Su v. The Dominion of Canada General Insurance Company, 2024 CanLII 123342

Citation: Su v. The Dominion of Canada General Insurance Company, 2024 ONLAT 22-013999/AABS

Licence Appeal Tribunal File Number: 22-013999/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:

Yan Fei Su

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

SUBMISSIONS BY:

For the Applicant: Ryan Olson, Paralegal

For the Respondent: Jeffrey Wong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yan Fei Su, the applicant, was involved in an automobile accident on June 25, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to the treatment proposed by Total Recovery Rehab Centre as follows: i. $590.00 ($4,115.12 less $3,524.12 approved) for physiotherapy services, active therapy, massage therapy, travel time, and a progress report, in a treatment plan dated June 29, 2022? ii. $1,648.62 ($4,381.70 less $2,733.08 approved) for physiotherapy, active therapy, massage therapy, travel time, progress report, assistive devices and delivery fees, in a treatment plan dated August 3, 2022? NOTE: the amount in dispute was originally listed in the August 2, 2023 Case Conference Report and Order (“CCRO”) as $3,981.71 and was amended in the applicant’s submissions. iii. $2,200.00 for physiotherapy services, in a treatment plan dated October 27, 2022? iv. $4,383.90 for chiropractic services, exercise/strength and balance training, acupuncture, travel assistance and a progress report, in a treatment plan dated November 9, 2022?

2. Is the applicant entitled to the treatment proposed by Somatic Assessment & Treatment Clinic as follows: i. $1,047.20 ($3,701.74 less $2,654.54 approved) for psychological services, in a treatment plan dated July 27, 2022? ii. $1,047.20 ($3,701.74 less $2,654.54 approved) for psychological services, in a treatment plan dated November 22, 2022? iii. $1,047.20 ($3,701.74 less $2,654.54 approved) for psychological services, in a treatment plan dated April 21, 2023?

3. Is the applicant entitled to attendant care expenses as follows: i. $316.40 per month for July and August 2022? ii. $377.85 for November 2022? NOTE: the amount in dispute was originally listed as $593.25 in the CCRO and was amended in the applicant’s submissions. iii. $180.91 ($197.75 less $16.84 approved) for December 2022 and February 2023? iv. $361.83 ($395.50 less $33.67 approved) from March 1, 2023 to date and ongoing?

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

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

4In his submissions, the applicant withdrew the following issues that were listed in the CCRO:

1. $96.46 for medication submitted on an OCF-6, dated October 28, 2022;
2. $24.66 for medication submitted on an OCF-6, dated November 16, 2022;
3. $20.45 for medication submitted on an OCF-6, dated December 19, 2022;
4. Attendant care benefits in the amount of $1,080.06 for September 2022; and
5. Attendant care benefits in the amount of $233.23 ($395.50 less $162.27 approved) for October 2022.

RESULT

5The applicant is not entitled to the treatment plans in dispute, attendant care benefits, interest or an award. The application is dismissed.

ANALYSIS

The applicant is not entitled to the treatment plans prepared by Total Recovery Rehab Centre (“TRRC”)

a) The applicant is not entitled to the unapproved portion of the June 29, 2022 treatment plan

6I find that the applicant has not proven on a balance of probabilities that the unapproved portion of the June 29, 2022 treatment plan is reasonable and necessary.

7To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.

8The applicant claims entitlement to $590.00 ($4,115.12 less $3,524.12 approved) for the unapproved portion of the treatment plan prepared by TTRC, dated June 29, 2022. The treatment plan seeks the following:

i. Assessment (examination), total body - $200.00 ii. Physiotherapy multiple body sites – 1 hour, 16 sessions - $1,596.00 iii. Active therapy, multiple body sites - .5 hour, 16 sessions - $798.08 iv. Massage therapy, multiple body sites – 1 hour, 16 sessions - $798.08 v. Travel Assistance - provider travel time, provider to treatment – 1 hour, 16 sessions - $240.00 vi. Progress Report - documentation, support activity – 1 hour - $350.00

9The denied portions of the treatment plan were $240.00 for travel assistance and $350.00 for the progress report.

10The applicant submits that the treatment plan in dispute is reasonable and necessary because she has numerous pain complaints and the physiotherapy treatments have been helpful in relieving her pain symptoms. She submits that the goals of the treatment plans are pain relief and increased range of motion. The applicant relies upon the clinical notes and records (“CNRs”) of Dr. Kris Cheng, family doctor, to support her consistent complaints of pain. The applicant further relies upon the In-Home Occupational Therapy Assessment completed by Mr. Raymond Wong, occupational therapist, on July 6, 2022, and his subsequent assessment on June 1, 2023, to support ongoing physical limitations.

11The applicant submits that the services in the treatment plan are reasonable and necessary. She has not provided any submissions with regards to the transportation or the documentation expenses.

12The respondent submits that with respect to the request for travel assistance, s. 3(1) of the Schedule states that insurers are not liable to pay transportation expenses for the first 50 km of a trip. The respondent submits that the applicant has not provided any evidence to support that her travel distance would exceed the 50km deductible. The respondent further submits that the CNRs of Dr. Cheng, family doctor, dated July 7, 2022 and August 15, 2022, show that the applicant was able to travel outside of her home for her appointments and there was no discussion of any mobility issues preventing in-clinic treatment.

13The respondent submits that with respect to the disputed documentation expense, the Tribunal has consistently found that progress reports are not necessary because such information can be provided in subsequent treatment plans. It further submits that the Tribunal has found that documentation/support activity is not required because such planning fees are duplicative and are already covered in the fee to complete the treatment plan: see, J.A. v. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT) (“J.A.”) at para. 25 and Murray v. Economical Insurance Company, 2023 CanLII 77303 (ON LAT) (“Murray”) at paras. 41-43. The respondent also relies upon the FSCO Superintendent Guideline No. 03/14 which states that a provider’s maximum hourly rate includes “expenses related to professional services” which includes “all administration costs, overhead, and related costs, fees, expenses, charges and surcharges.”

14I agree with the respondent that the applicant is not entitled to the transportation costs because she has provided no evidence or submissions to support that these expenses are reasonable and necessary. In addition, there is no obligation for an insurer to pay travel time for services providers in the Schedule.

15I am also persuaded by the decisions in J.A. and Murray and agree with the respondent that the applicant is not entitled to the documentation expense because these costs are unnecessary and/or duplicative.

16For the reasons set out above, the applicant is not entitled to the unapproved portion of the June 29, 2022 treatment plan.

b) The applicant is not entitled to the unapproved portion of the treatment plan, dated August 3, 2022?

17I find that the applicant has not proven on a balance of probabilities that the unapproved portion of the August 3, 2022 treatment plan is reasonable and necessary.

18The applicant claims entitlement to $1,648.62 ($4,381.70 less $2,733.08 approved) for the unapproved portion of the treatment plan prepared by TTRC, dated August 3, 2022. The treatment plan seeks the following:

i. Reassessment – $200.00 ii. Physiotherapy multiple body sites – 1 hour, 16 sessions - $1,596.00 iii. Active therapy, multiple body sites – 30 mins, 16 sessions - $798.08 iv. Massage therapy, multiple body sites – 1 hour, 16 sessions - $931.04 v. Travel Assistance – 1 hour, 16 sessions - $240.00 vi. Progress Report – 2.25 hours - $224.44 vii. Memory Foam Pillow – $117.50 viii. Back belt – $74.65 ix. TENS unit –$139.99 x. Delivery of devices – $60.00

19By letter dated March 18, 2024, the respondent agreed to fund the following goods and services:

i. OCF-18 documentation and assessment fee - $200.00 ii. Physiotherapy – 1 hour x 16 sessions - $1,596.00 iii. Active therapy – 30 mins x 16 sessions - $798.08 iv. TENS Unit Accessories - $139.99.

20The respondent did not agree to fund the following goods and services:

i. Massage therapy - $931.04 ii. Provider travel/travel assistance - $240.00 iii. Documentation support activity - $224.44 iv. Hyperthermy - $177.50 v. Cane - $74.65 vi. Delivery of devices - $60.00

21With respect to the denied goods and services, the respondent provided the following reasons in its letter dated March 18, 2024.

1. Massage Therapy: The respondent advised that it was unable to approve the massage therapy sessions because the treatment plan lists the provider for massage therapy as Ahmed Affifi, physiotherapy. There was no information to confirm who would be providing the massage therapy of if that person was qualified to perform massage therapy. The respondent requested the name of the proposed provider so that the service could be further considered.
2. Travel assistance: The respondent advised that the treatment plan states that travel assistance was requested due to the applicant’s ability to drive on her own due to physical and psychological accident-related injuries. The respondent noted that the applicant did not have a driver’s licence, which would be considered the reason why she cannot drive. The travel distance between the clinic and her home is 450 metres. Transportation is only payable beyond the first 50 kms roundtrip.
3. Progress report: The respondent advised that the clinic had not submitted a progress report to date and therefore the proposed cost was denied.
4. Hyperthermy: The respondent advised that the clinic submitted the proposed service at a rate per task or visit and had not outlined the duration of the services in hours/minutes. The respondent can therefore not ensure that they are being billed in compliance with the rates set out in the FSCO Guidelines. The respondent requested that the clinic provide this information so the service could be further reviewed.
5. Cane: The respondent denied funding for the cane based on Dr. Urovitz’ IE orthopaedic report, dated October 18, 2022, which opined that the cane was not required. It also relied on Dr. Roy Baskind’s IE neurological report, dated October 18, 2022. Dr. Baskind noted that the applicant was able to move unassisted and her gait was symmetrical.
6. Delivery of devices: The respondent agreed to fund the delivery fee of $60.00 upon confirmation from TRRC that the devices were delivered to the applicant and the invoices for such devices were provided.

22I find that the applicant did not provide a response to the respondent’s letter dated March 18, 2024, and did not respond to the information requested by the respondent in order to approve additional funding. I find that the information requested by the respondent in order to properly assess the goods and services in the treatment plan was reasonable. The applicant has not provided any reply submissions to address her failure to provide a response to the letter dated March 18, 2024.

23The applicant submits that the massage therapy and progress report that were denied by the respondent, are reasonable and necessary given the severity of the applicant’s injuries. The applicant submits that the massage and active therapy provided by TRRC has resulted in improvements in her physical and pain symptoms.

24I find that the applicant has not provided sufficient evidence to support that the denied items in the treatment plan are reasonable and necessary. The applicant’s submission that the treatment is reasonable and necessary because of the severity of her injuries is not medical evidence of the efficacy of the goods and services recommended. The applicant has not provided evidence or submissions as to why the unapproved portions of the treatment plan are reasonable and necessary and therefore, she has not met her onus.

25For the reasons set out above, the applicant is not entitled to the unapproved portion of the August 3, 2022 treatment plan.

c) The applicant is not entitled to the treatment plan, dated October 27, 2022

26I find that the applicant has not proven on a balance of probabilities that the treatment plan, dated October 27, 2022 is reasonable and necessary.

27The applicant claims entitlement to $2,200.00 for physiotherapy services, submitted in the treatment plan prepared by TTRC, dated October 27, 2022.

28The applicant did not provide the Tribunal with a copy of this treatment plan and she did not make any specific submissions about whether this treatment plan is reasonable and necessary. Therefore, I find that I am unable to assess whether this treatment plan is reasonable or necessary based on the medical evidence submitted.

29For the reasons set out above, the applicant is not entitled to the treatment plan dated October 27, 2022.

d) The applicant is not entitled to the treatment plan dated November 9, 2022

30I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan dated on November 9, 2022.

31The applicant claims entitlement to $4,383.90 for chiropractic services in the treatment plan prepared by TTRC, dated November 9, 2022. The treatment plan seeks the following:

i. Reassessment - $200.00 ii. Chiropractic treatment – 1 hour, 16 sessions - $1,804.96 iii. Exercise/strength and balance training – 30 mins, 16 sessions - $902.56 iv. Acupuncture – 30 mins, 16 sessions - $902.56 v. Travel assistance – 1 hour, 16 sessions - $320.00 vi. Progress report – 2.25 hours - $253.82

32The applicant submits that the treatment plan dated November 9, 2022, is reasonable and necessary because the recommendations for treatment are supported by the recommendation of her family physician, Dr. Cheng, to continue physiotherapy and massage therapy. The applicant further submits that the treatment plan was denied based on the IE orthopaedic report of Dr. Urovitz dated October 18, 2022, and there are limitations in this report.

33The respondent submits that the treatment plan is not reasonable and necessary and relies upon the IE orthopaedic report of Dr. Urovitz, dated October 18, 2022. The respondent further submits that the treatment plan is not reasonable and necessary due the applicant’s unreliable self-reporting of her limitations and the surveillance reports which show the applicant to be quite active.

34I find that the treatment plan in dispute recommends chiropractic treatment, exercise and acupuncture. I do not give weight to the CNRs of Dr. Cheng to support that the treatment plan is reasonable and necessary. I find that the first mention of a recommendation for physiotherapy was in the CNR dated March 16, 2023. There are no recommendations for chiropractic treatment, exercise, or acupuncture in the CNRs of Dr. Cheng.

35I find the IE orthopaedic report of Dr. Urovitz, persuasive, as it is the only medical report that has provided an analysis of the applicant’s condition and whether the treatment plan in dispute is reasonable or necessary. While the applicant has stated that the report has limitations, the specifics of these deficiencies have not been addressed by the applicant in her submissions.

36I find that the applicant has not pointed me to sufficient evidence to support that the applicant required the services set out in the treatment plan dated November 9, 2022. She has not met her onus of proving that the treatment plan is reasonable and necessary.

37As an alternative argument, the applicant submitted that she is entitled to the disputed treatment plan because the respondent’s denial did not comply with the requirements in s. 38(8) of the Schedule. The applicant submits that the respondent failed to comply with s. 38(8) of the Schedule as the reasons provided by the respondent for the denial of this treatment plan were “overly broad, vague and does not allow the applicant to fully understand why the treatment plan is being denied.” The applicant submits that the denial letter ignores the significant pain complaints and limitations shown throughout the applicant’s medical records and the IE assessment reports.

38Section 38(8) of the Schedule provides that an insurer shall respond to a treatment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does not agree to pay for. The insurer must provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.

39Upon review of the denial letter dated November 22, 2022, I find that the respondent properly set out the medical and other reasons for the denial by quoting the opinions of Dr. Urovitz and referring to the CNRS of Dr. Cheng and Mackenzie Richmond Hill Hospital.

40For the reasons set out above, I find that the applicant is not entitled to the treatment plan, dated November 9, 2022.

The applicant is not entitled to the unapproved portion of the treatment plans prepared by Somatic Assessment & Treatment Clinic (“SATC”)

41I find that the applicant has not proven on a balance of probabilities that the unapproved portion of the treatment plans dated July 27, 2022, November 22, 2022 and April 21, 2023 are reasonable and necessary.

42The applicant claims entitlement to the balance of three treatment plans dated July 27, 2022, November 22, 2022, and April 21, 2023 in the amount of $1,047.20 ($3,701.74 less $2,654.54 approved), prepared by SATC. The three disputed treatment plans are identical treatment plans in the amount of $3,701.74. All three of the disputed treatment plans were each approved for psychological treatment sessions, documentation and a progress report in the amount of $2,654.54. The only issues in dispute in each treatment plan are as follows:

i. “Brokerage, service” for communication with others - $523.60 ii. “Planning, service” for ongoing modification of treatment at each treatment session - $523.60

43The applicant submits that the brokerage and planning fees in the treatment plans in dispute are reasonable and necessary. The fees include communication and consultation with the client, team members, as well as a medical file review to determine whether modification of treatment is necessary. The applicant submits that these services are not simply administrative in nature and serve an important role in ensuring the applicant receives the treatment she needs. The applicant relies upon the IE psychiatry assessment report of Dr. Susan Mackenzie, dated September 29, 2022 which concluded that the psychological treatment plan dated July 27, 2022 was reasonable and necessary.

44The respondent submits that the applicant’s reliance on the report of Dr. Mackenzie to support the reasonableness and necessity of the administrative costs in the treatment plans is erroneous. The respondent submits that no where in her report does Dr. Mackenzie directly address the reasonableness of the administrative costs related to the treatment plan, as Dr. Mackenzie only opined about the number of psychological sessions recommended and the costs of same. In addition, there is no mention by Dr. Mackenzie as to why additional “planning, service” and “brokerage, service” fees would be reasonable and necessary.

45The respondent further submits that it is established law, that “planning, service” fees are of an administrative nature and not ordinarily found reasonable and necessary. The respondent submits that funding sought to modify treatment after each session is plainly excessive considering that there is approval to complete the treatment plan form and for progress reports. The respondent submits that the reasonableness of “brokerage, service” fees for communication with others depends on factors like the complexity of treatment and the providers involved. The respondent submits that the treatment plans in dispute indicate that the treatment would be provided through one clinic and one provider only and are therefore not complex.

46I find that the applicant has not proven on a balance of probabilities that the brokerage and planning fees in the three treatment plans in dispute are reasonable and necessary. I find that the applicant’s treatment is all provided through one clinic and is uncomplicated. There have been no particulars provided about which team members would need to be consulted with or why this extra consultation would be necessary. I find that a medical file review after each treatment plan to determine whether modification of treatment is necessary is excessive. There were three treatment plans submitted consecutively and all of the services recommended were identical which implies that no modifications of the treatment were made. Finally, I find that planning fees are already covered in the $200.00 fee for completing the treatment plan.

47I agree with the respondent that Dr. Mackenzie did not directly address the reasonableness of the brokerage and planning fees in the treatment plan. While Dr. Mackenzie found that the treatment plan dated July 27, 2022 is reasonable and necessary in its entirety, her opinion was that the number of psychological sessions and cost of the sessions are reasonable.

48For the reasons set out above, I find that the applicant is not entitled to the unapproved portion of the three treatment plans dated July 27, 2022, November 22, 2022, and April 21, 2023.

The applicant is not entitled to attendant care expenses

49I find that the applicant is not entitled to attendant care benefits as she has not demonstrated on a balance of probabilities that the expenses are reasonable and necessary.

50Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care benefits provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for attendant care benefits must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form 1”).

51The applicant claims entitlement to the following attendant care expenses:

i. $316.40 per month for July and August 2022 ii. $377.85 for November 2022 iii. $180.91 ($197.75 less $16.84 approved) for December 2022 and February 2023 iv. $361.83 ($395.50 less $33.67 approved) from March 1, 2023 to date and ongoing

52I find that the applicant has focused her submissions on whether she should be entitled to attendant care benefits based on the medical evidence and the Form 1’s submitted on her behalf. The applicant has not provided any submissions on whether the attendant care services have been incurred, has not provided a copy of any time sheets or invoices being claimed, and has not explained how the amounts in dispute have been calculated.

53The respondent has submitted copies of some of the invoices and timesheets in respect to the attendant care benefits claimed by the applicant. The applicant has not provided any reply submissions to confirm or dispute the respondent’s submissions on the amounts payable.

Background

54On July 6, 2022, an in-home occupational therapy assessment was completed, and a Form 1 was prepared by Mr. Raymond Wong who recommended $6,124.25 of attendant care per month as follows: 280 minutes/week of dressing and undressing; 125 minutes/week of grooming; 840 minutes/week for feeding tasks; 105 minutes/week for maintaining bathroom, bedroom and clothing care; 4200 minutes/week for basic supervisory care and 175 minutes/week for bathing.

55On October 20, 2022, the applicant participated in an IE occupational therapy in-home assessment by Mr. Nicolas Livadas who prepared a Form 1 recommending $598.99 of attendant care per month as follows: 420 minutes/week for meal prep; 35 minutes/week for bathroom hygiene; and 115 minutes/week of bedroom hygiene.

56On November 21, 2022, the respondent approved $598.99 per month of attendant care, starting on December 1, 2022, based on the Form 1 prepared by Mr. Livadas.

57On June 1, 2023, an updated assessment was completed, and a Form 1 was prepared by Mr. Wong, who recommended $1,910.25 of attendant care per month at that time as follows: 420 minutes/week of dressing/undressing; 840 minutes/week for feeding; 105 minutes/week for maintaining bathroom, bedroom and clothing care; and 175 minutes/week for bathing.

58On August 16, 2023, an updated IE assessment and Form 1 were prepared by Mr. Livadas who recommended $0 of attendant care per month.

59On September 1, 2023, Dr. Mackenzie, psychiatrist and Dr. Urovitz, orthopaedic surgeon, both provided updated IE reports that opined that attendant care was not reasonable and necessary.

60On September 15, 2023, the respondent advised the applicant that attendant care benefits would be stopped effective September 22, 2023, based on the IE reports of Mr. Livadas, Dr. Urovitz and Dr. Mackenzie, all dated September 1, 2023.

61The applicant submits that Mr. Livadas failed to sufficiently appreciate the severity of her physical limitations when completing the Form 1 on October 20, 2022, and that Mr. Wong’s reports should be given more weight in determining the necessity of attendant care. The applicant further submits that the IE orthopaedic report of Dr. Urovitz, should be given little to no weight in determining entitlement to attendant care as he noted the applicant had numerous physical limitations during his assessment but yet he concluded that the expenses in the Form 1, dated June 1, 2023, were not reasonable and necessary. The applicant submits that Dr. Urovitz did not sufficiently consider the applicant’s limitations throughout the examination and the necessity for attendant care to address the applicant’s inability to perform her activities of daily living.

62The applicant also submits that the updated IE assessment of Mr. Livadas dated August 16, 2023, should not be given any weight in determining her entitlement to attendant care because the assessment results are indicative of the limitations that she continues to suffer from and are directly related to the actions that the applicant requires assistance with. Despite noting these limitations, Mr. Livadas concluded that attendant care was not required.

63The respondent relies on the IE reports of Mr. Livadas, Dr. Mackenzie and Dr. Urovitz. It submits that the applicant was entitled to $598.99 per month of attendant care, starting on December 1, 2022 and ending on September 22, 2023. Dr. Livadas concluded in his assessment that the applicant displayed functional tolerances in all areas as well as functional mobility.

64The respondent submits that the recommendations in the Form 1 completed by Mr. Wong, dated July 6, 2022, were based on the applicant’s complaints of headaches with dizziness and various pains. Basic supervisory care was recommended for the additional reason that the applicant suffered from fainting spells. The respondent submits that the CNRs of Dr. Cheng, family physician, do not indicate any discussion of attendant care being necessary. As well, with regard to the issue of dizziness, the applicant denied “significant” dizziness in her visit to Dr. Cheng on November 24, 2022 and specifically denied any dizziness in the visits on November 10, 2022, April 17, 2023 and May 4, 2023.

65The respondent further submits that the investigation report prepared by Xpera Investigations, dated February 7, 2023, shows the applicant on January 25, 2023 walking on a paved trail with “slopes and inclines” for 45 minutes. During the walk, she was observed to stretch her right leg on a metal structure, move her arms “energetically as she walked” and “jogged” behind her spouse. After returning home, she was observed retrieving or pulling a green bin from the curb. On January 26, 2023, she went on a similar walk with her spouse for 40 minutes.

66The respondent submits that Mr. Wong did not conduct a physical examination as part of his updated in-home evaluation on June 1, 2023. The applicant noted a decreased tolerance in walking and that she needed help from her daughter. The applicant complained of the same issues of headaches with dizziness and pain. In comparison to the Form 1, dated July 6, 2022, Mr. Wong increased his recommendations for dressing and undressing and grooming, kept the recommendations for feeding, maintaining bathroom, bedroom and clothing care and bathing the same. He recommended zero for basic supervisory care.

67The respondent further submits that the investigation report prepared by Xpera, dated August 18, 2023 shows the applicant going on a 5 km morning walk and a 1.6 km evening walk to go grocery shopping on August 9, 2023. On August 14, 2023, the applicant went for a 4 km morning walk and to an afternoon medical appointment.

68The respondent has provided a copy of its letters to the applicant dated September 1, 2023 and March 18, 2024, which sets out the amounts payable to the applicant for attendant care services invoiced by Somatic Assessments & Treatment Clinics (“SATC”). The letters note that the maximum hourly rates that would be payable as set out by the Financial Services Commission of Ontario (“FSCO”) and a breakdown of the invoices submitted on behalf of the applicant.

a. Issue (i) - $316.40 per month for July and August, 2022?

69I find that this issue is no longer in dispute as the respondent has paid the July and August 2022 attendant care invoices in full.

70In the letter from the respondent to the applicant dated March 18, 2024, the respondent confirms that the July 2022 invoice and the August 2022 invoice, have been paid in full. As the applicant has not provided any reply submissions to dispute the letter dated March 18, 2024, I find that the July and August 2022 attendant care benefits have been paid and therefore, are no longer in dispute.

b. Issue (ii) - $377.85 for November, 2022?

71I find that the applicant has not proven on a balance of probabilities that she is entitled to $377.85 in attendant care benefits for November 2022.

72The respondent has provided a copy of the time sheet for November 2022, indicating that two hours of meal preparation and three hours of supervisory care were provided on November 10, 24, and 28, 2022. The respondent submits that it was not provided with an invoice, but in good faith paid the applicant $215.40 in attendant care benefits for November 2022, while IE results were pending. A copy of the November 2022 invoice was again requested in the respondent’s letter to the applicant dated March 18, 2024.

73I find that the applicant has not provided any submissions with respect to the amounts that she is claiming for November 2022 or the respondent’s determination of her entitlement. The applicant has not provided a copy of the November 2022 invoice. I find that the amount approved by the respondent of $215.40 has been paid.

74For the reasons set out above, I find that the applicant is not entitled to the balance of the invoice for November 2022.

e) Issue (iii) - $180.91 ($197.75 less $16.84 approved) for December 2022 and February 2023

75I find that the applicant has not proven on a balance of probabilities that she is entitled to $180.91 ($197.75 less $16.84 approved) in attendant care benefits for December 2022 and February 2023.

76Upon review of the cover page and time sheet for December 2022 and February 2023, provided by the respondent in its submission, I find that SATC submitted a cover page with an invoice number listed on it and attached a time sheet. The time sheets list that two hours of meal preparation and three hours of basic supervisory care were provided. No further particulars were listed.

77The respondent has provided the Tribunal with its letter to the applicant dated March 18, 2024 which advises the applicant that the December 2022 and February 2023 invoices have been paid however, SATC has not provided sufficient information to review the full invoices. The respondent requested a breakdown of the duration spent on the two services provided to the applicant on each of these invoices (meal preparation services and basic supervisory care). It states that as it has not been provided with the breakdown of duration spent on each item and that it has continued to follow the framework outlined by the Form 1 completed by Mr. Livadas as follows: 60 minutes/1 hour of meal preparation was required, and basic supervisory care was not required. The respondent submits that it has in good faith, despite the unclear allocation, agreed to pay one hour per day of meal preparation in the amount of $16.84 for the December 2022 and February 2023 invoices.

78I find that the respondent’s position that the applicant is entitled to one hour per day of meal preparation and is not entitled to basic supervisory care is supported by the IE of Dr. Livadas, dated October 20, 2022. I find that Dr. Livadas provided a full functional assessment of the applicant’s abilities. He concluded that despite inconsistent testing, the applicant demonstrated decreased tolerances for sustained upright activity and recommended assistance with meal preparation and bathroom and bathroom hygiene. No basic supervisory care was recommended.

79I further find that the applicant has not provided sufficient evidence to support that she needed basic supervisory care in December 2022 or February 2023. A November 10, 2022 CNR entry by Dr. Cheng shows that the applicant specifically denied that she had any dizziness on that date. In addition, I find that the applicant only received attendant care services on one day in December 2022 and one day in February 2023. This would imply that ongoing basic supervisory care was not required. I find that despite the respondent’s request for further information and a breakdown of the services provided, the applicant did not provide the requested information for further evaluation.

80For the reasons set out above, I find that the applicant is not entitled to the balance of the invoices for December 2022 or February 2023.

f) Issue (iv) - $361.83 ($395.00 less $33.67 approved) from March 1, 2023 to date and ongoing

81I find that the applicant has not proven on a balance of probabilities that she is entitled to $361.83 in monthly attendant care benefits from March 1, 2023 to date and ongoing

82The respondent has provided a copy of the invoices and timesheets submitted for the months of March 2023, April 2023, May 2023, August 2023, November 2023, December 2023 and January 2024. No further invoices or timesheets were submitted. Upon review of the invoices submitted, I find that up until August 2023, the applicant claimed meal preparation and basic supervisory care. In the subsequent invoices, the care claimed is for dressing/undressing, grooming, meal preparation, and bathroom and bedroom hygiene.

83The respondent has provided multiple letters in its submissions which set out its request for further information from the applicant to assess her entitlement to the invoices submitted for attendant care benefits. There is no evidence that the applicant responded to these requests.

84The respondent’s letter to the applicant dated March 18, 2024, indicates that the March, April and May 2023 invoices were paid in the amount of $16.24 for one hour of meal preparation. The letter requests further information to review the invoices submitted and requests a breakdown of duration spent on the two services of meal preparation and basic supervisory care. With respect to the November 2023, December 2023 and January 2024 expenses, the respondent denied the invoices per the termination of the applicant’s attendant care entitlement effective September 22, 2023.

85I find that the applicant is entitled to one hour of meal preparation and no basic supervisory care from the invoices dated March 2023, April 2023 and May 2023. Therefore, the applicant is not entitled to the balance of the attendant care invoices in dispute from March 2023 and ongoing.

86I further find that the applicant has not proven entitlement to attendant care benefits after the termination of her entitlement effective September 23, 2023. Based on my reasoning stated above, I find the Form 1, dated August 16, 2023, prepared by Mr. Livadas, persuasive that the applicant is not entitled to attendant care benefits after September 23, 2023.

87I further find that the applicant has not provided any submissions as to why the list of services she received changed as of August 2023. The applicant has not provided any medical evidence to support that her condition worsened as of August 2023, so that she required assistance with dressing/undressing or with her bedroom and bathroom hygiene which she did not require assistance for following the accident.

88For the reasons set out above, I find that the applicant is not entitled to the balance of the invoices for attendant care services for March, April and May 2023 and that she has not proven entitlement to attendant care benefits after May 2023 and ongoing.

Interest

89Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, there is no interest payable.

Award

90The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant is not entitled to an award under s. 10 of Reg. 664 because there is no evidence that the respondent unreasonably withheld or delayed the payment of benefits.

ORDER

91I find that the applicant is not entitled to the treatment plans in dispute, attendant care benefits, interest or an award. The application is dismissed.