Karla Coto v. Intact Insurance, 2023 CanLII 81840

Coto v. Intact Insurance, 2023 CanLII 81840

Citation: Coto v. Intact Insurance, 2023 ONLAT 21-006930/AABS

Licence Appeal Tribunal File Number: 21-006930/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:

Karla Coto Applicant

And

Intact Insurance Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Joshua Lindzon, Counsel

For the Respondent: Christine Haddad, Counsel

HEARD: By way of written submissions

OVERVIEW

1Karla Coto ("K.C."), the applicant, was involved in an automobile accident on July 30, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). K.C. was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent raised the following preliminary issue:

i. Is the applicant barred from proceeding with her dispute in relation to issues [3] ii, iii, viii, x, xii, xiii, and xiv below, for failing to attend s.44 insurer examination ("IEs") pursuant to s.55 of the Schedule?

ISSUES

3The issues in dispute are:

i. What is the quantum of income replacement benefit ("IRB") K.C. is entitled to for the period of August 7, 2020 to date and ongoing? The parties agree that K.C. was self-employed during the period of eligibility.

ii. Is K.C. entitled to an attendant care benefit ("ACB") in the amount of $2,781.87 per month from March 20, 2021, to date and ongoing?

iii. Is K.C. entitled to a medical benefit in the amount of $87.19 ($2,226.00, less $2,138.81 approved) for psychological services recommended by Mount Dennis Weston Physiotherapy in a treatment plan (OCF-18) dated November 23, 2020, and denied on December 17, 2020?

iv. Is K.C. entitled to a medical benefit in the amount of $1,496.75 ($5,786.00, less $4,289.25 approved) for occupational therapy services recommended by PiOT Occupational Therapy Assessment and Treatment Services "PiOT") in an OCF-18 dated March 31, 2021, and denied on May 21, 2021?

v. Is K.C. entitled to a medical benefit in the amount of $363.21 ($3,753.54, less $3,390.33 approved) for assistive devices recommended by Mount Dennis Weston Physiotherapy in an OCF-18 submitted November 23, 2020, and denied on January 26, 2021?

vi. Is K.C. entitled to a cost of examination expense in the amount of $2,460.00 for a neurological assessment recommended by Dr. Jha in an OCF-18 submitted January 18, 2022, and denied on February 1, 2022?

vii. Is K.C. entitled to medical benefits in the amount of $966.55 ($2,443.24, less $1,476.69 approved) for assistive devices recommended by PiOT in an OCF-18 dated June 24, 2021, and denied on July 3, 2021?

viii. Is K.C. entitled to medical benefits in the amount of $562.37 ($2,102.94, less $1,540.57 approved) for psychological services recommended by Mount Dennis Weston Physiotherapy in an OCF-18 submitted October 21, 2021, and denied on November 10, 2021?

ix. Is K.C. entitled to medical benefits in the amount of $1,091.73 for orthotics recommended by PiOT in an OCF-18 dated June 28, 2021, and denied on July 8, 2021?

x. Is K.C. entitled to medical benefits in the amount of $835.40 ($2,421.71, less $1,586.31 approved) for psychological services recommended by Mount Dennis Weston Physiotherapy in an OCF-18 submitted July 21, 2021, and denied on July 28, 2021?

xi. Is K.C. entitled to medical benefits in the amount of $3,654.32 for chiropractic and massage therapy services recommended by Mount Dennis Weston Physiotherapy in an OCF-18 submitted October 6, 2021, and denied on October 18, 2021?

xii. Is K.C. entitled to medical benefits in the amount of $3,200.00 for concussion treatment recommended by PiOT in an OCF-18 submitted November 18, 2021, and denied on December 2, 2021?

xiii. Is K.C. entitled to an expense payment in the amount of $116.91 for prescriptions and transportation expenses in an OCF-6 submitted February 6, 2022, and denied on March 7, 2022?

xiv. Is K.C. entitled to an expense payment in the amount of $260.00 for dental services in an OCF-6 submitted December 1, 2021, and denied on January 7, 2022?

xv. Is K.C. entitled to cost of examination expenses in the amount of $2,520.00 ($18,532.00, less $16,012.00 approved) for catastrophic assessments recommended by Omega Medical in an OCF-18 dated August 12, 2022, and denied on August 26, 2022?

xvi. Is Intact liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to K.C.?

xvii. Is K.C. entitled to interest on any overdue payment of benefits?

RESULT

4After reviewing both parties' submissions and all of the evidence, I find:

i. K.C. is not barred from proceeding with her claim for any of the benefits in dispute for failing to attend s.44 IEs.

ii. K.C. is entitled to $268.51 per week for IRBS for the time-period claimed, interest is payable.

iii. I find the ACB is partially reasonable and necessary in the amount of $1,791.14 per month, interest is payable.

iv. K.C. is entitled to the OCF-18 for assistive devices in the amount of 87.19, dated November 23, 2020, plus interest.

v. K.C. is not entitled to the remaining disputed OCF-18s, OCF-6., an award or costs.

ANALYSIS

K.C. is not barred from proceeding with the disputed benefits pursuant to s. 55 of the Schedule.

5Despite the fact that Intact raised the preliminary issue pursuant to s. 55, I find its submissions did not sufficiently address its position. While I note that K.C. initially failed to attend several s. 44 IEs, she did eventually attend, and Intact relied on the reports. Accordingly, I do not find the respondent has met its onus in proving that the applicant is barred from proceeding with her dispute regarding the aforementioned benefits for failing to attend s.44 IEs.

K.C. is entitled to an IRB payment of IRBs in the amount of $268.51 per week from August 7, 2020 to present.

6The method in which an IRB is calculated is outlined in s. 4 of the Schedule, and the first step is to establish an insureds gross annual or weekly income pursuant to s. 4(2) and 4(3) of the Schedule. Section 4(2) provides that the gross annual employment income of a person who was not self-employed is whichever of the following amounts the person designates: (i) the person's gross employment income for the four weeks before the accident, multiplied by 13; or (ii) the person's gross employment income for the 52 weeks before the accident.

7Section 4(3) applies to those who claim IRBs only on income from self-employment as outlined in section 5(1)2. Section 4(3) further provides that a self-employed person's weekly income or loss from self-employment at the time of the accident is the amount that would be 1/52 of the amount of the insured's income or loss from the business for the last completed taxation year.

8Section 7(3)(a) of the Schedule, allows the insurer to deduct from the amount of an income replacement benefit payable to an insured person, (a) 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit.

9The onus is on K.C. to demonstrate that the IRB quantum she seeks is payable. K.C. submits that Intact failed to include the Canada Emergency Response Benefit ("CERB") income that she received when she was not working due to CVID-19. Her position is that CERB is not deductible and a result, the IRB quantum that Intact relies on in its accounting report is erroneous. I agree.

10K.C. relies on this Tribunal's decision in Hordo and Hordo v CAA Insurance Company, 2022 CanLII 84691 (ON LAT) in support of her position. In Hordo, the insureds both received the CERB, as a result of work stoppage due to COVID-19. The requirements to qualify for the CERB include earning a minimum of $5000 per month (before taxes) in 2019 from employment income, self-employment income, or benefits related to maternity or parental leave. I find Hordo persuasive, as the circumstances of the applicant's receiving the CERB as income, is similar to the facts in the subject proceeding.

11Intact's argument is that K.C. should be subject to s. 4(3) of the Schedule, as her gross annual income is based entirely on self-employment and does not include the CERB payments, as it did not consider the CERB payments to meet the definition of "income" under s. 4(3). I accept that challenges to the interpretation of this section of the Schedule have been tested before at this Tribunal, Intact relies on V.H. v. Aviva Insurance Company of Canada, 2019 CanLII 130385 (ON LAT); and K.D. v. Aviva Insurance Company, 2020 CanLII 27383 (ON LAT)).

12In support of her claim, K.C. relies on the October 13, 2022 accounting report of Lipton Polisuk Inc., which confirmed her IRB payments should be $268.51 per week from August 7, 2020 to present. Pursuant to s. 4(2)(2)(i) of the Schedule, K.C.'s IRB quantum should be calculated based on the 52 weeks prior to the accident, including the CERB payments, as it was the income earned when she was unable to work during COVID.

13Whereas IRBs are directly connected to, and calculated with respect to, an insured's pre-accident earnings, CERB is not calculated with reference to income from employment. As CERB eligibility is not tied to employment status, it cannot be considered "gross employment income" under s. 4(1) because it is not analogous to "salary, wages and other remuneration from employment". Accordingly, as CERB is not considered "gross employment income", it cannot be deducted from an IRB under s. 7(3)(a) of the Schedule.

14I place more weight on K.C.'s accountant report, than that of Intact, which did not properly include the CERB payments, when it relied on its October 17, 2022 accounting report from BDO.

15As such, K.C. is entitled to an IRB payment of IRBs in the amount of $268.51 per week from August 7, 2020 to present.

KC is entitled to $1,791.14 per month for ACBs from March 20, 2021 to date and ongoing.

16Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable. The parties agree that K.C. requires ACBs but disagree on the amount.

17K.C. bears the onus of establishing, on a balance of probabilities, that she is entitled to the quantum of ACB claimed. K.C. relies on the Form 1 prepared by James Moorthy, occupational therapist ("OT") who recommended $2,781.87 of monthly ACBs. Intact relies on the Form 1 of Angela Sivananthan who recommended $984.16. I do not agree with all of the recommendations made by Mr. Moorthy and agree with some of the recommendations made by Ms. Sivananthan for the following reasons:

i. Under Level 1, Mr. Moorthy notes that K.C. requires assistance for 21 minutes per week dressing/undressing; 15 minutes using a razor; 35 minutes brushing/combing as required; 20 minutes cleaning/trimming toenails as required; and 840 minutes providing assistance in preparing, serving and feeding meals. Under Level 2, the Form 1 indicates K.C. needs assistance for 35 minutes per week for cleaning the bathroom; 35 minutes to change bedding/clean bedroom (notably, 1260 minutes are needed to ensure comfort, safety and security in the bedroom); and 60 minutes for assistance in co-ordinating/scheduling attendant care. Lastly, under Level 3, 105 minutes per week were recommended for assistance with exercise/stretching; bathing and drying after a bath/shower; and 70 minutes to ensure assistive devices are safe and secure;

ii. K.C. submits that as of February 2022, she relied solely on her daughters and husband to assist with her dressing/undressing; grooming; meal preparation; hygiene tasks; assistance with exercise; and maintenance of her devices. K.C.'s position is that Intact's September 23, 2022 Form 1 completed by occupational therapist, Ms. Sivananthan recommended 5 minutes less per week for toenails clean and trim, despite notes that her daughter provides assistance with her fingernail and toenail grooming daily (as indicated in Mr. Moorthy's Form 1). She further submits that the 75-minute decrease of time allotted to serving and feeding meals, does not ensure that healthy meals are prepared, and proper groceries are in the home; and

iii. Lastly, K.C. points to the zero recommended minutes to ensure her comfort and safety, compared to her February 17, 2021 Form 1, which recommends 180 minutes per day. Her position is that having a Personal Support Worker ("PSW") in her home to assist her with her day-to-day needs helps her to feel more secure and safe. K.C. points to an incident of fainting and falling down the stairs as further evidence of the need for assistance. Lastly, K.C. submits that the zero minutes allocated to ensuring assistive devices (cane and sunglasses) are safe and secure is reasonable, as she relies on these devices daily.

18In response, Intact relies on an April 9, 2021 denial letter, which advised K.C. that it felt the monthly amount was high and that a s. 44 IE was required. I note that IEs were scheduled to determine the ACB quantum, but K.C. failed to attend on two occasions. Intact paid the attendant care invoices (despite K.C.'s non-attendance) on March 7, 2022 (for the period of June 2021 to January 2022, for services provided by AJ Health Services, on February 16, 2022). I note that between June 2021 and February 14, 2022, K.C. incurred $8,190.24 in ACB services. In a September 23, 2022 IE report, occupational therapist, Angela Sivananthan determined that K.C. required $984.16 per month in attendant care services. On October 7, 2022, Intact advised K.C. that her ACB amount was reduced to $984.16 per month, effective November 1, 2022.

19In relying on the September 23, 2022 IE report, Intact position is that there is a differing of opinions as it relates to the three levels of K.C.'s attendant care needs. In addition, Ms. Sivananthan recommended 45 minutes per day, 7 days a week for feeding (due to the invoices showing that K.C. was using 120 minutes per day, for two visits a week); and the three hours per day recommended for comfort, safety and security under Level 3 (basic supervisory functions), was not considered reasonable and necessary, as it relates to the level of care in the bedroom (as indicated on Mr. Moorthy's Form I under "Bedroom Hygiene").

20Intact submits that the monthly quantum recommended by Ms. Sivananthan is inline with the incurred rate of approximately $700-$1000 per month. Intact further submits that the incurred rate is based on a service provider hourly rate of $32.00. I note that K.C.'s Form 1 indicates that she requires the maximum levels of care (Level 1 – personal care, Level 2 – supervisory functions; and Level 3 – complex and hygiene), which are rates of $14.90, $14.00 and $21.11 respectively. I disagree with Intact that the hourly rate of attendant care services is not in line with the rates allowable, as all three levels of care are addressed, and recommendations are made, by both Mr. Moorthy and Ms. Sivananthan at the rates indicated under the Professional Services Guideline. I do agree that the monthly amount recommended by Mr. Moorthy is not reasonable and necessary in its entirety.

21In order to better assess the competing Form 1s, the parties provided a comparison chart as follows:

Attendant Care	Section 25 Form 1	Section 44 Form 1	Average Incurred ACB
Level I ("LI")	Minutes/week	Minutes/week	4 hrs/day at 2x/week @ $32.00
Dressing/Undressing	42	42	6 mins/day
Grooming - Shaving - Hair care - Nail care	70 15 35 20	80 15 50 15	4 mins/day
Feeding	840	315	120 mins/day
L1 Fees - $14.90/hr	$1,016.58	$511.49
Level II ("LII")
Hygiene bathroom	35	35	5 mins/day
Hygiene bedroom	35	35	5 mins/day
Comfort/safety/security	1260	0	80 mins/day
Clothing care	0	35	0
Coordination of care	60	60	0
LII Fees - $14.00/hr	$1,394.63	$165.55
Level III ("LIII")
Exercise	105	105	10 mins/day
Medication administration	0	28	0
Bathing	70	70	0
Maintenance of supplies and equipment	70	0	10 mins/day
LIII Fees - $21.11/hr	$370.66	$307.12
Total	$2,781.87	$984.16

22In considering the competing Form 1s, I am persuaded by both Form 1s. I also find some of Mr. Moorthy's recommendations were supported by Ms. Sivananthan's report which notes that that K.C. has persistent post-concussive symptoms and superimposed chronic pain from fibromyalgia. Dr. Spevick opined that K.C.'s prognosis remains guarded, and that no further significant recovery is anticipated. Ms. Sivananthan noted several limitations when observing range of motion―standing while holding a cane for support, declining to engage in kneeling, walking while using a cane for support. There has also been a decline in her ability to carry and lift.

23K.C. also reported to Ms. Sivananthan that she is limited in meal preparation, requiring assistance with hygiene, dressing, other self-care tasks and limited with the duration of time that she was able to sit/stand (ranging from 5-11 minutes on observation). K.C. also reported neck, back, bilateral shoulder, hip, wrist, knee and ankle pain with movement. She has also consistently reported ongoing pain, which is confirmed by Dr. Spevick, her limitations have also been noted by Mr. Moorthy and Ms. Sivananthan.

24I find that some of the recommendations from both the s. 25 Form I and s. 44 Form 1 are reasonable and necessary. Specifically,

i. Under Level I, I agree with the s. 44 recommendation of 80 minutes/week (versus the 70 minutes recommended in the s. 25 Form 1) for grooming. Ms. Sivananthan recommends more time for grooming, which I agree is reasonable. I also agree with the 15 minutes versus 20 minutes for nail care, as there is no evidence that nail grooming is required on a daily basis;

ii. Under Level II, I find the 1260 minutes for comfort/safety/security is not reasonable and necessary for bedroom hygiene, and I agree with the 35 minutes for clothing care, as this amount was recommended by Ms. Sivananthan; and

iii. Under Level III, I agree with the 70 minutes based on Ms. Sivananthan's recommendation and the zero minutes recommended for maintenance of supplies and equipment as it pertains to storage of K.C.'s glasses and cane.

25I do not agree with Ms. Moorthy's recommendation that K.C. requires nail grooming on a daily basis, versus weekly., nor do I find she requires 1260 minutes per week recommended for bedroom hygiene, as K.C. did not submit persuasive evidence that she requires this assistance. In addition, K.C. was observed to safely transfer in and out of bed and I have not been directed to any evidence that any assistance is needed at night.

26Accordingly, I agree with Intact's proposed time allotments for nail grooming, comfort, safety and security (as it pertains to K.C.'s bedroom hygiene), and maintenance of assistive devices. However, I find the remaining recommendations of Mr. Moorthy are reasonable and necessary.

27Based on the evidence, I find that K.C. is entitled to the following ACB quantum (less any amounts paid during the period of March 20, 2021 ongoing) as follows:

	Total Minutes Per Week	Total Weekly Hours	Total Monthly Hours	Hourly rate	Monthly Care Benefit
Level I	1042	17.37	74.68	$14.90	$1,112.73
Level II	165	2.75	11.83	$14.00	$165.62
Level III	203	3.38	14.53	$21.11	$306.73
Total for Attendant Care Services					$1,585.08
Plus 13% HST					$206.06
Monthly total					$1,791.14

K.C. is entitled to $87.19 for the OCF-18 dated November 23, 2020 for psychological services

28Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

29The outstanding balance of the November 23, 2020 OCF-18 relates to the fee for the completion of the OCF-18. K.C. seeks $200 which is the maximum limit, Intact argues that the Professional Services Guideline provides that when an OCF-18 is completed by a chiropractic, the hourly rate for completion is $112.81.

30K.C. submits that Intact's December 17, 2020 denial letter was deficient, as it failed to specifically state that the Minor Injury Guideline ("MIG") applies and provide valid medical reasons. Notably, on January 25, 2021, Intact removed K.C. from the MIG, and partially approved the OCF-18.

31Intact submits that even if its December 17, 2020 notice was deficient, the subsequent January 25, 2021 notice cured any deficiencies. Further, it argues that there is no evidence that the chiropractor took more than one hour to complete the OCF-18, therefore, the $112.81 hourly rate for form completion was reasonable and necessary.

32I agree with K.C. that the balance of the OCF-18 is payable. First, I find the December 17, 2020 notice to be deficient. In the letter, the MIG references are boilerplate, and do not clearly explain or confirm its determination that K.C. remains under the MIG limit. I find Intact has not satisfied the requirements under s. 38(8) to provide the "medical and all other reasons" as to why it does not agree to pay for the treatment and assessment plan and that the MIG applies. Further, in the January 25, 2021 notice, there is no explanation provided as to how Intact was able to determine that the chiropractor took one hour to complete the form.

33Accordingly, I find that K.C. is entitled to $87.19 for payment of the balance of the OCF-18 dated November 23, 2020. My finding is based on Intact's deficient December 17, 2020 notice, pursuant to s. 38(11) of the Schedule and the lack of a clear and unambiguous explanation regarding the chiropractor in the January 25, 2021 notice.

K.C. is not entitled to $1,496.75 for the OCF-18 dated March 31, 2021 for occupational therapy

34The March 31, 2021 OCF-18 recommended x sessions of occupational therapy services in the amount of x. The goal of the OCF-18 was x, y and z. In its April 16, 2021 denial letter, Intact advised that It did not have compelling medical evidence that occupational therapy was required, and from a physical perspective, the medical records indicated the applicant had full range of motion.

35I note that the denial was reversed, and the OCF-18 was partially approved in a May 21, 2021 letter on the basis that K.C. had pre-existing injuries and sustained a tear in her glutes as a result of the accident. K.C. submits that the April 16, 2021 notice was deficient, as at the time of the denial, K.C. was removed from the MIG from a physical and psychological perspective. Her position is that Intact's initial denial in the April 16, 2021 letter, was after she was removed from the MIG.

36Intact argues that it requested that K.C. and/or the treatment provider provide further explanation as to why the coordination of services was necessary for the proposed treatment. It points to the portions of the OCF-18 that were denied―$897.72 for the coordination of services; $299.28 for the preparation of session notes; $199.50 for review of medical files and records; and $99.75 for documentation of claim form, submitting that pre- and post-preparation of services are included in the hourly rate in the Professional Services Guideline, which it argues were covered in the partial approval.

37I agree with Intact that K.C. has not demonstrated that the balance of the March 31, 2021 OCF-18 is not reasonable and necessary for several reasons. First, although K.C. submits that Intact subsequently approved an OCF-18 for the coordination of services, this was based on a s. 44 report from Dr. Spevick, which Intact did not have at the time it considered the March 31, 2021 OCF-18. K.C. does not direct me to any evidence that supports that the balance of this OCF-18 should be approved. Second, I find that the treatment provider has not provided (nor have I been directed to) an explanation of why, at the time, the coordination of services was necessary for the proposed treatment. Lastly, K.C. has not met her onus on a balance of probabilities to establish that the balance of the OCF-18 is reasonable and necessary, as she has not directed me to persuasive evidence that the cost of the denied portions is reasonable.

K.C. is not entitled to the OCF-18 dated June 24, 2021 in the amount of $966.55 for assistive devices

K.C. is not entitled to the OCF-18 dated November 23, 2020 in the amount of $363.21 for chiropractic treatment and assistive devices

K.C. is not entitled to the OCF-18 dated June 28, 2021 in the amount of $1,091.73 for orthotics

38K.C. is not entitled to the OCF-18s in dispute.

39Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will and will not pay for and provide the medical and all other reasons for its decision.

40Pursuant to section 38(11), if an insurer fails to comply with ss. (8) requirements, it is prohibited from taking the position that the MIG applies and "shall pay" for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

41The June 24 and 28, 2021 OCF-18s are for assistive devices and orthotics, respectively. The November 2020 OCF-18 is for chiropractic treatment and assistive devices.

42K.C. submits that the notices (December 11, 2020, July 3, 2021, and July 8, 2021) denied the recommended assistive devices and treatment but failed to provide valid medical reasons for doing so. Pursuant to s. 38(8), Intact did not mention any of the medical reasons when denying the OCF-18s, which K.C. submits is contrary to its obligations.

43In response, Intact argues that K.C. failed to attend s. 44 IEs until May 10 and June 22, 2022. In a letter dated September 1, 2021, Intact informed K.C. that she was not entitled to the claimed benefits as a result of failing to attend the IEs which had been rescheduled twice. Intact's position is that K.C. cannot fail to attend s. 44 IEs and then argue that it unreasonably withheld her benefits. I note that K.C. did not address the issue of non-attendance in her initial or reply submissions. Intact's position is that K.C. has not established that the OCF-18s are reasonable and necessary, or that she has incurred the treatment plans during the "shall pay" period.

44I agree with Intact that K.C. has not established that the OCF-18s are reasonable and necessary.

45In denying the June 2021 OCF-18s, Intact relied on the s. 44 IE report of Ms. Sivananthan, who found that K.C. had suffered soft tissue injuries as a result of the accident. Ms. Sivananthan opined that these injuries did not require the recommended treatment as K.C. had demonstrated independence with her personal care.

46Regarding the November 2020 OCF-18, notably, Intact approved a cervical foam pillow and back support on January 26, 2021, which K.C. has yet to incur. I agree with Intact that this would be a duplication of goods that is not reasonable and necessary.

47Turning to the OCF-18 for orthotics, K.C.'s feet issues were pre-existing. In a clinical note entry dated January 11, 2016, Dr. Keesal, family physician, noted that K.C. had swollen feet. In a July 20, 2017 entry, Dr. Keesal noted weakness in the left foot. I note that while the OCF-18 for the orthotics advises Intact to review the Attendant Care Assessment for an explanation on the orthotics, there is no such explanation in the assessment. Lastly, K.C. discusses her pain issues, however, there is no explanation of how the assistive devices will provide pain relief.

OCF-18 dated January 18, 2022 in the amount of $2,460.00 for a neurological assessment

48The January 18, 2022 was approved in November 2022. I note that while the parties did not address whether the issue was withdrawn, based on the evidence, I concluded that the January 18, 2022 OCF-18 is not in dispute.

K.C. is not entitled to the balance of the OCF-18 dated October 21, 2021 for psychological services

K.C. is not entitled to the balance of the OCF-18 dated July 21, 2021 for psychological services

K.C. is not entitled to the balance of the OCF-18 dated November 18, 2021 for concussion treatment

49The sole issue in dispute with respect to these three OCF-18s is the balance of the partially approved form completion fees. For the reasons to follow, I find the balance of the OCF-18s for form completion fees are not reasonable and necessary.

50In addressing the partial approvals, K.C. submission is limited to, "the respondent has previously approved these amounts in its original approval letter, so there is no reason why it should be denied on the subsequent treatment plans." K.C. offers no other argument or evidence in support of her position that the balances of the OCF-18s are reasonable and necessary.

51Regardless of what may have been previously approved, K.C. has not demonstrated that the balance of the fees is reasonable and necessary. Intact relies on the provision that as a chiropractor completed the forms, and no explanation of whether more than an hour was spent completing the forms, it was reasonable to pay the $112.22 hourly rate for a chiropractor, under the Professional Services Guideline.

52K.C. does not address Intact's position on the hourly rate, only to posit that due to ongoing pain, the OCF-18s are reasonable and necessary. While I agree that K.C. has various ongoing pain issues, this does not address the balance of the denials. The onus remains on K.C. to demonstrate that the costs associated with the OCF-18 are reasonable. Having fallen short of addressing the specific issue of the partial denials, I find that K.C. has not met her onus. Accordingly, I find the balances of the October 2021, July 2021, and November 18, 2021 OCF-18s are not reasonable and necessary.

K.C. is not entitled to the OCF-18 dated October 6, 2021 in the amount of $3,654.32 for chiropractic treatment and massage therapy

K.C. is not entitled to the OCF-18 dated February 6, 2022 in the amount of $116.91 for prescriptions and transportation expenses

53K.C. submits that Intact failed to properly respond to the October 6, 2021 OCF-18, claiming that the notice did not mention any of the injuries or pre-existing injuries. Her position is that this deficiency was "confusing to an unsophisticated person" on account of suffering a tear and other physical impairments.

54In response, Intact argues that its October 18, 2021 denial was not deficient. Its position is that the notice outlined that the OCF-18 was being referred to a s. 44 IE and a second opinion was required. It further submits that K.C. has not incurred any of the goods and services during the "shall pay" period.

55I find that Intact's notice was not deficient. First, the initial notice of October 18, 2021, indicated that a second opinion is required to determine if the OCF-18 is reasonably required, given the amount of time that had passed since the accident. Second, Intact also referred to the medical evidence, when it noted that CT scans in the most recent clinical notes and records indicated that the K.C. did not sustain any serious injuries that would require future physical treatment. Third, it indicated that it could not consider the OCF-18 until it received the s. 44 IE report, which was delayed due to K.C. not attending until April 21, 2022.

56I find that Intact could not have provided any further medical or other reasons, without having first obtained the opinion of its assessor, in order to provide medical and other reasons why it did not agree to pay the OCF-18. Further, it could not have provided those same reasons in a timelier manner due to the delay of K.C.'s attendance at the IE.

57In addressing whether the OCF-18 was reasonable and necessary, K.C. submits that treatment was recommended by the family physician in a prescription dated December 23, 2021 due to rotator cuff tendinopathy and chronic back pain. I agree that pain relief is a reasonable goal of an OCF-18; however, K.C.'s submissions stop short of demonstrating that the treatment goals are reasonable, that the goals will be met to a reasonable degree, or that the cost of achieving the goals are reasonable.

58While I appreciate that she suffered significant injures as a result of the accident, her sole argument that the family doctor recommended the treatment, falls short of meeting the reasonable and necessary test. More is required than submissions that reiterate a recommendation from a treatment provider. Submissions are not evidence, and K.C.'s submissions fail to address the three elements of the reasonable and necessary test. Mentioning ongoing pain in submissions is also not demonstrative of how the claimed treatment is reasonable and necessary.

59Regarding the balance of the OCF-6 for prescriptions and parking, I find that this expense is not reasonable and necessary.

60K.C.'s submissions are limited to a single comment, that her family physician recommended a support person to accompany her during appointments due to her limitation in mobility. I find this submission falls well short of meeting the reasonable and necessary test. Further, the prescriptions and parking appear to be related to her carpal tunnel syndrome surgery, which is not accident related. K.C. does not refute Intact's position that the balance appears to be for non-accident-related expenses, therefore, I see no reason to interfere with Intact's determination.

K.C. is not entitled to $260.00 for dental services

61K.C.'s submissions fail to address the issue, and therefore she has not demonstrated that the OCF-6 is reasonable and necessary.

62Intact relies on the September 13, 2022 s. 44 dental report of Dr. Magder in support of its determination. Dr. Magder concluded that an over-erupted tooth with deep mesial decay into the pulpal area on tooth 17 occurred. Dr. Magder opined that this was not as a result of the accident.

63K.C. has not directed me to any evidence that supports that the tooth issue was as a result of the accident. I agree with Intact that the OCF-6 is not reasonable and necessary and therefore not payable.

K.C. is not entitled to the balance of the OCF-18 dated August 12, 2022 for catastrophic assessments

64K.C. submits that the partial denial of the August 12, 2022 OCF-18 was deficient as no medical reasons were provided. She relies on the Tribunal's decision in O.A. v. TD Insurance Meloche-Mennox. 2020 CanLII 87965 (ON LAT), where the adjudicator determined that the comprehensive file review in the amount of $2,000.00 was reasonable and necessary as it would be required before making a catastrophic impairment determination under separate criterion. K.C.'s position is that the August 12, 2022 OCF-18 included he same comprehensive file review, yet Intact only partially approved the OCF-18, denying the "file review" portion of the OCF-18.

65Intact argues that it partially approved seven out of the eight requested catastrophic assessments in the August 26, 2022 notice. In denying the intake and triage assessment, Intact argues that its notice complied with the requirements under s. 38(8) and that the denied portion of the OCF-18 was duplicative. Its position was that the comprehensive file review is included in the assessment, and therefore, a separate claim for payment for a file review is not reasonable and necessary.

66I agree with Intact. The notice discussed the recommended assessments in the OCF-18, and confirmed what was approved, and what was denied. Further, the reason for denial was provided, in that, it was unclear why an additional assessment for intake and triage would be reasonable and necessary. Its position is that the OCF-18 does not explain why an intake and triage assessment would be reasonable and necessary or what the intake and triage assessment was.

67Intact relies on case law of this Tribunal where it has been determined that intake and triage assessments are a duplication of services and not reasonable and necessary. For example, this was determined in C.A. v. Intact Insurance Company, 2018 CanLII 130861 (ON LAT) (at paras 50-51); and Wu v Aviva General Insurance, 2022 CanLII 92741 (ON LAT) (at paras 10-14). It also points to additional case law that has determined that a file review does not constitute an independently billable task (Z.J. v Aviva Insurance Company of Canada, 2020 CanLII 37597 (ON LAT), at paras 32-33) ("Z.J."); and Banh v Aviva Insurance Company, 2022 CanLII 78907 (ON LAT), at paras 31-40) ("Banh").

68While I am not bound by this Tribunal's decisions, I find the Z.J. and Banh decisions persuasive for several reasons. First, in both Z.J. and Banh, the adjudicators relied on s. 25(1)(5) of the Schedule, which specifies that the insurer is not obligated to pay more than a total of $2,000.00 in respect of fees and expenses for "conducting any one assessment or examination" and for preparing reports in connection with it. A file review is a necessary component of an assessment and cannot be billed as an additional fee. Second, I agree with Intact that the OCF-18 is not clear as to what the intake and triage assessment is intended for, especially where the remaining assessments that were approved, were for the purpose of determining the extent of K.C.'s accident-related injuries. Lastly, I find the intake and triage assessment is a part of the process of preparing reports and find that the Schedule does not allow for a separate charge where the language of s. 25(5)(a) provides that the fee for an assessment is a maximum of $2,000.00, including preparing reports in connection with the assessment. I agree with Intact that the intake and triage assessment is duplicative and therefore not payable.

Interest

69Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

70Having determined that the IRB, ACB, and the November 23, 2020 OCF-18 are payable, interest is owing in accordance with s. 51 of the Schedule.

AWARD

Removal from the MIG

71K.C. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

72K.C. submits that Intact ignored the medical evidence in its possession and control to maintain that her injuries were minor. In this regard, she refers to the clinical notes and records of her family physician, Dr. Hwang, Dr. Keesal, rheumatologist, and other medical records, which note that she suffered from pre-existing pain symptoms, which were aggravated by the accident. K.C. further submits that Intact was aware that she was diagnosed with fibromyalgia, a concussion and suffered a tear, but it kept her in the MIG. K.C. also posits that Intact unreasonably delayed payment and despite maintaining that s. 44 attendance was required, Intact approved occupational therapy services and removed her from the MIG without attending IEs.

73Her position is that it took Intact approximately six months to remove her from the MIG, despite the compelling medical evidence. Further, that due to improper notices and unreasonable denials, K.C. has incurred $5,315.81 in treatment.

74Intact submits that there was a delay (but does not concede that the delay was unreasonable) in removing K.C. from the MIG. It points to several factors which impacted the timing, as follows:

i. August 26, 2020 - OCF-1 received;

ii. November 26, 2020 - OCF-3 dated September 9, 2020 received;

iii. October 21, 2020 – Intact began requesting medical documentation;

iv. December 11, 2020 – Intact received the medical records of Dr. Keesal;

v. December 15, 2020 – Intact received the medical records of Dr. Hwang (post-accident entries were received);

vi. December 17, 2020 – follow up for additional medical records

vii. January 6, 2021, Intact received the Humber River Hospital records; and

viii. January 26, 2021 – K.C. removed from the MIG.

75Intact submits that it was entitled to review medical records where it was advised that K.C. had pre-existing degenerative disease. Its position is that it is within its right to review corroborative evidence to make a determination on entitlement to benefits beyond the MIG. It further submits that it did not make any requests for s. 44 IEs in order to remove K.C. from the MIG. It points to the evidence that shows it made a s. 33 request for medical records and removed her from the MIG on that basis.

76I agree with Intact and find that it did not delay in removing K.C. from the MIG on a timely basis. My finding is based on the timing of the application process, where the OCF-1 was received on August 26, 2020, the OCF-3 was received on November 26, 2020, and the relevant medical records were received in December 2020. Further, upon review of Intact's approvals of benefits, even if it could be argued that it should have removed K.C. from the MIG the day it received the first medical records on December 11, 2020, the only OCF-18s that were denied between that time were the OCF-18dated November 23, 2020 in the amount of $3,754.54, which it re-addressed and partially approved on January 26, 2021 and the OCF-18, dated November 23, 2020 in the amount of $2,226.00, which was partially approved on January 25, 2021.

IRB

77Additionally, K.C. submits that Intact's actions in addressing the IRB constitutes an unreasonable delay and withholding. In this regard, she submits that the timeliness of the report was deficient, as it was not delivered until after K.C.'s report was served, and it has not paid any monies for IRBs despite its report confirming that she is entitled to at least $195.00 per week in IRBs.

78Intact's objection to K.C.s position regarding the IRBs is based on the timeliness of her claim. It submits that K.C. maintained she was entitled to a non-earner benefit ("NEB"), not an IRB, and had refused to provide income documentation in order for the quantum to be calculated, despite numerous s. 33 requests. Intact also relies on its correspondence advising K.C. of its position that she was entitled to an IRB on four separate occasions. K.C. continued to maintain that she was entitled to a NEB and refused to attend s. 44s in order to determine her IRB eligibility.

Based upon the facts before me K.C. has not proven that Intact acted unreasonably responding to her claims for an IRB.

ACB

79K.C. submits that she incurred $8,180.24 in ACBs which she alleges were not paid for over nine months after the initial services were completed. Her position is that Intact unreasonably withheld payment of the ACB.

80Intact argues that the timelines of when documents were produced must be considered. To this end, it points to the fact that it was not sent ACB invoices until February 2022. It submits that there was no delay in the payment of the ACB invoices, and it is not required to pay for services without receiving an invoice.

81I agree with Intact. On the evidence, K.C.'s allegations are not supported, and in fact are easily refuted when the timelines are considered. Despite K.C.'s actions (late productions, failure to attend IEs), Intact still chose to act in good faith and provide payment for services. Notably, despite refusing to attend s. 44 IEs on more than one occasion, Intact paid the outstanding invoices upon receipt.

82K.C. submits that the improper denials and reliance on "deficient" IE reports resulted in delays in receiving reasonable and necessary treatment, and as such, an award should be granted.

83In response, Intact maintains that its denials were not deficient, and that where the Tribunal may have found deficiencies, same was addressed as soon as reasonably possible.

84Having found that K.C. is entitled to only one of the disputed OCF-18s, I find that Intact's actions do not satisfy the threshold of unreasonable withholding or delaying in payment of the claimed OCF-18s. No award is payable.

COSTS

85Under Rule 19.1, a party may request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. A cost award under Rule 19 is a discretionary remedy that is made in exceptional circumstances. A cost award is meant to deter and penalize behaviour that goes against the spirit of the resolution process. To receive an award under Rule 19, there must be sufficient evidence that the other party has conducted themselves in the proceeding in a way that is unreasonable, frivolous, vexatious or in bad faith.

86I find that K.C. is not entitled to costs.

87I refer to my comments in paragraphs 64 and 72 above, that K.C. was primarily responsible for the delay in her claims for the various benefits. Specifically, late filing of the forms to commence the claim process, failure to produce reasonably required documents pursuant to s. 33, failure to attend s. 44 IEs, late filing of the accountant report (and supporting documentation) and, maintaining her claim for the NEB she was not entitled to. These actions fall far short of warranting a cost award based on her allegations against Intact.

88Finally, a cost award is based on a party's actions during the course of the proceeding. As this was a written hearing, I was not directed to any evidence of conduct during the course of the proceedings that would support an order for costs.

89For the reasons set out above, I find that Intact has successfully defended its position; that K.C.'s actions negate her claim for costs. Accordingly, I find that K.C. is not entitled to costs.

ORDER

90K.C. is entitled to IRBs in the amount of $268.51 per week for the period of August 7, 2020 ongoing. Interest is payable.

91The ACB is partially reasonable and necessary, in the amount of $1,791.14 per month for the period of March 20, 2021 ongoing. Interest is payable.

92K.C. is entitled to funding for the November 23, 2020 OCF-18 in the amount of $87.19, interest is payable.

93K.C. has not met her onus to establish, on a balance of probabilities, that the remaining OCF-18s and OCF-6 are reasonable and necessary. No interest is payable.

94K.C. is not entitled to an award or costs.