Citation: Zandstra v. TD General Insurance Company, 2025 ONLAT 24-001300/AABS

Licence Appeal Tribunal File Number: 24-001300/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:

John W. Zandstra

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Rasha El-Tawil, Counsel

For the Respondent:

Nathan Tischler, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1John Zandstra, the applicant, was involved in an automobile accident on July 4, 2021, 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 TD General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $4,000.00 for social rehab counseling, proposed by Rehability Occupational Therapy Inc. in a treatment plan/OCF-18 ("plan") submitted January 20, 2022?

ii. Is the applicant entitled to $1,475.70 for social rehab counseling, proposed by Rehability Occupational Therapy Inc. in a plan submitted May 18, 2023?

iii. Is the applicant entitled to $7,910.00 for a CAT assessment, proposed by Lisa Becker, MD, Omega Medical Associates Ltd in a plan dated May 1, 2023?

iv. Is the applicant entitled to attendant care benefits in the amount of $720.94 per month from September 25, 2023, to date and ongoing?

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

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

RESULT

[3] The applicant is not entitled to any of the treatment plans in dispute, or to attendant care benefits. No interest or award is given.

ANALYSIS

Treatment Plans from Rehability Occupational Therapy Inc.

$4,000.00 for social rehab counseling, proposed by Rehability Occupational Therapy Inc. in a plan submitted January 20, 2022

$1,475.70 for social rehab counseling, proposed by Rehability Occupational Therapy Inc. in a plan submitted May 18, 2023

4I find that the treatment plans above for social rehab counseling are not reasonable and necessary.

5Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains an impairment as the result of an accident.

6Section 15 of the Schedule provides that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident. Thus, the applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

7The applicant submits as evidence a plan prepared by Kaitlyn Ollson, Occupational Therapist, of Rehability Occupational Therapy Inc. dated January 20, 2022, in the amount of $8,700. This plan was partially approved by the respondent on February 1, 2022, in the amount of $4,700. The applicant claims that the service provider travel time, in the amount of $4,000 was denied. A subsequent treatment and assessment plan (OCF-18) in the amount of $6,930.70 was prepared and submitted by Rehability Occupational Therapy Inc. dated May 18, 2023. This plan was partially approved by the respondent on May 30, 2023, in the amount of $5,455. The applicant states that the respondent approved his travel time in the amount of $2,047.50. The mileage and social work sessions totalling $1,475.70 were denied by the respondent.

8The applicant cites the case of Maude v. State Farm Mutual Automobile Insurance Co., 2014 Carswell Ont 14043, [2014] O.F.S.C.D. No. 210 at pp 22-24 where the treatment plans, including travel and mileage costs, were found to be reasonable and necessary, as services were not available to the insured person in her hometown. The adjudicator determined that "the best resources" for treatment were not locally available to the applicant. Pursuant to the treatment plans in dispute, the applicant suggests that this is inconsistent with the previous travel time denial without justification by the respondent. I disagree.

9The respondent submits that section 15 (2)(c) of the Schedule states that the insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. Also, the respondent submits that rehabilitation benefits for transportation expenses other than authorized transportation expenses are barred pursuant to section 16(4)(f) of the Schedule.

10The respondent also submits a Financial Services Commission of Ontario Service Bulletin for "Frequently Asked Questions" which clarifies the definition of "authorized transportation expense". It clarifies that in section 3(1) of the Schedule and in the transportation expense guideline, authorized transportation expenses are expressly limited to expenses related to the transportation of the insured person and an attendant. I find this evidence to be persuasive in establishing that any other transportation expenses, other than for the insured or an attendant, are not authorized expenses under the Schedule. In my view, this would include the finding that auto insurers are not required to pay for such transportation expenses claimed by a health care provider, even in circumstances where the insurer is paying for the provider's travel time. The respondent cites the case in 17-006293 v Certas Home & Auto Company, 2018 CanLII 98286 (ON LAT), at para. 17, where the Tribunal denied the mileage expense claims of service providers who had to travel to the home of an applicant who was catastrophically impaired.

11I agree with the respondent's arguments about the mileage for service providers is not reasonably and necessary or payable. I have no authority to order the respondent to pay provider mileage where I find it is not an authorized transportation expense.

12For the reasons set above, and on a balance of probabilities, I find the applicant is not entitled to the outstanding balance of the plans in dispute from Rehability Occupational Therapy Inc.

The applicant is not entitled to $7,910.00 for a CAT assessment, proposed by Lisa Becker, MD, Omega Medical Associates Ltd., in a plan dated May 1, 2023.

13I find that the applicant is not entitled to the denied portion of the CAT assessment.

14The applicant bears the onus of establishing, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary as a result of the accident. The applicant relies on a treatment plan dated May 1, 2023, seeking $24,182.00 for a catastrophic impairment (CAT) assessment.

15The respondent partially approved the plan for $16,272.00, denying the remaining amount on the basis that certain components specifically the intake and triage assessments were either not reasonable or exceeded the limits prescribed by the Professional Services Guideline (PSG).The respondent is willing to cover the following components, each capped at $2,000.00 in accordance with the Schedule:, Psychological Assessment, Neurological Assessment, Orthopaedic Assessment, Mental/Behavioural Assessment, Occupational Therapy (OT) ADL/Community Assessment, OT Situational Assessment, Determination of Catastrophic Impairment Executive Summary, preparing Treatment Plan (OCF-18) – $200.00 and preparing a OCF-19 Application – $200.00.The total approved amount is $14,400.00, plus HST of $1,872.00, for a combined total of $16,272.00.

16The respondent submits that it does not agree to pay for the remaining $7,910.00, as the Schedule limits the maximum payable amount for any one assessment or examination to $2,000.00, inclusive of report preparation. Additionally, the denied components were not supported by sufficient medical justification or fell outside the scope of reimbursable services under the PSG.

17The applicant states that this is a preliminary threshold assessment and is necessary to determine how to proceed. The respondent's position is that based on the Schedule under s.25 that there is a $2,000 cap for any one assessment. The applicant submits that the assessment should be approved to promote consumer protection.

18I find that s. 25(5) of the Schedule includes an assessment and file review within the $2,000 cap limit for an individual assessment. Also s. 25(5) states that an insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment. The respondent cites the case in 16-004501, v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ON LAT) at para. 20 which reiterates the above argument. I find that in this case the respondent agreed to pay for seven examination reports. I find that the applicant has not directed me to any persuasive evidence that the additional assessments and file reviews are reasonable and necessary or payable under the Schedule.

19For these reasons, and on a balance of probabilities, the applicant is not entitled to the additional amount for the assessments in dispute.

The applicant is not entitled to Accident Care Benefits.

20I find that the applicant is not entitled to accident care benefits ("ACB").

21Section 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 ACB services provided by an aide or attendant.

22The applicant relies on evidence from K. Ollson, Occupational Therapist, who submitted an Assessment of Attendant Care Needs (Form 1) dated October 26, 2023. The report breaks down the attendant care totals as 665 minutes per week consisting of, for level 1 care at a total of 280 minutes for dress, undress and mobility, level 2 care of hygiene for 315 minutes, level 3 care for bathing for 70 minutes for a total amount of minutes of 665.

23In her report, Ms. Ollson observes that the applicant is ambulating independently on interior surfaces, that his walking is slow, he relies on a cane for stability, is independent in climbing stairs, he has difficulty to kneel due to knee pain and limits squatting/crouching, cognitively, that he expressed concerns with memory, and is repeating himself often. Ms. Ollson also states that the applicant required assistance with personal care, dressing, mobility, cleaning and bathing. Ms. Ollson's opinion is that the applicant has barriers to function which are directly related to his injuries, ongoing psychological sequela and decreased tolerances for activity.

24The respondent argues that ACBs are not reasonable and necessary because the applicant is independent with his activities of daily living. The respondent relies on evidence by Danny Horban, Occupational Therapist, and his report dated January 23, 2024, where he noted the applicant reported he was not currently aware of any medical restrictions for activity. He stated that there were no current medical restrictions in the file. Further, the applicant at the time reported that despite his accident-related symptoms, he has resumed independence in all self care.

25The applicant's own assessor, S. Kara, Occupational Therapist, stated in her report dated June 28, 2023, that the applicant admitted to performing personal care activities independently and at the same pace as he did pre-accident.

26When comparing the parties' OT reports, I prefer the report of Mr. Horban over Ms. Ollson's because of the applicant's own self-reporting to Mr. Horban that he currently is unaware of any medical restrictions for his activities. Also, the applicant's own assessor, Ms. Kara, explained in her report that he performs his personal care independently as before the accident. Therefore, the applicant's self-reporting and the findings of his prior OT assessor do not support the finding that ACBs are reasonable and necessary.

27For the reasons above, and on a balance of probabilities, the applicant has not met his evidentiary onus to establish entitlement to Attendant Care Benefits.

Interest

28No Interest is awarded under s. 51 of the Schedule.

Award

29Since no benefits were unreasonably withheld or delayed, the respondent is not liable to pay an award.

ORDER

30On the totality of the evidence, I find:

i. The applicant is not entitled to any of the disputed treatments plans or attendant care benefits.

ii. No interest is award.

iii. No award is granted.

iv. The application is dismissed.