Licence Appeal Tribunal File Number: 24-002738/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:
[JG]
(By their litigation guardian, [CB]
Applicant
and
Belair Direct Insurance
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Gordon W Harris, Counsel
For the Respondent:
Darrell P. March, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[JG], the applicant, was involved in an automobile accident on April 24, 2019, 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, Belair, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2On the date of the accident, the applicant and her friend were walking on the sidewalk, when an impaired driver mounted the curb, speeding directly towards them. Both women attempted to dive out of the way however, the vehicle struck and killed the applicant’s friend. The applicant managed to avoid being struck by the vehicle, but the incident left her with catastrophic psychological injuries. Her husband, [CB], is her litigation guardian.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $1,435.51 for nutritional counselling, produce boxes and protein supplements, proposed by Nina Lobbestael, dietician, in the treatment plan (“OCF-18”) dated February 10, 2023?
ii. Is the applicant entitled to the balance of $200.00 plus HST for the completion of the OCF-18s forms prepared by Carey Duncan as follows:
$80.08 for the preparation of the OCF-18 form, dated May 27, 2022;
$110.93 for the preparation of the OCF-18 form, dated July 28, 2022;
$110.93 for the preparation of the OCF-18 form, dated October 16, 2022; and
$110.93 for the preparation of the OCF-18 form, dated February 2, 2023?
iii. Is the applicant entitled to $732.68 ($5,380.00 less $4,647.32 approved) for psychological services, proposed by Carey Duncan and Connie Phillips, in the OCF-18 dated April 14, 2023?
iv. Is the applicant entitled to $336.00 for drum lessons, proposed by Carey Duncan, in the OCF-18 dated July 15, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 64 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
4The Case Conference Report and Order (“CCRO”) listed ten issues in dispute. The applicant in her submissions has indicated that some of the issues are partially withdrawn or withdrawn completely and provided the actual amount in dispute for this hearing. For simplicity, I have relied upon the applicant’s submissions to list the issues in dispute above which the respondent agrees with.
5While the respondent in its submissions, states that the OCF-18, dated February 10, 2023, listed as issue 1 was withdrawn at the case conference, upon review of the applicant’s application to the Tribunal, issue 1 of the application was withdrawn, but this issue is not the OCF-18 dated February 10, 2023. The OCF-18 dated February 10, 2023, was listed as issue 4 on the applicant’s application and there is no indication that issue 4 is withdrawn. Therefore, it will be considered in this hearing.
RESULT
6The applicant is entitled to $1,435.51 for nutritional counselling, produce boxes and protein supplements, proposed in the OCF-18, dated February 10, 2023, plus interest.
7The applicant is entitled to the balance of the $200.00 plus HST for completion of the OCF-18 forms dated May 27, 2022, July 28, 2022, October 16, 2022 and February 2, 2023, plus interest.
8The applicant is not entitled to the unapproved balance of the OCF-18 for psychological services, dated April 14, 2023.
9The applicant is entitled to $336.00 for drum lessons, proposed in the OCF-18 dated July 15, 2022, plus interest.
10The respondent is required to pay a s. 10 award in the amount of $2,585.20, plus interest.
ANALYSIS
Entitlement to Medical and Rehabilitation Benefits
11To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Entitlement to the OCF-18 for nutritional counselling, produce boxes and protein supplements
12I find that the applicant is entitled to the treatment plan for nutritional counselling, produce boxes and protein supplements.
13The applicant claims entitlement to $1,435.52 for nutritional counselling, produce boxes and protein supplements, proposed by Nina Lobbestael, dietician, in a treatment plan dated February 10, 2023. The OCF-18 recommends the following items:
2 produce boxes: $460.00 2 one hour “planning, service”: $440.00 OCF-18 form completion: $200.00 3 protein supplements for weight loss: $335.52
The goals of the OCF-18 are listed as:
Develop personalized strategies/tolls that promote [JG] to consistently consume proper nutrition to achieve successful management of symptoms associated with body weight management, fatigue and pain.
Implement personalized strategies and cueing mechanisms that seek to remind and improve [JG]’s motivation to maintain a proper nutritional routine in times of pain, fatigue and emotional/cognitive challenges in support of improving overall functionality. Consistently consuming proper nutrition will likely assist [JG] with improving her overall functionality.
14By letter dated March 8, 2023, the respondent denied the OCF-18 and stated that the OCF-18 is not for nutritional counselling but for provision of “produce boxes”. The respondent provided the following medical and other reasons for the denial.
As per the Occupational Therapy Progress report she is participating in grocery shopping and using strategies to compensate for decreased memory. As per the current OCF-18 she has been cooking meals for her family. The medical documentation does not support the delivery of Produce boxes, the insured has adequate support systems and compensatory strategies in place to grocery shop and plan meals with the support of her treatment team, therefore the provision of “produce boxes is neither reasonable or necessary.
15The respondent requested a s. 44 assessment to determine if the requested goods and services are reasonable and necessary and provided a Notice of Examination for an assessment with Amanda Rolph, dietician, on April 5, 2023.
16The applicant submits that the OCF-18 is reasonable and necessary as outlined in the additional comments in the OCF-18. The OCF-18 indicated that the applicant was still not consistently eating appropriate meals to meet her nutritional requirements and that her weight remained in the underweight range without significant muscle mass improvement. It noted that given the applicant’s challenges with meal planning, that produce boxes were still necessary to help her transition to greater independence. It was indicated that without these boxes, the applicant would be “at significant nutritional risk” as the boxes were effective in maintaining the applicant’s weight and preventing further weight loss.
17The applicant further submits that the respondent’s denial does not consider the entirety of the Occupational Therapy (“OT”) progress report that it based its denial on. The OT progress report, dated January 18, 2023, stated that the applicant was grocery shopping occasionally and that she continued to exhibit difficulties with meal planning and would often become overwhelmed and unable to complete the meal planning or preparation without support. The provision of produce boxes with the ingredients required to prepare a meal mitigated the applicant’s stress around meal planning, which enabled her to cook for her family more consistently. The OT further recommended the ongoing provision of produce boxes with a gradual reduction in the applicant’s reliance on them.
18The respondent submits that the treatment plan is not reasonable and necessary. It relies upon the OT progress report dated December 10, 2024, that provides that the applicant is participating in grocery shopping and using strategies to compensate for decreased memory. It also notes that the applicant has been able to resume meal preparation tasks and reports performing simplistic meals. The applicant further reported an increased engagement in daily activities such as making meals as a result of attending acupuncture and osteopathic treatments. The respondent submits that the applicant is relying on medical evidence that predates the OCF-18 and confirms that the applicant stopped losing weight and has started making meals for her family again. The respondent argues that the applicant’s argument that she requires produce boxes due to weight loss is unsupported by the evidence because there has been no further weight loss and her concerns that necessitated the possible need for produce boxes have been resolved.
19I find that the applicant has proven on a balance of probabilities that the OCF-18 is reasonable and necessary for the following reasons.
20I find that while the respondent relies upon the OT progress report, dated December 10, 2024, this report is not contemporaneous with the OCF-18 in dispute and would have been submitted after the submission of the OCF-18. I find that the January 18, 2023 OT progress report was submitted less than a month prior to the OCF-18, and this report should be given more weight.
21I find upon review of the January 18, 2023 OT progress report, that sufficient reasons are provided for the continued provision of the produce boxes. I find that the report specifically notes that the applicant continues to need reinforcement of meal planning and grocery shopping strategies to improve consistency, in conjunction with Ms. Lobbestael, dietician, to ensure a coordinated approach and gradual reduction in reliance on Hello Fresh Meals. The report further notes that she has been inconsistent in her use of meal planning strategies, becoming overwhelmed when attempting to schedule for more than a few meals at a time. While the report states that she has increased her participation in grocery shopping tasks, she still requires ongoing assistance.
22I do not accept the respondent’s argument that because the applicant is no longer experiencing weight loss that the need for the produce boxes has resolved. I accept the applicant’s submission and evidence that the produce boxes were effective in maintaining the applicant’s weight and preventing further weight loss which is a reasonable goal for providing the requested produce boxes. I further find that the OT progress report clearly sets out that the plan is for a gradual reduction in reliance on the produce boxes and she would be at nutritional risk if they were abruptly stopped.
23For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the OCF-18, dated February 10, 2023, is reasonable and necessary.
Entitlement to the balance of the OCF-18 form completion fees
24I find that the applicant is entitled to the balance of $200.00 plus HST, for completion of the OCF-18 forms.
25The applicant claims entitlement to the balance of $200 +HST, for the completion of the OCF-18 forms prepared by Carey Duncan dated May 27, 2022, July 28, 2022, October 16, 2022 and February 2, 2023. She claims entitlement to the balance of the $200.00 owing, plus HST, as following:
i. $80.08 for the preparation of the OCF-18 form, dated May 27, 2022;
ii. $110.93 for the preparation of the OCF-18 form, dated July 28, 2022;
iii. $110.93 for the preparation of the OCF-18 form, dated October 16, 2022;
iv. $110.93 for the preparation of the OCF-18 form, dated February 2, 2023?
26The Professional Services Guideline – Superintendent’s Guideline No. 03/14 (“the Guideline”), provides that $200.00 is the maximum fee for completion of an OCF-18 form. The Guideline further states that where the Canada Revenue Agency considers HST to be applicable to any of the services or fees listed in the Guideline, then HST is payable by an insurer in addition to the fees set out in the Guideline.
27The applicant acknowledges that the $200.00 fee for the completion of an OCF-18 is the maximum permitted under the Guideline, and that it is not automatically payable. However, she submits that where the OCF-18 includes detailed descriptions and additional comments, or where several steps and collaboration was required, that it is reasonable to determine that more than an hour was required for the completion of the OCF-18.
28The applicant further submits that the time required to complete the treatment forms for an applicant who suffered a catastrophic injury, is likely to be more than one hour. The applicant relies upon the Tribunal decision in J.D. v. Intact Insurance Company, 2022 CanLII 4512 (ON LAT) (“J.D.”), which concluded that, “I find it reasonable that the completion of these treatment plans required two hours on average. The time required to complete the treatment forms for an applicant who suffered a catastrophic injury, such as the applicant, is likely to be more than an hour.”
29The applicant submits that all of the partial denials of the fees for the completion of the OCF-18s were in relation to the OCF-18s prepared by Carey Duncan, OT. She argues that in each denial letter, the respondent indicated that the reason for the partial denial was that “an insurer is not liable to pay for expenses in excess of the Financial Services Commission of Ontario’s Professional Services Guideline”. The applicant submits that the Guideline’s Rates and Fees indicate that the maximum hourly rate for OTs in relation to insureds with Catastrophic Impairments is $119.92. With this rate, the $200.00 maximum would be reached in 1 hour and 40 minutes. The applicant argues that 1 hour and 40 minutes was reasonable based on Ms. Duncan’s detailed comments, review of multi-disciplinary clinical records, communication with the applicant and required correspondence, that were essential to prepare the OCF-18s. The applicant argues that the respondent should have approved the maximum $200.00 for each OCF-18 at issue, plus HST ($26.00), and that she is entitled to the shortfall of the partial approvals.
30The respondent submits that it approved the fees for one hour of time of the health care provider who completed the OCF-18, in this case Ms. Duncan. The respondent in its denial letters advised the following:
In accordance with section 25 of the Statutory Accident Benefits Schedule (SABS), an insurer is not liable to pay for expenses in excess of the Financial Services Commission of Ontario’s Professional Services Guideline. In an effort to ensure you are receiving the recommended services, we will approve the cost of the recommended service fees and/or form completion accordingly to one hour of the health care provider who completed the form.
31The respondent submits it requested the provider give a reason why additional time was needed if completing the OCF-18 took more than one hour. The respondent submits that no reason was provided with respect to the subject OCF-18s, and therefore, the fees in excess of one hour charged by Ms. Duncan at the rate of $119.92 were properly denied.
32The respondent relies upon the decision of [JG] v. Belair Direct, 2024 CanLII 56770 (ON LAT) (“JG”), the same parties that are in the subject dispute, where Adjudicator Beauchesne held:
I find the applicant did not make submission on the form completion fee. The OCF-18 indicate that Ms. Carey Duncan (occupational therapist) proposed a flat fee (i.e. not an hourly rate) of $200.00 to complete the OCF-18s. While the applicant’s submissions speak to the respondent partially approving this fee in the amount of $99.75, she does not point to evidence that persuades me the balance owing is reasonable to pay. As such, I am not convinced the applicant is entitled to any further payment of the form completion fee.
33I find upon review of the respondent’s denial letters, that the respondent did not request that the provider give a reason why additional time was needed if the OCF-18 took more than one hour. It simply approved one hour of time for completion of the OCF-18 form.
34I further find, that while the Tribunal in [JG] v. Belair Direct concluded that the applicant had not pointed it to evidence that the balance of the OCF-18 completion fee owing was reasonable to pay, I find that this matter is distinguishable. I find that the evidence before me supports that the OCF-18s submitted in this matter, took longer than an hour to complete. I find upon review of the OCF-18s, that detailed descriptions of the applicant’s impairments and the rationale for treatment were provided. I further find that it is clear that consultations took place with other treatment providers as well as the applicant. I agree with the Tribunal decision in J.D., that where an insured suffers a catastrophic injury, it is likely that an OCF-18 form will take longer than an hour to complete, as the time required to coordinate treatment needs would be more complicated and timelier.
35With respect to payment of HST, the respondent did not make any submissions disputing that HST is payable beyond the $200.00 cap. I therefore find that the applicant is entitled to HST on the $200.00 payable for the completion of the OCF-18 forms in accordance with the Guideline.
36For the reasons outlined above, I find that the applicant is entitled to the balance of the $200.00 plus HST for the completion of the OCF-18 forms, dated May 27, 2022, July 28, 2022, October 16, 2022, and February 2, 2023.
Entitlement to the balance of the treatment plan for psychological services
37I find that the applicant is not entitled to the balance of the OCF-18 for psychological services, dated April 14, 2023.
38The applicant claims entitlement to $732.68 ($5,380.00 less $4,647.32 approved) for equine facilitated psychotherapy sessions, proposed by Carey Duncan and Connie Phillips, psychotherapist, in an OCF-18, dated April 14, 2023. The plan recommends 15 - 1.5-hour sessions with Ms. Phillips, at the rate of $140.00 per session.
39The respondent approved 15 - 1.5-hour sessions at the rate of $119.92, instead of the proposed rate of $140.00.
40The fee for services provided through the Schedule is governed by the Guideline which establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour.
41The Guideline does not specify the rate for psychotherapists. Rather, the rate is stipulated for unregulated providers, such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for psychotherapists, it is left to the parties to determine what the acceptable hourly rate would be. The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.
42The applicant submits that where cognitive behavioural therapy (“CBT”) provided by a psychotherapist, is akin to services provided by a psychologist or psychological associate, the Tribunal has determined that the maximum rate for a psychologist is reasonable. The applicant submits that Ms. Phillips is a member of the College of Registered Psychotherapists of Ontario and also obtained her master’s degrees in psychotherapy and theological studies. Ms. Phillips has worked in equine assisted psychotherapy since 2013. The applicant submits that treatment methods proposed in the OCF-18 for equine facilitated psychotherapy fit within the scope of CBT. The applicant therefore argues that given Ms. Phillip’s registration with the College, her education and her experience, that the $140.00 hourly rate is reasonable.
43The respondent submits that while the applicant claims that the equine therapy is akin to CBT therapy, there is no mention of CBT techniques in Ms. Phillips’ notes. It further submits that no evidence has been provided that Ms. Phillips specializes in CBT or that she has used CBT in her sessions with the applicant.
44The respondent argues that this issue has already been decided in the previous Tribunal decision in [JG] v. Belair Direct where it was found that the appropriate hourly rate for equine-assisted psychotherapy services is $99.75.
45I find that the applicant has not proven on a balance of probabilities that Ms. Phillips should be paid the enhanced hourly rate for a psychologist. I find that while the applicant submits that CBT techniques have been used in her treatment, no evidence has been provided of this technique being proposed or used as part of the psychotherapy sessions contemplated by the OCF-18. I further find that while the applicant in her submissions sets out that CBT is implemented through the horse mirroring and reaction to the client’s behaviour and emotions related to thoughts and conversations throughout the sessions, she has not submitted any medical evidence to support that these treatment methods fit within the scope of CBT. I further find that the applicant has not provided evidence that Ms. Phillips has specialized training within the area of CBT nor that the services provided were the same as those provided by a psychologist. Simply setting out Ms. Phillips’ education and her experience performing equine psychotherapy is not sufficient evidence of a qualification to perform CBT.
46For the reasons outlined above, I find that the applicant has not met her onus of proving on a balance of probabilities, that Ms. Phillips, psychotherapist, should be paid at the enhanced hourly rate for a psychologist. As such, the applicant has not demonstrated entitlement to the unapproved balance of the OCF-18 dated April 14, 2023.
Entitlement to the balance of the treatment plan for drum lessons
47I find that the applicant is entitled to the balance of the OCF-18 for drum lessons, dated July 15, 2022.
48The applicant claims entitlement to $336.00 for drum lessons, recommended in the OCF-18, dated July 15, 2022. Upon review of the OCF-18, it recommended the following:
Line 1: Documentation support activity for claim form - $200.00
Line 2: Drum set - $527.00
Line 3: Cost of drum lessons incurred to date – $327.00
Line 4: Cost of drum lessons, once per week for 6 months (24 lessons) - $28.00 per lesson - $672.00
Line 5: Treatment time spent obtaining research, communicating with Ms. Connie Phillips and the client for additional information to complete the treatment plan and supporting letter – $239.84
Lince 6: Completion of supporting rationale letter - $239.84
Total: $2,332.95
49By letter dated July 29, 2022, the respondent approved $1,090.95 and denied lines 2, 3, and 4 totalling $1,242.00. Lines 2 and 3 were denied based on s. 38(2) of the Schedule, because the expenses were incurred before the applicant submitted the OCF-18. Line 4 was denied and the letter states that on July 18, 2022, the respondent and Carey Duncan, OT, discussed the OCF-18. The letter notes that it was agreed between the OT and the respondent that it would approve three months of drumming lessons and any consideration for future drumming lessons would be reviewed by the respondent upon receipt of documentation detailing any impact this activity has had on the applicant’s participation in daily living, instrumental and/or functional activities.
50The applicant submits that she is entitled to the remaining three months of drum lessons in the amount of $336.00 based on the OT progress report dated January 18, 2023. The applicant argues that the report indicates that the applicant was practicing drums daily and found this activity increased her tolerance for other activities, task initiation and helped her to manage her symptoms throughout the day. She claims that overall, she was using drumming to reduce her anxiety, with success. The applicant submits that despite this evidence, the respondent has not reconsidered their denial of this OCF-18.
51The respondent submits that the January 18, 2023 OT progress report, provides that the applicant is engaging in a number of activities including creative dance, daily flying using flight simulator equipment, light housekeeping tasks, occasional grocery shopping, and increased social interactions. It argues that the applicant’s answers to the questionnaires referenced in her submissions are not directly attributable to the applicant’s participation in drumming. There are a number of other explanations for the answers given to the questionnaires, including her participation in a number of other activities and treatment at the same time as the drumming lessons. The respondent further submits that there is no physician or expert who has concluded that the drumming lessons are reasonable and necessary, and the applicant is only reporting on her own improvements to support the need for the drum lessons.
52I find that the January 18, 2023 OT progress report supports that the applicant was engaging in drumming throughout the day which she reported increased her energy and allowed her to engage in various activities as a result. The report further notes that she utilizes her drumming to reduce anxiety, with success. Finally, the report notes improvements in concentration/attention and memory as a result of playing drums and learning how to fly with the Flight Simulator.
53I find that while the applicant might have participated in a number of other activities and treatment at the same time as the drumming lessons, the OT progress report clearly refers to the drumming lessons on multiple occasions as the reason for her increased energy and reduction in anxiety. I therefore find that this report supports that the drum lessons proposed in the OCF-18 in dispute are reasonable and necessary and the applicant is entitled to receive the proposed lessons.
54For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the drum lessons in the amount of $360.00, proposed in the OCF-18 dated July 15, 2022, are reasonable and necessary.
Interest
55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the OCF-18 for nutritional sessions and produce boxes, dated February 10, 2023; the balance of the $200.00 plus HST for completion of the OCF-18 forms; and the OCF-18 for drum lessons, dated July 15, 2022.
Award
56The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
57The applicant submits that she is entitled to an award, because the respondent failed to approve reasonable and necessary OCF-18s and continued to deny these OCF-18s on insufficient bases which has resulted in inordinate delays and withholding of benefits.
58The respondent submits that simply not approving OCF-18s, when it is principled to do so, does not amount to conduct that attracts an award. It argues that it has fairly investigated and assessed the applicant’s claim and consistently treated the applicant in a courteous, professional and fair manner. It submits that there is no basis for an award.
59I find that the applicant has not provided sufficient evidence that the respondent’s behaviour in denying the OCF-18s in dispute was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the respondent responded to the OCF-18s in a timely manner and provided sufficient reasons for the denials. While I have found that some of the OCF-18s in dispute were reasonable and necessary, this does not amount to the respondent unreasonably withholding or delaying the payment of benefits. I therefore do not find that an award is payable on this basis.
Was the respondent entitled to conduct the attendant care assessment?
60The applicant further submits that she is entitled to an award, because the respondent engaged in egregious misconduct in arranging and proceeding with an attendant care assessment that was not consented to by the applicant.
61On August 9, 2022, the respondent acknowledged receipt of the Form 1 prepared by Carey Duncan, dated June 17, 2022 and received on July 22, 2022. It requested a s. 44 assessment and provided a Notice of Examination scheduling the assessment with Montana Mullane, OT, on January 25, 2023.
62On August 15, 2022, the applicant’s counsel responded and advised that as the Form 1 was received on July 22, 2022, the respondent’s response dated August 9, 2022, was non-compliant with s. 42 of the Schedule. The letter stated, “As a result, an IE for same is not necessary, and we trust any attendant care incurred will be paid.”
63On October 12, 2022, the respondent responded that although its response was one day late, this does not represent a material and substantial non-compliance with s. 42 of the Schedule. It states that there is no specific remedy set out in s. 42 regarding a late response by the insurer. However, it was prepared to consider the period from the 11th business day following its receipt of the Form 1, pending receipt of the s. 44 report, and will calculate the amount of the attendant care benefit based on the amount of the recent Form 1 and subject to incurred expenses. It asks for the authority under which the applicant asserts that a one-day late response will result in a deemed acceptance by the insurer of the recommendations contained within the Form 1 and forfeiture of the insurers right to request an IE in response to the Form 1.
64On January 20, 2023, counsel for the applicant sent a letter to the respondent acknowledging receipt of its notice of the rescheduled assessment to address the Form 1. It restates that the respondent is non-compliant with s. 42(3) and as a result an IE for same is not necessary. It states that “we trust any attendant care incurred will be paid.”
65By letter dated January 22, 2023, the respondent replied and reiterated its position that a late response does not represent a material and substantial non-compliance with s. 42 of the Schedule. It states that as there is no remedy in s. 42 regarding a late response by the insurer, s. 38(11)(2) provides a reasonable and prudent remedy. It advises that in accordance with s. 42(14) of the Schedule, failure to participate in a scheduled IE will result in suspension of the applicant’s attendant care benefits. The letter states that the IE scheduled for January 25, 2023, remains scheduled.
66By letter dated February 6, 2023, the respondent advised the applicant that she failed to attend the scheduled IE on January 25, 2023.
67By letter dated February 14, 2023, counsel for the applicant responded and advised that she would not attend the IE.
68By letter dated February 14, 2023, the respondent maintained its position that a late response does not represent a material and substantial non-compliance with s. 42. It advised the applicant that in accordance with s. 42(14) of the Schedule, failure to participate in a scheduled IE will result in suspension of the applicant’s attendant care benefits. It advises that the IE was rescheduled for April 12, 2023.
69By email dated March 29, 2023, the respondent asked the applicant’s counsel if she will be attending the assessment in her home for attendant care benefits. In response, counsel for the applicant replied that the applicant would not be attending the IE regarding her attendant care. It noted, “There is a formal response coming in regard to that situation.”
70On April 12, 2023, the respondent proceeded with the attendant care assessment. A female OT and a male trainee attended the applicant’s home, while she was alone.
71On April 14, 2023, counsel for the applicant wrote to the respondent in response to the OT assessment that took place on April 12, 2023. The email notes that the assessment was vehemently opposed, and it had advised it would not be allowed given the respondent’s non-compliance with the Schedule. The email notes that the applicant was humiliated and felt degraded by the assessment, and it has caused serious trauma. The email notes, “Two strangers entered her home, a woman who does not have capacity, home alone, two people who were not supposed to be there, seemingly of authority, asking a barrage of personal questions, cornering her in the bathroom, without her husband, her legal guardian, her support, there to help her. Her home, her body, her security, have all been violated by Intact.”
72The applicant submits that the unauthorized and humiliating assessment resulted in a setback in her progress, as reported to Ms. Phillips. The applicant submits that her consent was never obtained to proceed with this assessment, and this assessment was repeatedly refused. The applicant argues that the respondent’s conduct was unconscionable and put an already vulnerable woman in a compromised position where she was fearful and humiliated. She therefore claims an award.
73The respondent submits that it was unreasonable for the applicant to refuse to attend the attendant care assessment on an overly technical basis that the respondent’s response to the Form 1 was one business day late. It submits that following the email dated March 29, 2023 from applicant’s counsel, no formal response was received regarding the applicant’s position on attending the attendant care assessment. In addition, applicant’s counsel indicated that she would “not attend” the assessment. However, given that the assessment was to take place at her home, this was interpreted as notification that the applicant would not participate in the assessment. It argues that the applicant’s communicated issue with the attendant care assessment was on a technical basis only, namely that the response to the subject Form 1 was one day late. The assessment was never being refused due to the vulnerability of the applicant. The respondent submits that at no time did the applicant provide a valid medical reason as to why she could not participate in the attendant care assessment.
74The respondent submits that it was entitled to conduct the attendant care assessment that it did, and it was unreasonable for the applicant to refuse to attend. The respondent further submits that upon being advised of the applicant’s concerns with respect to the assessment, on April 20, 2023, the respondent accepted the Form 1 and advised the assessors not to prepare a report. The respondent submits that these actions were taken in good faith by the respondent upon being advised of the applicant’s concerns.
75I find that the issue of whether the respondent’s request for an attendant care assessment was reasonable and necessary is not before me. At issue is whether the respondent’s behaviour of proceeding with the attendant care assessment when the applicant did not consent to the assessment was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
76I find that it is clear throughout the correspondence that the applicant did not agree to attend the s. 44 attendant care assessment. This was reinforced in counsel for the applicant’s email dated March 29, 2023. While the email states that there would be a formal response forthcoming, the fact of the matter is the email confirmed that the applicant did not consent to the assessment and would not attend. The respondent therefore clearly acted unreasonably when it sent the assessors to the applicant’s house to perform the assessment. The fact that her husband was not present when they should have known the applicant had a litigation guardian further supports that the behaviour of the respondent through its assessors was unreasonable.
77The applicant has not made any submissions as to the quantum of the award it is seeking. The Tribunal has consistently considered the following six factors in Persofsky v. Liberty Mutual Insurance Co., FSCO P00-0041, January 31, 2023 (“Persofsky”), for determining the quantum of an award:
i. The blameworthiness of the insurer’s conduct;
ii. The vulnerability of the insured person;
iii. The harm or potential harm directed at the insured person;
iv. The need for deterrence;
v. The advantage wrongfully gained by the insurer;
vi. Other penalties or sanction that have been or likely will be imposed on the insurer due to its misconduct.
78Persofsky states that the principles governing the size of an award are rationality and proportionality. Rationality refers to the need to relate the particular facts of the case to the underlying purposes of the legislation. It calls for an amount that is large enough to further the goals of punishment and deterrence, but no larger. Proportionality refers to the need to ensure that the consequences imposed on the insurer are rationally related to the misconduct at issue.
79Pursuant to s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I note that in this written hearing, non-payment of attendant care benefits was not an issue in dispute as following the s. 44 assessment, the respondent accepted the Form 1 and paid the applicant attendant care benefits. However, I find that the respondent’s behaviour in sending the assessors to the applicant’s home for an assessment when there was no consent and the applicant’s counsel had repeatedly stated that the applicant would not participate in the assessment was so egregious and unreasonable that an award should be granted.
80I find the following factors are relevant to the amount of the award:
The blameworthiness of the respondent’s conduct is high. Despite the applicant clearly stating that she would not consent or attend the attendant care IE, the respondent sent its assessors to her home for the assessment.
The applicant is a vulnerable person. She sustained a catastrophic impairment and is suffering severe psychological injuries.
The harm suffered by the applicant by this assessment was considerable as she felt humiliated and degraded by the assessors.
There is a strong need for deterrence to the respondent and other insurers to acknowledge and accept when an applicant does not consent to an assessment. Whether the reasons provided by the applicant for not attending an assessment are accepted by an insurer, where there is no consent, no assessment can take place.
81Therefore, in terms of quantum of the award, I have calculated the applicant’s entitlement to attendant care benefits from June 17, 2022 (the date of the Form 1 completion) to April 20, 2023 (the date of approval), at the rate of $1,013.87 per month to be $10,340.79. I award 25% of the value of the attendant care benefits paid by the respondent for the period from June 17, 2022 to April 20,2023, for a total award of $2,585.20, plus interest.
ORDER
82For the reasons outlined above, I find,
i. The applicant is entitled to $1,435.51 for nutritional counselling, produce boxes and protein supplements, proposed in the OCF-18, dated February 10, 2023, plus interest;
ii. The applicant is entitled to the balance of $200.00 plus HST for the completion of the OCF-18 forms dated May 27, 2022, July 28, 2022, October 16, 2022 and February 2, 2023, plus interest;
iii. The applicant is not entitled to the unapproved balance of the OCF-18 for psychological services, dated April 14, 2023;
iv. The applicant is entitled to $336.00 for drum lessons, proposed in the OCF-18 dated July 15, 2022, plus interest; and
v. The respondent is required to pay a s. 10 award in the amount of $2,585.20, plus interest.
Released: November 27, 2025
__________________________
Melanie Malach
Adjudicator