Licence Appeal Tribunal File Number: 23-010436/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:
Dikranouhie Jervis
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Allen Wynperle, Counsel
For the Respondent: Noura Bagh, Counsel
HEARD In Writing
OVERVIEW
1Dikranouhie Jervis, the applicant, was involved in an automobile accident on July 14, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided are:
i. Is the applicant entitled to $414.94 for cannabis oil submitted on a claim form (OCF-6) dated December 30, 2022, and denied January 12, 2023?
ii. Is the applicant entitled to $327.70 for yoga submitted on an OCF-6 dated December 30, 2022, and denied January 12, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3After considering the parties’ submissions and evidence I find the following:
i. The applicant is entitled to $414.94 for cannabis oil submitted on an OCF-6 dated December 30, 2022.
ii. The applicant is not entitled to $327.70 for yoga submitted on an OCF-6 dated December 30, 2022.
iii. The applicant is entitled to interest on any overdue payment of benefits.
iv. The respondent is liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
OCF-6
4Section 15(1) of the Schedule, requires the respondent to pay for all reasonable and necessary expensed incurred by or on behalf of the insured person as a result of the accident. This includes medication.
5Section 16(1) of the Schedule requires the respondent to pay for rehabilitation expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.
6The applicant bears the burden of demonstrating on a balance of probabilities that the benefits are reasonable and necessary as a result of the accident.
Cannabis oil
7I find the applicant is entitled to $414.94 for cannabis oil submitted on an OCF-6 dated December 30, 2022.
8The applicant submits that the applicant has had a prescription for cannabis oil from Dr. Price since August 29, 2018, and the respondent has paid for these expenses submitted on OCF-6s since that time, except for the December 30, 2022 OCF-6. A letter from Dr. Price confirming ongoing therapy and prescription was provided to the respondent on March 26, 2024. The respondent has not reassessed the denial.
9The respondent submits that on November 24, 2021, the applicant was put on notice that it was the last time a payment would be made for cannabis oil, unless submitted on an OCF-18 through HCAI. On January 12, 2023, the respondent requested proof that the submission had been made through HCAI and approved. No response was received.
10The evidence before me supports that on August 29, 2018, Dr. Ira Price recommended medical cannabis. The respondent paid $329.96 for cannabis on October 11, 2018, and $504.91 on November 24, 2021.
11In a letter dated November 24, 2021, the respondent advised the applicant that any further massage therapy expenses must be submitted on an OCF-18. I do not accept the respondent’s submission that the applicant was put on notice regarding the need for cannabis expenses to be submitted on a treatment plan. The plain language reading of the letter clearly does not require an OCF-18 for the cannabis expense.
12I find the January 12, 2023, letter to be confusing in its reference to an approval and HCAI number of the treatment plan for cannabis oil and yoga because the December 30, 2022 OCF-6 did not contain expenses for massage therapy. I note that the January 12, 2023 letter does not indicate any reasons (medical or otherwise) for a denial of payment.
13On March 26, 2024, the applicant provided the respondent with a letter of Dr. Norma Goldberg dated March 25, 2024, which indicates the applicant has an ongoing prescription for cannabis. I find the letter of Dr. Norma Goldberg supports that the applicant’s prescription for cannabis was ongoing at the time the disputed OCF-6 was submitted.
14In an OCF-6 dated May 8, 2024, the applicant submitted an expense for cannabis oil in the amount of $439.34. The statement of benefits supports the expense was paid by the respondent on July 24, 2024. I also find that the respondent having previously paid an equal expense for cannabis, and doing so again in July 2024 demonstrates the respondent accepted the expense before and after the OCF-6 in dispute as being reasonable and necessary.
15I find the applicant has proven on a balance of probabilities that the cannabis oil expense was reasonable and necessary, and is therefore entitled to the OCF-6 for $414.94 dated December 30, 2022.
Yoga
16I find the applicant is not entitled to $327.70 for yoga submitted on an OCF-6 dated December 30, 2022.
17On March 6, 2017, Dr. Thompson recommended the applicant participate in warm water aqua exercises and hot yoga for rehabilitation purposes for her accident-related injuries. The respondent approved and paid $ 271.20 for hot yoga on June 5, 2018. I find that the passage of five years since the recommendation does not support the ongoing reasonableness and necessity of the expense in 2022.
18I note the applicant submits that supporting documentation was provided to the respondent on March 22, 2024, however, it was not provided in evidence. I find email correspondence referring to the documentation is not sufficient proof and therefore I give it very little weight.
19I find the applicant has not proven on a balance of probabilities that the yoga expense submitted on December 30, 2022, is reasonable and necessary. Therefore, I find the applicant is not entitled to this expense.
Interest
20Pursuant to s. 51 of the Schedule, the applicant is entitled to interest on overdue payment of benefits.
Award
21I find the respondent is liable to pay an award under s. 10 of Reg. 664, at a rate of 25 per cent on the withheld benefit of the cannabis oil expense.
22The 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 if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
23The case law is well established that in determining whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.”
24The applicant submits that she provided the reasons for the award in compliance with the case conference report and order in a letter dated April 25, 2024. The respondent had paid the expenses for CBD oil on nine occasions without requesting any further documentation, and on three occasion the respondent paid the yoga expenses without further documentation. It was only in response to the December 30, 2022, OCF-6 submission that the respondent expressed the requirement for a treatment plan. Supporting documentation was provided as requested after the case conference, however the expenses remain outstanding. Since the expenses in dispute were not paid, she is seeking an award pursuant to s. 10 of Reg 664. The applicant did not quantify the award being sought.
25The respondent submits that the particulars for the s. 10 claim were not received until August 30, 2024, when a letter dated April 25, 2024, was received. Further the applicant has not met her burden to prove payments were unreasonably withheld or delayed.
26I find that the respondent was not prejudiced by the delay in receipt of the applicant’s claim particulars because it had sufficient time to prepare and make submissions. I also find that the payment for the cannabis oil expense was unreasonably withheld. The respondent had paid for expenses of this type prior to the disputed OCF-6, as well as new expenses after this application was filed. The applicant provided documentation of the ongoing prescription in support of the expense, yet the respondent did not meet its obligation to reassess the denial. I have not heard submissions or an explanation for the respondent’s continuing denial of the claimed expense. In consideration that new expenses of this type have been paid since the receipt of the medical note, I find the respondent’s conduct regarding the December 30, 2022 submission to be stubborn, unyielding and inflexible.
27I further find that refusals to reconsider an expense such as this warrants deterrence in the form of an award. The delay in payment, from the date of the submission to the date of the hearing, was approximately 22 months, without a reasonable explanation. I am awarding 25 per cent on the unreasonably withheld expense of cannabis oil.
28I find the respondent is liable to pay $103.74 under s.10 Reg. 664, plus compound interest calculated as per s.10 of Reg 664.
ORDER
29For the reasons stated above, I find:
i. The applicant is entitled to the cannabis expense of $414.94 submitted on December 30, 2022.
ii. The applicant is not entitled to the yoga expense submitted on December 30, 2022.
iii. Pursuant to s. 51 of the Schedule, the applicant is entitled to interest on overdue payment of benefits.
iv. The respondent is liable to pay an award under s. 10 of Reg. 664, at a rate of 25%, plus compound interest per s. 10 of Reg. 664, on the withheld benefit of the cannabis oil expense.
Released: November 14, 2025
__________________________
Tami Cogan
Adjudicator