Banks v. Intact Insurance Company, 2024 CanLII 123344

Citation: Banks v. Intact Insurance Company, 2024 CanLII 123344

Licence Appeal Tribunal File Number: 23-013667/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:

Karen Banks Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: David Shellnutt, Counsel

For the Respondent: Raman Pandher, Counsel Navjot Banipal, Counsel

Court Reporter: Guido Riccioni

Heard by Videoconference: October 8 and 9, 2024

OVERVIEW

1Karen Banks (the “applicant”) was involved in an automobile accident on August 6, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2At the start of the hearing, the parties agreed that the preliminary issue identified in the Case Conference Report and Order (“CCRO”) released May 9, 2024 is no longer in dispute. The parties also agreed that the Minor Injury Guideline (“MIG”) is no longer in dispute. The parties further agreed that issues 3, 4, 5(i) and 5(ii), as identified in the CCRO, have been resolved and are no longer in dispute. The balance of the issues listed in the CCRO remain in dispute

[3] The issues in dispute are:

1. Is the applicant entitled to attendant care benefits in the amount of $1,073.39 per month from February 15, 2024 to date and ongoing?
2. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

[4] For the reasons that follow, I find that:

1. The applicant is not entitled to attendant care benefits.
2. The applicant is entitled to an award of 25% of the value of four treatment and assessment plans that were approved prior to the hearing. The amount of the award is $2,657.54.
3. The applicant is entitled to interest for delayed payment of those four treatment plans. The applicant is entitled to interest at a rate of 2% per month, compounded monthly from April 17, 2024 to August 20, 2024, on the amounts then owing for the four treatment and assessment plans.

PROCEDURAL ISSUES

Notice of Motion to allow insurer’s examination reports into evidence

5On September 24, 2024, the respondent filed and served a Notice of Motion to allow for the inclusion of insurer’s examination (“IE”) reports related to the applicant’s eligibility for attendant care benefits (“ACBs”). The CCRO ordered that the final exchange deadline for responsive documents was 90 days after the case conference, namely July 14, 2024. The IE reports were provided to the applicant on August 16, 2024 and could be considered late-filed.

6At the case conference on April 15, 2024, the respondent raised a preliminary jurisdictional issue that the applicant should be barred from proceeding with her claim for ACBs as the Form 1 had not been submitted until the day of the case conference, and the claim had not been denied at that time by the respondent.

7The parties agreed that the preliminary issue would be withdrawn if the respondent were allowed to submit its IE reports into evidence. The applicant presented no objection to the motion and I allowed the respondent to submit the IE reports into evidence if it so chose. The respondent also waives its right to raise a preliminary jurisdictional issue on whether ACBs are properly before the Tribunal.

Motion to compel the testimony of Chris Kamaldeo and Dr. Mohamed Lamine

8On September 5, 2024, the applicant obtained a Summons to a Witness for the respondent’s claims adjuster Chris Kamaldeo.

9On September 17, 2024, the applicant obtained a Summons to a Witness for Dr. Mohamed Lamine, general practitioner, who conducted an IE of the applicant.

10At the beginning of the hearing, the respondent submitted that Mr. Kamaldeo and Dr. Lamine would not appear as witnesses since the summons were not served personally. The respondent cited Rule 12.3 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which states that a “summons shall be served personally on the person summoned” and that the applicant’s service via courier does not meet the requirements of the SPPA. The respondent also cites Rule 8.2 of the Tribunal’s Rules that governs summons to a witness. Where there might be a conflict between the SPPA and the Rules, the SPPA would be the governing authority.

11The respondent cites Sahadeo v. Pafco Insurance Company, 2022 CanLII 20128 (ON LAT), where the applicant was denied an order for substituted service of a summons by means other than personal service. The applicant submitted that the respondent did not communicate before the hearing that Mr. Kamaldeo and Dr. Lamine would not appear as witnesses. The applicant requested that the Tribunal compel the appearance of these two witnesses.

12Under s. 12 of the SPPA, the Tribunal may require any person, including a party, by summons to give evidence under oath at an oral hearing. However, I am not satisfied that the applicant met the requirement of s. 12.3 of the SPPA, nor the instructions set out in the Tribunal’s Summons to a Witness form, in attempting to serve the witnesses personally. I am also not satisfied that it is the responsibility of the respondent to notify the applicant that the services of the summons were deficient under the SPPA.

13I agree with the respondent that the current summons to Mr. Kamaldeo and to Dr. Lamine are not valid since they were not served personally in accordance with s. 12 of the SPPA. I find that the Tribunal should not compel the testimony of the witnesses who were not served personally. I also deny the applicant’s motion to make an order for substituted service for Mr. Kamaldeo and Dr. Lamine.

Motion to include documents not included in the applicant’s hearing brief

14Under Rule 9.4.3, the CCRO ordered that the parties were to file a copy of the evidence and authority briefs the parties intended to rely on at the hearing no later than 21 calendar days before the hearing. Accordingly, hearing briefs were due no later than September 18, 2024 and the parties exchanged document briefs by that date.

15At the hearing, the applicant indicated her intention, via an oral motion, to rely on adjusters’ log notes that were not contained in the applicant’s original hearing brief. The respondent objected, arguing that a party has a right to know the case being put before it as a matter of procedural fairness and that late-filing of evidence was counter to Rule 9.4.3. The applicant argued that the adjusters’ log notes were produced by the respondent and that they should know what is in them.

16I find that I agree with the respondent that only those documents that were contained in the original hearing briefs would be allowed into evidence. I note that the applicant did not submit that she filed and served particulars of the award claim on the respondent 30 days after receipt of the log notes, as instructed in the CCRO. In denying the applicant’s motion to submit evidence later than 21 days before the hearing, I considered the factors described in Rule 9.3. Specifically, the applicant’s reason for non-compliance, that the respondent knew about the substance of the log notes, did not satisfy me that it balanced the respondent’s right to know which evidence was being put before it.

17For these reasons, I denied the applicant’s oral motion to allow adjusters’ log notes into evidence.

ANALYSIS

The applicant is not entitled to attendant care benefits

18I find that the applicant has failed to prove on a balance of probabilities that she is entitled to ACBs in the amount of $1,073.39 per month, from February 15, 2024 to date and ongoing.

19Section 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 ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of and contain the information required to be provided in a Form 1. The onus rests with the applicant to prove, on a balance of probabilities, that she is entitled to ACBs.

20The applicant submits that she suffered injuries including a minor traumatic brain injury (“MTBI”), also known as a concussion, post-concussive symptoms, a lateral meniscal tear, a left shoulder sprain, an ankle sprain, a left elbow contusion and psychological injuries as a result of a bicycle/motor vehicle collision on August 6, 2023.

21The applicant requested an attendant care assessment which was conducted by Angela Lin, occupational therapist. Ms. Lin completed a Form 1 that is dated February 22, 2024 and which was submitted to the respondent on April 15, 2024. The calculation of attendant care costs on the Form 1 is $1,073.39 per month, based on the following estimated attendant care requirements by activity, in minutes per week:

Dress: 70 Undress: 70 Grooming: 215 Feeding (preparing, serving and feeding meals): 420 Hygiene (cleaning, laundry): 185 Co-ordination of attendant care (scheduling): 60

22These weekly estimates were used to calculate monthly hours, and then multiplied by hourly rates specified by the Schedule, to derive the monthly attendant care costs indicated above.

23The applicant submits that headaches, fatigue and light sensitivity, as a result of her post-concussive symptoms, have resulted in a need for assistance in many of the activities indicated above. The applicant also submits that her physical injuries result in the need for assistance with certain household activities like carrying the vacuum cleaner up and down the stairs, making the bed and doing laundry. As well, the applicant submits that she suffers from psychological symptoms as a result of the accident, including flashbacks and sleeplessness, that result in forgetfulness and inability to work in front of screens.

24The applicant relies on the occupational therapy assessment report of Ms. Lin dated March 11, 2024 to advance the applicant’s claim of eligibility for ACBs. In her report, Ms. Lin opined that from a functional perspective, the applicant experienced “physical, emotional, and cognitive deficits [that] have impacted her ability to complete all aspects of self-care, housekeeping, home/yard maintenance, work, social and recreational activities.” In particular, Ms. Lin observed deficits in memory during the assessment which she opined may impede the applicant’s safety and independence with more complex tasks such as meal preparation.

25In her report and in her testimony, Ms. Lin opined that attendant care requirements are not based on a complete inability to complete tasks. Attendant care is often recommended to help for safety reasons, for example to remind an injured person to take medications or to not leave a stove unattended. Ms. Lin testified that attendant care can be recommended on a “stand-by” basis for these safety situations. Ms. Lin notes in her report that the applicant suffered from both physical and cognitive/emotional symptoms and she opines that her attendant care recommendations are designed, in part, to keep the applicant safe during her recovery.

26The applicant posits that the duly completed Form 1, the occupational therapy report of Ms. Lin and the accompanying medical diagnoses support her claim for eligibility for ACBs.

27The Form 1 was denied by the respondent in its Explanation of Benefits letter dated April 29, 2024, wherein the respondent indicated that it needed to conduct IEs to determine whether the applicant required attendant care, since it claimed it had no medical evidence to indicate the applicant’s injuries would prevent her from completing her personal care activities independently.

28The respondent submits that the proposed ACBs were not reasonable and necessary and as a result of the accident. The respondent relies on the multi-disciplinary IE reports of Dr. Davar Nikneshan, neurologist, Dr. Shreekant Sharma, psychiatrist, and Mr. Ronald Findlay, occupational therapist. These reports are all dated August 6, 2024.

29The respondent submits that in the neurological IE report of Dr. Nikneshan, the applicant reported she required assistance in her activities of daily living for some time after the accident, but at the time of the assessment, June 20, 2024, she reported that she had since returned to managing personal care independently. In terms of housekeeping activities, she reported that she had required assistance from her wife and family friends for some time but had since resumed housekeeping duties together with her wife, albeit more slowly and fatiguing more easily.

30Dr. Nikneshan opined that the applicant’s MTBI placed her outside of the confines of the MIG. However, in his report, Dr. Nikneshan opined that, from a neurological perspective, he was unable to identify any functional or physical limitations to necessitate services of an aide or attendant.

31The respondent submits that the psychological assessment report of Dr. Sharma indicates that the applicant did not require attendant care. Dr. Sharma conducted his assessment on May 4, 2024, roughly three weeks after the Form 1 was submitted. In the Daily Routine section of Dr. Sharma’s report, based on his interview of the applicant, he states that the applicant is “independent of toileting, personal hygiene, showering, dressing and undressing” and is “able to continue with light housekeeping, preparing simple meals and feeding herself. She deals with her own finances and pays her bills.” In cross-examination, the applicant testified that she had experienced some improvement in her ability to perform her Daily Routine between the time of the assessment with Ms. Lin (February 22, 2024) and the assessment of Dr. Sharma, roughly 2.5 months later.

32The respondent further submits that the occupational therapy in-home assessment report of Mr. Findlay also indicates that the applicant did not require attendant care. In his report, based on his assessment of the applicant on July 17, 2024, Mr. Findlay states that the applicant reported that she continues to be independent in terms of self-care and homemaking by pacing herself, and by sharing more of her meal preparation duties with her wife. Mr. Findlay opined that the applicant did not present with an objective functional impairment that necessitates the services of an aide or an attendant. In particular, Mr. Findlay did not observe any safety concerns for the applicant such as an inability to manage medications or forgetfulness that could result in leaving a stove unattended.

33The respondent submits that the report of Dr. Vincenzo Basile, neurologist, who performed a s. 25 assessment of the applicant on March 19, 2024, indicates that the applicant was performing her daily activities independently at that time. The respondent indicates that in the Activities of Daily Living/Instrumental Activities of Daily Living (“ADL/IADL”) section of Dr. Basile’s report dated April 17, 2024, Dr. Basile states that the applicant was independent in ADLs including bathing, dressing, grooming, oral hygiene, toileting, bed or chair transfer, walking, climbing stairs and eating. Dr. Basile reported that the applicant was independent, but with difficulties, in IADLs including grocery shopping and lifting heavy weights. Dr. Basile reported that the applicant was independent in IADLs including cooking, managing medications, housework, laundry, driving, using public transit and managing household finances. Dr. Basile qualified these statements that, although the applicant continues to be independent for some of these functions, she was not as efficient as she was prior to the accident.

34In rebuttal of the attendant care assessment of Ms. Lin, the respondent submits that Ms. Lin reviewed the medical clinical notes and records (“CNRs”) of the applicant only within one month of the accident. The respondent argues that this led Ms. Lin to attribute more attendant care than is justified as reasonable and necessary. The respondent argues further that the applicant self-reported improvements in her condition to the IE assessors who examined the applicant in May, June and July of 2024. The respondent argues that the report of Ms. Lin was out-of-date with respect to the assessed level of attendant care because of the age of the CNRs on which Ms. Lin relied.

35The respondent states that the Form 1 was not submitted until April 15, 2024 and therefore the dispute is not from February 15, 2024, as identified in the CCRO, but from April 15, 2024 to date. The respondent submits, moreover, that it is not obligated to pay for services that were not incurred or for which the applicant’s care provider has not sustained an economic loss to provide those services. The respondent submits that the applicant has not provided any evidence that attendant care expenses were incurred or that an economic loss was sustained by the applicant’s wife or by any other attendant care provider. As a result, the respondent submits that no attendant care benefits are owed to the applicant.

36I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the attendant care benefits sought in the Form 1 that was submitted on April 15, 2024. I find that Ms. Lin’s opinion is not consistent with the applicant’s self-reports of her abilities to undertake her ADLs/IADLs independently, to both the IE assessors and to Dr. Basile. I find as well that the narrow scope of the CNRs reviewed by Ms. Lin, just one month pre- and post-accident, while only meant to complement her observations, did not capture the extent of the applicant’s recovery in the following months. I therefore place little weight on the opinion of Ms. Lin that the applicant required the level of support claimed in the Form 1. I am not persuaded by Ms. Lin’s opinion that the applicant would benefit from “stand-by” attendant care for safety reasons, specifically to manage medication and to prevent leaving a stove unattended, because I find it is inconsistent with the weight of the evidence before me, including the applicant’s own reports.

37I find that the applicant’s self-reports of improvement of her post-accident symptoms, between the date of Ms. Lin’s attendant care assessment of February 22, 2024 and the date of the assessment of Dr. Basile on March 19, 2024 and that of Dr. Sharma on May 4, 2024, persuade me that she can perform almost all of her ADLs/IADLs independently by the date of submission of the Form 1. I am also persuaded that the applicant’s activities can be managed going forward from April 15, 2024 without the assistance of an aide or an attendant.

38I find that the reports of Dr. Nikneshan, Dr. Sharma and Mr. Findlay are consistent with that of Dr. Basile in reporting that the applicant had returned to being independent in most of her daily activities. I find that the level of attendant care proposed in the Form 1 is not supported by the weight of the evidence before me.

39I find that the applicant is not entitled to attendant care benefits as described by the Schedule. In addition, since no attendant care expenses were incurred and no economic loss was sustained by a caregiver in providing past attendant care services, no attendant care benefits are payable by the respondent.

The applicant is entitled to an award for four treatment and assessment plans

40I find that the respondent unreasonably withheld payment of benefits by keeping the applicant within the MIG after receipt of the report of Dr. Basile on April 17, 2024.

41The applicant 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 together with interest on all amounts then owing to the applicant (including unpaid interest) at a rate of 2% per month, compounded monthly, if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

42The Tribunal maintains that the threshold for an award is reasonableness, that this threshold is low, and that the trigger for an award is the unreasonable withholding or delay of payments.

[43] The applicant submits that she provided the respondent with ample medical evidence in support of her claims for four treatment plans that were initially denied, then subsequently approved by the respondent on August 20, 2024 (after the respondent received its IE reports), as follows:

1. $4,631.15 for concussion therapy and assistive devices, proposed by Angela Lin of ARGC Inc. in a treatment plan/OCF-18 (“plan”) dated March 14, 2024;
2. $1,339.00 for physiotherapy, proposed by William Chow of Axis Therapy & Performance in a plan dated March 6, 2024;
3. $2,460.00 for a neurology assessment, proposed by Vanessa Sun of ARGC Inc. in a plan dated February 15, 2024;
4. $2,200.00 for an occupational therapy assessment, proposed by Vanessa Sun of ARGC Inc. in a plan dated January 25, 2024.

44The applicant submits that the respondent denied these treatment plans because it chose to keep her within the confines of the MIG despite medical evidence that demonstrated that she suffered from a concussion and a meniscal tear. According to the Schedule, concussions and cartilage tears are not considered “minor” injuries. The applicant submits the respondent’s decision to keep her within the MIG resulted in delayed recovery from her injuries. The four treatment plans above were subsequently approved by the respondent and are no longer in dispute. However, the applicant seeks the remedy of an award under s. 10 since she claims the respondent acted unreasonably given the medical evidence it had in its possession.

[45] The applicant submits that she provided medical evidence of her concussion and meniscal tear, including:

1. Hospital records and imaging reports of the Fracture Clinic at Michael Garron Hospital, from the date of the accident to October 12, 2023;
2. CNRs of the applicant’s family physician, Dr. Darakhshan Ansari, from August 6, 2020 to May 31, 2023;
3. A note dated August 16, 2023, from Dr. Ansari, addressed to whom it may concern, stating that the applicant sustained a mild concussion, a likely left lateral meniscal tear and a left shoulder injury as a result of the accident;
4. The Disability Certificate/OCF-3 completed by Dr. Ansari on August 25, 2023;
5. CNRs of Axis Therapy & Performance, from September 25, 2023 to May 14, 2024; and
6. The neurological assessment report of Dr. Basile dated April 17, 2024.

46The respondent submits that it had incomplete information to justify removing the applicant from the MIG until after it received the IE reports of Dr. Nikneshan and Dr. Sharma on August 20, 2024.

47Regarding the Michael Garron hospital records, the respondent submits that the records do not mention a meniscal tear or a concussion. In reviewing the records at the hearing, the applicant did not direct me to any specific mention of either injury. I find that the Michael Garron records do not support that the respondent acted unreasonably in requesting more information under s. 33 of the Schedule to determine whether to maintain the applicant in the MIG.

48The respondent submits that the applicant does not point to any specific mention of the non-minor injury diagnoses in the CNRs of Dr. Ansari. In reviewing the CNRs to which the applicant directed me, I agree with the respondent. The CNRs submitted by the applicant mention post-concussive symptoms such as brain fog, but do not mention specifically that the applicant had an MTBI, concussion or meniscal tear. In the circumstances, I find the respondent’s requests for more information under s. 33 and s. 44 of the Schedule, while maintaining the applicant within the MIG, were not unreasonable.

49The respondent further submits that the August 16, 2023 note from Dr. Ansari was not received by the respondent until much later in the adjustment of the file. I note that Dr. Lamine does not mention Dr. Ansari’s note as one of the documents he reviewed in his IE report of May 3, 2024, but it is noted by Dr. Nikneshan in his report of August 6, 2024 (based on his assessment of the applicant on June 20, 2024). This indicates to me that the respondent had the note in its possession before June 20, 2024. The applicant did not provide a transmittal letter demonstrating when the August 16, 2023 note was received by the respondent. While this note would indicate that the respondent had non-minor injury diagnoses, the applicant did not direct me to any corroboration in the CNRs of Dr. Ansari. Therefore, I assign the August 16, 2023 note less weight than Dr. Ansari’s considerable CNRs in determining whether the respondent’s actions were unreasonable before April 17, 2024.

50The respondent submits that an OCF-3 is not sufficient evidence to justify removing an applicant from the MIG, and that under s. 33 and s. 44 of the Schedule it is entitled to seek more medical information in adjusting the file. I agree with the respondent that it is reasonable for the respondent to request additional medical information upon receipt of an OCF-3 in order to determine entitlement to benefits. I find that the respondent’s action were not unreasonable before April 17, 2024 in response to the receipt of the OCF-3.

51The respondent submits that its request for more medical information upon the receipt of the CNRs of William Chow, physiotherapist, although they mention the applicant’s concussion, were not unreasonable. The respondent submits physiotherapy staff are not clinically qualified to diagnose a concussion. I agree with the respondent that the request for more medical information was not unreasonable before April 17, 2024, despite the mention of a concussion in the physiotherapist’s CNRs.

52The respondent submits by the time it received Dr. Basile’s report, on April 17, 2024, the multi-disciplinary IEs had already been scheduled between May and July of 2024. Dr. Basile’s neurological assessment report opined that the applicant had sustained an MTBI and suffered post-concussive symptoms as a result of the accident, and that she did not fall within the MIG. Dr. Basile also opined that the MTBI was as a result of the accident and not as a result of an exacerbation of a concussion suffered in a previous accident in 2017, from which the applicant had recovered. The responded submits that it did not act unreasonably at that time in conducting the IEs to obtain other expert opinions on whether the applicant’s injuries fell within the MIG.

53I find that upon receipt of the Dr. Basile’s report on April 17, 2024, the respondent had sufficient information on the applicant’s concussion to remove her from the confines of the MIG. Dr. Basile’s report was corroborated by the CNRs of Dr. Ansari and of Mr. Chow, in that they indicated concussion-like symptoms. The credibility of Dr. Basile’s report has not been challenged by the respondent. The respondent has cited Dr. Basile’s report in arguing against the applicant’s eligibility for ACBs. I find that the rationale for maintaining its MIG position, that IEs had already been scheduled, was not reasonable given the concussion diagnosis in Dr. Basile’s report and the corroboration of non-minor injury symptoms from the applicant’s treating physician and treating physiotherapist.

54Although the respondent does not appear to have a diagnosis of a meniscal tear in its possession until after April 17, it denied the treatment plan for physiotherapy on the basis that the applicant’s injuries could be treated within the MIG and that the MIG limits were exhausted. I find that given Dr. Basile’s report in its possession, the respondent’s decision at that time, to maintain the applicant within the MIG, was unreasonable. The respondent’s subsequent decision to approve the physiotherapy treatment plan indicate to me that the plan was denied because of the MIG limits, not because it found the proposed treatment plan was unreasonable and unnecessary.

55I find it was unreasonable to expect the applicant to postpone treatment proposed in the concussion therapy and physiotherapy OCF-18s, pending the outcome of IE reports that would be available several months later. I find the non-payment of the neurological and occupational therapy assessments after April 17, 2024 was unreasonable, given the non-minor injury diagnosis in the respondent’s possession.

56I find that on a balance of probabilities the respondent acted unreasonably in maintaining its MIG position after the receipt of Dr. Basile’s report on April 17, 2024. I agree that the respondent was entitled to obtain its own expert opinions regarding the applicant’s injuries under s. 33 and s. 44 of the Schedule. But I find that the respondent acted unreasonably in not releasing the applicant from the MIG at that time. The IEs were asked to comment specifically on the applicability of the MIG. The instructions to the IE assessors could have been revised in light of the non-minor injury diagnosis of Dr. Basile.

57At the same time, I find that the respondent’s actions in light of the concussion diagnosis were not completely unreasonable, given some doubts raised by the ambiguity of the CNRs of Dr. Ansari and Michael Garron Hospital, and of the medical imaging in the respondent’s possession. Hence I deny the request for an award of the maximum 50% of the value of the treatment and assessment plans sought by the applicant.

58For the reasons above, I find that the applicant is entitled to an award of 25% of the amount of the four disputed (then subsequently approved) treatment and assessment plans, together with interest on all amounts then owing to the applicant (including unpaid interest) at a rate of 2% per month, compounded monthly, from April 17, 2024 to August 20, 2024.

59For the ACBs in dispute, I have found that no benefits are payable. I do not find that the respondent unreasonably withheld or delayed payment for ACBs. As a result, an award under s. 10 of Reg. 664 is not warranted for ACBs.

Interest is payable for the four treatment and assessment plans

60The Tribunal may award benefits and interest to which an insured person is entitled pursuant to s. 51 of the Schedule. Interest is payable on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

61I find that the payment for the four treatment plans should have been made when the respondent was made aware that the applicant’s injuries were not minor on April 17, 2024. I find that the applicant is entitled to interest at a rate of 2% per month, compounded monthly from April 17, 2024 to August 20, 2024, on the amounts then owing.

ORDER

[62] For the reasons above, I find that:

1. The applicant is not entitled to attendant care benefits.
2. The applicant is entitled to an award of 25% of the amounts of the four treatment and assessment plans that were subsequently approved on August 20, 2024. The amount of the award is $2,657.54.
3. The applicant is entitled to interest at a rate of 2% per month, compounded monthly from April 17, 2024 to August 20, 2024, on the amounts then owing for the four treatment and assessment plans.