Citation: Breault v. CAA Insurance Company, 2025 CanLII 72418

Licence Appeal Tribunal File Number: 24-012985/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:

Timothy Breault

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR: Dagmara Szczudlo

APPEARANCES:

For the Applicant: David J Levy, Counsel

For the Respondent: Krista M. Groen, Counsel

Court Reporter: Breanna Clancy, Network

Heard by Videoconference: June 10, 2025

OVERVIEW

1Timothy Breault, the applicant, was involved in an automobile accident on May 2, 2024, 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, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUE

[2] The issue in dispute is: i. Is the applicant entitled to $2,254.50 ($6,935.36 less $4,680.86 approved) for case management services, proposed by Kim Doogan, social worker in a treatment plan/OCF-18 (“plan”) dated September 28, 2024?

3At the hearing, the parties agreed that the treatment plan above is for the provision of case management services as per s. 17 of the Schedule as opposed to social work services listed in the Tribunal’s Case Conference Report and Order released February 11, 2025 (“CCRO”). This is reflected in the issue above.

RESULT

4The applicant is entitled to the unapproved balance of $2,254.50 for case manager services in a treatment plan dated September 28, 2024.

PROCEDURAL ISSUE

Written motion to exclude several portions of applicant’s hearing brief partially granted

5At the outset of the hearing, I partially granted the respondent’s motion to exclude evidence disclosed for the first time in the applicant’s hearing brief.

6The respondent filed a written motion on May 27, 2025 to exclude evidence disclosed for the first time in the applicant’s hearing brief. The respondent submitted that the applicant included six treatment and assessment plans (“OCF-18s”), presumably in an effort to substantiate his position that Ms. Doogan’s hourly rate of $134.17 has been approved by other insurers in claims unrelated to the subject matter. These OCF-18s had not been previously disclosed despite an order in the CCRO that any documents the parties intended to rely on at the hearing be exchanged within 60 days from the date of the case conference (due April 11, 2025), and they were served beyond the final responsive 90-day production deadline outlined in the CCRO. The respondent submitted that these OCF-18s involve other insurers, are heavily redacted limiting understanding of the context of decisions which were made and are not relevant in determining whether the hourly rate requested by the applicant is reasonable and necessary in the present dispute. The respondent argued that use of these documents will result in prejudice and requested that the applicant should not be permitted to rely on them at the hearing and if admitted, less weight should be assigned to this evidence.

7The applicant submitted that their hearing brief was served and filed on May 20, 2025, 21 days in advance of the hearing as per the CCRO. The applicant agrees that the OCF-18s in the brief were served outside of the 60-day and 90-day deadlines listed in the CCRO, however, leniency should be granted considering the factors outlined in Rule 9.3 of the Licence Appeal Tribunal Rules, effective August 21, 2023 (“the Rules”). The applicant further submitted that one of the OCF-18s was from CAA Insurance, the respondent has access to information related to its contents, and it is relevant to the issue in dispute. The applicant submitted that the documents were served late because the parties were exploring settlement and vacating the hearing was still a possibility.

8Having considered the factors outlined in Rule 9.3, I partially granted the respondent’s motion to exclude five out of six OCF-18s included in the applicant’s hearing brief related to approval of Ms. Doogan’s rate by other insurers. I denied the motion to exclude Tab 12 A in the applicant’s brief, which represents an OCF-18 submitted to CAA Insurance Company for similar case management services. Although this OCF-18 is redacted, I determined that it was submitted recently, deals with the same service provider, Ms. Kim Doogan, proposes case management services to the same insurer at a rate of $134.17 per hour which was fully approved on October 16, 2024. It is also important to note that a full approval at this rate occurred within the same week that the treatment plan in dispute was only partially approved at a lower rate on October 11, 2024.

9Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, a Tribunal may admit into evidence any relevant document or thing. I find that the admitted OCF-18 is relevant to the issue in dispute and any prejudice associated with its late disclosure could be cured by a brief delay in the proceedings since the OCF-18 included an unredacted HCAI number which permits the respondent to access information in its electronic systems. The respondent had 21 days to review the late filed documents and declined an additional break to review the admitted OCF-18 prior to proceeding with the hearing.

ANALYSIS

Background

10The applicant was involved in an automobile accident on May 2, 2024. He was an elderly pedestrian walking his dog when he was struck by a car at approximately 50 km/hr. According to an Occupational Therapy Hospital Discharge Report dated October 8, 2024 authored by Karen Forse OT, the applicant was transported to Sunnybrook Health Sciences intensive care unit where he was diagnosed with multiple fractures and complex polytrauma. He has optional medical, rehabilitation and attendant care benefits which entitle him to case manager services as per s. 17 of the Schedule.

The applicant is entitled to the unapproved portion of the September 28, 2024 treatment plan

11I find that the applicant is entitled to the unapproved balance of $2,254.50 for case manager services in a treatment plan dated September 28, 2024.

12To 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.

13The disputed elements of the treatment plan are hourly rates for various case management services to be provided by Ms. Kim Doogan, licenced social worker. All other items listed were fully funded by the respondent. The proposed hourly rate for services is $134.17 per hour, which was partially approved at $91.37 per hour in HCAI on October 11, 2024, followed by a decision letter dated October 16, 2024. The respondent cited two recent Licence Appeal Tribunal decisions: Lafrance v The Co-operators General Insurance Company, 2024 CanLII 10539 (ON LAT) and Faisal v CUMIS General Insurance Company, 2024 CanLII 51696 (ON LAT) as reasons for the rate reduction in the letter.

14The FSCO Professional Services Guideline dated September 2014 (“PSG”) lists case managers as unregulated providers and lists two maximum hourly rates: $58.19 for non-catastrophic impairments and $89.07 for catastrophic impairments. Since the PSG is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be, and if they are unable to do so, the Tribunal must decide. The onus is on the applicant to demonstrate that the proposed rate is appropriate on the basis of the provider’s education, training, and experience.

15The applicant relies on Ms. Doogan’s education including a Master of Social Work Degree, certification as a Canadian Certified Life Care Planner (CCLCP), certificate in Trauma Counselling for Front-Line Workers, and management and leadership training from recognized institutions. The applicant also relies on Ms. Doogan’s registration with the Ontario College of Social Workers and Social Service Workers (“OCSWSSW”), and her experience in the field since 1991, to submit that the hourly rate proposed for her services is reasonable. In addition, Ms. Doogan testified that case management is not simply co-ordination and administration of activities for the applicant but, involves working with individuals with the most serious injuries and being the first point of contact for the applicant and their family. It involves a significant advocacy role while working with a large group of other care professionals, and assisting the applicant in making informed decisions, while navigating crisis situations with sensitivity and cultural competence. Ms. Doogan testified that the applicant benefits from her strong clinical foundation and experience as a social worker and her proposed rate of $134.17 per hour for case management services is appropriate.

16The applicant further submits that social workers are professionals regulated by the OCSWSSW and it is not appropriate to apply the PSG hourly rate for unregulated providers/case managers. Instead, the applicant relies on Professional Services Guideline FSCO Bulletin A-02/04 dated January 9, 2004, and Professional Services Guideline FSCO Bulletin A-03/18 dated April 11, 2018 which both state that “expenses for regulated and unregulated providers identified in the PSG are payable according to their professional designation and not by the services they provide. For example, case management services provided by an occupational therapist are payable at the occupational therapist rate and not at the case manager rate”. The applicant submits that the language of the bulletins is clear and should apply to social workers just as it applies to occupational therapists, whereby Ms. Doogan should be paid according to her social worker rate ($134.17/hr) and not at the CAA pre-approved rate of $91.37/hr.

17The respondent does not dispute Ms. Doogan’s qualifications and submits that proposed services were offered under the scope of case management not social work. The respondent argues that as per s. 17 (2) of the Schedule the insurer is not liable to pay expenses for case manager services that exceed the maximum rate established under the Guidelines, and that social workers are not listed in the PSG. The CAA approved hourly rate of $91.37 is already significantly higher than the prescribed PSG rate for non-catastrophic case management services ($58.19/hr) and reflects that Ms. Doogan was not proposing social work therapy or direct clinical interventions. While the respondent acknowledges that Ms. Doogan’s experience adds value to the applicant’s care, the pre-approved case manager rate of $91.37/hr should be confirmed by the Tribunal.

18The applicant relies on R.O. v Aviva Insurance Company of Canada, 2019 CanLII 122721 (ON LAT) and J.V. v Intact Insurance Company, 2019 CanLII 76995 (ON LAT) to argue that there is no consistency between the rate that the respondent is asking me to assign as part of this decision, and what the respondent did with a similar treatment plan. This decision is also used to point out that in the present case, the applicant included evidence of registered social worker rates to support her hourly case manager rate. The respondent relies on 16-003478 v The Co-operators General Insurance Company, 2017 CanLII 86608 (ON LAT) and Rawana v Aviva, 2021 CanLII 60468 (ON LAT) and argues that the Tribunal previously accepted the PSG maximum for case manager services. After review of the cited cases, I note that I am not bound by these decisions.

19I find that the rate the respondent already agreed to pay for case management services ($91.37/hr) exceeds the maximum rate established under the PSG ($58.19) and as a result, neither the Schedule nor the PSG are helpful in these circumstances.

20I find that the applicant has met their onus to prove on a balance of probabilities, that the proposed rate of $134.17/hr for Ms. Doogan’s case manager services is appropriate on the basis of her education, training, and experience. I am persuaded by Ms. Doogan’s credentials and do not accept that an effective case manager for a polytraumatic client is simply a co-ordinator/administrator to be compensated at a lower rate detached from their rate as a registered professional.

21I am also persuaded by Ms. Doogan’s testimony and evidence that the respondent previously fully approved her proposed rate of $134.17/hr for case management services for another client, in fact in the same week when the treatment plan in dispute was only partially approved at a lower rate for the applicant. The probative value of tab 12 A in the applicant’s brief is not diminished by late service to the respondent. The PSG lists rates based on the type of service being provided, and I note they are not ‘applicant’ specific. In the present circumstances, I find that professional rates are based on the nature of the service provided (case management), the provider name, and the insurance company involved and are not applicant specific. As a result, I am persuaded that the respondent has found Ms. Doogan’s case management rate to be appropriate and am unable to reconcile the lack of consistency related to her rates that occurred in the same week.

22For the reasons set out above, the applicant established that the outstanding balance is reasonable and necessary.

ORDER

[23] For the above reasons, I find: i. The applicant is entitled to the unapproved balance of $2,254.50 for case manager services in a treatment plan dated September 28, 2024.