Yi v. TD General Insurance Company, 2025 CanLII 129056

Citation: Yi v. TD General Insurance Company, 2025 ONLAT 24-001805/AABS

Licence Appeal Tribunal File Number: 24-001805/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:

Guo Qiang Yi

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harouna Saley Sidibé

APPEARANCES:

For the Applicant:

Meral Kesebi, Counsel

For the Respondent:

Orest Kuchar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Guo Qiang Yi, the applicant, was involved in an automobile accident on November 22, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that the respondent failed to meet the notice obligations under section 38 of the Schedule for the October 11, 2023, treatment plan, thereby triggering mandatory payment obligations, regardless of the treatment's reasonableness. The respondent disagrees, stating that it fulfilled its obligations and corrected any defect with later notice. This is discussed below.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to attendant care benefits in the amount of $2,131.83 per month from March 17, 2022, and ongoing?

2. Is the applicant entitled to the treatment proposed by North Toronto Rehabilitation & Physiotherapy as follows:

i. $2,484.60 for chiropractic services submitted by OCF-18/treatment plan (“treatment plan”) on March 18, 2022?

ii. $1,780.67 for chiropractic services submitted by treatment plan on April 27, 2022?

iii. $1,495.05 for chiropractic services submitted by treatment plan on May 19, 2022?

iv. $1,289.31 for chiropractic services submitted by treatment plan on June 20, 2022?

v. $1,096.62 for chiropractic services submitted by treatment plan on July 27, 2022?

vi. $983.81 for chiropractic services submitted by treatment plan on September 19, 2022?

vii. $871.00 for chiropractic services submitted by treatment plan on November 9, 2022?

viii. $983.81 for chiropractic services submitted by treatment plan on December 9, 2022?

ix. $871.00 for medical services submitted by treatment plan on January 9, 2023?

x. $1,585.05 for chiropractic services submitted by treatment plan on April 5, 2023?

xi. $1,299.43 for chiropractic services submitted by treatment plan on June 15, 2023?

xii. $1,156.62 for chiropractic services submitted by treatment plan on October 11, 2023?

xiii. $1,299.43 for chiropractic services submitted by treatment plan on February 1, 2024?

3. Is the applicant entitled to the treatment proposed by ChaoLun Medical & Health Services Inc. as follows:

i. $448.83 ($2,194.93 less amount approved $1,746.10) for psychological services submitted by treatment plan on February 9, 2022?

ii. $2,045.20 ($4,090.40 less amount approved $2,045.20) for occupational therapy services submitted by treatment plan on February 23, 2022?

iii. $897.72 ($3,491.48 less amount approved $2,593.76) for psychological services submitted by treatment plan on April 1, 2022?

iv. $2,194.93 for medical services submitted by OCF-21 on April 1, 2022?

v. $1,496.80 for psychological services submitted by OCF-21 on May 12, 2022?

vi. $2,000.00 for the cost of an In-Home Assessment submitted by treatment plan on November 28, 2022?

vii. $1,047.33 ($3,491.48 less amount approved $2,444.15) for psychological services submitted by treatment plan on January 13, 2023?

viii. $4,090.40 for occupational therapy services submitted by treatment plan on March 28, 2023?

ix. $1,196.94 ($3,491.48 less amount approved $2,294.54) for psychological services submitted by treatment plan on August 10, 2023?

x. $3,491.48 for psychological services submitted by treatment plan on December 7, 2023?

xi. $2,195.83 for psychological services submitted by OCF-21 on May 24, 2022?

4. Is the applicant entitled to $3,000.00 ($17,967.00 less the amount approved $14,967.00) for the cost of CAT Assessments proposed by DRT in a treatment plan submitted February 1, 2024?

5. Is the applicant entitled to $200.00 for the cost of a form fee proposed by North Toronto Rehabilitation & Physiotherapy Clinic in a treatment plan submitted January 31, 2024?

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

7. 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

4For the reasons below, I find that:

i. The treatment plan for chiropractic services incurred on or after the 11th business day following October 11, 2023, until December 7, 2023, is payable pursuant to s. 38 of the Schedule, plus interest.

ii. The applicant is entitled to the treatment plan for In-Home Assessment dated November 28, 2022, plus interest.

iii. The applicant is not entitled to the remaining treatment plans or outstanding balances.

iv. The applicant is not entitled to Attendant Care Benefits or an award.

ANALYSIS

5I find the treatment plan for chiropractic services dated October 11, 2023, for $1,156.62, is payable pursuant to s. 38 of the Schedule.

6Section 38(8) of the Schedule states an insurer must respond within 10 business days to a treatment and assessment plan, indicating which goods, services, assessments, or examinations they will pay for or deny, along with medical and other reasons for any denial.

7Section 38(11) states that if an insurer doesn't respond as per section 38(8), it can't claim the impairment is within the MIG. The insurer must also cover all goods and services in the treatment plan from the 11th business day after receiving it until a compliant notice is issued.

8The applicant submits that section 38(11) is mandatory and requires the insurer to pay for all goods and services described in the treatment plan where it has failed to meet its notice obligations under section 38(8). The applicant agrees with the respondent’s acknowledgment that non-compliance with section 38(11) triggers payment obligations under section 38(11)(2).

9The respondent states that it met its obligations under sections 38(8) and 38(9) and cites Zheng, Cai v Aviva Insurance Company of Canada, 2018 ONSC 5707, as holding that non-compliance with section 38(11) doesn't automatically remove a claimant from the MIG. Only the affected treatment plan might be payable under section 38(11)(2). The respondent also argues that the defective notice was cured when the insurer later provided medical reasons and an examination report.

10In response, the applicant contends that the insurer did not comply with section 38(8) regarding the $1,156.62 treatment plan dated October 11, 2023. The insurer issued its denial on December 7, 2023, well past the 10-business-day timeframe mandated under the Schedule.

11Accordingly, the applicant requests payment of the benefit proposed in the October 11, 2023, treatment plan, arguing that the insurer’s late denial precludes any further analysis of whether the treatment is reasonable and necessary.

12I find that the insurer’s denial of the October 11, 2023, treatment plan was issued after the 10-business-day period required under section 38(8). Under section 38(11), the insurer is responsible for paying all goods and services incurred on or after the 11th business day following October 11, 2023, until a proper denial is issued. In this case, the period spans from the 11th business day after October 11, 2023, through December 7, 2023, which is the correct denial period. Because the denial was late, no further assessment of the reasonableness or necessity of the treatment during that time is needed.

13Accordingly, I find that the applicant is entitled to payment for the treatment plan dated October 11, 2023.

Are the disputed treatment plans reasonable and necessary?

14To 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.

15The purpose of assessments is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

Chiropractic Services

16I find that the applicant is entitled to the treatment plan dated October 11, 2023, but is not entitled to the remaining chiropractic service plans.

17The applicant requests payment for several chiropractic treatment plans, covering the period from March 2022 to February 2024. The respondent denied each plan on the grounds that the proposed treatment was not reasonable or necessary, citing the findings of the s. 44 insurer examinations.

18The disputed treatment plans are listed as follows:

i. March 18, 2022 – $2,484.60

ii. April 27, 2022 – $1,780.67

iii. May 19, 2022 – $1,495.05

iv. June 20, 2022 – $1,289.31

v. June 27, 2022 – $1,096.62

vi. September 27, 2022 – $983.81

vii. November 9, 2022 – $871.00

viii. December 9, 2022 – $983.81

ix. January 9, 2023 – $871.00

x. April 5, 2023 – $1,585.05

xi. June 15, 2023 – $1,299.43

xii. February 1, 2024 – $1,299.43

19The applicant submits that the relevant clinical notes and records, including those from the family physician, Dr. Ching, and the hospital, were provided to the respondent by letter dated February 1, 2022. The respondent maintains that it did not receive updated clinical documentation, including pre-accident records, despite repeated requests made under section 33 of the Schedule on July 5, 2023, December 7, 2023, and February 11, 2024.

20The applicant argues that the chiropractic treatment was intended to address musculoskeletal symptoms, including pain, reduced range of motion, and headaches. The proposed goals included pain relief, improved mobility, and strengthening.

21The respondent relies on s. 44 insurer examination reports prepared by Dr. Oleg Safir (orthopedic surgeon) and Dr. Nagib Yahmad (neurologist), both dated June 2, 2022. These reports concluded that the applicant remained within the Minor Injury Guideline (MIG), that there was no significant functional change after 4 months, and that the medical documentation did not support the need for continued treatment.

22Dr. Safir opined that the applicant did not suffer a significant musculoskeletal injury and did not meet the disability test for income replacement benefits. While he noted residual muscular tenderness, he did not review the disputed treatment plans to assess their reasonableness in light of the applicant’s diagnoses, which included cervical and thoracolumbar spine sprain/strain (WAD I/II), a right shoulder contusion, and two unconfirmed right rib fractures. Dr. Safir’s examination revealed residual tenderness and mild functional limitations but no significant musculoskeletal impairment. He concluded that the applicant had reached maximum benefit from physical rehabilitation and recommended at-home exercises. He did not support further treatment.

23Dr. Yahmad found no significant neurologic injury and denied the treatment plans on that basis. He diagnosed a mild traumatic brain injury and cervicogenic/musculoskeletal headaches, but did not recommend any treatment.

24Clinical records from Dr. Ching indicate that the applicant was undergoing therapy, but do not specify the type of therapy or explicitly recommend chiropractic services. On December 2, 2021, the applicant reported attending physiotherapy twice per week. Dr. Ching’s notes from December 9, 2021, reference degenerative cervical changes and a normal lumbar spine, with no spinal fractures.

25The applicant’s subjective complaints do not align with the objective findings reported by Drs. Safir and Yahmad. Additionally, I was not pointed to or directed to evidence in the family physician’s CNRs indicating that chiropractic services were recommended.

26On a balance of probabilities, I find that the applicant has not met the burden of proving that the disputed chiropractic treatment plans were reasonable and necessary. This evidentiary gap reinforces that the applicant has not discharged their onus. Accordingly, the applicant is not entitled to these plans.

Psychological Services

27The applicant is not entitled to reimbursement for the outstanding amounts or the remaining psychological treatment plans.

Hourly Rate for the Psychotherapist

28The following treatment plans were either partially approved or denied in full:

i. February 9, 2022 – $448.83 (from a total of $2,194.93; $1,746.10 approved)

ii. February 23, 2022 – $2,045.20 (from a total of $4,090.40; $2,045.20 approved)

iii. April 1, 2022 – $897.72 (from a total of $3,491.48; $2,593.76 approved)

iv. May 12, 2022 – $1,496.80

v. January 13, 2023 – $1,047.33 (from a total of $3,491.48; $2,444.15 approved)

vi. August 10, 2023 – $1,196.94 (from a total of $3,491.48; $2,294.54 approved)

vii. May 24, 2022 – $2,195.83

29The applicant submits that several psychological treatment plans were partially approved in accordance with the FSCO hourly rate guideline of $149.64. However, the applicant argues that the treating psychotherapist, under the supervision of Dr. Li, provided culturally appropriate cognitive behavioural therapy (CBT) in the applicant’s mother tongue (Cantonese/Mandarin), which justified a higher hourly rate. The applicant’s ongoing psychological treatment in Cantonese/Mandarin was supported by the treating psychiatrist, Dr. Xiang, and the applicant continues to be prescribed sertraline. The applicant relies on Coutu v. Cooperators General Insurance Company, 2024 CanLII 123340 (ON LAT), where a higher hourly rate was found reasonable for CBT provided by a psychotherapist under a psychologist’s supervision.

30The respondent maintains that the hourly rate for psychological counselling was assessed adequately at $149.61 per hour, in accordance with the FSCO fee guideline.

31I find that the applicant did not identify the specific hourly rate he believes should apply, nor did he direct me to or point out evidence that a higher rate—such as the $179.29 maximum for catastrophic impairments—was appropriate in this case.

32On the balance of probabilities, I find that the applicant has not met the burden of proving entitlement to the outstanding amounts or the reasonableness and necessity of the remaining psychological treatment plans. This evidentiary gap reinforces that the applicant has not discharged their onus. Accordingly, the applicant is not entitled to these plans.

33I find that the applicant is not entitled to the treatment plan dated December 6, 2023.

34The treatment plan dated December 6, 2023, in the amount of $3,491.48, was denied on the basis that 10 sessions remained from a previously approved 48-session plan, calculated at the FSCO hourly rate.

35The applicant did not provide submissions for the remaining sessions to be used.

36The denial letter dated December 15, 2023, indicated that four OCF-18 Treatment Plans, totalling 48 sessions, had been approved, with 10 sessions remaining. It requests that the applicant complete the approved sessions before submitting new OCF-18s and that the applicant provide an updated progress report after the remaining sessions are used.

37I find that the applicant did not demonstrate that the remaining 10 sessions were used, nor did he submit an updated progress report or resubmit the treatment plan as requested.

38On a balance of probabilities, I find that the treatment plan dated December 6, 2023, is not payable.

Medical Services

39I find that the applicant is not entitled to the treatment plans submitted under Medical Services.

40The treatment plans in question are:

i. A plan dated January 9, 2023, in the amount of $871.00.

ii. A plan dated April 1, 2022, in the amount of $2,194.93.

41The applicant did not specifically address these treatment plans in their submissions. As a result, I find that the applicant has not demonstrated on a balance of probabilities that the proposed services are reasonable and necessary.

42Accordingly, the applicant is not entitled to funding for these treatment plans.

Occupational Therapy

43I find that the applicant is not entitled to the occupational therapy treatment plans.

44The applicant seeks funding for occupational therapy services proposed in two treatment plans dated February 23, 2022, and March 28, 2023. The dispute concerns the respondent’s partial approval of the first plan and complete denial of the second.

45The treatment plan dated February 23, 2022, proposed occupational therapy services totalling $4,090.40. The insurer approved $2,045.20, covering six sessions. The remaining amount is $2,045.20.

46The treatment plan dated March 28, 2023, proposed occupational therapy services totalling $4,090.40. This plan was denied in full.

47The applicant submits that the six approved sessions were insufficient to meet the goals of the proposed treatment. These goals included enhancing knowledge and awareness of joint protection and injury prevention, chronic pain self-management, cognitive rehabilitation, memory remediation, relaxation techniques, reintegration into community and leisure activities, and the development of a home program to improve activity tolerance and support meaningful activity goals aimed at enhancing independence.

48The respondent denied the remaining six sessions from the February 2022 plan, citing a lack of objective medical evidence to support the need for twelve sessions. The insurer referenced the OCF-18 completed by occupational therapist Yunbei Long, which identified injuries including fractures of the 2nd and 4th ribs on the right side, WAD II with neck pain, musculoskeletal symptoms, headaches, dizziness, and giddiness. The insurer stated that no diagnostic test results or supporting documentation had been provided to justify the proposed frequency and duration of treatment.

49The respondent also denied the March 2023 treatment plan, asserting that it was not reasonable or necessary. This position was supported by s. 44 assessments conducted by Dr. Yahmad and occupational therapist Ms. Dawn Li.

50Yunbei Long's occupational therapy progress report (March 18-April 22, 2022) outlined goals like pain management, home safety, proper mechanics, fall prevention, assistive devices, sleep, and memory techniques. It recommended ongoing physiotherapy, massage, psychological counselling, and twelve more occupational therapy sessions for joint protection, injury prevention, and pain management.

51In his June 2, 2022, report, Dr. Yahmad found no objective evidence of myelopathy, plexopathy, radiculopathy, or neuropathy. He stated the applicant’s headaches were cervicogenic and musculoskeletal, not linked to neurological impairment or disability.

52In her May 11, 2022, report, Ms. Dawn Li stated that, from an occupational therapy perspective and considering the applicant’s reported independence, attendant care was not needed. The applicant reported being able to perform activities like bathing, hygiene, mobility, and feeding independently.

53I accept that the applicant sustained injuries, including rib fractures and soft tissue damage, which may have needed occupational therapy. However, I am not persuaded on a balance of probabilities that the proposed twelve sessions were reasonable. The respondent approved six, and there’s insufficient medical evidence for more. Reports from Dr. Yahmad and Ms. Li show the symptoms are mainly musculoskeletal and don’t cause significant impairments requiring extended therapy. The applicant’s reports of independence also suggest further treatment isn’t necessary.

54Accordingly, on a balance of probabilities, I find that the applicant is not entitled to funding for the remaining six occupational therapy sessions proposed in the February 23, 2022, treatment plan, nor for the treatment plan dated March 28, 2023.

In-Home Assessment

55I find that the applicant is entitled to the In-Home Assessment.

56The applicant seeks funding for an In-Home Assessment proposed in a treatment plan dated November 28, 2022, in the amount of $2,000.00.

57The respondent denied the proposed assessment, relying on a prior s. 44 In-Home Assessment conducted by occupational therapist Ms. Dawn Li in May 2022. In that report, Ms. Li concluded that the applicant did not require attendant care services at the time of her assessment.

58The applicant submits that Ms. Li’s report did, in fact, identify objective physical limitations in the bilateral shoulders, as well as subjective complaints of vision issues, pain, and emotional concerns. The applicant further submits that since Ms. Li’s assessment, the respondent has received updated medical documentation indicating ongoing functional limitations that may warrant reassessment.

59I agree with the applicant that the purpose of an In-Home Assessment is to determine whether attendant care services are required based on the insured’s current condition. The applicant bears the onus of establishing that there is a reasonable basis to believe that such a condition exists and that an assessment is necessary to evaluate the extent of need.

60In this case, I find that the applicant has met the burden of proving that the proposed In-Home Assessment is reasonable and necessary. This finding is supported by Ms. Li’s report, which, while concluding that attendant care was not required at the time of her assessment, documented physical and emotional limitations that could affect the applicant’s functional capacity. The applicant also submitted evidence that his condition has evolved since that assessment. Given the passage of time and the nature of the applicant’s reported symptoms, I am satisfied that an updated assessment is warranted to determine current care needs.

61Accordingly, on a balance of probabilities, I find that the applicant is entitled to funding for the In-Home Assessment proposed in the November 28, 2022, treatment plan.

Outstanding Amount of the CAT Assessment

62I find that the applicant is not entitled to the outstanding amount of the CAT assessment.

63Section 25(1) of the Schedule mandates insurers to pay reasonable fees for assessments to determine benefits, including catastrophic impairment. These fees must be necessary, and the applicant must prove they meet this threshold.

64The applicant seeks reimbursement for the full cost of a catastrophic impairment (CAT) assessment proposed in a treatment plan dated February 1, 2024, totalling $17,967.00. The respondent approved $14,967.00 and denied $3,000.00 related to two collateral interviews and a psychological Whole Person Impairment (WPI) rating.

65The applicant completed the full CAT assessment, including denied sections. A CAT report and OCF-19 dated July 2, 2024, indicated that he meets the criterion for catastrophic impairment under Criterion 8, due to mental and behavioural impairments with at least three marked (Class 4) impairments. The applicant contends that the collateral interviews were vital for assessing pre- and post-accident functioning and for supporting the occupational therapist’s evaluation of Activities of Daily Living. These interviews were conducted separately and took additional time. The applicant also argues that the $2,000 cost for the psychological WPI rating is reasonable and within the limits outlined in section 25(5) of the Schedule.

66The respondent relies on its own CAT report, prepared by Dr. Ben Meikle, dated January 8, 2025, which concluded that the applicant exhibited only mild (Class 2) impairments. The respondent argues that the applicant has not supplied sufficient objective evidence to justify the additional $3,000.00 in assessment costs and asserts that entitlement to CAT assessment funding is not automatic. The insurer is only required to pay for assessments that are reasonable and necessary, and there must be credible evidence supporting the need for an investigation.

67I agree with the respondent that entitlement to the full cost of a CAT assessment does not automatically follow from submitting a treatment plan or completing the assessment. The applicant must show, on a balance of probabilities, that each disputed component was more likely than not reasonable and necessary to investigate whether the person may have a catastrophic impairment. In this case, while the applicant asserts that two collateral interviews and a psychological Whole Person Impairment (WPI) rating were important, the evidence provided does not explain why these additional steps were required beyond the standard assessment components. There is no indication that the applicant’s presentation or history raised issues that could not be addressed without these extra measures. Accordingly, I am not persuaded that these components were more likely than not necessary for the purpose of determining potential catastrophic impairment.

68Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the outstanding $3,000.00 related to the collateral interviews and psychological WPI rating. These costs are not reasonable or necessary in the circumstances.

Cost of a Form Fee

69I find that the applicant is not entitled to the cost of the form fee.

70The applicant seeks reimbursement for a $200.00 form fee proposed in a treatment plan dated January 31, 2024.

71The applicant did not provide any submissions or supporting documentation to explain the purpose or necessity of the form fee.

72The respondent submits that the fee is not payable because the associated treatment plan was not approved. As such, the cost of completing the plan is considered redundant.

73I agree with the respondent. Section 25 of the Schedule requires the insurer to pay reasonable fees for necessary and related services approved for treatment. In this case, the treatment plan was not approved, and the applicant has not provided any evidence or argument to support the reasonableness or necessity of the form fee. Without such justification, the fee cannot be considered payable.

74Accordingly, on a balance of probabilities, I find that the applicant is not entitled to reimbursement for the $200.00 form fee proposed in the January 31, 2024, treatment plan.

Is the applicant entitled to an ACB of $2,131.83 per month from March 17, 2022?

75I find that the applicant is not entitled to an ACB.

76Section 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”).

77The applicant reports ongoing chronic pain, cognitive difficulties, and emotional impairments affecting self-care and daily activities. He cites a January 2022 Form-1 by occupational therapist John Duong, noting physical limitations in the right upper extremity that hinder tasks such as meal preparation and hygiene, with a recommendation for supervisory care. He also references the insurer’s occupational therapist, Ms. Dawn Li, who in May 2022 observed decreased shoulder strength, vision issues, fatigue, sleep disturbances, mood changes, and cognitive difficulties.

78The applicant further submits that the expenses should be deemed incurred under section 3(8) of the Schedule, which allows the Tribunal to deem an expense incurred if the insurer unreasonably withheld or delayed payment. The applicant argues that the documentary evidence supports such a finding and that the legislation's consumer protection purpose is invoked.

79The respondent submits that the claimed ACB is not payable because it is neither reasonable nor necessary. The insurer relies on Ms. Li’s May 11, 2022, assessment, which concluded that the applicant was capable of performing personal care tasks independently and recommended zero hours of attendant care per week, with a corresponding monthly cost of $0.00.

80The respondent also argues that the claimed amount has not been incurred, as the applicant did not receive attendant care services and did not pay for or commit to paying for them. As such, the applicant is not eligible under section 3(7)(e) of the Schedule. The insurer formally denied the benefit in a letter dated May 11, 2022, which included the Form-1 and the s. 44 examination report.

81The applicant’s claim is based on the January 13, 2022, Form-1 completed by Mr. Duong, which recommended attendant care based on limitations in dressing, meal preparation, and hygiene. The respondent relies on Ms. Li’s May 11, 2022, report, which concluded that the applicant was independent in personal care tasks and did not require attendant care.

82Surveillance evidence from April and June 2024 shows the applicant driving, shopping, carrying bags, and performing light yard work. These activities appear inconsistent with the need for ongoing attendant care. While the applicant argues that surveillance does not capture post-activity pain, I note that Ms. Li’s functional observations, combined with the applicant's failure to direct me to any clinical notes and records (CNRs) or other evidence supporting the Form-1, lead me to give greater weight to the observed functional abilities.

83I find that the applicant has not met the burden of proving that the claimed attendant care services are reasonable and necessary. The evidence does not support a finding that the applicant requires assistance with personal care tasks. Furthermore, the applicant has not incurred the claimed expenses, nor has he demonstrated that the insurer unreasonably withheld or delayed payment to justify deeming the expenses incurred under section 3(8).

84Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the claimed Attendant Care Benefit.

Interest

85Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to any overdue payment.

Award

86The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

87The applicant argues that an award is justified under subsection 51(2), which requires interest at 1% per month, compounded on overdue amounts. This rule aims to prevent insurers from delaying payments and to avoid litigation. The applicant cites insurer logs showing a lack of proper analysis of injuries and an adversarial approach to claims. The applicant claims the insurer failed to reconsider its position after new medical evidence and did not evaluate all evidence, leading to unreasonable delays or denials of benefits, warranting an award.

88The respondent claims that it acted reasonably and in good faith during the claim adjustment, relying on medical evidence and assessors' opinions. It argues the applicant has not proven that disputed treatments were incurred before the denial, so benefits were not unreasonably withheld. Even if procedural issues under s. 38 exist, they do not automatically justify an award. The respondent denies failing to comply with notice provisions, asserting that non-compliance doesn't constitute unreasonable withholding.

89I find that the respondent’s conduct in adjusting the applicant’s claim does not meet the threshold required for an award under s. 10 of Regulation 664. While the applicant raises concerns regarding the insurer’s approach to claim handling, including its reliance on s. 44 assessments and alleged failure to reassess its position in light of new medical evidence, I am not persuaded that these actions amount to unreasonable conduct as defined by the Tribunal’s jurisprudence. The evidence does not demonstrate behaviour that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The respondent provided a medical rationale for its decisions and maintained communication with the applicant throughout the claims process.

90Therefore, I find that an award is not justified.

ORDER

91For the above reasons, it is ordered that:

i. The treatment plan for chiropractic services incurred on or after the 11th business day following October 11, 2023, until December 7, 2023, is payable pursuant to s. 38 of the Schedule, plus interest.

ii. The applicant is entitled to the treatment plan for In-Home Assessment dated November 28, 2022, plus interest.

iii. The applicant is not entitled to the remaining treatment plans or outstanding balances.

iv. The applicant is not entitled to Attendant Care Benefits or an award.

Released: December 10, 2025

Harouna Saley Sidibé

Adjudicator