Licence Appeal Tribunal File Number: 23-009081/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:
Hai Ting Tang Wang
Applicant
and
TD General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Nathan Prince
APPEARANCES:
For the Applicant: Aylina Dhanji, Counsel
For the Respondent: Colin Birch, Counsel
HEARD: By way of written submissions
OVERVIEW
1Hai Ting Tang Wang, the applicant, was involved in an automobile accident on November 23, 2022, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 ("plan") submitted November 26, 2022, and denied November 26, 2022?
ii. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from January 1, 2023, to date and ongoing?
iii. Is the applicant entitled to $80.38 for medication, submitted on a claim form (OCF-6) May 23, 2023, and denied May 23, 2023?
iv. Is the applicant entitled to $581.11 for expenses of visitors, submitted on a claim form (OCF-6) February 13, 2023, and denied February 13, 2023?
v. Is the applicant entitled to $554.41 for expenses of visitors, submitted on a claim form (OCF-6) May 9, 2023, and denied May 9, 2023?
vi. Is the applicant entitled to $847.50 for damage to clothing, submitted on a claim form (OCF-6) May 9, 2023, and denied May 9, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew issues 2 and 6 as listed in the case conference report and order (“CCRO”) dated February 21, 2024.
4In their submissions, the applicant and respondent acknowledged that the attendant care assessment listed as issue 1 above was approved and paid. As such, this treatment plan is not in dispute before me.
RESULT
5The applicant is not entitled to attendant care benefits.
6The applicant is not entitled to the OCF-6s in dispute.
7The applicant is not entitled to an award or interest.
ANALYSIS
The applicant has exhausted the monetary limits available to her for medical and rehabilitation benefits and attendant care benefits
8Section 18(3) of the Schedule states that the sum of the medical, rehabilitation and attendant care benefits paid in respect of an insured person who is not subject to the Minor Injury Guidelines shall not exceed, for any one accident, $65,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019.
9The respondent’s submissions indicate that, as of September 10, 2024, it had approved/paid $65,000.00 in medical, rehabilitation, and attendant care benefits. The applicant has therefore exhausted the limits of her policy under section 18(3) of the Schedule and is not entitled to the attendant care benefits in dispute.
10This monetary limit may be increased to $1,000,000.00 in the event that the applicant is deemed to be catastrophically impaired; however, this issue is not before me, nor has the applicant submitted an OCF-19 to the respondent for determination of catastrophic impairment. Nonetheless, for completeness, and should the applicant be deemed catastrophic at some point in the future, I shall consider whether the applicant is entitled to the medical, rehabilitation, and attendant care benefits in dispute.
The attendant care benefits are not reasonable and necessary
11I find that the applicant has not demonstrated on a balance of probabilities that the attendant care benefits were incurred or that the attendant care benefit provider has suffered an economic loss as a result of providing goods or services to the applicant.
12Section 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”).
13Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers who do so in the course of their ordinary employment, occupation, or profession in which they would have been engaged, but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.
14In this case, the identified service provider is the applicant’s son-in-law who is providing services in a non-professional capacity and therefore the applicant must show that her son-in-law sustained an economic loss as a result of providing ACBs.
15On February 2, 2023, the respondent advised the applicant that it was approving attendant care benefits up to the policy maximum of $3,000.00 per month, subject to the receipt of supporting documentation. It is the respondent’s position that this documentation was never received and therefore ACBs are not payable.
16The respondent made several requests for additional documentation including: 1) types of service provided, 2) amount of time spent for the services, 3) which of the 3 levels apply in accordance with the Form 1 hourly rates, 4) dates and times the services were provided, 5) copies of all time sheets/lot notes, 6) confirmation from the provider's employer confirming they took unpaid time off work to provide care for the applicant, 7) copies of tax returns/notices of assessment, and 8) copy of the employee file and request for time off work to care for the applicant.
17The applicant’s son-in-law provided his record of employment (“ROE”) which indicates that the reason for issuance was “compassionate care/family caregiver”. The ROE further indicates that the most recent insurable earnings were $624.00 bi-weekly. However, the applicant’s son-in-law did not provide a copy of his employee file or his tax returns/notices of assessment. I find that the ROE, on its own, is insufficient to demonstrate that the applicant’s son-in-law suffered an economic loss as a result of providing ACBs. While I am alive to the fact that the ROE indicates compassionate care/family caregiver as the reason for issuance, without additional supporting documentation, the details surrounding the cessation of employment or any subsequent re-employment remain unclear.
18Furthermore, I find that the applicant has not demonstrated on a balance of probabilities that she received the ACBs being claimed. The applicant submitted numerous documents titled “domestic help form – attendant care” which purport to outline the time spent and the duties performed. I am not persuaded by these forms as they appear to be boilerplate forms which lack specificity. All the forms indicate that the ACB provider spent 6 hours per day, 7 days a week, allocated as follows:
i. Assist in dressing/undressing: 40 minutes/day
ii. Assist in feeding: 120 minutes/day
iii. Assist in mobility: 90 minutes/day
iv. Assist in grooming: 15 minutes/day
v. Assist in Hygiene: 45 minutes/day
vi. Basic supervisory care: 1092 mins/day
19I find the content of these forms to be unreliable for several reasons. First, the forms indicate that the ACB provider spent exactly 6 hours every day providing the exact same services which I find to be unpersuasive as the needs of the applicant surely would have varied from day-to-day, necessitating different amounts and types of care on a daily basis. Second, the totality of the minutes per day as outlined above far exceeds the 6 hours per day purportedly spent providing services. Finally, the bulk of the care is listed as “basic supervisory care” which I find lacks the requisite level of specificity to demonstrate entitlement to ACBs.
20Based on the foregoing, I find on a balance of probabilities that the applicant has not met her onus of establishing that she is entitled to ACBs.
The applicant is not entitled to $80.38 for medication
21The OCF-6 in the amount of $80.38 is for acetaminophen, hydromorphone, and trazodone prescriptions dated February 22, 2023 and April 6, 2023. The applicant submits that these prescriptions were reasonable and necessary as a result of the accident.
22The applicant relies on 17-006850 v. Royal Sun Alliance Insurance, 2018 CanLII 132555 (ON LAT) wherein the Tribunal held that an insurer is liable to pay for prescription medication where: (a) the motor vehicle accident caused the impairment that necessitates the prescription medication; (b) the prescription medication is reasonable and necessary; and (c) a regulated health professional provides the prescription.
23I find that the applicant has not demonstrated that the prescriptions outlined in the OCF-6 meet the test outlined in 17-006850. The applicant did not make any submissions as to the reason for the prescriptions, not did she point me to contemporaneous medical records which would speak to the impairments the medications are addressing.
24As such, I find that the applicant is not entitled to the OCF-6 for medication.
The applicant is not entitled to $581.11 or $554.41 for visitor expenses
25The expenses outlined in these OCF-6s pertain to hospital parking, meals, and fuel, for visitors who were taking care of the applicant while she was in the hospital.
26Section 22(1) of the Schedule provides that if the applicant sustains an impairment as a result of an accident, the respondent shall pay for reasonable and necessary expenses incurred not more than 104 weeks after the accident by the following persons as a result of the accident in visiting the applicant during her treatment or recovery: the spouse, children, grandchildren, parents, grand parents, as well as brothers and sisters of the applicant.
27The OCF-6 in the amount of $581.11 consists of $42.80 for hospital parking, $7.15 for meals, and $531.16 for fuel. It does not indicate who the visitor was, and the applicant’s submissions are silent as to the identity of the visitor. Therefore, I am unable to ascertain whether the visitor is one of the enumerated individuals listed in section 22(1). As such, I find that the applicant has not demonstrated that she is entitled to this OCF-6.
28The OCF-6 in the amount of $554.41 consists of $28.65 for meals, $48.00 for hospital parking, and $477.76 for fuel. These expenses are related to visits from the applicant’s daughter which is one of the enumerated individuals in section 22(1). Therefore, I must consider whether these expenses are reasonable and necessary.
29The applicant relies on Lafrance v. The Co-operators General Insurance Company, 2024 CanLII 10539 (ON LAT) [“Lafrance”] wherein the adjudicator found that hospital visitor expenses with receipts were reasonable and necessary expenses.
30In Lafrance, the Tribunal had the benefit of a mileage chart relating to the incurred travel expenses. I was not pointed to any similar evidence in this case. The applicant did not point me to any documentation indicating how far the applicant’s daughter was travelling to get to the hospital, or how frequently she attended. As such, I am unable to ascertain whether the proposed cost for fuel in the amount of $477.76 is reasonable and necessary.
31With respect to the costs related to meals and hospital parking, the receipts provided were dated between February 10, 2023 and February 16, 2023; however, the attendant care needs assessment conducted by Mr. Raymond Wong, occupational therapist, indicates that the applicant was discharged from the Reactivation Care Centre of Sunnybrook on January 18, 2023. The applicant did not address this discrepancy and therefore I find that the applicant has not met her onus of demonstrating that the expenses incurred are as a result of the accident.
32Therefore, I find that the applicant is not entitled to either of the OCF-6s for visitor expenses.
The applicant is not entitled to $847.50 for damage to clothing
33Section 24 of the Schedule provides that the insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing clothing worn by the insured person at the time of the accident that was lost or damaged as a result of the accident.
34The applicant submitted an OCF-6 for a Canada Goose jacket with a receipt for $847.50. The applicant claims that she was wearing this jacket at the time of the accident and that it was significantly damaged as a result.
35The respondent submits that in order for a claim for damaged clothing to be successful, an applicant must provide evidence which establishes that they 1) owned the clothing at the time of the accident, and 2) replaced the clothing as a result of them being damaged in the accident. It points me to Felipe v Chubb, 2023 CanLII 96317 (ON LAT) [“Felipe”], in which the Tribunal denied funding for clothing on the basis that no evidence was put forward which established ownership or resulting damage to the articles of clothing in question.
36While I am not bound by prior decisions of the Tribunal, I agree with the test laid out in Felipe which requires the applicant to provide evidence that they owned the clothing at the time of the accident and that it was damaged as a result of the accident.
37The applicant did not point me to any evidence to suggest that she owned a Canada Goose jacket at the time of the accident – she has not provided a receipt or bank record showing that she had purchased a Canada Goose jacket prior to the accident, nor has she provided any photographs of her wearing the jacket.
38In the absence of any evidence establishing ownership, I find the applicant has not demonstrated that she is entitled to $847.50 for damage to clothing.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to any of the benefits in dispute, no interest is owing.
Award
40The 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.
41As I have found that the applicant is not entitled to the benefits in dispute, there is no basis for an award under s. 10 of Reg. 664.
ORDER
42For the above reasons, I find that:
i. The applicant is not entitled to attendant care benefits;
ii. The applicant is not entitled to the OCF-6s in dispute;
iii. The applicant is not entitled to an award or interest; and
iv. The application is dismissed.
Released: June 23, 2025
Nathan Prince
Adjudicator