Licence Appeal Tribunal File Number: 24-012145/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:
Jovita Auayang
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Teresa Walsh
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Theomarcus Giannou, Counsel
Court Reporter: Guido Riccioni
Heard by Videoconference: June 23, 2025
OVERVIEW
1Jovita Auayang, the applicant, was involved in an automobile accident on August 8, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to attendant care benefits in the amount of $1,998.20 per month from March 31, 2022 to date and ongoing?
ii. Is the applicant entitled to $709.22 for other medical expenses, proposed by Toronto Healthcare Clinic in a treatment plan/OCF-18 (“treatment plan”) dated April 5, 2022?
iii. Is the applicant entitled to $12,430.00 for catastrophic (“CAT”) assessments, proposed by Downsview Healthcare in a treatment plan dated May 30, 2023?
iv. Is the respondent liable to pay an award under section 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that the applicant is not entitled to attendant care benefits for the period in dispute, nor to payments for the two disputed treatment plans. The respondent is not liable to pay an award and no interest is payable. The application is dismissed.
ANALYSIS
The applicant is not entitled to attendant care benefits.
5I find the applicant has not established that she is entitled to attendant care benefits for the period in dispute.
6Section 19(1)(a) of the Schedule outlines the legal test related to attendant care benefits. In order to establish that these benefits are payable, the applicant needs to prove the expenses are reasonable and necessary, and that the expenses are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility. The onus rests with the applicant to prove, on a balance of probabilities, that she is entitled to attendant care benefits.
7The applicant submits that the respondent did pay for attendant care benefits until March 31, 2022, and that in July 2023, by way of a partial settlement regarding a previous Tribunal application, the respondent agreed to pay $13,688.55 for attendant care benefits covering the period between April 2022 and December 2022.
8The applicant submits that pursuant to section 45(4)(a) of the Schedule, she is entitled to, at the very least, $2,512.79 for attendant care benefits that were incurred prior to the respondent’s June 12, 2023 denial of her catastrophic (CAT) impairment determination application but not included in the July 2023 settlement.
9The respondent argues that, regardless of the above-referenced partial settlement, the applicant’s own evidence does not establish, on a balance of probabilities, that she requires attendant care benefits as claimed. The respondent further argues that the applicant has not submitted any invoices for attendant care benefits for more than 2.5 years, since October 2022.
10The applicant testified that as a result of this accident, she sustained serious physical injuries including a spinal compression fracture at L2, rib fractures, pain in her neck, shoulders, back, and hips, dizziness and headaches. She further testified that, whereas she was independent with her personal care and household activities before the accident, her accident-related injuries continue to prevent her from performing many of these activities since the accident.
11In support of her attendant care benefits claim, the applicant relies on the section 25 occupational therapy follow up attendant care assessment report and Form 1 prepared by Varun Madan, occupational therapist, dated December 14, 2021. Mr. Madan’s report and Form 1 were submitted by the applicant. Mr. Madan did not testify at the hearing. With the parties’ consent, I admitted Mr. Madan’s report and Form 1 into evidence under section 15 of the Statutory Powers Procedure Act. As set out in the Form 1 he prepared, Mr. Madan determined that the applicant requires $1,998.20 in monthly attendant care benefits, for assistance with the following tasks as a result of accident-related injuries: preparing meals, walking, exercises, bathing, performing transfers to and from her bath/bed/wheelchair, ensuring comfort, safety and security in her environment, cutting her toenails, maintaining/ordering medication and supplies, cleaning her bathroom and bedroom (including making her bed), and hanging/sorting clothes.
12Further, the applicant relies on records from her family physician, Dr. Janet Krulewitz, dating from October 2019 to October 2023.
13As noted above, the applicant also testified in support of her attendant care benefit claim. She stated that she had been in a prior motor vehicle accident in 2019, and that she had recovered from injuries to her head, neck, chest, back, hips and legs by the time of this accident. The applicant reported that, as a result of this accident, she continues to experience pain at a level of 10 out of 10 in her back and hips, nine out of 10 in her right shoulder and arm, eight out of ten in her left shoulder and arm, eight out of ten in her chest and seven out of 10 in her neck. The applicant stated that she cannot hold her arms up, and that she continues to need help with many activities of daily living, including grocery shopping, cleaning floors, meal preparation, making/changing her bed, and toilet transfers. The applicant added that pre-accident, she used a motorized wheelchair for moving around the community due to a history of occasional fainting episodes, and also used a cane occasionally, but that she is more dependent on these mobility aids since the accident. According to the applicant, after the respondent stopped paying for attendant care benefits, she hired a friend who continues to assist her every other day with cleaning and cooking, among other household tasks.
14For the reasons that follow, I find the applicant’s testimony is not credible and that documentary evidence she relies on does not establish her entitlement to attendant care benefits on a balance of probabilities for the period in dispute.
15I place little weight on the December 14, 2021 report and Form 1 completed by Mr. Madan and relied on by the applicant because:
i. Mr. Madan did not refer to any documentation he reviewed in connection with preparing his report/Form 1, including the motor vehicle accident report, ambulance report, hospital records from the day of the accident, the applicant’s family physician records pre-dating and post-dating the accident, or any other available treating records for the applicant.
ii. There are no objective observations or assessments by Mr. Madan of the applicant’s ability to engage in the tasks for which he determined she requires attendant care, such as making her bed, cleaning the bedroom and bathroom, preparing meals, hanging/sorting clothes, bathing, toilet/bath transfers or maintaining/ordering medications. Rather, Mr. Madan relies on the applicant’s subjective reporting of her abilities and limitations both prior to and following the accident.
16Further, records of family physician Dr. Krulewitz do not support the applicant’s claim for attendant care benefits for the period in dispute. During cross-examination, the applicant was referred to the following record entries:
i. An entry from a January 21, 2022 appointment, wherein Dr. Krulewitz writes that she “told [the applicant] that this compression fracture at L2 is not from the accident. radiologist said it was chronic …”
ii. An entry from February 8, 2022, which includes the following information:
ACTIVITIES OF DAILY LIVING
Bathing: independent
Toileting: independent
Ambulating: independent
Dressing: independent
Transferring: independent
Feeding: independent
INSTRUMENTAL ACTIVITES OF DAILY LIVING
Housekeeping: dependent
Shopping: dependent – hires PSW privately to do shopping b/c of weakness/syncopal episodes, does not go out if she doesn’t have to
Cooking: independent
Medications: independent
Finances: independent – has account for taxes
Transportation: independent – uses Wheeltrans for longer distances or gets a ride from friends, otherwise takes motorised wheelchair to the mall
Telephone use: independent
17During cross-examination, the applicant disagreed with the accuracy of Dr. Krulewitz’s February 8, 2022 entry, stating that she “did not know” why her doctor recorded the information set out above.
18I give significant weight to Dr. Krulewitz’s January 21, 2022 and February 8, 2022 entries, including regarding the applicant’s activities of daily living and instrumental activities of daily living in early 2022. The timing of these entries corresponds with the start of the period for which attendant care benefits are claimed. I find that in her role of the applicant’s family physician, and not an assessor retained by one of the parties, Dr. Krulewitz’s records are more likely than assessor reports to be objective. Further, unlike most assessors, Dr. Krulewitz saw the applicant regularly for a variety of health-related concerns both prior to and following the accident. I find that this continuity of care enables Dr. Krulewitz to provide a reliable assessment of the applicant’s abilities and limitations. I did not identify in Dr. Krulewitz’s records any reference to accident-related causes limiting the applicant’s activities of daily living or instrumental activities of daily living as of March 2022.
19In addition to the foregoing materials, I also find that July 2023 surveillance of the applicant obtained by and relied on by the respondent is persuasive in demonstrating that the attendant care benefits claimed are not reasonable and necessary. The applicant acknowledged during cross-examination that the surveillance showed her:
i. grocery shopping independently in her motorized wheelchair;
ii. standing and examining grocery items and placing items in a bag attached to the back of her wheelchair;
iii. rising from and sitting back down in her wheelchair unassisted;
iv. reaching out with her left hand to grasp grocery items; and
v. reaching above shoulder height with her right arm to grasp grocery items;
20During cross-examination, the applicant also acknowledged that she did receive pre-accident assistance with household cleaning.
21The respondent relies on a section 44 independent occupational therapy in-home assessment report and Form 1 dated February 28, 2022, prepared by occupational therapist Nicholas Livadas. In his report and during his testimony at the hearing, Mr. Livadas opined that the applicant requires no attendant care benefits as a result of the accident. Mr. Livadas’ report provides, in part, that based on the applicant’s “demonstrated physical, cognitive, and functional tolerances during the assessment … [the applicant] is able to perform all of her personal or attendant care at this time, as it relates to her motor-vehicle accident-related injuries.”
22I find that Mr. Livadas’ report and testimony are consistent with Dr. Krulewitz’s February 8, 2022 records addressed above.
23I do not agree with the applicant’s submission that, at the very least, she is entitled to $2,512.79 for attendant care benefits that were incurred but not paid as part of the partial settlement reached with the respondent in July 2023. I find that:
i. The July 2023 partial settlement between the parties regarding a previous Tribunal application is stated to settle the applicant’s attendant care benefit invoices “covering a period of April 2022 to December 2022.”
ii. As the applicant has only produced invoices for incurred attendant care between April 2022 and October 2022, payment for all such invoices has been addressed by way of the July 2023 partial settlement.
iii. I do not agree with the applicant that section 45(4)(a) of the Schedule nonetheless entitles her to payment of the $2,512.79. This section provides that if an insured person applies for a CAT impairment determination and, immediately before the application was made, the insured person was receiving attendant care benefits, the insurer shall continue to pay attendant care benefits to the applicant during the period before the insurer makes a determination on the application. Here, the applicant introduced no evidence as to when her application for a CAT impairment determination was submitted to the respondent, nor whether she was receiving attendant care benefits immediately beforehand. Further, I do not find that the partial settlement of July 2023, which included a payment for attendant care benefits up to December 2022, would reasonably be interpreted as meaning that the applicant was “receiving attendant care benefits” immediately before the respondent made a determination on the CAT impairment determination application.
24Based on the foregoing, I find that the applicant has not shown, on a balance of probabilities, that she is entitled to attendant care benefits from March 31, 2022 to date and ongoing.
The applicant is not entitled to the two disputed treatment plans
25I find that the applicant has not met her onus to show that she is entitled to payment for the two disputed treatment plans, the first reportedly for other medical expenses, and the second for outstanding section 25 CAT assessment costs.
26Under sections 15 and 16 of the Schedule, the applicant bears the onus of demonstrating on a balance of probabilities that the medical or rehabilitation treatment is reasonable and necessary as a result of the accident. To do so, an applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving the goals are reasonable.
(a) Treatment plan in the amount of $709.22 dated April 5, 2022
27The first disputed treatment plan is reportedly dated April 5, 2022, in the amount of $709.22, and relates to unidentified “other medical expenses”. The applicant did not seek to introduce this plan into evidence at the hearing. Further, the applicant provided no other information regarding the type of medical expenses in issue, how the expenses are related to treatment goals, how the goals would be met to a reasonable degree or that the expenses are reasonable. Rather, the applicant submits that as the respondent has not exhausted payments for medical and rehabilitation treatment under the applicable policy limit in the Schedule, these medical expenses should be paid.
28The respondent submits that the medical expenses may relate to transportation costs for the section 25 CAT assessments, which costs were never claimed as part of the assessments.
29In the absence of any evidence regarding the April 5, 2022 treatment plan identifying the other medical expenses sought and showing how they are reasonable and necessary, the applicant has not met her onus and is not entitled to payment for these expenses.
(b) Treatment plan in the amount of $12,430.00 dated May 30, 2023
30The second disputed treatment plan is reportedly dated May 30, 2023, in the amount of $12,430.00, and relates to the cost of section 25 CAT assessments. The applicant did not seek to introduce this plan into evidence at the hearing; rather, the respondent did. The plan appears to actually be dated May 5, 2023 and according to the respondent, was submitted to it on May 30, 2023. The applicant submits that the amount claimed for this plan remains outstanding after the respondent’s partial payment of $13,560.00 for the assessments. The applicant further submits that the total amount for the assessments is payable under section 25(1) of the Schedule. This section provides, in part, that the insurer shall pay reasonable fees for any assessment or examination necessary for a CAT impairment determination under section 45 of the Schedule. The applicant submits that the respondent refused to pay the outstanding amount as the payment would exceed the medical and rehabilitation benefit limits identified in section 18 of Schedule. The applicant relies on case law holding that a CAT assessment is not a benefit and therefore is not subject to the medical and rehabilitation benefit limits set out in section 18(3)(a) of the Schedule.
31The respondent submits that the applicant has mischaracterized its denial of the outstanding amount sought for the CAT assessments. The respondent submits that it has never stated that payment for the CAT assessments should come from the funding available under the non-CAT medical and rehabilitation benefit limits in section 18(3)(a) the Schedule.
32The respondent introduced into evidence at the hearing its June 12, 2023 letter explaining the approved and denied amounts for the CAT assessments. Referring to this letter, the respondent submits that $12,430.00 was properly denied as it relates to duplicated services regarding the assessments. The respondent submits that section 25(5) of the Schedule applies here. This section provides that, despite any other provision of the Schedule, an insurer shall not pay more than a total of $2,000.00 plus applicable tax regarding fees and expenses for conducting any one assessment and for preparing reports in connection with the assessment.
33Based on my review of the treatment plan and the respondent’s June 12, 2023 letter, I find that the applicant is not entitled to the outstanding amount sought regarding the CAT assessments. Set out below are the amounts sought by the applicant and approved or denied by the respondent for four section 25 CAT assessments, being an executive summary, an orthopedic assessment, a neurological assessment, and a psychiatry assessment:
i. Initial assessment, clinical file review and preliminary CAT assessment - $2,000.00 (this entire amount was denied; $2,000.00 was paid for the final executive summary and CAT analysis).
ii. Orthopedic assessment and exam, documentation review and CAT analysis, and report ($2,000.00 was paid and $3,000.00 was denied of the $5,000.00 sought).
iii. Neurological assessment and exam, documentation review and CAT analysis, and report ($2,000.00 was paid and $3,000.00 was denied of the $5,000.00 sought)
iv. Psychiatry assessment and exam, documentation review and CAT analysis, and report ($2,000.00 was paid and $3,000.00 was denied of the $5,000.00 sought).
v. Total amount denied - $11,000.00.
vi. Tax on the foregoing denied amount - $1,430.00.
vii. Total denied amount, including tax, for the above four section 25 CAT assessments - $12,430.00.
34Based on the above information, I find that the applicant is seeking payment of more than the $2,000.00 allowed under section 25(5) of the Schedule, plus tax, for duplicative services regarding the above four section 25 CAT assessments.
35Further, although not binding on me, I note that my finding is consistent with other Tribunal decisions, including 17-007215 v. Aviva General Insurance, 2018 CanLII 141011 (ON LAT), relied on by the applicant. In this decision, the Tribunal held that, in accordance with section 25(5) of the Schedule, the applicant was entitled to payment of $2,000.00 in fees and expenses, inclusive of file and medical document review, for each of a neurological, occupational therapy, psychiatry and orthopedic CAT assessment. The Adjudicator found that seeking file and medical document review as a separate fee for the assessments was a duplication of services, and was therefore unreasonable.
36In summary, I find that the applicant has not met her onus in demonstrating that the two disputed treatment plans are reasonable and necessary. Accordingly, the applicant is not entitled to payment for these plans.
Award
37The applicant sought an award under section 10 of Reg. 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.
38The only benefits that the applicant identified in connection with the award claim were those in dispute at the hearing, being the attendant care benefits from March 31, 2022 to date and ongoing, and the two treatment plans. Given that the applicant has not met her onus in establishing entitlement to the disputed attendant care benefits or either treatment plan, I find that the applicant has not shown that the respondent unreasonably withheld or delayed the payment of benefits. Accordingly, no award is payable.
Interest
39Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I have found there are no overdue benefit payments here, no interest is payable.
ORDER
40The applicant is not entitled to attendant care benefits for the period in dispute, nor to payments for the two disputed treatment plans. The respondent is not liable to pay an award. As no benefits are owing, no interest is payable.
Released: July 31, 2025
Teresa Walsh
Adjudicator