Licence Appeal Tribunal File Number: 23-009843/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:
Danielle Lee
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Laurie Tucker, Counsel
For the Respondent:
Jason H Goodman, Counsel
Faiza Ikram, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Danielle Lee, the applicant, was involved in an automobile accident on August 19, 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 the respondent, Co-operators General Insurance Company, 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 attendant care benefits in the amount of $448.49 per month from April 18, 2023 to date and on-going?
ii. Is the applicant entitled to $2,520.79 for Other Goods – Meal Plan, proposed by Revival Rehabilitation in a treatment plan dated July 11, 2023?
iii. Is the applicant entitled to $3,437.11 ($5,019.11 less $1,582.00 approved) for Nutrition Counselling, proposed by Koru Nutrition Inc. in a treatment plan dated October 12, 2023?
iv. Is the applicant entitled to $525.00 for a Visual Skills Assessment, proposed by Corriveau Optometry Professional Corp. in a treatment plan dated November 22, 2023?
v. Is the applicant entitled to $4,783.06 for Nutrition Counselling, proposed by Koru Nutrition Inc. in a treatment plan dated February 7, 2024?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to attendant care benefits, the disputed treatment plans, interest or an award under s.10 of Reg 664.
4This application is dismissed.
ANALYSIS
The applicant is not entitled to attendant care benefits
5I find that the applicant is not entitled to attendant care benefits.
6Section 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 services (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, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
7The applicant submits that attendant care benefits are necessary based on the assessment of Ms. Sara Ubbens, occupational therapist.
8Ms. Ubbens, completed an assessment and an accompanying Form 1 on October 24, 2022. In this Form 1, Ms. Ubbens recommends 7 hours per week of Level 1 attendant care to assist the applicant in preparing and feeding meals.
9Ms. Ubbens states that the applicant continues to have significantly reduced engagement in meal planning and meal preparation due to physical, cognitive and psychological difficulties.
10The respondent submits a Form 1 and assessment report of Ms. Saoussen Ataya, occupational therapist, completed on November 15, 2022. Ms. Ataya does not recommend attendant care services.
11Ms. Ataya writes that the applicant was observed to simulate eating with no observed difficulties. She further writes that the applicant is opting for more simple meals like rice, beans, tuna, oatmeal or instant food. Specifically, noting the following:
i. The applicant was observed to simulate eating with her right hand with no observed difficulties;
ii. The applicant demonstrated sufficient static and dynamic sitting tolerance and upper extremity range of motion to independently and safely feed herself;
iii. The applicant was observed to have adequate static and dynamic standing tolerance and adequate range of motion to reach above head and below knees cabinets/drawers; and
iv. The applicant demonstrated the ability to lift and carry light kitchenware with no issues observed.
12Ms. Ubbens, in her assessment did not make mention of the applicant’s physical ability to feed herself. There is no mention that Ms. Ubbens observed the applicant preparing or eating a meal. There is also no mention of Ms. Ubbens observing the applicant simulating the motions that are required to prepare a meal.
13As it does not appear that Ms. Ubbens observed the applicant preparing a meal or simulating the preparation of a meal, I give the report of Ms. Ataya increased weight over that of Ms. Ubbens.
14Therefore, I find that the applicant is not entitled to attendant care in accordance with Ms. Ataya’s recommendation.
The applicant is not entitled to medical or rehabilitation benefits
15To receive payment for a treatment and assessment plan under s. 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 the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled to a meal preparation service treatment plan
16The applicant has submitted the treatment plan (OCF-18) in the amount of $2,520.79 for a meal preparation service dated July 11, 2023.
17This plan proposes the preparation and delivery of 7 meals per week for a period of three months.
18The goals of the meal plan are listed as:
“Ms. Lee requires continued meal delivery services, as she is unable to follow multi-step directions to prepare food.”
19The applicant submits that the meal delivery services and supplements are required as she has not been consuming enough calories and nutrients.
20The respondent submits that the meal delivery services and supplements are everyday expenses that the applicant is responsible for. The respondent further submits that these services are not medical or rehabilitative expenses that the insurer should be required to pay.
21Sections 15 and 16 of the Schedule outlines the medical and rehabilitation benefits an insurer is liable to pay as a result of an accident.
22The cost of food is not identified as a benefit which the insurer is liable to pay.
23The applicant has not directed me to any authorities which support their submissions that food and supplements are benefits contained within the Schedule.
24I also agree with the respondent’s position that the applicant would have to pay for food regardless of the accident.
25Further, meal preparation is not included as medical or rehabilitation benefit per the schedule. Meal preparation services are specifically handled as an attendant care benefit on the Form 1. Level 1 care includes “provid[ing] assistance, either in whole or in part, in preparing, serving and feeding meals.”
26As meal preparation is expressly identified as an attendant care benefit, I find that the applicant is not entitled to an OCF-18 for meal preparation services.
The applicant is not entitled to meal delivery services and supplements proposed in a treatment plan
27I find the applicant is not entitled to the unapproved portion of the OCF-18 submitted on October 12, 2023 in the amount of $3,437.11.
28The applicant submits that the meal preparation and delivery services and supplements are required as she has not been consuming enough calories and nutrients, supported by a rebuttal letter from Ms. Kylie James, Occupational Therapist dated August 19, 2021.
29The respondent submits that the meal delivery services and supplements are everyday expenses that the applicant should be responsible for and not medical or rehabilitative expenses that the insurer should be required to pay.
30The respondent approved nutrition counselling, and planning services.
31The following services were denied in this treatment plan:
| Description | Quantity | Cost | Total Count | Total Cost |
|---|---|---|---|---|
| Documentation Support Activity | 6.5 Hours | $650.00 | 1 | $650.00 |
| Meal Delivery Services (10 weeks) | 1 Unit | $1,250.00 | 1 | $1,250.00 |
| Bloodwork (Vitamin D) | 1 Unit | $50.00 | 1 | $50.00 |
| Supplements & Delivery | 1 Unit | $1,041.69 | 1 | $1,041.69 |
| Prescription Support Activity | 1 Unit | $50.00 | 1 | $50.00 |
32The goals of this treatment plan are listed as:
i. Nutrition support to boost energy and combat fatigue.
ii. Nutrition support to manage stress, anxiety, low mood and irritability.
iii. Nutrition support to reduce inflammation and subsequent pain, and headaches.
iv. Reduce dizziness.
v. Nutrition support to regulate her sleep cycle and improve quality and quantity of sleep.
vi. Reduce constipation, excess gas, and phlegm and burping after meals.
vii. Nutrition support for concussion and improve cognitive functioning.
33I agree with the respondent.
34Sections 15 and 16 of the Schedule outlines the medical and rehabilitation benefits an insurer is liable to pay as a result of an accident.
35The cost of food and nutritional supplements are not identified as a benefit which the insurer is liable to pay.
36I also agree with the respondent’s position that the applicant would have to pay for food and nutritional supplements regardless of the accident.
37The applicant has not directed me to any authorities which support their submissions that food and supplements are benefits contained within the Schedule.
38Further, this treatment plan proposes delivering prepared meals. As I have found above, meal preparation is not included as medical or rehabilitation benefit per the schedule. Meal preparation services are specifically handled as an attendant care benefit on the Form 1. Level 1 care includes “provid[ing] assistance, either in whole or in part, in preparing, serving and feeding meals.”
39As meal preparation is expressly identified as an attendant care benefit, I find that the applicant is not entitled to an OCF-18 for delivery of prepared meals.
40There have been no submissions made to explain what the denied documentation support activities are and why they are required.
41Therefore, I find that the applicant has not proven entitlement to this disputed treatment plan.
The applicant is not entitled to a visual skills assessment
42The applicant is not entitled to an OCF-18 proposing a visual skills assessment in the amount of $525.00 on November 22, 2023.
43The Tribunal considers that the purpose of an assessment is to determine whether a condition exists. The insured bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
44The goals of the treatment plan are pain reduction and an assessment and diagnosis of visual symptoms. The functional goals are returning to the activities of normal living and returning to pre-accident work activities.
45The applicant submits that the assessment is needed to address post-concussive symptoms. The applicant points to clinical notes and records from Dr. D. Nowodworski, physician, who diagnosed the applicant with a concussion in an assessment conducted on November 19, 2021 in support of this treatment plan.
46The respondent submits that the assessment is not reasonable or necessary as the applicant has not suffered a concussion.
47I agree with the respondent, this assessment plan is not necessary.
48On November 19, 2021, Dr. Nowodworski diagnosed the applicant with a concussion. Dr. Nowodworski addressed the applicant’s dizziness and vision issues in those notes. Dr. Nowodworski recommended that the applicant complete a physiotherapy consultation for vestibular and balance dysfunction, perform vision exercises and home and monitor the condition for improvement over the next few weeks.
49Dr Angel assessed the applicant for a section 44 neurology assessment on November 3, 2022. Dr. Angel found that the history of the applicant’s condition is not consistent with a concussion. He notes that she did not lose consciousness, there was no clear retrograde or anterograde amnesia and there was no demonstrable change in sensorium.
50Dr. Rowe, performed a s. 44 assessment on December 5, 2022 and December 7, 2022. Dr. Rowe could not conclude with any certainty that the applicant sustained a concussion as a result of the accident.
51I agree with the position of the respondent. While I decline to make a finding on whether the applicant has had a concussion, Dr. Nowodworski assessed the applicant’s vision issues and did not recommend a further assessment by an optometrist.
52Dr. Nowodworski stated that the applicant’s dizziness and vision could be addressed by physiotherapy, and vision exercises.
53Therefore, I find that the applicant has not proven an assessment by an optometrist is reasonable or necessary.
The applicant is not entitled to nutrition counselling
54The applicant submitted an OCF-18 proposing nutrition counselling in the amount of $4,783.06 on February 7, 2024.
55The goals of the OCF-18 are identical to the OCF-18 submitted on October 12, 2023. This treatment also proposes the same items as the plan submitted on October 12, 2023.
56I note that this OCF-18 encompasses the following:
| Description | Quantity | Cost | Total Count | Total Cost |
|---|---|---|---|---|
| Nutrition Counselling | 1 Hour | $100.00 | 8 | $800.00 |
| Planning Services | 0.5 Hours | $50.00 | 8 | $400.00 |
| Documentation Support Activity | 1 Unit | $200.00 | 1 | $200.00 |
| Documentation Support Activity | 6.5 Hours | $650.00 | 1 | $650.00 |
| Meal Delivery Services (10 weeks) | 1 Unit | $1,250.00 | 1 | $1,250.00 |
| Bloodwork (Vitamin D) | 1 Unit | $50.00 | 1 | $50.00 |
| Supplements & Delivery | 1 Unit | $832.80 | 1 | $832.80 |
| Prescription Support Activity | 1 Unit | $50.00 | 1 | $50.00 |
57As the same submissions were made, for the reasons above, I find the applicant is not entitled to:
i. Documentation support activity $650.00;
ii. Meal Delivery Services;
iii. Bloodwork (Vitamin D);
iv. Supplements and Delivery; and
v. Prescription Support Activity.
58The remaining items are Nutritional Counselling, Planning Service and Documentation Support Activity ($200).
59The applicant submits that she continues to suffer from significant psychological sequalae from the accident including post traumatic stress disorder (“PTSD”). In support of this the applicant cites Ms. Nicole Ritonja, psychotherapist. Ms. Ritonja states the following in a report dated December 7, 2023:
The main barrier to recovery is Ms. Lee's difficulties sustaining a proper nutritional routine. From a psychotherapy perspective, the client's PTSD symptomology is a barrier to her being able to engage in this task due to her feeling increased trauma symptoms when she leaves her house, which prevents her from being able to consistently buy groceries.
60The respondent submits that they have already approved meal counselling and additional meal counselling would be duplicative. The respondent further submits that the bulk of this treatment plan is for meal preparation/delivery services and that the cost of food should be borne by the applicant.
61I agree with the respondent.
62The note from Ms. Ritonja states that the applicant has trouble leaving her house as a result of her PTSD. As a result of her leaving the house, she is unable to purchase groceries, and therefore is unable to purchase proper nutrients.
63I have not been pointed or directed to evidence that would lead me to believe that the applicant is unaware of her nutritional requirements.
64There have been no submissions made by the applicant which explain why continued nutrition counselling is required beyond that which has already been provided.
65On the balance of probabilities, I find that the proposed nutrition counselling is not reasonable or necessary.
Interest
66As the applicant is not entitled to any of the amounts in dispute, there is no basis to order the payment of interest.
Award
67Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
68As no benefits have been unreasonably withheld, there is no basis for me to consider an award under s. 10 of Reg 664.
ORDER
69For the reasons above, I find that the applicant is not entitled to:
i. Attendant care benefits;
ii. The disputed medical and rehabilitative benefits;
iii. Interest; or
iv. An award under s.10 of Reg 664.
70This application is dismissed.
Released: November 6, 2025
Julian DiBattista
Vice-Chair