Simpson v. Nordic Insurance Company of Canada, 2023 CanLII 7287

Simpson v. Nordic Insurance Company of Canada

Citation: Simpson v. Nordic Insurance Company of Canada, 2023 ONLAT 21-000662/AABS

Licence Appeal Tribunal File Number: 21-000662/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:

Pamela Simpson

Applicant

and

Nordic Insurance Company of Canada

Respondent

DECISION

ADJUDICATORS:

Harry Adamidis, Member Rebecca Hines, Member

APPEARANCES:

For the Applicant:

Pamela Simpson, Applicant

David S. Wilson, Counsel

For the Respondent:

Farzana Merchant, Counsel

Lazina Khan, Counsel

Court Reporter:

Prashanth Thambipillai

Heard by Videoconference:

July 4, 5, and 6, 2022

BACKGROUND

1Pamela Simpson (the ”applicant”) was involved in an automobile accident on August 2, 2017, and sought benefits from Nordic Insurance Company of Canada (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The matter proceeded to a three-day videoconference hearing. On behalf of the applicant we heard the testimony of the applicant and her two daughters. On behalf of the respondent, we heard the testimony of occupational therapists Christina Kovacic and Nicholas Livadas, and Karla Barone, the adjuster.

ISSUES IN DISPUTE

3The issues to be decided in this hearing are:

1. Is the applicant entitled to attendant care benefits in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019?

2. Is the applicant entitled to attendant care benefits in the amount of $1,178.40 per month from May 30, 2019 to August 2, 2019?

3. Is the applicant entitled to rehabilitation benefits in the amount of $2,294.79 for life skills training provided by Cora Moncada submitted on a treatment plan on April 30, 2020 and denied by the respondent on November 23, 2020?

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

5. Is the applicant entitled to interest on any overdue payment of the above noted benefits?

6. Is the applicant entitled to an award and interest on the payment of a medical benefit in the amount of $2,195.50 for physiotherapy services provided by Scarborough Injury Rehab Centre submitted on a treatment plan on August 16, 2019?

7. Is the applicant entitled to an award and interest on the payment of a medical benefit in the amount of $2,593.50 for physiotherapy services provided by Scarborough Injury Rehab Centre submitted on a treatment plan on December 16, 2020?

8. Is the applicant entitled to an award and interest on the payment of a medical benefit in the amount of $4,215.12 for home modification and home devices provided by Cora Moncada submitted on a treatment plan on June 7, 2019?

4Three previously denied treatment plans, issues 6, 7, and 8 above, were approved by the respondent prior to the hearing. These treatment plans were only considered in regard to an award and interest on the overdue payment of benefits.

RESULT

5After considering both parties’ submissions and all the evidence, we find as follows:

1. The applicant is not entitled to attendant care benefits in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019.

2. The applicant is entitled to attendant care benefits in the amount of $1,178.40 per month from May 30, 2019 to August 2, 2019.

3. The applicant is entitled to a treatment plan in the amount of $2,294.79 for life skills training.

4. The respondent is liable to pay an award in the quantum of 35% plus interest for the attendant care benefit that has been deemed incurred.

5. The applicant is entitled to interest.

PROCEDURAL ISSUES

Motion brought by the Applicant

6Prior to the hearing, the applicant filed a motion to extend the deadline for service of nine medical reports. These were served on the respondent on May 30, 2022, six days after the disclosure deadline set by the case conference order. The Tribunal issued a motion order excluding these reports. At the hearing, the applicant requested that we use our discretion pursuant to Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”) and admit the reports.

7The respondent opposed the applicant’s request and argued that the matter had already been decided by way of motion. It submits that raising the same issue a second time is impermissible under the doctrine of res judicata. Moreover, the respondent did not have a reasonable opportunity to review these reports.

8The Tribunal decided to admit the nine medical reports. In our view, res judicata does not apply as the previous motion order was an interlocutory decision. Res judicata applies only to final decisions.¹ Moreover, admitting these documents ensured that the applicant had fair opportunity to present her case. Ultimately, we gave limited weight to these reports because the respondent did not have a full opportunity to review them.

Motions brought by the Respondent

9Prior to the hearing, the respondent filed a motion to have the applicant and her two daughters removed from the applicant’s witness list. The motion also sought to strike the applicant’s claim for an award. The respondent submits that the applicant did not provide a brief description of the witness’s anticipated testimony 10 days before the hearing as required by Rule 9.2(b). As a result, the respondent is not aware of the case it must meet and is unable to prepare for the hearing. They asked to have these witnesses excluded to ensure a fair hearing.

10After the respondent’s motion was served, the applicant did provide a brief description of the anticipated testimony from these three witnesses.² The impact on the respondent and whether they are unfairly prejudiced by the testimony of the three witnesses needs to be carefully considered.

11The respondent’s motion is denied. The Tribunal finds that the respondent is familiar with the applicant and the issues raised by her in this proceeding. Although the applicant’s late compliance with Rule 9.2(b) is not helpful, we find nothing in the brief description provided in advance of the hearing that is out of the ordinary, surprising, or unexpected. In particular, the witnesses would be testifying about the applicant’s pre-accident activities and medical condition, the accident, impairments after the accident, and the attendant care that was provided.³ In light of this, the applicant’s initial non-compliance with the Rules would have had a minimal impact on the respondent’s ability to prepare for the hearing.

12Conversely, the applicant’s case is highly reliant on the evidence of these witnesses. She would be substantially prejudiced if the witnesses are excluded. For these reasons, we did not grant the respondent’s motion to exclude these witnesses.

13With regard to the respondent’s request to strike the applicant’s claim for an award, it submits that she did not provide full particulars for her claim for an award. Consequently, the respondent has been unable to properly prepare and respond to the applicant’s claim in preparation for this hearing.

14The applicant argues that she provided full particulars of the award to the respondent in advance of the hearing. We reviewed the particulars for the award that the applicant provided to the respondent. It states the following:

1. The respondent failed to consider the medical reports provided to it with respect to the impairments and injuries sustained by the applicant. In addition to ignoring the contents of reports provided by the applicant, it also accepted, without scrutiny, the assessments of its experts. Particularly with respect to the issue of attendant care, the respondent elected to rely upon a report of its assessor which was ill informed, biased, and lacked objectivity.

2. In addition, it failed to consider the applicability of the “deemed incurred” provision of the SABS, preferring to rely upon the proposition that since attendant care services had not been incurred, the applicant was not entitled to the same.⁴

15We find the above particulars sufficient enough for the respondent to understand and effectively address the two issues being raised by the applicant. Consequently, we decline to strike the applicant’s claim for an award.

ANALYSIS

Issue 1: Is the applicant entitled to an attendant care benefit in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019?

16The applicant is not entitled to an attendant care benefit in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019 because the benefit was not incurred by the applicant.

17Under Section 19(1)(a) of the Schedule, an insurer must pay for reasonable and necessary attendant care services incurred by or on behalf of the insured person as a result of the accident.

18The test to establish that expenses have been incurred are set out in s.3(7)(e) of the Schedule, in which the following criteria need to be satisfied:

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) 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

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

19The Tribunal notes that s.3(7)(e)(iii) of the Schedule requires that the person providing services do so in the course of their profession, or that the service provider sustain an economic loss.

20The applicant submitted an OCF-6 on January 4, 2021. She claimed attendant care benefits in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019.⁵

21The respondent wrote to the applicant on February 17, 2021,⁶ advising that they would pay for attendant care from January 24, 2018 to September 16, 2019 if the applicant provided documentation showing that the expense was incurred.

22The principal persons providing the attendant care to the applicant are her two daughters. Neither daughter provided attendant care services in the course of their profession. Further, during the course of the hearing the applicant acknowledged that neither daughter sustained an economic loss as a result of providing attendant care to their mother. Consequently, the test to establish that attendant care services have been incurred has not been met. Now, the Tribunal will address the applicant’s argument regarding whether the Tribunal should deem the benefit as incurred pursuant to s.3(8) of the Schedule.

23Under s.3(8) of the Schedule, the Tribunal may deem an expense to have been incurred if it determines that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit.

24The Tribunal does not find that s.3(8) applies as the insurer approved attendant care benefits for the applicant on February 22, 2018.⁷ This approval was communicated to the applicant by way of letter and to applicant’s counsel by fax.⁸ The applicant testified that she never received this letter and was unaware that her application for benefits was approved.

25Based on the evidence before us, the Tribunal is not satisfied that neither the applicant nor her counsel did not receive the respondent’s correspondence approving the benefit. It is unfortunate that things unfolded they way they did for the applicant. Had she been aware of the approved benefit, then she could have hired a personal support worker to provide attendant care instead of relying on her daughters. Under these circumstances, however, the insurer did not delay or withhold benefits. As such, the deeming provision in s.3(8) of the Schedule cannot be applied by the Tribunal.

26For these reasons, the Tribunal finds that the applicant is not entitled to attendant care benefits in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019 as the evidence does not show that the benefit was incurred.

Issue 2: Is the applicant entitled to attendant care benefits in the amount of $1,178.40 per month from May 30, 2019, to August 2, 2019?

27The applicant is entitled to attendant care benefits in the amount of $1,178.40 per month from May 30, 2019, to August 2, 2019.

28The respondent submits that the applicant can independently perform her activities of daily living and, as such, it is not reasonable and necessary for her to receive attendant care benefits. Moreover, she has not incurred expenses for attendant care.

29The Tribunal disagrees. The evidence shows that the applicant has limitations that require her to have assistance with her activities of daily living. For this reason, we find attendant care is reasonable and necessary. Moreover, the Tribunal finds it appropriate to deem the expense of attendant care for this time-period incurred pursuant to s. 3(8) of the Schedule.

30An assessment of attendant care needs (Form 1) was completed on June 10, 2019, by Ms. Cora Moncata, an occupational therapist. She recommended $1,178.40 per month in attendant care benefits.⁹ The following impairments are reported by Ms. Moncata:¹⁰

• Left sided neck stiffness

• Left shoulder pain and weakness

• Middle and lower back pain

• Right leg burning/aching pain and numbness.

• Left leg tingling

• Difficulty with attaining nighttime sleep

31The pain experienced by the applicant in her lower back is described as severe.¹¹ The report also notes that the applicant had been relying on the assistance of family and friends.¹²

32Ms. Moncata states that the applicant has attempted to resume most personal care tasks with modified techniques and pacing. However, the applicant still requires attendant care to ensure her safety and the resumption of personal care tasks.¹³

33An insurer’s examination (IE) took place on August 6, 2019. Ms. Christine Kovacic, an occupational therapist, recommended no attendant care because the applicant could perform her personal care tasks with pacing and the use of assistive devices.¹⁴

34The insurer subsequently discontinued the applicant’s attendant care benefits based on the IE of Ms. Kovacic.¹⁵

35On September 20, 2019, the applicant attended another IE with Dr. James Choi. Dr. Choi’s assessment is contemporaneous with the reports of Ms. Kovacic and Ms. Moncata.

36The IE of Ms. Kovacic found that attendant care was no longer required. This suggests that the applicant’s condition had improved, and therefore attendant care was no longer required.

37Dr. Choi found that “Ms. Simpson has received approximately two years of physiotherapy without much improvement.”¹⁶ Dr. Choi also states:

During the current assessment Ms. Simpson presented with pain, decreased mobility, and decreased exertional capabilities. It is opined that the impairments are indefinite; it is difficult to estimate the duration of the impairment given the suboptimal pace of recovery to date.¹⁷

38The Tribunal finds that this noted lack of improvement since the subject accident does not support the premise that attendant care is no longer required. Dr. Choi described the applicant’s limitations:¹⁸

a) “Ms. Simpson was observed to move with significant difficulty from the sitting to standing position and vice versa. She was unable to perform single leg stance due to reports of low back and left hip pain. Heel and toe walking could not be performed due to reports of low back and left hip pain.”

b) “Her antalgic gait was assisted by the use of a cane held on her right side.”

c) “Active range of motion testing of the cervical spine demonstrated limited forward flexion due to neck pain. Extension was full. Lateral flexion and rotation were limited bilaterally, due to neck pain.”

d) “Active range of motion testing of the lumbar spine revealed limited forward flexion due to reports of low back pain. She was unable to complete extension to low back pain. Lateral flexion and rotation were limited bilaterally. Seated straight leg raise was negative on the right and limited on the left due to left hip pain.”

e) “Range of motion testing of the left hip was limited. She reported left sacroiliac joint pain with left hip movement. There was tenderness reported with light percussion of the left sacroiliac joint region.”

39Dr. Choi concludes that the applicant sustained cervical strain, left shoulder strain and exacerbation of a lumbar strain because of the subject accident.¹⁹

40The applicant reported to Dr. Choi that she performs personal care tasks. Consequently, the respondent submits that the report of Dr. Choi does not support a finding that the applicant is entitled to attendant care. However, the applicant also reported that she no longer performs the full range of household chores. She relies on her children and is limited to light activities due to pain.²⁰

41Taking into account the accident-related impairments described by Dr. Choi and the reliance on others due to pain, it is reasonable to infer that the applicant completes personal care tasks with difficulty.

42The applicant described the impact of these limitations, caused by the subject accident, in her testimony. The applicant’s injuries cause pain in her back, neck, and left shoulder. She can only stand for two or three minutes before her back starts to hurt. Her ability to walk also changed after the accident. She now walks with a cane.

43In the first year and a half after the accident, she did no cooking. Since then, she can cook vegetables, and rice in a rice cooker. However, she principally relies on her daughters to prepare food for her. Currently, one daughter cooks large batches of food and freezes it for the applicant. The other daughter brings cooked food twice per week. She also relies on other relatives who bring her cooked food less frequently.

44Her daughters assist her with toenail care and housekeeping. They sometimes assist with dressing and undressing. She principally relies on her husband to assist her with dressing and undressing.

45The subject accident also had an impact on the applicant’s social life. In particular, she can no longer perform her duties as a volunteer at her church.

46The findings of Dr. Choi are consistent with the applicant’s testimony regarding range of motion limitations and pain in her back, neck, and left shoulder. Her testimony also confirms that her limitations prevent her from living independently and that she requires the assistance of others to complete personal care tasks.

47The respondent submitted that the November 4, 2021 report of Dr. Todd Bentley shows that the applicant can perform personal care tasks. This is because the report documents the applicant stating that she is independent with “all aspects of personal care.”²¹

48Dr. Bentley’s report is properly read in its entirety. In particular, his conclusion:

It is the opinion of this assessor, from a musculoskeletal perspective, that Ms. Simpson does suffer permanent serious impairments of important physical function, with anticipated permanent partial disability in the domains of housekeeping and pre-accident social activities, and complete disability in the domain of pre-accident household maintenance tasks.²²

Dr. Bentley determined that the applicant has serious impairments. In light of this determination, it is again reasonable to infer that that the applicant would have limitations in carrying out her personal care tasks.

49The respondent also asked the Tribunal to give weight to the inconsistencies between the applicant’s testimony and the surveillance evidence. The respondent was asked to explain why they did not question the applicant on these inconsistencies. No explanation was provided. In our view, the respondent’s argument is premised on a clear violation of the Rule in Browne v. Dunn. Accordingly, the Tribunal gives no weight to the surveillance evidence because the applicant was not given an opportunity to respond to any alleged inconsistencies.

50More recently, on January 17, 2022, Dr. Dacre confirmed that the applicant is unable to complete her activities of daily living.²³ The respondent asked that no weight be given to this statement because it is unsupported by other medical evidence. The Tribunal disagrees. The previously cited medical reports also state that the applicant has accident-related impairments that seriously impact her ability to perform the activities of daily living.

51The insurer’s denial was based on the report of Ms. Kovacic. However, the contemporaneous medical evidence of Ms. Moncada, Dr. Choi, the testimony of the applicant, and the medical reports of Dr. Bentley and Dr. Dacre are more persuasive. They are substantial enough to establish, on a balance of probabilities, that the applicant’s ability to perform personal care tasks is seriously compromised and that she must rely on the assistance of others. Consequently, the Tribunal finds that the attendant care services for the applicant are reasonable and necessary.

52The expense of attendant care was not incurred by the applicant. Under these circumstances, the Tribunal has the discretion to consider the deeming provision under s.3(8) of the Schedule.

53An analysis under s.3(8) of the Schedule focusses on the conduct of the insurer and whether they unreasonably withheld or delayed the payment of a benefit.

54The respondent approved the attendant care benefit for the applicant on February 22, 2018. The respondent received further confirmation that the applicant needed attendant care in June 2019 when they received the Form 1 prepared by Ms. Moncata.

55In August 2019, the insurer cancelled the applicant’s attendant care benefits based on the IE of Ms. Kovacic. There is no indication in the denial letter or log notes²⁴ regarding why more weight was given to the IE than to the contemporaneous Form 1 and other medical records.

56Ms. Barone, an adjuster, testified that all the evidence on a file is reviewed before deciding to deny a benefit. Due to the passage of time, however, she cannot say what specifically happened in this file. Ms. Barone also acknowledged that the insurer has an obligation to critically review medical assessments and decide claims in an unbiased manner. In the Tribunal’s view, this obligation is not fulfilled when the insurer cannot show how conflicting information is considered.

57There is insufficient evidence to determine why the insurer preferred the IE of Ms. Kovacic over the Form 1 prepared by Ms. Moncata. Consequently, it is not possible to understand how this decision was made. This lack of transparency makes the decision to deny attendant care benefits to the applicant unreasonable.

58The Tribunal notes a further lack of transparency with how the more recent medical report of physiatrist Dr. Kekosz, dated March 3, 2021, was considered by the respondent. This report states:

In view of the fact that that there were degenerative changes prior to the accident, these more than likely were aggravated and now have resulted in a significant impairment of the left shoulder with a loss of mobility and strength. (emphasis added)²⁵

59The adjuster restated the entirety of the above passage in the log notes.²⁶ Despite this, the log notes do not show how this significant accident-related impairment was considered with regard to the attendant care benefits. Consequently, it is unknown how, or even if the insurer continued to adjust this previously denied benefit. This also constitutes a lack of transparency.

60For these reasons, the Tribunal finds that the insurer unreasonably withheld payment of a benefit and deems the applicant to have incurred the expense of attendant care.

61The Tribunal further finds that the applicant is entitled to attendant care benefits in the amount of $1,178.40 per month from May 30, 2019 to August 2, 2019.

Issue 3: Is the applicant entitled to rehabilitation benefits in the amount of $2,294.79 for life skills training provided by Cora Moncada submitted on a treatment plan on April 30, 2020 and denied by the respondent on November 23, 2020?

62The Tribunal finds that applicant is entitled to rehabilitation benefits in the amount of $2,294.79 for life skills training. The denial was based on the applicant’s unwillingness to increase her functionality. On balance, the evidence does not support the premise of the denial.

63Under s.14 and s.16 of the Schedule, insurers are liable to pay rehabilitation benefits that are reasonable and necessary as a result of the accident. Life skills training is designated as a rehabilitation benefit.²⁷

64Ms. Moncada submitted a treatment plan for life skills training dated April 30, 2020 to the insurer.

65The stated goal of the treatment plan is to achieve a return to activities of normal living. In particular:

This treatment plan will review her current functional status and provide education, strategies, assistive devices, and alternative ideas in order for Ms. Simpson to have a more productive lifestyle and to remain safe as she endeavors to increase her participation with ADL's.²⁸

66An IE was arranged to assess this treatment plan. Mr. Nicholas Livadas, an occupational therapist, conducted an in-home assessment. He asked the applicant to perform a number of tests. His report states that the applicant put in “submaximal” effort and that she declined some testing.²⁹ The report further states that with regard to gardening, lawn mowing, and snow removal, the applicant is “uninterested in ever resuming these tasks due to her lower back pain.”³⁰ The report found that the applicant exhibited an “underestimation of present abilities” and recommended that the treatment plan be denied.³¹

67The respondent subsequently denied the treatment plan.

68Mr. Livadas testified that if the applicant had expressed a willingness to increase her functional abilities, then she should get the occupational therapy offered in the denied treatment plan.

69The applicant testified with regard to her limitations and her reliance on others to perform personal care tasks for her. She also testified that she is upset because of her functional limitations and expressed an interest in doing anything she could to increase her functionality. The Tribunal found this testimony persuasive and accepts that the applicant has a willingness to increase her functional abilities.

70Mr. Livadas testified that he spent 45 minutes with the applicant. The denial of the treatment plan was based on this relatively brief interaction. At the hearing, the applicant was extensively questioned by her counsel and the respondent for a considerably longer period of time. In the Tribunal’s view, the evidence adduced at the hearing constitutes a more complete and accurate picture of the applicant and her willingness to increase her functional ability. For this reason, the testimony at the hearing should be given more weight than the initial interaction with the occupational therapist.

71Consequently, the Tribunal disagrees with the premise under which the treatment plan was denied and finds the plan for life skills training in the amount of $2,294.79 to be reasonable and necessary.

Issue 4: Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

72The Tribunal finds that the respondent is liable to pay an award under s.10 of O. Reg. 664.

73Under s.10 of Regulation 664, a lump sum may be awarded to the insured if the Tribunal finds that the insurer unreasonably withheld or delayed the payment of benefits. When such a finding is made, the Tribunal may order up to 50% of the withheld or delayed payment along with interest at a rate of 2% per month, compounded monthly.

74The applicant submitted that the respondent unreasonably ignored or failed to consider the medical evidence that did not support their denials. This conduct had a serious impact on the applicant and justifies an award of 30 to 35%. The applicant also asked for the maximum allowable award of 50% for the previously denied treatment plans that were later approved, submitting that the modest amount of the plans necessitates the maximum in order for the award to be meaningful.

75The respondent submits that merely making an incorrect decision does not justify an award. The conduct of the insurer must be unreasonable and characterized as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.³² In their view, they have not conducted themselves in this way and an award is not justified.

76The Tribunal finds that the respondent is liable to pay an award to the applicant. The respondent denied the attendant care benefit because they gave more weight to the IE report of Ms. Kovacic over the Form 1 submitted by the applicant. No explanation was provided for this decision. Numerous medical reports and medical opinions were subsequently received by the respondent. The previously cited medical reports and opinions unanimously agree that the applicant has serious accident-related impairments. Despite this, there is no clear indication that the denied attendant care benefit continued to be adjusted. This conduct is unreasonable and properly described as immoderate, inflexible and imprudent.

77The respondent provided the Tribunal with a number of cases where no award was given to the applicant.³³ In each case the Tribunal reviewed the facts and explained why the respondent did not act unreasonably. None of the fact situations involve a lack of transparency as was the case here. Consequently, these cases are not helpful to this current proceeding.

78The Tribunal considered the following six factors in Persofsky³⁴ for determining the quantum of an award:

i. the blameworthiness of the insurer’s conduct;

ii. the vulnerability of the insured person;

iii. the harm or potential harm directed at the insured person;

iv. the need for deterrence;

v. the advantage wrongfully gained by the insurer;

vi. other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

79The Tribunal also considered the overall length of the delay, which is the seventh factor for considering the quantum of an award.³⁵

80In the Tribunal’s view blameworthiness, the vulnerability of the insured person, the need for deterrence, and the overall length of delay are the applicable factors.

81The unreasonable behaviour of the insurer is rooted in their lack of transparency. In particular, there is no clear indication that the attendant care benefit continued to be adjusted. This impacted the applicant. She had to rely on the assistance of others for a considerable period of time instead of receiving this benefit. The quantum of the award should also be large enough to serve as a deterrent.

82In these circumstances the highest allowable award would be excessive. For these reasons, the Tribunal finds that an award of 35% is appropriate, plus interest for the attendant care benefit that has been deemed incurred.

83No award is given for the three previously denied treatment plans. The plans were approved by the respondent prior to the commencement of the hearing. There is no doubt that the respondent delayed the payment of these plans. However, no submissions or evidence was provided to show how the respondent’s conduct was unreasonable in relation to these issues. As a result, the respondent is not liable to pay an award for the previously denied treatment plans.

84No award is given for the previously denied treatment plan for life skills training. The insurer relied on an in-home examination conducted by an occupational therapist. It was not until the hearing that extensive testimony from the applicant and the occupational therapist allowed the denial to be fully examined. For this reason, the Tribunal finds that the insurer’s conduct was not unreasonable.

Issue 5: Is the applicant entitled to interest on any overdue payment of benefits?

85Under section 51(4) of the Schedule, interest is payable on a disputed benefit from the date of the application to the Licence Appeal Tribunal to the date a settlement is reached, or a decision is issued that finally disposes of the dispute.

86The Tribunal determined that the applicant is entitled to an attendant care benefit in the amount of $1,178.40 per month. As such, the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51(4) of the Schedule.

87The Tribunal also determined that the applicant is entitled to rehabilitation benefits in the amount of $2,294.79 for life skills training. Accordingly, the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51(4) of the Schedule.

88The respondent settled three previously denied treatment plans, two for physiotherapy and one for home modification and devices prior to the hearing. The applicant is entitled to interest for the overdue payment of these benefits under s. 51(4) of the Schedule.

ORDER

89For the reasons stated above, the tribunal finds:

i. The applicant is not entitled to attendant care benefits in the amount of $1,476.61 per month from January 24, 2018 to May 29, 2019.

ii. The applicant is entitled to attendant care benefits in the amount of $1,178.40 per month from May 30, 2019 to August 2, 2019.

iii. The applicant is entitled to a rehabilitation benefit in the amount of $2,294.79 for life skills training.

iv. The respondent is liable to pay an award in the quantum of 35% plus interest for the attendant care benefit that has been deemed incurred.

v. The applicant is entitled to interest for the overdue payment of the deemed incurred attendant care benefit in the amount of $1,178.40 per month, and the treatment plan in the amount of in the amount of $2,294.79 for life skills training.

vi. The applicant is entitled to interest for the overdue payment of the three treatment plans that were approved by the respondent prior to the hearing.

Released: January 31, 2023

______________________________

Harry Adamidis

Adjudicator

______________________________

Rebecca Hines

Adjudicator

Footnotes

1. 1Danyluk v. Ainworth, 2001 SCC 44, [2001] 2 S.C.R. 460, at para 25.
2. 2Exhibit A, Affidavit of H.A. Buchanan, 4 July 2022.
3. 3ibid.
4. 4Tab 6, Respondent’s Motion June 29, 2022.
5. 5Exhibit 26, Tab 20, Respondent’s Brief.
6. 6Exhibit 27, Tab 38, Respondent’s Brief, p.616.
7. 7Exhibit 24, Tab 20, Respondent’s Brief.
8. 8ibid.
9. 9Exhibit 7, Tab 10, Applicant’s Brief, p.124.
10. 10ibid, p. 116.
11. 11ibid, p. 122.
12. 12ibid, p. 121.
13. 13ibid, p. 122.
14. 14Exhibit 27, Tab 38, Respondent’s Brief, p.646-656.
15. 15Exhibit 27, Tab 38, Respondent’s Brief, p.622.
16. 16Ex. 22, Tab 51, Respondent’s brief.
17. 17ibid.
18. 18Ibid.
19. 19ibid.
20. 20Ibid.
21. 21Exhibit 18, Tab 20, Applicant’s brief.
22. 22ibid.
23. 23Exhibit 11.
24. 24Exhibit 33.
25. 25Exhibit 14.
26. 26Exhibit 33.
27. 27s.16(3)(a) of the Schedule.
28. 28Exhibit 9.
29. 29Exhibit 23.
30. 30ibid.
31. 31ibid.
32. 32Plowright v. Wellington Insurance Company, 1993 CarswellOnt 4786
33. 33The Applicant vs. State Farm Mutual Automobile Insurance Company, 2020 CanLII 57374 (ON LAT), Qazi v. Aviva Insurance Company of Canada, 2021 CanLII 146973 (ON LAT), and Robinson v. AIG Insurance, 2022 CanLII 35796 (ON LAT).
34. 34Persofsky and Liberty Mutual, (FSCO Appeal P00-00041, January 31, 2003).
35. 3517-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) at para. 45