Citation: Yousafzai v. TD General Insurance Company, 2025 ONLAT 23-001602/AABS

Licence Appeal Tribunal File Number: 23-001602/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:

Shabnam Yousafzai

Applicant

And

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Frank McNally, Counsel

For the Respondent:

Nicole De Bartolo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Shabnam Yousafzai, the applicant, was involved in an automobile accident on February 3, 2016, 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

2I have been asked to decide the following issues:

1. Is the applicant entitled to $27,260.61 for a vehicle chassis, proposed by Skill Builders in a treatment plan (“OCF-18”) dated January 24, 2023?

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

RESULT

3After reviewing both parties’ submissions and all of the evidence I find that the applicant is not entitled to the OCF-18 for a vehicle chassis or interest.

ANALYSIS

The applicant is not entitled to $27,260.61 for a vehicle chassis, proposed by Skill Builders in an OCF-18 dated January 24, 2023.

4Section 16 of the Schedule states that the insurer will pay for rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person…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.

5Section 16(3)(l) of the Schedule provides that the insurer shall pay for other goods and services that the insurer agrees are essential for the rehabilitation of the insured person, and for which a benefit is not otherwise provided in this Regulation.

6It is undisputed that the applicant was deemed to be catastrophically impaired on October 31, 2018, in that she sustained 4 marked impairments in all four spheres of function under Criterion 8. The applicant was diagnosed with Major Depressive Disorder with anxious distress, severe, and Somatic Symptom Disorder, predominant pain, chronic, as a result of the accident.

7Prior to the accident the applicant was a transit city bus driver and was independent with driving and accessing the community. The applicant’s pre-accident vehicle, a 2006 Acura, was written off in the accident and she received $7,000 to settle her property damage claim. She did not replace this vehicle and did not drive for the first six years following the accident because of pain and driver and passenger anxiety. She underwent a driving rehabilitation program in the Fall of 2022 to regain her independence in driving to access the community.

8Following the applicant’s discharge from the program, Wendy Niewland, occupational therapist (“OT Niewland”), authored a driver rehabilitation discharge report dated November 22, 2022, in which she recommended that the respondent fund a vehicle chassis/vehicle upgrade so that the applicant could purchase an SUV to support both her physical and emotional functioning. The OT indicated that an SUV would assist the applicant in regaining her independence in driving to access the community. OT Niewland’s recommendations were based on the following rationale:

(i) To allow her to feel emotionally safer in a larger vehicle. For emotional comfort, the provision of enhanced vehicle safety features such as forward collision warning, lane departure, following distance monitoring, rear collision warning and other vehicle safety features;

(ii) To address her current functional needs and pain levels by allowing her to get in and out of the vehicle most easily by providing a higher seat height, an 8-way power seat base with leather would help her to get in and out of the vehicle and have the adjustability within the seat to manage her pain complaints;

(iii) To provide larger OEM side view mirrors- add on bilateral convex mirrors can also be added to assist with blind spot checking, a reverse back up camera in the centre console area will be helpful for reversing without the need for sustained trunk rotation for backing up; and

(iv) The provision of snow tires is recommended to make it safer for winter travel.

9OT Niewland then submitted the OCF-18 in the amount of $23,165.25 for the purchase of an SUV, in which the cost was broken down as follows: $800 for snow tires, $119.92 for form preparation and $59.98 for a brokerage fee. The goal of the OCF-18 was for pain reduction to return the applicant to her activities of daily living. The OCF-18 indicated that the applicant was not asking the respondent to purchase a vehicle but instead help offset the cost of a different type and higher priced vehicle to accommodate her physical and emotional needs.

10The applicant argues that the OCF-18 is reasonable and necessary because she has had to rely on family and friends to meet her and her children’s transportation needs post-accident, which is unreliable. This has resulted in social isolation and an inability to independently access the community and care for her children. Further, she has significant passenger anxiety and does not like to take Uber and taxis because she does not trust their driving and is afraid that her son (who has special needs) will run from the vehicle when it stops. The applicant relies on the driver’s rehabilitation discharge report, catastrophic assessments, and reports of her case manager and treating OT. The applicant also asserts that following the respondent’s denial she purchased a brand-new Volkswagen Tiguan Comfortline, at a cost of $57,000. She submits that the new vehicle has improved her independence in accessing the community. Therefore, the goals of the OCF-18 have been met which demonstrates that it is reasonable and necessary.

11The respondent submits that the driver’s rehabilitation discharge report relied on by the applicant does not establish that the OCF-18 is reasonable and necessary because it is inconsistent with OT Niewland’s recommendations. It maintains that it is unreasonable for the applicant to expect it to purchase a new vehicle and that the applicant did not explore any other options to mitigate costs. It relies on the insurer examination (IEs) reports of Dr. Cooper, psychologist, and Dr. Khan, physiatrist, who determined that the OCF-18 for a vehicle chassis was not reasonable and necessary as a result of any accident-related physical or psychological impairment.

12Although I acknowledge that the applicant sustained serious psychological impairments as a result of the accident which have had a very negative impact on her life, I find that she has not met her onus in proving on a balance of probabilities that the OCF-18 recommending a vehicle chassis is reasonable and necessary for the following reasons.

13First, I agree with the respondent that many of the observations of the driving instructor referenced in the driver’s rehabilitation discharge report are inconsistent with the recommendations made by OT Niewland. The following are some examples of the applicant’s performance while driving a Sedan:

a. She was able to enter and exit the vehicle without assistance;

b. She was able to physically control the vehicle without difficulty;

c. She demonstrated good emotional regulation while driving and reported occasional mild to moderate anxiety;

d. She was able to get in and out of the vehicle a few days after having surgery;

e. She used advanced defensive techniques while driving;

f. The vehicle had safety features which were disabled, and she could check blind spots at all times without difficulty; and

g. Overall, the reports from the driver instructor were very positive and there were no behavioural, emotional, or physical issues noted while driving.

14I find the driving instructor’s assessment of the applicant’s performance driving a Sedan during the program contradicts her need for an SUV for either emotional or physical safety or comfort. Further, I find the recommendation for the SUV was based on the applicant’s preference as opposed to addressing a rehabilitative need. Although I agree that the applicant’s preference should be considered, what I find lacking in this case was an opinion from the applicant’s treating psychologist or health practitioner recommending the need for the applicant to purchase an SUV for these reasons and a medical explanation to explain why. The applicant relied on a letter from her family doctor supporting that it was safe for her to resume driving. However, I find that the letter does not specify that a certain type of vehicle is required to accommodate any physical or psychological impairment.

15Second, I find the reports of Christine Kumchy, treating OT, dated August 9, 2023, and Krista English, dated March 4, 2024, unhelpful in supporting that the OCF-18 is reasonable and necessary because they do not discuss the inconsistent findings of the driver’s rehabilitation report. Further, neither of these reports provide a medical opinion for why an SUV is reasonable and necessary as a result of any accident-related impairment.

16The report of Ms. English states that the treatment team supported the applicant’s return to driving and that they approve the OCF-18 for the vehicle chassis. The report notes that the applicant uses her new vehicle to access the community when feeling well enough and that it has provided some improvement in gaining independence. However, when feeling less well she takes external transportation provided by the insurer to attend medical appointments. I find this statement contradicts the applicant’s argument that she requires an SUV because of significant passenger anxiety because despite having an SUV, she still uses transportation services to attend medical appointments. Moreover, I find the fact that the applicant’s mood improved following the purchase of a brand-new vehicle or that it has resulted in her regaining some independence does not support that the OCF-18 for an SUV is reasonable and necessary because of any accident-related impairment.

17Third, I find that the applicant has not proven that the cost of the OCF-18 is reasonable because the rationale for how the OT came up with the amount is confusing and unclear. The OT estimated that the average cost of a used 2019 or 2020 SUV would cost $37,165.25 and then she deducted $22,000.00 for a 2020 Acura, which was used to estimate the value of the applicant’s pre-accident vehicle. The OT also recommended an additional $8,000 for trim level upgrades to provide the applicant with leather seats and $800.00 for winter tires.

18There is no medical evidence before me to support that the applicant requires leather seats because of any accident-related impairment or how they would reduce or eliminate the effects of the applicant’s disability. Further, at the time of the accident, the applicant drove a 2006 Acura, which was written off. The applicant’s property damage claim was settled for $7,000.00, not $22,000. Consequently, it is unclear why the OT included a higher trade in-value for the applicant’s vehicle when a trade-in vehicle does not exist.

19The respondent relies on this Tribunal’s decision in 17-002592 v. Cumis General Insurance, 2018 CanLII 95555 (ONLAT) which cites well established jurisprudence which supports that the purpose of the Schedule is to return an insured to their pre-accident level of function. Further, that an insured is not entitled to a windfall as a result of an accident. The insured should be reasonable in working with the insurer to reach a solution, which, while it might not be ideal, is workable and reasonable.

20Based on OT Niewland’s driving rehabilitation discharge report there were no behavioural, emotional, or physical issues noted while the applicant drove the Sedan during the program. I find the driving rehabilitation program was a success in significantly reducing the applicant’s driving anxiety to return her to her pre-accident function. In addition, I find the OCF-18 would result in the applicant benefiting financially because there is no trade in vehicle and the applicant already received a settlement for her property damage claim. Additionally, the applicant’s purchase of a brand-new vehicle with trim and paint upgrades did little to mitigate any costs to the respondent. Further, I find s. 16 (3)(l) of the Schedule establishes that the insurer shall pay for other goods and services that the insurer agrees are essential [emphasis added] for the rehabilitation of the insured person. In this case, the respondent has not agreed that the goods and services recommended in the OCF-18 are essential for the applicant’s rehabilitation.

21Fourth, I do not find the case law relied upon by either party addressing vehicle upgrades helpful to their respective positions. The respondent relies on the Tribunal’s decision in Mirzaie v. Wawanesa Insurance Company (“Mirzaie”), 2021 CanLII 19914 (ON LAT), where the adjudicator concluded that an OCF-18 seeking funding for a new vehicle was not reasonable and necessary. I find Mirzaie distinguishable from the facts before me because the insured’s return to driving in that case was unsupported by healthcare practitioners because of substance abuse.

22In reply submissions the applicant relies on the Tribunal’s decision in Halstead v. Aviva Insurance Company (“Halstead”), 2020 CanLII 101822 (ON LAT). I note the applicant’s reply submissions were not proper reply, as this decision should have been referenced in her initial submissions. However, I find Halstead distinguishable from this case because it did not involve an inconsistent driving rehabilitation report which recommended the OCF-18. Further, the adjudicator determined that the OCF-18 was reasonable and necessary to eliminate or reduce the effects of the insured’s disability. Further, the OT explored all reasonable alternative options to mitigate the cost of the OCF-18, and the applicant did not materially benefit from the vehicle upgrade. I find the same cannot be said in the present case.

23Finally, in contrast, the IE report of Dr. Cooper determined that the applicant was deemed to have safe driving abilities and adequate physical and emotional tolerances to drive safely. The doctor stated that the purpose of the OCF-18 in addressing the applicant’s emotional needs was vague and unsupported by any clear clinical rationale. Dr. Cooper conducted a clinical interview, psychometric testing and concluded that the OCF-18 was not reasonable and necessary as a result of any accident-related psychological impairment. Further, Dr. Khan’s physiatry IE report also determined that there was no evidence of any significant accident-related musculoskeletal impairment that would necessitate the applicant’s need for an SUV. I prefer the opinions of Dr. Cooper and Dr. Khan that the OCF-18 for a vehicle chassis or upgrade is not reasonable and necessary because they are consistent with the driving instructor’s observations outlined in the driver rehabilitation discharge report.

24For the above-noted reasons, the applicant has not proven on a balance of probabilities that the OCF-18 in the amount of $27, 260.61 for a vehicle chassis is reasonable and necessary.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any benefits are overdue.

ORDER

26For the above-noted reasons, I order as follows:

i) The applicant is not entitled to the OCF-18 in the amount of $27,260.61 for a vehicle chassis, proposed by Skill Builders in an OCF-18 dated January 24, 2023, or interest.