20-013924/AABS

Licence Appeal Tribunal File Number: 20-013924/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:

Hilary Doran

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATORS:

Deborah Neilson and Janet Hueglin Hartwick

APPEARANCES:

For the Applicant:

Hilary Doran, Applicant

Anthony Mineault, Counsel

Alexander Elkin, Counsel

For the Respondent:

Arthur Camporese, Counsel

Danielle Lecours, Counsel

Court Reporter:

Rachel Thompson

HEARD: by Videoconference:

November 14-16, 2022

OVERVIEW

1Hilary Doran, the applicant, sustained a catastrophic impairment as a result of her injuries from an automobile accident on April 30, 2016 and sought benefits pursuant to the Statutory Accident Benefit Schedule- Effective September 1, 2010 (“Schedule”) – from the respondent, Gore Mutual Insurance Company. The applicant was denied entitlement to attendant care benefits (“ACB”) and assistive devices and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The applicant received attendant care benefits (“ACB”) at the maximum rate allowed under the Schedule of $6,000.00 per month until she was reassessed in 2019, when it was determined her monthly ACB was $4,339.71. The applicant’s ACB was further reduced by the respondent to $1,040.10 on the basis she no longer requires basic supervisory care and mobility assistance. The applicant submits she still requires attendant care at the rate of $4,339.71 per month. She also seeks assistive devices, interest and an award under Regulation 664.

3We find that the applicant is entitled to attendant care at the rate of $1,630.72 per month and interest on any overdue amounts. The remainder of her appeal is dismissed.

SUBSTANTIVE ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Is the applicant entitled to ACB in the amount of $4,339.71 per month from October 30, 2019 to date and ongoing? If so, is the applicant deemed to have incurred the ACBs?

ii. Is the applicant entitled to $1,984.25 for assistive devices recommended by FunctionAbility Rehabilitation Services, in a treatment plan (“OCF-18”) denied on February 16, 2021?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

PROCEDURAL ISSUES

5The following procedural issues arose:

i. Applicant’s motion to exclude the Assessment of Attendant Care Needs (“Form 1”) of Deanne Evans, occupational therapist, dated August 10, 2020;

ii. Respondent’s motion to exclude the report dated September 21, 2020 and Form 1 dated September 4, 2020 of Stéphanie Bossé, occupational therapist;

iii. Applicant’s motion to amend the amount of ACB claimed;

iv. Applicant’s request to add an issue of a s. 10 of Reg. 664 award (“award”); and

v. Whether the respondent is entitled to add a preliminary issue if the applicant’s oral motion to amend the ACB quantum is granted.

We denied the motions for excluding the reports and Form 1s and granted the remaining motions for the following reasons.

Applicant’s motion to exclude the report and Form 1 of Ms. Evans is denied

6The applicant submitted the respondent’s correspondence and examination notice to assess attendant care are not in compliance with s. 19, s. 42 or s. 44 (5) of the Schedule. The applicant asserted the notice did not include a medical reason for the insurer’s examination (“IE”) request distinct from the non-earner benefit.

7In our view, the applicant could have sought clarity on the medical reason for why she was asked to attend the assessment before consenting to participate. The applicant relies upon the Tribunal case of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT reconsideration), NM vs. Aviva Insurance Canada, 2019 CanLII 94126 (ON LAT motion) and other case law, in support of her position that the remedy for deficient notice is to exclude the report generated by the examination. We find that by undergoing the assessment, the applicant waived any recourse she may have had against the respondent for failure to provide medical reasons in its notice of examination. To exclude an IE report as evidence in a hearing for a breach of s. 44(5) would be to read into the Schedule a remedy that is not provided. We found the evidence should be allowed and the parties could provide submissions as to the weight that should be afforded to Ms. Evans’ report and Form 1.

Respondent’s motion to exclude the report and Form 1 of Ms. Bossé is denied

8The respondent sought to deny Ms. Bossé’s report and Form 1 as they were submitted less than 52 weeks after the IE assessment of Deanne Evans, contrary to s. 42(12) of the Schedule. After two years, the applicant is prohibited by s. 42 from submitting a new Form 1 any earlier than 52 weeks since the last attendant care IE. The respondent asserted the appellant’s claim for ACB is based on Ms. Bossé’s Form 1 dated September 4, 2020 rather than the October 28, 2019 Form 1 of occupational therapist Kirsten Foster. The applicant submitted the Bossé report and Form 1 were provided as evidentiary support for the amount of attendant care being claimed.

9We accepted the applicant’s submission that Ms. Bossé’s report was a rebuttal report, which is supported by the title she assigned to her report. Further, the report was served in time. We found that prejudice to the parties is mitigated by admitting the documents as evidence in support of the attendant care claimed and accepting submissions as to the weight that should be assigned, rather than exclude the report and Form 1 entirely.

Applicant may amend the amount of attendant care claimed

10We permitted the applicant’s motion to change the ACB amount from $4,438.97 per month to $4,339.71. The report and Form 1 of Kirsten Foster dated October 28, 2019 listed the amount of ACB as $4,339.71 per month. However, the applicant submitted that she inadvertently stated in her application to the Tribunal that the amount in dispute was $4,438.97, which is the amount listed in the report and Form 1 of Stéphanie Bossé. This incorrect amount was recorded in the case conference Order. The respondent did not consent to the change and submitted the applicant had several opportunities to correct this error ahead of the hearing.

11We were not persuaded by the respondent’s submissions. We found that a clerical error was made on the part of the applicant and the remedy, to allow the lower amount of attendant care to be accepted, did not prejudice the respondent. The fact that this was an error is supported by the lack of evidence that the Bossé Form 1 was submitted to the respondent through the health claims for auto insurance (HCAI) system as is required when a new claim for attendant care is being made. For these reasons, the request to make the correction was granted.

Applicant was allowed to add an award as an issue

12The applicant sought to add an award as an issue in dispute alleging that the respondent unreasonably withheld payment for attendant care services and that the respondent was non-compliant with ss. 19, 42 and 44(5) of the Schedule.

13It is well established an applicant is entitled to add an award as an issue at any time during the dispute resolution process. While the respondent did not consent to add the issue, it did concede there is a “low bar” for entitlement to add an award as an issue in dispute.

14We were satisfied any prejudice to the respondent could be cured, despite this late addition of the issue, as the respondent had the opportunity to address entitlement to an award in the cross-examination and examination of the witnesses and in its closing submissions. Accordingly, we allowed the issue to be added.

Addition of a preliminary issue of failure to comply with a limitation period was allowed

15The respondent sought to amend its response to the appellant’s application to include a limitation defence, which we allowed. It asserted that it was not advised until November 3, 2022 that the attendant care issue in dispute is based on the denial of Ms. Foster’s Form 1 for $4,339.71 per month, not Ms. Bossé’s. Until then, it believed that its defence to the attendant care claim was that the applicant was precluded from submitting Ms. Bossé’s Form 1 until one year from the last attendant care IE under s. 42(12) of the Schedule. The respondent submitted that the Foster Form 1 was denied on November 5, 2019 and, accordingly, it should be able to add a limitation period defence if the applicant was allowed to amend the quantum of attendant care she was claiming. The applicant submitted the respondent was aware via correspondence provided prior to the hearing that the ACB claim is based on the Foster Form 1 despite the incorrect ACB quantum.

16We found that the respondent would have been prejudiced if we did not allow it to assert a limitation defence given that, up until November 3, 2022, it appeared that the applicant was claiming attendant care based on the Bossé Form 1. There was no prejudice to the applicant in allowing the addition of the preliminary issue that could not be cured by allowing the late admission of documentary evidence which, as it turned out, was not necessary. For these reasons the respondent’s request to amend its response to the appellant’s application and add a limitation period defence was granted.

PRELIMINARY ISSUE

17The respondent submits the applicant’s claim is outside of the two-year limitation period for disputing the ACB quantum under s. 56 of the Schedule. It asserts that the Foster Form 1 was denied on November 5, 2019, but the addition of the issue of entitlement to the attendant care recommended by Ms. Foster was not added until November 14, 2022, well past the two-year mark.

18In our view, the applicant is not outside of the two-year limitation period for the following reasons. The applicant made a clerical error when the quantum of the ACB was listed on the application. This error was not fatal and has since been corrected.

19Even if we are incorrect that the ABC quantum was listed in the case conference Order in error, we find that the limitation period did not start on the Foster ACB quantum on November 5, 2019.

20The limitation period in s. 56 of the Schedule does not start to run until there is a refusal by the respondent to pay the amount claimed. In order for the limitation period to start, the respondent was required under s. 42(3) of the Schedule to provide the applicant with notice stating the medical and other reasons for the refusal. The respondent’s November 5, 2019 letter to the applicant contains no medical or any other reason for denying the claim. The respondent only advised the applicant that it wished to have her undergo an IE. Accordingly, it is not a proper refusal. At this time, the applicant has not yet been provided with a proper denial of those ACBs as required by s. 42(3) of the Schedule.

21For these reasons, we find that the applicant is entitled to proceed with her claim for attendant care benefits of $4,339.71 per month.

ANALYSIS

The applicant needs less ACB than she claims

22The applicant submits that she requires attendant care in the amount of $4,339.71 per month as recommended by Ms. Foster. The respondent submits that the applicant only requires $1,040.10 per month as recommended in Deanne Evans’ Form 1 dated March 10, 2020. The main areas where the parties disagree are whether the applicant requires supervision at night, mobility transportation, medication pick-up, coordination of attendant care, hygiene support and someone to provide comfort, safety and security in her environment.

23Although we agree with the applicant that she requires more attendant care than Ms. Evans recommended, we find that she has not established, on a balance of probabilities, that she requires the basic supervisory care at night recommended by Ms. Foster. Accordingly, we find that she is entitled to $1,630.72 per month for the following reasons.

24If a person such as the applicant sustains a catastrophic impairment as a result of an accident, the maximum amount of the payable ACB is $6,000 per month. A Form 1 is prepared by an occupational therapist or nurse and sets out the services and the amount of care an individual requires, as well as the monthly amount payable. It outlines three different levels of personal care that qualify for the ACB. These levels differentiate the required level of need along with the corresponding skill required to perform that care. Each level has a different hourly rate, and the care activities are measured in minutes per day.

25The applicant relies on the reports and Form 1s of Ms. Foster and Ms. Bossé, the occupational therapy rebuttal report of Mr. Anwar dated June 27, 2018, the IE report of neuropsychologist Dr. Peter Judge dated September 4, 2018 and the IE reports of physiatrist Dr. Sreenivasan dated August 10, 2020 and psychiatrist Dr. Rakesh Jetty dated August 10, 2020. She submits these reports support her need for the following assistance:

a. her need for cueing to initiate and complete tasks and self care;

b. her need for mobility assistance inside and outside the home;

c. her need for emotional support to overcome avoidance behaviours and attend medical appointments; and

d. her need for nighttime supervision.

26The respondent submits the applicant’s attendant care needs have decreased over time as demonstrated by the fact that she did not utilize all the weekly minutes of ACB when it was available to her. It relies on the IE assessment reports and Form 1 of Ms. Evans, the March 31, 2020 case management report of Shanesya Kean and the March 2, 2021 occupational therapy progress report of Stéphanie Bossé, attendant care invoices and surveillance footage.

27We find the applicant has met her onus to prove she is entitled to the ACBs as outlined in the chart below.

Total Minutes Per Week

Total Weekly Hours

Total Monthly Hours

Hourly Rate

Monthly Care Benefit

Level 1 for routine personal care

700 weekly minutes

divided by 60

11.67

X 4.3 =

50.17

$13.19

$661.89

Level 2 for basic supervisory functions

464 weekly minutes

divided by 60

7.73

X 4.3 =

33.25

$11.25

$374.10

Level 3 for complex functions

429 weekly minutes

divided by 60

7.15

X 4.3 =

30.75

$19.35

$594.92

Total:

$1,630.91

28The following chart details how our finding of ACB entitlement compares to the allocation set out in Ms. Foster and Ms. Evan’s Form 1s.

Attendant Care Benefit

Decision

Foster

Evans

Total level 1 for routine personal care

700 weekly minutes

700 weekly minutes

540 weekly minutes

Dressing (upper and lower body)

14 minutes

14 minutes

0

Grooming (hair, toenail trim, shave, make-up)

161 minutes

161 minutes

120 minutes

Feeding (prepare food and cue to eat)

315 minutes

315 minutes

420 minutes

Mobility (transportation)

210 minutes

210 minutes

0

Total level 2 for basic supervisory functions

464 weekly minutes

3824 weekly minutes

55 minutes weekly

Hygiene (safe bathroom, change bedding, emotional support)

444 minutes

444 minutes

55 minutes

Basic supervisory care (night care)

0

3360 minutes

0

Coordination of AC (support)

20 minutes

20 minutes

0

Total level 3 for complex functions

429 weekly minutes

429 weekly minutes

350 minutes weekly

Exercise (cueing, practice dog training)

315 minutes

315 minutes

305 minutes

Medication (pick-up)

40 minutes

40 minutes

0

Bathing (transfer if needed)

74 minutes

74 minutes

45 minutes

The applicant is entitled to the level 1 routine personal care claimed

29In our view, the report of Ms. Foster is persuasive only as it pertains to the applicant’s daytime needs. There is no dispute that the applicant sustained a traumatic brain injury. The testimony of the applicant and her former development services worker who provided attendant care to the applicant, Melissa Kiss, mirror the findings of Ms. Foster that the applicant requires frequent cueing to start and complete tasks, encouragement to leave her home for appointments or community integration and support to practice more frequent grooming.

30The respondent submits that according to the testimony of Ms. Kiss, the applicant did not require much queuing. We do not agree. We were provided no reason to doubt the reliability of either the applicant or Ms. Kiss’ testimony. We find that their testimony is supported by the cognitive impairments identified in the September 4, 2018 report of Dr. Judge and by Dr. Jetty in his August 10, 2020 IE report.

31The applicant testified that, without assistance, she is unable to manage her schedule effectively and misses medical appointments. This is supported by social worker Shanesya Kean who stated in a progress report dated March 31, 2020 that the applicant lost a medical referral due to non-attendance of appointments. With regards to meal preparation, the applicant’s testimony was echoed by Ms. Kiss who stated the applicant requires assistance with meal preparation as she forgets to eat and is unable to cook independently due to pain, low mood and poor memory, which is reflected in Ms. Evan’s Form 1.

32We place less weight on Ms. Evans’ opinion on the applicant’s daytime requirements than Ms. Foster’s for three reasons. First, Ms. Evans acknowledges the applicant has been diagnosed with several cognitive impairments, yet she did not account for the applicant’s need for cueing during the day. Second, Ms. Evans did not take into account the applicant’s mobility needs, despite the applicant’s self-reported inability to travel in a taxi due to PTSD and anxiety. Third, Ms. Evan’s testimony regarding her report was not persuasive. At times, Ms. Evans appeared to avoid answering questions that were put to her under cross-examination.

33The respondent relies on the opinion of Ms. Evans who did not think the applicant required mobility assistance. In our view, the applicant requires mobility assistance, specifically transportation. We are persuaded by the applicant’s testimony that she does not have a driver’s licence due to her anxiety around other drivers. Further, the applicant was diagnosed with Post Traumatic Stress Disorder (“PTSD”) by Dr. Jetty. He remarked on the applicant’s flashbacks and her inability to ride in taxis or any vehicle in which the applicant does not trust the driver.

34The respondent submits that, if we find the applicant is entitled to mobility assistance, we confine the support to two days a week as she attends virtual appointments and had not attended pool therapy or physiotherapy in the past few months. We do not agree with these submissions. The applicant recently moved to Alberta and, although she is attending one or two appointments per week, she has not yet retained all the health care providers she requires for her treatment needs. She still requires treatment and exercise that will require someone to drive her more than twice per week. Accordingly, we find the applicant is entitled to the 210 minutes per month of mobility assistance recommended by Ms. Foster.

The applicant is not entitled to nighttime supervisory care for level 2 ACB

35The applicant submits that she requires nighttime supervisory care because of hearing loss in her right ear and disorientation due to nightmares and night terrors. Our finding mirrors the Foster Form 1 with regards to daytime supervision, which is no longer required, but not overnight care. We find the applicant’s request for 3,360 minutes per week of nighttime supervisory care is not reasonable or necessary for the following reasons.

36We are alive to the applicants’ physical challenges, namely hearing loss in her right ear, risk of falling or her right hip snapping out of place, and her cognitive impairments that include: hearing loss; posttraumatic stress disorder (PTSD), moderate severity; major depressive disorder; current major depressive episode of moderate severity; and mild neurocognitive disorder due to traumatic brain injury. However, we find the applicant has not demonstrated she faces a risk at night such that overnight supervisory care is merited. In our view, basic supervisory care is for individuals who lack the cognitive or physical ability to identify an emergency situation and how to respond to it and that is not the situation with the applicant in this case.

37We find the applicant’s physical and mental challenges do not prevent her from responding appropriately to an emergency. Although Ms. Foster reported one instance where the applicant had to be woken for a fire alarm, this was discounted by the applicant’s evidence that she was able to hear her child cry in the night. Accordingly, we do not find that the applicant’s hearing is an issue that presents a safety risk at night. Ms. Evans reported that the applicant is able to respond to hypothetical emergency situations, is able to call 911 if needed and functionally, she did not present with limitations or changes in her behaviour that would warrant supervisory care.

38The applicant relied on Ms. Bossé’s opinion that the applicant requires supervision at night. We give more weight to Ms. Evan’s opinion than Ms. Bossé’s on the applicant’s nighttime attendant care needs for the following reasons. Ms. Bossé recommended supervision at night, despite the applicant being able to identify emergency situations, because the appellant did not consistently provide a complex answer when asked to describe how she would handle an emergency. No comprehensive reason was given by Ms. Bossé to explain why a complex answer was required for an emergency situation rather than a simple explanation. When asked to further explain this point, Ms. Bossé testified the applicant may experience night terrors and become disoriented which could negatively impact her daytime function. However, no-one has recommended daytime supervision. In fact, Ms. Foster reported that the applicant does not need daytime supervision. Therefore, we are not persuaded by Ms. Bossé’s testimony. In our opinion, her testimony was not impartial and at times she spoke as an advocate for the applicant rather than providing a neutral opinion. For these reasons we do not find that Ms. Bossé’s opinion supports the need for nighttime supervision.

39Neither Ms. Foster nor Ms. Bossé provided evidence that disorientation from a nightmare prevents the applicant from responding appropriately in an emergency. We agree with the respondent that the applicant’s need for frequent cueing to start and complete tasks, due to her mental challenges, do not render her mentally incapable of recognising or acting in an emergency. On the contrary, the applicant was able to travel to Florida with her baby and without her husband, which required her to negotiate airport security and the care of her son.

40It is also our opinion the applicant’s snapping hip syndrome is not a nighttime safety risk. On July 15, 2018, the applicant experienced a dislocation of her right hip. The applicant testified that she continues to experience ongoing irritation, pain and instability in her hip. However, she has not experienced a dislocation of her hip since the first incident five years ago. We do not find this merits a risk of overnight safety.

41Further, we find the applicant did not utilize overnight care when she had additional ACB support approved under a previous Form 1. The Foster Form 1 states the applicant needs eight hours of nighttime support because she lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour. However, Ms. Kiss, the applicant’s primary support worker who assisted the applicant for five years, testified she did not provide any overnight care. The attendant care invoices of Ms. Kiss, and her colleagues, demonstrate that 10 p.m. is the latest time attendant care was provided to the applicant in the 21 months prior to the reduction of her ACBs. For these reasons, we find the applicant does not require overnight supervisory care.

42We find the applicant is entitled to one hour per day of comfort, safety and security with respect to her hygiene because she reported benefitting from the emotional support she receives from her husband and Ms. Kiss.

43We are not persuaded by the respondent’s submissions that emotional support is not payable under level 2 of the Form 1. The respondent relied upon The Applicant vs. State Farm Mutual Automobile Insurance Company, 2020 CanLII 57374 (ON LAT) (18-000605 v. State Farm), which found providing emotional support recommended to assist the applicant with re-integrating into the community and resuming some of her previous roles are not attendant care services payable under basic supervisory care. Ms. Foster recommended the applicant receive emotional care under the level 2 category of hygiene, not basis supervisory care. 18-000605 v. State Farm is distinguishable as it dealt with level 3 supervisory care, not the hygiene section in level 2 for ensuring comfort, safety and security in the environment. Therefore, we find the respondent’s submissions are not applicable.

44We find the applicant requires 20 minutes per week to co-ordinate her attendant care because she has cognitive issues that result in her having difficulty properly scheduling and attending appointments. The applicant testified that because of her memory issues she completely forgets appointments unless she is reminded. She stated that cueing helps her keep up with her schedule. In our view, the applicant’s ability to manage her schedule has not been aided by an Apple watch as she testified that she does not consistently charge or wear the device. For these reasons, we agree with Ms. Foster’s recommendations for level 2 care with the exception of nighttime supervision.

The applicant is entitled to the level 3 ACB claimed

45Under level 3, we find attendant care is required for assistance with exercise of 315 minutes per week, medication 40 minutes per week and bathing 74 minutes per week. This mirrors the recommendation of the Foster Form 1. While the Evans Form 1 recommends less bathing support, the significant difference between the Form 1s is that Ms. Evans does not allocate any assistance with medication.

46We find the applicant requires assistance with her medication. As we mentioned previously, the applicant does not drive and she requires cueing to complete tasks. Accordingly, we find the applicant requires weekly support to pick-up her medication and she requires cueing to take and manage her prescriptions as directed.

47Ms. Evans determined the applicant only needs assistance three times per week transferring from the tub, whereas Ms. Foster determined she needs assistance four times per week. We find that if the applicant was showering or bathing three to four times per week pre-accident, Ms. Foster’s recommendation is more in keeping with the goal of reintegration into the applicant’s family and society.

48For these reasons we find that the applicant is entitled to the level three attendant care recommended by Ms. Foster.

The applicant’s ACBs are not deemed incurred

49For the respondent to be required to pay ACBs in the amount claimed, the applicant is required to show that the attendant care expenses were incurred or that the Tribunal ought to deem the attendant care expenses to have been incurred. Under s. 3(8) of the Schedule, we may deem an expense to have been incurred if the respondent unreasonably withheld or delayed the payment of the benefit.

50During the hearing, the parties confirmed it was an agreed fact that all invoices submitted by the applicant were paid by the insurer. The applicant submits that we should determine that she is deemed to have incurred attendant care at the rate of $4,339.71 per month to date. We find the applicant has not provided evidence to demonstrate the respondent unreasonably withheld or delayed payment of the benefit such that the Tribunal may deem the expense to have been incurred at the higher rate than what the respondent has paid.

51The applicant relies on Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, in which the Divisional Court determined an insured person is not required to incur treatment before disputing a denial. The decision does not help the applicant as it dealt with allegations that an insured person is required to incur treatment recommended in an OCF-18 for the treatment plan to be an issue at the Tribunal. The issue before us is the quantum of attendant care the applicant is entitled to in a Form 1, not a treatment plan. The case is not applicable to the requirement in the Schedule for attendant care expenses to be incurred.

52The applicant did not provide any evidence that a withholding of payment occurred. The evidence before us was the opposite. Therefore, in our view, the applicant has not proven the respondent delayed or withheld payment.

53The respondent relies on Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 (Pucci) that points to the guiding principles of what determines an exception to the requirement that expenses must be incurred before they are payable by the insurer. We find Pucci is binding on our analysis. The three exceptional requirements include payment for the benefit in issue must be payable under the Schedule, the insurer must have withheld or delayed payment and the withholding or delaying of payment must have been unreasonable.

54The applicant submits the Foster Form 1 was not properly denied by the respondent, pursuant to s. 38(8) and s. 42(3) of the Schedule and for these reasons, there was an unreasonable delay in the payment of benefits. She asserts her entitlement to the last ACB approved by the respondent on August 16, 2018, prepared by occupational therapist Raza Anwar, for $6,000.00 per month, remains in effect. The respondent submits it replied to the Foster Form 1 on November 5, 2021 and advised an IE was required to determine if the proposed Form 1 was reasonable and necessary. Although the notice does not technically comply with the requirements in the Schedule, we find the applicant was aware that the respondent denied the Foster Form 1 quantum, which is why she was requested to attend the IEs.

55The applicant asserts the respondent was supposed to provide a copy of the Evans Form 1 with its report when it denied the amount of the Foster ACB. The applicant submits she never received Evans’ Form 1. The respondent submits it sent the Form 1 with Evan’s report on August 13, 2020. Even if the Evans Form 1 was inadvertently not provided until a later date, we find it makes no difference to the claim the ACBs have been incurred.

56We are persuaded by the respondent’s submissions that the applicant incurred less ACB than what the Evans Form 1 recommended. First, it is an agreed fact the respondent paid all ACB invoices submitted to it. Second, the invoices show that from September 2021 to August 2022 the applicant utilized an average of 22.68 hours per month of the 67.73 of the ACB allotted to her by Ms. Evans’ Form 1. Therefore, even if the Evans Form 1 was not provided in the respondent’s denial letter, it was, at best, inadvertent and did not cause any delay in the applicant receiving attendant care. For these reasons, we are unable to find that the applicant has proven on a balance of probabilities that any attendant care benefit was delayed or withheld by the respondent such that the Tribunal may deem the expense to have been incurred.

The applicant is not entitled to $1,984.25 for assistive devices

57Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. To receive treatment or devices in a treatment plan under s. 15 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, the benefit is reasonable and necessary. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.

58The applicant submits she requires the $999.99 for a stroller, $234.00 for a baby carrier, $72.00 for a nursing pillow and $259.99 for a bassinet/swivel sleeper recommended by Ms. Bossé in her OCF-18 treatment plan dated February 11, 2021. The applicant asserts the items listed in the OCF-18 are not standard baby equipment. The respondent submits the proposed items would be required by any new parents expecting a child despite the applicant’s injuries sustained in the motor vehicle accident. Therefore, the items are not deemed to be reasonable or necessary. We are persuaded by the respondent’s submissions for the following reasons.

59The applicant did not produce evidence to support the claim that these items are reasonable and necessary. Ms. Bossé indicated in the OCF-18 that these devices go above and beyond to assist with the applicant’s ongoing pain and mobility issues. Yet, the applicant did not offer testimony or any other evidence to explain how these devices are able to meet the goals stated in the OCF-18 - including the reduction of pain, increase strength and increase range of motion – in a manner different from regular baby equipment.

60We agree with the respondent that the applicant would have required these devices in any event. Accordingly, some comparison on how they are different or what difference there is in price between the recommended devices and a stroller, baby carrier, nursing pillow and bassinet/swivel sleeper that the applicant would have purchased regardless of the accident might have been persuasive. However, we find the applicant has not proven, on a balance of probabilities, that these assisted devices are in fact reasonable and necessary.

The applicant is not entitled to a Reg. 664 award

61Under s. 10 of Reg. 644 the Tribunal may award up to 50 percent of the total benefits claimed plus interest if it determines the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning its behaviour, is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, the respondent’s conduct meets this criterion.

62The applicant submits that she is entitled to an award because the respondent did not properly deny ACBs and the claims adjuster, Ken Jones, did not make himself available for cross-examination at the hearing. She seeks the maximum award of 50 percent plus interest. The applicant asserts she is entitled to the last approved Form 1 of Mr. Anwar for $6,000.00 per month because it was not properly denied. We agreed with the respondent submission that the applicant's argument that she remains entitled to ACB in the amount of $6,000.00 has no merit.

63We find the applicant is correct that the respondent did not comply with the Schedule for the following reasons:

a) The notice of s. 44 insurer’s examinations (“IEs”) dated November 14, 2019 and December 2, 2019 did not include a medical reason or other rationale to explain why the IE for attendant care was requested as required by s. 44(5); and

b) The request to conduct an IE without proper notice was issued in contravention of s. 42(10) as Ms. Foster’s “new assessment” of attendant care needs did not indicate an increase in the ACB.

64Despite the respondent’s non-compliance with the notice provisions, we are not persuaded the applicant is entitled to an award. We have not been directed to evidence that meets the threshold of behaviour that can be considered excessive, imprudent, stubborn, inflexible, unyielding, and immoderate, despite the non-compliance.

65The time to seek a remedy to these infractions was when they occurred. As previously stated, to assign a remedy for non-compliance of s. 44(5) would be to read into the Schedule a remedy that is not provided. In addition, the applicant has already attended the IEs for the ACB and the reports generated from those IEs have been admitted into evidence. Although the notices do not technically comply with the requirements in the Schedule, the applicant was aware that the respondent was denying she was entitled to ACBs of over $4,000.00 per month.

66The applicant asks that we draw an adverse inference with regards to the respondent’s lack of cooperation to produce adjuster Ken Jones as a witness. The applicant submitted an affidavit of attempted service that details the process server’s inability to serve a summons to Mr. Jones on November 1, 2022. The respondent submits Mr. Jones was not identified as a witness on the case conference Order and he would have been unable to participate in the hearing as he was on vacation. We are not prepared to make an adverse inference in the absence of an order that he be a witness at the hearing.

67In addition, we find the applicant demonstrated a lack of urgency by failing to issue the summons more than two weeks in advance of the hearing. In our view, her lack of urgency is not consistent with an individual who believes they would be prejudiced if they are unsuccessful in serving a summons to a witness.

68For all of these reasons, we find the applicant is not entitled to a special award.

The applicant is entitled to interest

69The applicant is entitled to interest on any outstanding ACB incurred and payable in accordance with the Schedule. At the time of the hearing, there were none.

ORDER

70We find the applicant is entitled to an ACB of up to $1,630.72 per month incurred in accordance with the Schedule.

71The applicant is not entitled to $1,984.25 for assistive devices.

72The applicant is entitled to interest on any outstanding ACBs incurred up to $1,630.72 per month.

73The applicant is not entitled to a special award.