidence would have been tested, as there were no cross-examinations, and not every document is dated. He explains that it was served on July 25, 2024, as it did not exist before that date. He also argues that it is not prejudicial or inappropriate as it is in reply to the respondent’s repeated submissions that the applicant remained regularly and continuously employed and therefore the benefits sought are not reasonable and necessary.
32I do not accept the applicant’s submission that this document did not exist prior to July 25, 2024, as the document itself does not have a date on it. I accordingly agree with the respondent and will strike Tab 32 of the applicant’s submissions, along with the last sentence of paragraph 4 that refers to this document.
33The respondent requests that Tab 39 of the applicant’s reply BOE, comprised of an operational policy manual from the Workplace Safety and Insurance Board (“WSIB”), be excluded, along with the fourth sentence of paragraph 13 of the applicant’s reply submissions. It argues that this document was not provided prior to the applicant’s reply. The applicant submits that this document is a publicly available manual which defines “maximum medical recovery”. He argues that he could not have anticipated confusion over this phrase, but needed to explain it in response to the respondent’s submissions at paragraphs 38 and 39. The applicant also submits that, in the alternative, the actual submission need not be struck given the definition is well-known and the sentence ought to be accepted even without the document.
34The respondent did not make any submissions about the definition of “maximum medical recovery”. Its only reference to that phrase was repeating the opinion of its assessor that he had reached maximum medical recovery, which the applicant could have reasonably anticipated the respondent would do. I agree with the respondent that Tab 39 and the reference to it should be struck from the reply, as the applicant could reasonably have anticipated that this phrase would be repeated by the respondent and should have addressed it in his initial submissions.
35The respondent requests that Tab 40 of the applicant’s reply BOE, comprised of the contact page of Bergin Motion, be excluded, along with the second last sentence of paragraph 13 of the applicant’s reply submissions. It argues that this document was not provided prior to the applicant’s reply. The applicant submits that this is a publicly available website and was only included in direct response to the respondent’s argument that because the applicant was unavailable for an assessment, he must not have had time to travel for treatment. He argues that he could not have anticipated this argument.
36I am not prepared to exclude Tab 40 or the reference to it within the applicant’s reply submissions. The applicant provided the hours of Bergin Motion in order to provide a rebuttal to the respondent’s allegation that if the applicant could not attend a s. 44 assessment, he would not have had time to attend treatment. The respondent has not explained why this argument could reasonably have been anticipated.
37The respondent requests that Tab 41 of the applicant’s reply BOE, comprised of the description of a straight leg raise test, be excluded, along with the words “indicating disc pathology or nerve root irritation” in paragraph 14 of the applicant’s reply submissions. It argues that this document was not provided prior to the applicant’s reply. The applicant submits that this is a publicly available document. He argues that he could not have anticipated that the respondent would allege that Dr. Howard’s examination of him was normal given evidence to the contrary, and had to highlight the test and its meaning. In the alternative, the applicant argues that given the test is common and well known, the actual submissions need not be excluded even if the document is.
38The applicant’s reply submissions addressed Dr. Howard’s opinion, but not a specific argument made by the respondent. The respondent only repeated some of the findings in Dr. Howard’s report, and did not specifically state that Dr. Howard’s examination was normal. I find that the applicant could reasonably have anticipated that the respondent would have relied on Dr. Howard’s report, and should have introduced the evidence at Tab 41 and mentioned the above phrase in his initial submissions. I will accordingly strike Tab 41 and the phrase noted above.
39The respondent requests that paragraph 10 be struck as the applicant relied on the deemed incurred provision of the Schedule, and this was the first time he did so. It argues that this was not a reply to any arguments, but was a new argument put forward in a reply. The applicant submits that this argument was raised in direct rebuttal to the respondent’s argument that the benefits were not incurred and are therefore not payable.
40I am not prepared to strike this paragraph as it does not include any new evidence, and the respondent has not explained why its argument could reasonably have been anticipated. The applicant’s argument hinges on evidence and submissions put forward by the respondent regarding nonattendance at a s. 44 assessment. As the respondent had an opportunity to address this in its submissions, I find that it would not offend procedural fairness if I do not strike this paragraph.
41The respondent’s motion is accordingly granted in part. I shall strike Tabs 32, 39, and 41, and the submissions that refer to them. Otherwise, the respondent’s motion to strike the other Tabs and associated submissions is denied.
ANALYSIS
Attendant Care
42Section 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”).
43The applicant submits that he is entitled to $6,000.00 in attendant care per month from February 9, 2021, to date and ongoing. His attendant care needs were assessed on February 9, 2021, by occupational therapist Megan Lewis. Her Form-1 dated April 6, 2021, indicates that he requires $10,294.49 in monthly attendant care.
44The respondent submits that as the applicant has not been deemed catastrophically impaired, the maximum monthly attendant care benefits available is $3,000.00 pursuant to s. 19(3) of the Schedule. It also submits that the applicant is not entitled to attendant care benefits prior to April 6, 2021, pursuant to s. 42(5), which states that an insurer is not required to pay an expense incurred before the submission of a Form-1. The applicant did not address either of these arguments. In light of s. 19(3) and s. 42(5), I agree with the respondent.
45The respondent also submits that there is no evidence that the applicant incurred any attendant care, and therefore it is not obligated to pay for it. In reply, the applicant argues that the respondent unreasonably denied him care, which prevented him from incurring it. He relies on the deemed incurred provision of the Schedule.
46Pursuant to s. 3(8), if the 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 Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
47I will not use my authority to deem the attendant care services incurred pursuant to s. 3(8) as, in my view, the applicant has not established that the respondent unreasonably withheld or delayed the payment of attendant care benefits.
48The respondent requested that the applicant attend a s. 44 assessment to determine his entitlement to attendant care benefits. On June 29, 2021, the applicant’s counsel advised the respondent that he was attempting a return to work and would “not be able to attend the insurer examination scheduled for August 12, 2021 at this time”. On June 30, 2021, the respondent wrote to the applicant stating that, pursuant to the email from his counsel, he did not want to attend the assessment as he was attempting a return to work. The respondent then quoted from s. 44 assessments with Dr. Paul Howard, general practitioner, dated May 28, 2021, and Dr. Terri Sands, psychologist, dated May 25, 2021. Those assessors indicated that the applicant was working full time, and Dr. Howard indicated that he was reportedly independent with all self-care activities. The respondent referred to these reports and the fact that the applicant declined to attend the assessment, and denied the benefit.
49The applicant argues that he did not refuse to attend the assessment, he was just unavailable on that date. The email from June 30, 2021, does not state that it was the date of the assessment that was the issue. The respondent submits that the applicant never indicated an interest in pursuing attendant care benefits further to this exchange, and the applicant has not pointed me to evidence of this. In my view, the email from the applicant and his actions thereafter do not signal that the issue was the specific date of the assessment itself. I am accordingly not convinced that the respondent acted unreasonably in not rescheduling the assessment or in denying the benefit such that I should exercise my authority under s. 3(8).
50However, the applicant seeks attendant care services on an ongoing basis, so I must determine whether he is entitled to it from August 2, 2024, the date of this hearing, and ongoing.
51The respondent argues that the applicant’s nonattendance at the s. 44 assessment must be viewed as a withdrawal for his claim for attendant care. I disagree. The applicant disputed the denial, and indicated that he still wishes to do so. I note that the respondent did not argue that the applicant is barred from proceeding with his claim by operation of 55(1)2 of the Schedule.
52Ms. Lewis’ Form-1 indicates that the applicant requires assistance with the following:
(a) Dressing upper/lower body – 28 minutes per week
(b) Washing face – 35 minutes per week
(c) Shaving – 10 minutes per week
(d) Hair care – 35 minutes per week
(e) Toenail care – 10 minutes per week
(f) Meal preparation – 630 minutes per week
(g) Walking supervision/assistance – 840 minutes per week
(h) Bathroom hygiene – 35 minutes per week
(i) Bedroom hygiene – 70 minutes per week
(j) Ensuring comfort, safety, and security in the bedroom – 1260 minutes per week
(k) Hanging and sorting clothes – 15 minutes per week
(l) Basic supervisory care (to be self-sufficient in an emergency) – 6898 minutes per week
(m) Co-ordination of attendant care – 60 minutes per week
(n) Transfer from bed to and from bathtub or shower – 35 minutes per week
(o) Bathing and drying – 105 minutes per week
(p) Brushing teeth – 14 minutes per week
53This Form-1 was completed only 5 months after the accident, and over three years prior to the date that I am assessing the applicant’s entitlement.
54The respondent submits that the applicant is independent in his personal care and activities of daily living. It argues that the Form-1 is inconsistent with his ability to function, and the recommendation for basic supervisory care, supervision with walking, and hygiene conflicts with his return to work and his observed independence in surveillance conducted in October and November 2021.
55I place less weight on the surveillance report given that I have not been provided with the underlying video footage. However, I agree that some of the recommendations in the Form-1 no longer appear to be in line with his reported level of functioning. For example, the applicant was subsequently able to work, and although he has difficulties in that regard, they are largely related to his anxiety and reluctance to leave his bed. I accordingly question why he would still require walking supervision/assistance or help with transfers from his bed to and from his bathtub or shower.
56Further, on November 22, 2023, Marla Tennen, occupational therapist, authored a future care costs assessment report and noted that she prepared an updated Form-1. The updated Form-1 apparently recommended $3,083.72 in monthly assistance, however that Form-1 was not provided by either of the parties. I find that this is evidence that as time has elapsed, the applicant’s needs have been reduced significantly.
57Although I acknowledge that some amount of attendant care might be reasonable and necessary, I find that the applicant has not met his onus of proving what that amount is. He refers to various reports to indicate his impairments, but those reports do not indicate the specific type or minutes of care that he requires. The only document that does so is the Form-1 which I find is no longer relevant given the time that has passed since its completion, and the change in the applicant’s needs since then. I find that he has not provided me with a clear picture of his needs as of the date of this hearing.
58I accordingly find that the applicant has not proven, on a balance of probabilities, that he is entitled to attendant care benefits.
59To 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.
Occupational Therapy Assessment (issue (b))
60I find that the applicant is entitled to $1,995.50 for this treatment plan out of the proposed $2,190.50.
61This treatment plan proposed an occupational therapy assessment which included meeting with the applicant, reviewing medical documents, planning, preparation, conducting standardized assessments, consulting with other providers, documentation, report writing, and Form-1 completion if required. This was proposed to take 17 hours and would cost $1,695.75. It also proposed $99.75 for provider travel time, $200.00 for the completion of the treatment plan, and 1.5 hours of collaboration with a social worker for $195.00. The goals of the treatment plan were to assess the applicant’s functioning, safety, and independence with activities of daily living, in order to facilitate functional participation in his activities. Despite the denial, this assessment took place on February 9, 2021.
62I agree with the applicant that an occupational therapy assessment was reasonable and necessary around the time the treatment plan was submitted. The applicant had not returned to work yet. His mother advised Ms. Lewis that there were significant changes to his cleaning and personal care habits, and that he would wear the same dirty clothes repeatedly. He had difficulty with sleep and Ms. Lewis recommended occupational therapy for sleep hygiene. He had difficulties with concentration, memory, and organization/planning tasks and required reminders and assistance from his mother. He had an antalgic gait, reduced walking tolerance, and balance issues. As a result of decreased motivation, Ms. Lewis recommended cueing support to assist the applicant with changing his clothing, grooming himself, preparing meals, and cleaning. He was socially isolated from his friends, showered less frequently due to low mood and decreased motivation, and only brushed his teeth every 3-4 days.
63Further, the respondent’s occupational therapist, Alexandra Bhatnagar, indicated in a report dated July 26, 2022, that the applicant would benefit from occupational therapy sessions to provide compensatory strategies around emotional and cognitive challenges, community re-integration, increasing social/recreational repertoire, and a return to full time employment. Although he demonstrated the functional ability to be independent in most of his activities of daily living, he reported significant emotional challenges that affected his ability to engage in tasks around the home, engage in full-time employment, and engage in his pre-accident leisure activities.
64The respondent argues that the applicant does not require attendant care services and therefore this assessment is not required, however completing the Form-1 was only one component of this assessment. Ms. Lewis made a number of recommendations for treatment and assistive devices as well. In any event, given the extent of the applicant’s difficulties as indicated above, I find that it was reasonable for the applicant to undergo an assessment with respect to his attendant care needs.
65The respondent relies on the opinions of Dr. Sands and Dr. Howard, and argues that they both indicated that this treatment plan was not reasonable and necessary. I note that Dr. Howard deferred comment with respect to this treatment plan. Further, Dr. Sands and Dr. Howard are not occupational therapists, and the respondent’s occupational therapist was of the opinion that occupational therapy intervention was appropriate. Dr. Sands felt that psychological intervention was necessary, but that an occupational therapy assessment was no longer reasonable and necessary as the applicant had returned to a number of his activities. Although Ms. Bhatnagar did not comment on the need for an occupational therapy assessment in particular, I prefer her opinion, as well as Ms. Lewis’, over Dr. Sands with respect to the need for occupational therapy intervention as this is their area of discipline. As occupational therapy was deemed reasonable and necessary, it follows that an assessment to determine the applicant’s occupational therapy needs would also be reasonable and necessary.
66The respondent also submits that, based on the hourly rate of $99.75 for an occupational therapist, it is inconceivable that it could take over 20 hours to conduct such an assessment. I note that conducting the assessment itself was proposed to take 17 hours, plus one hour of travel time, 1.5 hours for collaboration with a social worker, and the completion of the treatment plan.
67I am not persuaded by the respondent’s argument that the time proposed to complete the assessment is “inconceivable”. The respondent has not indicated an amount of time that would be acceptable, advised how long it took its own assessor to complete her assessment and report, or provided any authority that would indicate how long this type of assessment should take. Ms. Lewis’ assessment involved evaluating the applicant at his home, conducting a collateral interview with his mother at a later date, preparing the report, and preparing a Form-1. I find that there is some weight attached to the treatment plan itself as the occupational therapist who completed the form is in the best position to know how long this type of assessment would take, especially in the absence of evidence to the contrary. I accept that given the work completed and the information set out in the treatment plan itself, 17 hours to complete the assessment was reasonable and necessary on a balance of probabilities.
68I note that the respondent did not specify that it takes issue with the $99.75 for travel time proposed in the treatment plan, however elsewhere in its submissions it argues that travel time for an occupational therapist is not payable. It submits that pursuant to s. 3(1) of the Schedule, “authorized transportation expense” only covers transportation expenses incurred after the first 50 kilometres of a trip. It also argues that there is no provision in the Schedule, or the Guidelines or Bulletins of the Financial Services Commission of Ontario – now the Financial Services Regulatory Authority of Ontario (“FSRAO”) – that requires an insurer to pay mileage expenses to service providers. Further, the Superintendent’s Guideline No. 03/14: Professional Services Guideline (“PSG”) indicates that professional service expenses include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any of these costs which have the result of increasing the maximum hourly rates of providers.
69In my view, a provider’s travel time is not an administrative or overhead cost as contemplated by the PSG. It reflects time in a treatment provider’s day where they could be providing other services, as opposed to an expense that would add to the hourly cost of providing a service. Further, pursuant to s. 3(1), expenses related to transportation in respect of an insured person are authorized by Superintendent’s Guideline No. 04/16: Transportation Expense Guideline. That Guideline explains that transportation expenses are related to an insured person’s travel time (or their aide or attendant). It does not mention service providers. I am accordingly not convinced that a provider’s travel time is governed by the Schedule or the Guidelines.
70The treatment plan does not request reimbursement for mileage as suggested by the respondent. It requests one hour for the provider’s time to travel to the applicant’s home to complete the assessment. An understanding of the applicant’s home environment and his ability to complete the activities at home was fundamental to the assessment. I am accordingly satisfied that the expense was reasonable and necessary.
71The applicant did not explain why $195.00 was required for “collaboration of clinical activities” with a social worker. As it has not been made clear to me why this would be required, I find that the applicant has not met his burden in proving that this particular expense is reasonable and necessary.
72The respondent did not specifically take issue with the fee for the preparation of the treatment plan. The treatment plan included an explanation as to why it was reasonable, as well as a summary of the applicant’s injuries and impairments. I am satisfied that $200.00 for the preparation of this document is reasonable and necessary.
73I accordingly find that the applicant is entitled to $1,995.50 for this treatment plan out of the proposed $2,190.50.
Occupational Therapy Services (issue (c))
74I find that the applicant is entitled $1,995.50 of the $2,231.18 proposed in this treatment plan.
75This treatment plan proposed four in-person occupational therapy sessions ($1,396.50), provider travel time to and from the applicant’s home ($399.00), an item entitled “collaboration and provision of clinical practices” to be provided by a social worker ($195.00), the completion of the treatment plan ($200.00), and personal protective equipment ($36.00 plus H.S.T.), for a total of $2,231.18.
76The respondent’s submission with respect to this treatment plan is that it was denied based on the reports of Dr. Sands and Dr. Howard. As indicated above, I prefer the opinion of the respondent’s s. 44 occupational therapist, Ms. Bhatnagar, to that of Dr. Sands, and Dr. Howard deferred comment with respect to this treatment plan. I note that the respondent did not make any submissions with respect to Ms. Bhatnagar’s opinion. In her report of July 26, 2022, Ms. Bhatnagar acknowledged that the applicant had received occupational therapy and opined that a treatment plan for additional sessions, submitted on April 4, 2022, was reasonable and necessary. The respondent approved that treatment plan. It did not explain why, despite that fact, it is not prepared to pay for this earlier treatment plan which was submitted on March 26, 2021.
77I find that, around the time this treatment plan was submitted, the proposed occupational therapy sessions were reasonable and necessary. An initial four sessions of occupational therapy was recommended by Ms. Lewis in her report of April 6, 2021, in order to address the applicant’s fatigue, pain management, healthy sleep, housekeeping, leisure, and employment. The applicant’s difficulties and his need for occupational therapy was also corroborated by Ms. Bhatnagar’s report.
78Further, as indicated above, the sessions were to take place in the applicant’s home, which necessitated provider travel time. I accordingly find that this expense was reasonable and necessary.
79However, neither the treatment plan itself nor the applicant has explained what “collaboration and provision of clinical practices” means or why it was required. I accordingly find that the applicant is not entitled to that expense as he has not proven that it was reasonable and necessary.
80In addition, the applicant has not explained why the proposed personal protective equipment would not be included as administrative costs or overhead pursuant to the PSG. As such, I find that he has not met his burden in proving that he is entitled to this expense.
81I find that the applicant has met his burden to prove, on balance of probabilities, that he is entitled to $1,995.50 of the $2,231.18 proposed in this treatment plan.
Social Work Services (issue (d))
82The respondent submits that it approved this treatment plan on September 29, 2021, and this issue should therefore be withdrawn from the dispute. However, the respondent has not provided evidence that it was approved. In order to provide clarity to the parties, as the respondent no longer disputes the applicant’s entitlement to the treatment plan and has effectively conceded the issue, I find that the applicant is entitled to it.
Physiotherapy (issues (e), (f), (g), (h), and (i))
83The treatment plan in the amount of $2,394.53, submitted October 13, 2021 (issue (g)), was partially approved, leaving $698.28 in dispute. The treatment plan in the amount of $2,643.91, submitted November 3, 2021 (issue (h)), was also partially approved, leaving $1,047.41 in dispute. The same items were denied for both treatment plans: communication with the applicant and the occupational therapist, written report/programs, and preparation for treatment.
84The applicant provided a letter from Mr. Bergin dated December 15, 2021, which states that he has spent hours communicating with his multidisciplinary team to provide better patient care. He also stated that he has spent hours preparing and planning for the applicant’s treatment sessions.
85The respondent submits that these expenses relate to professional expenses that are included in the hourly rate for professional services pursuant to the PSG, which include documentation to support activity and planning services. It argues that according to the PSG, the hourly rates include all administration costs, overhead, and related costs, fees, expenses, and surcharges, and that it is not liable for these additional fees. It submits that no explanation has been provided as to why these additional services were required to provide physiotherapy.
86I do not agree that the proposed amounts relate to administration costs or overhead. They involve the treatment provider spending time completing additional tasks. In my view, these amounts are for additional services that attract their own hourly rate, and do not have the result of increasing Mr. Bergin’s effective hourly rate beyond what is permitted by the PSG. Further, the PSG does not state that documentation and planning services are included within the hourly rate for performing treatment.
87In addition to the explanation in Mr. Bergin’s letter, the treatment plans elaborate that the line item for preparation and planning includes session planning and preparing a progressive exercise prescription. I find this explanation compelling, as these additional tasks would not occur during the time that the applicant is physically being treated. As such, I find that the applicant has proven, on a balance of probabilities, that the preparation time for each session is reasonable and necessary. I find that the applicant is entitled to $299.28 for the treatment plan at issue (g), and $349.91 for the treatment plan at issue (h).
88However, I do not find Mr. Bergin’s letter to be persuasive on its own with respect to the cost for communication. He did not adequately explain why communicating with the applicant’s team would provide him with better care. The applicant did not point to clinical notes from Mr. Bergin indicating who he spoke to or why. I accordingly find that the applicant has not met his burden of proving, on a balance of probabilities, that the line items for communication are reasonable and necessary.
89Further, the applicant did not make submissions with respect to the denied amounts for written reports/programs, and Mr. Bergin did not refer to this line item in his letter. No explanation was provided as to why four of these items were proposed. As such, I find that he has not met his burden of proving, on a balance of probabilities, that the line items for reports/programs are reasonable and necessary.
90I accordingly find that, of the $698.28 denied with respect to the treatment plan submitted on October 13, 2021 (issue (g)), the applicant is entitled to $299.28. Of the $1,047.41 denied with respect to the treatment plan submitted on November 3, 2021 (issue (h)), the applicant is entitled to $349.91.
91The treatment plans indicated as issues (e), (f), and (i), proposed physiotherapy treatment and included the line items above, but were denied in their entirety. The treatment plan identified as issue (e) was submitted June 1, 2021, and issue (f) was submitted on July 27, 2021. The goals of the treatment plans were pain reduction, increase in strength, a return to activities of normal living, and a return to modified work. The treatment plan at issue (i) was submitted on December 13, 2021, and in addition to the goals above, it included specific goals such as improving lower extremity strength, improving low back and right hip pain, improving tolerance for ambulation (speed and duration), improving ability to complete light activities of daily living, and improving tolerance for work shifts without exacerbation of symptoms.
92The respondent submits that the proposed treatment is excessive as a significant amount of treatment has already been approved. I note that aside from its submissions, the respondent did not provide me with evidence of the amount of physiotherapy that was approved or the dates of the approved treatment plans. I am accordingly not persuaded by this argument.
93The respondent relies on the s. 44 report of Dr. Lori Feigelson, physiatrist, dated February 22, 2022. Dr. Feigelson indicated that the applicant had not improved despite approximately six months of treatment, he had reached maximum medical recovery, and further physical therapies were not likely to be effective and were therefore not reasonable and necessary.
94The respondent also relies on the s. 44 report of Dr. Howard Platnick, general practitioner, from June 22, 2023. Dr. Platnick noted that the applicant reported a 20% improvement of his symptoms, walked with a normal gait, and performed a full squat. Dr. Platnick’s opinion was that the applicant had reached maximum medical improvement and further treatment was not reasonable and necessary.
95I note that neither assessor indicated that the applicant did not require treatment at all. The treatment plans were submitted well before Dr. Platnick assessed the applicant. However, the respondent also had the applicant assessed by Dr. Howard on May 28, 2021, and he recommended that the applicant receive physiotherapy. I prefer the opinion of Dr. Howard as it was contemporaneous to the submission of the treatment plans and better reflected the applicant’s condition and needs at that time.
96Further, Dr. Feigelson based her opinion on the fact that the applicant had attended approximately six months of treatment in the past, indicating that no further treatment was reasonable and necessary. That does not mean that the treatment the applicant received leading up to the assessment was not reasonable and necessary. For this reason, I am not persuaded by her opinion with respect to the treatment plans submitted in June and July 2021, many months prior to her assessment.
97I accordingly find that it was reasonable and necessary for the applicant to have received physiotherapy around the time the treatment plans indicated as issues (e) and (f) were submitted.
98With respect to the treatment plan submitted in December 2021, I disagree with Dr. Feigelson’s opinion that the applicant did not have any overall lasting and sustainable reported improvements in symptoms with physiotherapy. The applicant directed me to scoring sheets from Mr. Bergin’s office indicating the applicant’s improvement between August and October. His lower extremity functionality had improved, as had his balance and mobility. However, he was still experiencing difficulties in those areas, and Mr. Bergin explained in the treatment plan that they would be working to improve his ambulation. I find that, around the time this treatment plan was submitted, it was reasonable for the applicant to continue to receive physiotherapy given the improvement he had seen previously, and the relatively short amount of time that he had received treatment for.
99The respondent also argues that the treatment goals were to return the applicant to his activities of normal living and modified work, but he had already achieved this. As indicated above, these were not the only goals of treatment. The applicant advised Dr. Feigelson that he was experiencing pain relief for a few days after each treatment, and I agree with the applicant that pain relief is a legitimate medical and rehabilitative goal. I accordingly disagree with the respondent that the applicant had already met his treatment goals at the time the treatment plans were submitted.
100I note that the treatment plans included a line item for a written progress report. The applicant has not explained why that item was required and in fact argued that the clinical notes and treatment plans demonstrate the progress being made, so I find that he has not met his burden to prove that the preparation of a progress report was reasonable and necessary. Further, for the reasons indicated above, I find that the amounts proposed for communication are not reasonable and necessary. Finally, the applicant has not explained why, in the treatment plans identified as issues (e) and (f), two 1.5-hour long assessments were proposed or why they were required. I therefore find that the applicant has not met his burden to prove that this item is reasonable and necessary.
101I find that the line items for the preparation of the treatment plan, physical rehabilitation, and session preparation are reasonable and necessary. I accordingly find that the applicant has met his onus, on a balance of probabilities, to prove that he is entitled to the following:
(a) With respect to the treatment plan identified as issue (e), the applicant is entitled to $1,696.28 out of the $2,693.79 in dispute.
(b) With respect to the treatment plan identified as issue (f), the applicant is entitled to $1,696.28 out of the $2,793.54 in dispute.
(c) With respect to the treatment plan identified as issue (i), the applicant is entitled to $1,945.66 out of the $2,344.66 in dispute.
Psychological Assessment (issue (j))
102The respondent submits that this treatment plan was approved and this issue should therefore be withdrawn. However, it has not provided evidence that the treatment plan was approved. For the sake of clarity, as the respondent no longer disputes the applicant’s entitlement to the treatment plan and has effectively conceded the issue, I find that the applicant is entitled to it.
Interest
103Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is entitled to treatment plans as indicated above, it follows that the amounts payable with respect to those plans are subject to interest pursuant to s. 51.
Award
104The 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.
105The applicant submits that the respondent acted unreasonably by denying treatment that even their own assessor advised is reasonable and necessary. He also submits that the respondent acted unreasonably by denying assessments that they felt should be conducted by their own assessors and by ignoring documents and their own assessors’ observations, opinions, and recommendations. The respondent did not address the applicant’s request for an award.
106It is well settled that an award should not be ordered simply because the insurer made an incorrect decision. The insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for establishing entitlement to an award is high.
107I agree with the applicant with respect to some of the denied treatment plans. The respondent has provided no explanation as to why it maintained its denial of the occupational therapy assessment and occupational therapy services, despite obtaining its own s. 44 assessment and that assessor recommending additional occupational therapy. I find that these treatment plans were unreasonably denied, and its conduct was stubborn, inflexible, and unyielding.
108The respondent advised that it approved the treatment plans for social work and a psychological assessment. I have no evidence before me as to when these were approved or why. The bar for an award is high. Given the lack of information before me, and the fact that the respondent ultimately agreed to pay for them, I am not satisfied that the respondent necessarily acted unreasonably with respect to these benefits.
109With respect to the physiotherapy treatment plans, I am not satisfied that the respondent acted unreasonably in denying them. Although Dr. Howard indicated that physiotherapy would be recommended, he first recommended further imaging studies in order to rule out significant physical problems before physiotherapy begins. The applicant did not point to evidence that this was done, that the results were sent to the respondent, or that the respondent continued to maintain the denial despite being in possession of these documents. I accordingly am not persuaded that the respondent unreasonably maintained the denials for the physiotherapy treatment plans given Dr. Howard’s caveat. In addition, the respondent subsequently assessed whether further treatment was reasonable and necessary and the applicant has not explained why the respondent acted unreasonably specifically in relying on the report of Dr. Feigelson.
110I must now determine the quantum of the award. It is well established that in determining the quantum of an award, the Tribunal may consider the following factors:
(a) The blameworthiness of the insurer’s conduct;
(b) The vulnerability of the insured person;
(c) The harm or potential harm directed at the insured person;
(d) The need for deterrence;
(e) The advantage wrongfully gained by the insurer;
(f) Other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and
(g) The overall length of the delay.
111In my view, factors (a), (d), (e), and (g) are applicable in these circumstances. The applicant has not provided me with evidence of his vulnerability or whether the denials caused him harm. I am not satisfied that the respondent’s conduct attracts the maximum amount payable for an award. I find that an award of 15% is appropriate with respect to the treatment plans for an occupational therapy assessment and occupational therapy services. 15% of the $3,991.00 the applicant is entitled to is approximately $600.00.
112I accordingly find that the respondent is liable to pay an award of $600.00 to the applicant, plus interest.
ORDER
113The applicant has not established his entitlement to attendant care benefits (issue (a)).
114With respect to the treatment plan for an occupational therapy assessment submitted on December 21, 2020 (issue (b)), the applicant is entitled to $1,995.50 out of the $2,190.50 in dispute.
115With respect to the treatment plan for occupational therapy services submitted on March 26, 2021 (issue (c)), the applicant is entitled to $1,995.50 out of the $2,231.18 in dispute.
116The applicant is entitled to social work services in the amount of $2,169.63, proposed in a treatment plan submitted May 26, 2021 (issue (d)).
117With respect to the treatment plan for physiotherapy submitted on June 1, 2021 (issue (e)), the applicant is entitled to $1,696.28 out of the $2,693.79 in dispute.
118With respect to the treatment plan for physiotherapy submitted on July 28, 2021 (issue (f)), the applicant is entitled to $1,696.28 out of the $2,793.54 in dispute.
119Of the $698.28 denied with respect to the treatment plan for physiotherapy submitted on October 13, 2021 (issue (g)), the applicant is entitled to $299.28.
120Of the $1,047.41 denied with respect to the treatment plan for physiotherapy submitted on November 3, 2021 (issue (h)), the applicant is entitled to $349.91.
121With respect to the treatment plan submitted on December 13, 2021 (issue (i)), the applicant is entitled to $1,945.66 out of the $2,344.66 in dispute.
122The applicant is entitled to $2,200.00 for a psychological assessment proposed in a treatment plan submitted June 18, 2021 (issue (j)).
123The respondent is liable to pay an award of $600.00 to the applicant, plus interest (issue (k)).
124The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule (issue (l)).
Released: April 1, 2025
Rachel Levitsky
Adjudicator