Citation: Zhu v. Safety Insurance Company, 2023 ONLAT 21-006025/AABS

Licence Appeal Tribunal File Number: 21-006025/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:

Xi Zhu

Applicant

and

Safety Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Miryam Gorelashvili, Counsel

For the Respondent:

Crystal Schulz, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Xi Zhu (the "applicant") was involved in an automobile accident on June 4, 2018, 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 Safety Insurance Company (the "respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2At the time of the accident, the applicant was visiting Canada as part of a ten-day tour when the motorcoach he was riding in left the highway and struck a rocky embankment.

PRELIMINARY ISSUE - Missing OCF-18s for issues 6 and 7

3The applicant failed to submit the OCF-18s for the issues listed as 6 and 7 as evidence for this hearing.

4In J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161 (ON LAT), on reconsideration, the Executive Chair highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing but was never filed. Although I am not bound by previous Tribunal decisions, I found this authority persuasive and as such, the Tribunal reached out to both parties and requested the complete OCF-18s for issues 6 and 7 until 1:00 PM on September 15, 2023. On September 13, 2023, the parties provided copies of the OCF-18s for issues 6 and 7.

ISSUES

5The issues in dispute are:

1. Is the applicant entitled to attendant care benefits ("ACB") of $588.63 per month from June 20, 2018, to June 30, 2021.
2. Is the applicant entitled to medical benefits in the amount of $481.75 for assistive devices, proposed by Galit Liffshiz in a treatment plan ("OCF-18")?
3. Is the applicant entitled to medical benefits in the amount of $2,240.00 for massage therapy, proposed by Carl Qian in an OCF-18?
4. Is the applicant entitled to medical benefits in the amount of $4,200.00 for physiotherapy services, proposed by Judy Zhu in an OCF-18?
5. Is the applicant entitled to medical benefits in the amount of $2,349.75 for transportation services, proposed by Galit Liffshiz in an OCF-18?
6. Is the applicant entitled to medical benefits in the amount of $1,932.73 for psychological services, proposed by Dr. Hannah Rockman in an OCF-18?
7. Is the applicant entitled to medical benefits in the amount of $4,487.29 for occupational therapy services ("OT"), proposed by Fathima Tuan Kichill in an OCF-18?
8. Is the applicant entitled to medical benefits in the amount of $499.75 for a pool membership, proposed by Galit Liffshiz in an OCF-18?
9. Is the applicant entitled to medical benefits in the amount of $4,040.00 for a pool rehabilitation therapy, proposed by Jenny Zhou in an OCF-18?
10. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
11. Is the applicant entitled to interest on any overdue payment of benefits?

Procedural issue - DATE OF SUBMISSION FOR THE OCF-18S FOR ISSUES: 2,3,4,5,8, AND 9

6There is a disagreement between the parties of when the OCF-18s for issues 2,3,4,5,8 and 9 were submitted to the respondent. I find that these OCF-18s in dispute were submitted on March 9, 2021, to the respondent.

7The applicant submits that the OCF-18s for these issues were supposed to be sent on May 7, 2019, but due to an inadvertent error, it was not faxed to the respondent. The applicant further submits that on July 17, 2019, the OCF-18s were emailed to the respondent and a follow up email was sent on October 17, 2019.

8The respondent submits that the letter dated May 7, 2019, was sent to the applicant's representative and it did not receive the emails dated July 17, 2019, and October 17, 2019, possibly due to the large content size of the emails.

9My review of the evidence demonstrates that the respondent did not receive the OCF-18s for these issues until they were sent by GLA Rehab, in a letter dated March 5, 2021, received by the respondent on March 9, 2021. The evidence is clear that prior to this date, the respondent did not receive the OCF-18s for any of these issues. This is demonstrated by the letters dated September 11, 2019, and March 27, 2020, where the respondent advised the applicant that no treatment plans had been received and it was unclear whether the applicant intended to proceed with his benefits. On April 24, 2020, while the applicant's legal representative's office advised that the applicant had attended treatment, they did not provide copies of the OCF-18s or confirmation that they were sent. Further, the email chain in December 2020 demonstrates that the respondent maintained its position that it had not received the OCF-18s for issues 2, 3,4,5,8, and 9 to that date.

10Further, the respondent's representative on October 18, 2022, asked for proof that the email of July 17, 2019, were transmitted to the respondent, which the applicant failed to provide. Lastly, I find that the fact that the OCF-18s were sent by GLA Rehab to the respondent on March 5, 2021, demonstrates that there was no evidence that the emails were transmitted to the respondent.

11Accordingly, I find that the OCF-18s for issues 2,3,4,5,8 and 9, were submitted to the respondent on March 9, 2021.

RESULT

12I find that the applicant is not entitled to ACB for the time period claimed or interest.

13I find that the applicant is not entitled to payment for any of the OCF-18s in dispute or interest, as he has not met his onus to demonstrate that they are reasonable and necessary.

14The applicant is not entitled to an award.

ANALYSIS

Reasonable and Necessary

15To receive payment for a treatment and assessment plan pursuant to sections 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. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.

The applicant has failed to demonstrate that he is entitled to the OCF-18s for physiotherapy and massage therapy

16I find that the applicant has failed to demonstrate that he is entitled to the OCF-18s which proposed massage and physiotherapy treatment.

17The applicant submits that Ms. Liffshiz, occupational therapist ("OT") and Ms. Tuan Kichil OT, recommended the proposed treatment in the OCF-18s, however his submissions are completely silent on whether the treatment goals are reasonable, that they will be met to a reasonable degree, and whether the costs are reasonable.

18The respondent submits that it is difficult to get a sense of the applicant's symptoms, diagnosis, and treatment after his return to China on June 14, 2018, as no medical records have been provided from any of his treating practitioners in China. While the applicant self-reported to Dr. Rockman, psychologist, that he attended the hospital in China on two separate occasions, to follow up on his rib fracture, these records have not been produced by the applicant. Lastly, the respondent submits that the applicant has failed to specifically detail the goals of the OCF-18s or why they were reasonable.

19I agree with the respondent. The applicant's submissions provide a summary of the medical evidence, without explanation or reference to any legal framework that sets out the criteria needed to prove the issues in dispute. An applicant cannot simply submit evidence and leave it up to the Adjudicator to connect the dots and make his case. The applicant must explain why the evidence supports his case. Notwithstanding the lack of guidance in the applicant's submissions, I find that upon a review of the evidence before me that the applicant has failed to demonstrate that these OCF-18s are reasonable and necessary.

20I prefer the evidence of the respondent over the applicant. Ms. Liffshiv's report dated January 1, 2019, is unpersuasive as she did not conduct objective testing with respect to the applicant's back, despite the applicant advising that he had severe back pain when he walks fast. Further, objective testing demonstrated normal range of motion in the applicant's neck, hips, knees, elbow, wrist, and ankle, albeit there was some restriction in the applicant's trunk, left shoulder, and right shoulder. Further, the applicant's lower and upper extremity strength was good and normal. While Ms. Liffshiv recommended physiotherapy and massage therapy, she provided no rationale on how this would address the applicant's pain complaints or improve range of motion and strength.

21While I acknowledge the applicant's concerns that the section 44 assessments were conducted remotely and as such little weight should be given to them, I disagree as all of the section 25 reports with the exception of Ms. Liffshiv's report were conducted remotely as well. Lastly, Ms. Liffshiv's report was conducted in 2018 and is outdated, as these OCF-18s were not submitted until March 9, 2021.

22Now turning to the assessment and paper report conducted by Dr. D'Souza. Firstly, these reports are updated, and the applicant clearly advised Dr. D'Souza that his only ongoing complain was right rib pain. Dr. D'Souza was able to conduct a virtual physical examination and noted that the applicant mostly had full range of motion. Further, Dr. D'Souza noted that the result of the positive axial compression Waddell test indicated was in keeping with Dr. Karp's psychological assessment of the applicant's possible tendency to magnify or exaggerate symptomatology. In my view, the assessments of Dr. D'Souza and Ms. Liffshiv show that the applicant mostly had normal range of motion, as such, I find that the OCF-18s proposing physiotherapy and massage services are not reasonable and necessary.

23Lastly, I place little weight on Ms. Tuan Kichil's report, dated October 8, 2020, where she recommended physiotherapy, as her report was largely based on the self-reporting of the applicant. In addition, Ms. Tuan Kichil, did not conduct a physical examination on the applicant.

24Accordingly, I find that the applicant has not demonstrated that the proposed OCF-18s are reasonable and necessary.

The applicant has failed to demonstrate that the OCF-18 for assistive devices is reasonable and necessary

25I find that the applicant has not demonstrated that the OCF-18 for assistive devices is reasonable and necessary.

26Ms. Liffshiv's report and the OCF-18, dated February 5, 2019, recommended the following assistive devices: back support, body pillow, kitchen stool, and long handled cleaning devices.

27Again, the applicant's submissions were silent with respect to any discussion as it pertains to the reasonable and necessary test for these goods. I have reviewed the evidence before me, and aside from Ms. Liffshiv's recommendation in 2018, no other medical professional has recommended these devices for the applicant. I place little weight on Ms. Liffshiv's recommendation in 2018, as the OCF-18 was submitted in March of 2021, and as such, I find that the OCF-18 for assistive devices is not reasonable or necessary.

The applicant has failed to demonstrate that the OCF-18 for Psychological Services is reasonable and necessary

28I find that the applicant has failed to demonstrate further psychological treatment will help prevent a regression of his Post-Traumatic Stress Disorder, Major Depressive Disorder, and Somatic Symptom Disorder.

29Once again, the applicant's submissions were silent with respect to any discussion as it pertains to the reasonable and necessary test for these goods, and instead he summarized the section 25 reports completed by Dr. Rockman. Dr. Rockman in his progress report, dated May 14, 2020, recommended psychological treatment to avoid the applicant from regressing from his earlier progress.

30The respondent submits that upon receipt of the report completed by section 44 assessor, Dr. Bernstein, psychologist, it approved 12 psychotherapy sessions which the applicant received from July 26, 2019, to February 24, 2020. The respondent relies on the report of Dr. Karp, psychologist and submits that no medical records have been produced that would suggest that the applicant suffered a regression of psychological symptoms since stopping treatment in 2020.

31I prefer the evidence of the respondent over the applicant. Firstly, Dr. Karp, completed validity testing in his report dated August 26, 2020, which demonstrated that there was strong evidence of a negative response bias, which called into question the accuracy of the applicant's self-reporting. Meanwhile, Dr. Rockman in his progress report dated May 14, 2020, did not complete validity testing. Further, Dr. Rockman noted that the applicant had been inconsistent with psychological treatment with several no shows and early termination of the sessions. Moreover, the applicant has failed to provide the treatment notes for the previous psychological treatment, which in my view, could have been helpful to review and see how helpful the previous treatment was for the applicant. In addition, the applicant has not produced evidence from a treating practitioner in China who recommended further psychological treatment. Moreover, Dr. Rockman's progress note demonstrated that despite the applicant stopping treatment in February 2020, his scores had improved since his initial assessment. For all these reasons, I find that the applicant has failed to demonstrate that without the psychological treatment, his condition will regress.

32Accordingly, I find that the applicant has not met his evidentiary onus to demonstrate that this OCF-18 is reasonable and necessary.

The applicant has failed to demonstrate that he is entitled to the OCF-18 for OT services

33I find that the applicant has failed to demonstrate that this OCF-18 for OT services is reasonable and necessary.

34Once again, the applicant's submissions were completely silent on how the goals of the OCF-18 are reasonable, would be met to a reasonable degree and that the costs are reasonable.

35I am not persuaded by the report of Ms. Liffshiv as the range of motion testing was largely normal, and the report was completed in 2018, meanwhile this OCF-18 was submitted in 2020. I am not persuaded by the reports of the OTs Ms. Kichil and Ms. McHugh as it was based entirely on the applicant's self-reporting and no objective physical testing was completed. I prefer the report of Dr. D'Souza, dated February 9, 2021, as he conducted objective testing, and it is updated. Lastly, the applicant has failed to provide clinical notes and records from his treating doctors in China which could have assisted the Tribunal to determine whether the proposed OT plan is reasonable and necessary. Accordingly, I find that the applicant has not established that the proposed OCF-18 is reasonable and necessary.

The applicant has failed to demonstrate that he is entitled to the OCF-18s for Pool Membership and Pool Rehabilitation Therapy

36I find that the applicant has failed to demonstrate that these OCF-18s are reasonable and necessary.

37The onus is on the applicant to demonstrate that the proposed OCF-18s are reasonable and necessary.

38Once again, his submissions are completely silent on the goals of the treatment, whether they are reasonable and can be met to a reasonable degree.

39The evidence before me does not demonstrate that the OCF-18s are reasonable and necessary. Firstly, Ms. Liffshiv's report in October 2018, is outdated and she provided no medical rationale on how the proposed treatment would improve the applicant's strength and range of motion, especially when the objective testing revealed good and normal strength in the lower and upper extremity. Further, Ms. Liffshiv did not address how this proposed treatment would help treat the applicant's reduced range of motion in his right shoulder, left shoulder, and trunk. Lastly, I place little weight on Ms. Tuan-Kichil's recommendation of aqua therapy and pool membership, as she provided no medical rationale on how this would assist the applicant with his management and engagement in his pre-accident leisure activities, and she did not conduct a physical examination on the applicant. Accordingly, I find that the OCF-18s are not reasonable or necessary.

The applicant is not entitled to the OCF-18 for Transportation Services

40I find that the applicant has failed to demonstrate that the proposed taxi services outlined in the OCF-18 are reasonable and necessary.

41The applicant provided no submissions or tendered any evidence to demonstrate that this proposed OCF-18 is reasonable and necessary.

42The respondent made no submissions with respect to this either.

43Dr. D'Souza, in his paper report, dated March 26, 2021, noted that the proposed OCF-18 proposed taxi services which were in relation to the OCF-18s in dispute. As I have determined that the disputed OCF-18s are not reasonable and necessary, it follows that the transportation costs associated with the OCF-18s are not reasonable and necessary.

ACB

Positions of the Parties

44The applicant relies on the Attendant Care Assessment and Form 1 completed by Ms. Liffshiv on October 27, 2018. The applicant submits that the respondent essentially neglected the attendant care issue as section 44 OT assessor, Ms. Lee's report failed to address ACB, and no section 44 assessment has been conducted to determine whether the applicant requires ACB from a physical perspective. The applicant further submits that he had severe back pain and fractured ribs and hired a Personal Support Worker ("PSW"), Ms. Qui, to assist him and his wife. The applicant is seeking a gross amount of $10,937.50 in total for the time period of June 20, 2018, to June 30, 2021, that he claims he incurred for assistance with his personal care tasks.

45The respondent submits that it was an oversight on the part of Ms. Lee to not address ACB. The respondent further submits that it had the intention to send Ms. Lee to China to perform an in-person assessment of the applicant, however, was unable to do so due to the change in the political climate in China. Moreover, the respondent submits that Canada issued travel warnings in January 2019. Lastly, the respondent submits that the applicant's claim for attendant care is inconsistent with the applicant's self-reporting to Dr. Bernstein, Dr. Rockman, Dr. Karp, and Dr. D'Souza.

Entitlement to ACB for the time period of June 20, 2018, to May 31, 2019

46I find that the applicant has established on a balance of probabilities that ACB assistance pertaining to making dinner and cleaning the bathroom/bedroom are reasonable and necessary.

47Section 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 ACB services provided by an aide or attendant. Section 19(2) also states that the hourly rate should not exceed the maximum hourly rate as established under the Superintendent's Guideline No. 01/18: Attendant Care Hourly Rate Guideline ("Guidelines").

48The applicant is relying on the completed Form 1 by Ms. Liffshiv. A Form 1 is also used to specify the amount of time required for three different levels of personal care that qualify for ACB. Each level has a different hourly rate, and the care activities are measured in minutes per day.

49Level 1 attendant care is for routine personal care tasks such as grooming. Level 2 is for basic supervisory functions such as personal hygiene and ensuring comfort, safety, and security in the home. Level 3 is for complex health care and hygiene functions.

50Ms. Liffshiv recommended the following ACB assistance for the applicant, following her occupational therapy functional assessment:

i. Level 1- Feeding and meal preparation, as the applicant cannot stand for prolonged periods of time for cooking. She recommended 60 minutes a day, 7 days a week for assistance with making dinner.

ii. Level 2: Hygiene, the applicant requires assistance with cleaning the bathroom and cleaning his room as he cannot bend due to pain and limited movement in his trunk. She recommended 10 minutes a day, 7 days a week each for cleaning the bathroom and his room.

51The below chart provides a breakdown of the total monthly attendant care costs that were completed in the Form 1:

Level	Number of Hours per month	Hourly Rate	Total
1- Feeding	30.1	$14.90	$448.49
2- Hygiene	10.01	$14.00	$140.14
Total			$588.63

52I find the above recommendations made by Ms. Liffshiv are reasonable and necessary for the following reasons. Firstly, Ms. Liffshiv conducted range of motion testing on the applicant's trunk which revealed restrictions in his flexion, extension, right and left lateral flexion, and right and left rotation. Objective range of motion testing also revealed mildly restricted range of motion in the applicant's right and left shoulder. Ms. Liffshiv also objectively observed that the applicant was only able to stand for 30 minutes due to his back pain on the right side by his 11th rib, which was consistent with his self-reporting. I place significant weight on Ms. Liffshiv's report because she was the only assessor before Dr. D'Souza that conducted a physical examination on the applicant. I also prefer the report of Ms. Liffshiv over the report of Dr. D'Souza as her report was conducted in 2018, meanwhile Dr. D'Souza's report was conducted on January 27, 2021, approximately two years after the time period in dispute for ACB.

53Secondly, the applicant has also consistently advised Dr. Bernstein, Dr. Rockman, Dr. Karp, Ms. Tuan Kichil, and Ms. McHugh, that he has difficulty with household chores, following this accident. In addition, despite the respondent's assertion, he advised Dr. Rockman, on May 3, and May 24, 2019, that his breakfast routine had not changed following the accident. However, Ms. Liffshiv made a recommendation in the Form 1 that the applicant required assistance with making dinner, not breakfast.

54Thirdly, while I acknowledge the difficulty that the respondent had with respect to obtaining a s.44 assessment, I find that the applicant has demonstrated that he requires ACB from a physical perspective for the time period of June 20, 2018, to May 31, 2019. Moreover, Ms. Lee, noted that the applicant was less involved in his pre-accident routine and daily tasks, but that did not qualify him for Non-Earner Benefits ("NEB"). In my view, the test for NEB is more stringent than the test for ACB, and while Ms. Lee concluded that the applicant does not meet the test for NEB, she did note that the applicant had difficulty with his daily tasks following this accident.

55In addition, on January 2, 2019, Ms. Lee conducted an Occupational Therapy Paper Review, and noted that the applicant self reported that he was partially able to stand and not able to do meals because of his rib and back pain. This self-reporting by the applicant is consistent with the self-reporting to Ms. Liffshiv. Moreover, Ms. Lee did not provide a medical opinion of whether the assistance proposed in the Form 1 was reasonable and necessary as a result of the accident.

56Accordingly for all the reasons outlined above, I find that Ms. Liffshiv's recommendations with respect to the applicant requiring assistance with making dinner and some cleaning was reasonable and necessary.

57However, I do not find the ACB expenses with respect to: helping to get the applicant up; dressing; washing; feeding breakfast; wiping the table; mopping the floor; washing; and drying clothing; grocery shopping; making lunch; assisting in physical activity and rehabilitation training; washing dishes, and throwing out the trash are reasonable and necessary expenses in relation to this accident. Firstly, Ms. Liffshiv, who conducted an in-person assessment did not make recommendations with respect to these activities in the Form 1. Secondly, the applicant has not produced objective medical records from his treating practitioners, and whether they recommended that the applicant requires this assistance because of his accident-related injuries. Lastly, Ms. Qui, provided assistance to both the applicant and his wife, and it is unclear from the records provided, whether Ms. Qui provided these services to the applicant, or his wife, and for what time periods.

58Lastly, the applicant also appears to submit that the respondent is in violation of sections 42(3) and 42(4) of the Schedule, as it neglected the attendant care issue and as such, the respondent owes the applicant $10,937.50 that he incurred from June 2018 to June 2021. Section 42(3) sets out the notice requirements for insurers responding to attendant care expenses. The applicant made no submissions on how the respondent did not comply with these sections, other than to state that Ms. Lee did not address ACB, and another section 44 assessment was not completed. The applicant also did not provide any submissions of the consequences if the notice did not comply with these sections. As such, I find that the applicant has failed to establish that the respondent was non-compliant with sections 42(3) and 42(4) of the Schedule.

59As I have determined that Ms. Liffshiv's recommendations with respect to the applicant requiring assistance with making dinner, cleaning the bathroom, and his bedroom are reasonable and necessary, I will now turn to whether they were received/incurred by the applicant.

Did the Applicant receive/incur expenses with respect to feeding/cleaning?

60The applicant is not entitled to ACB expenses with respect to making his dinner for the time period of June 20, 2018, to May 31, 2019, due to the inconsistent evidence adduced by the applicant. The applicant has also failed to establish that he received/incurred ACB expenses pertaining to cleaning the bedroom and bathroom, for the reasons that will follow below.

61Section 3(7)(e) of the Schedule provides that: (e) subject to subsection (8), an expense in respect of goods and services referring to in this Regulation is not incurred by an injured person unless,

a. the insured person has received the goods or services to which the expense relates,

b. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

c. the person who provided the goods or services,

i. did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

ii. sustained an economic loss as a result of providing the goods or services to the insured person.

62The applicant has failed to establish that he received/incurred expenses pertaining to cleaning the bathroom/bedroom, as the records of Ms. Qui are inconsistent. The PSW resume provided by Ms. Qui, which outlines the assistance she provided to the applicant and his wife during the time period of June 20, 2018, to May 31, 2019, has no entries with respect to cleaning the bedroom/bathroom. However, an invoice prepared by Ms. Qui notes that she provided 105 minutes of assistance for hygiene pertaining to the bathroom, bedroom, and making the bed. As these records are inconsistent, and the onus is on the applicant to establish that he received/incurred assistance with cleaning the bathroom and bedroom, I find that he has not met his onus.

63I find that the applicant has not established that he received/incurred assistance with respect to preparing dinner from June 20, 2018, to May 31, 2019, due to the inconsistent records of Ms. Qui. While the PSW resume notes that 30 minutes of assistance was provided daily for feeding, washing dishes, and throwing out trash at dinner time, the invoices provided from the time period of June 20, 2018, to May 31, 2019, indicate that the applicant received 420 minutes of assistance with preparing meals per week. The PSW resume also does not provide a breakdown of how much time was spent making dinner each day, and whether the assistance was provided to the applicant or his wife. Accordingly, I find that the applicant due to the inconsistent evidence has not established that he received/incurred assistance with making dinner for the time period of June 20, 2018, to May 31, 2019.

Entitlement to ACB for the time period of June 1, 2019, to June 30, 2021

64I find that the applicant was non-compliant with section 33(1), and as such, the consequences pursuant to section 33(6) of the Schedule are triggered. Accordingly, the applicant is not entitled to ACB for the time period of June 1, 2019, to June 30, 2021, due to non-compliance with section 33.

65The respondent submits that it sent an Explanation of Benefits ("OCF-9") to the applicant on May 16, 2019, which advised the applicant that pursuant to section 33(1) of the Schedule, it required the applicant to confirm whether he would be making a claim for ACB by May 31, 2021. The respondent further submits that the applicant did not respond and failed to provide the information until he included the attendant care receipts as part of his written submissions on April 19, 2023. The respondent's position is that the applicant failed to comply with section 33 of the Schedule, and as noted in I.A. v. TTC Insurance Company, 2019 CanLII 63358 (ON LAT), this breach would disentitle the applicant to ACB for the time period of non-compliance.

66The applicant did not provide any submissions with respect to section 33.

67Pursuant to section 33(1)1 of the Schedule, an insured person must provide on request any information reasonably required to assist the insurer in determining the applicant's entitlement to a benefit. The time period for complying is 10 business days. The insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information pursuant to section 33(6) of the Schedule.

68I find that the OCF- 9, dated May 16, 2019, was a clear request pursuant to section 33(1), as the respondent advised the applicant pursuant to section 33(1), it wanted confirmation whether the applicant was claiming ACB in relation to this accident. The OCF-9 also advised the applicant that the respondent did not feel it was reasonable to set up a direct insurer's examination with respect to entitlement if he was not claiming the benefit and to provide the information by May 31, 2019. I further find that this request was reasonable by the respondent as there is evidence that it would have to undergo significant resources to arrange an insurer's examination and bring the applicant to Canada or Cambodia, as there was political tension between Canada and China, which resulted in travel warnings. As such, the respondent was considering whether to bring the applicant to Canada or Cambodia to conduct a section 44 assessment.

69The applicant has also provided no explanation on why he did not respond to the respondent until he provided the expenses in his submissions. As such, I find that there is no reasonable explanation for the delay in complying with section 33(1).

70As the applicant was non-compliant with section 33(1) of the Schedule, he is not entitled to ACB for the period of non-compliance.

Interest

71Interest is not payable as there are no overdue amounts owing.

The Applicant is not entitled to an Award

72The applicant sought an award and interest pursuant to section 10 of Regulation 664. Pursuant to section 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.

73As the applicant has been found to not be entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

73The applicant is not entitled to ACB for the time period claimed or interest.

74The applicant has not demonstrated that the OCF-18s in dispute are reasonable and necessary. The applicant is not entitled to interest on those OCF-18s.

75The applicant is not entitled to an award.

76Accordingly, the application shall be dismissed.