Citation: Nowell Luluquisin vs. Aviva Insurance Company of Canada and Intact Insurance Company, 2025 ONLAT 20-010381/AABS

Licence Appeal Tribunal File Number: 20-010381/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:

Rell Nowell Luluquisin

Applicant

And

Aviva Insurance Company of Canada

Respondent

and

Intact Insurance Company

Respondent

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Mireille Dahab, Counsel

For the Respondent (Intact):

Jason H Goodman, Counsel

Fazia Ikram, Counsel

For the Respondent (Aviva):

Nathalie Rosenthall, Counsel

Court Reporter:

Prashanth Thambipillai. Network Court Reporting

HEARD: by Videoconference:

March 31 to April 3, 2025

1Rell Nowell Luluquisin, the applicant, was involved in an automobile accident on March 17, 2017, 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 initially denied benefits by the respondent, Aviva Insurance Company of Canada ("Aviva"). On August 20, 2021, Intact Insurance Company ("Intact") took priority over the dispute and maintained some of the previous denials made by Aviva. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2A written hearing was scheduled by the Tribunal, and a decision was released on March 2, 2022. The applicant requested reconsideration of that decision which was dismissed. The applicant appealed both decisions to the Divisional Court, which allowed the appeal, quashed the decision, and remitted the matter back to the Tribunal to be heard by another adjudicator. The matter proceeded to a four-day videoconference hearing before me.

3The applicant is seeking an award against Aviva for its previous denials of the various benefits in dispute prior to Intact taking priority over the claim.

ISSUES

4The issues in dispute are:

Is the applicant entitled to $6,000.00 per month for attendant care benefits ("ACBs") from April 19, 2020 to date and ongoing?
Is the applicant entitled to $2,200.00 for a neurological assessment proposed by Novo Medical Services in a treatment plan ("OCF-18") submitted February 13, 2019?
Is the applicant entitled to $7,460.00 for social work counselling proposed by Miranda Mo & Associates in an OCF-18 submitted on August 19, 2020?
Is the applicant entitled to $6,256.57 for aquatherapy proposed by Healthmax Physio in an OCF-18 on March 9, 2020?
Is the applicant entitled to $248.00 for transportation expenses submitted via OCF-6 on April 20, 2020?
Is the applicant entitled to $2,200.00 for a home renovation assessment proposed by Miranda Mo & Associates in an OCF-18 submitted on October 2, 2020?
Is the applicant entitled to $2,454.35 for a chronic pain assessment proposed by Healthmax Physio in an OCF-18 submitted on September 9, 2020?
Is the applicant entitled to $4189.25 for multidisciplinary concussion treatment proposed by Healthmax Physio in an OCF-18 submitted on November 12, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
Is Aviva liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is Aviva entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules?

RESULT

5After considering the submissions of all parties and all of the evidence I find:

The applicant has established entitlement to ACBs in the amounts reflected below. However, he is not entitled to payment of same because he has not proven that the benefit has been incurred.

a) $3,951.80 per month from April 19, 2020 to May 26, 2022, less amounts paid.

b) $897.31 per month from May 27, 2022 to September 18, 2022, less amounts paid.

c) $1,397.19 per month from September 19, 2022 to December 10, 2023, less amounts paid; and

d) $6,000.00 per month from December 10, 2023 to June 14, 2024.

The applicant is entitled to the following OCF-18s:

a) $4,290.00 for social work counselling proposed by Miranda Mo & Associates in an OCF-18 submitted on August 19, 2020.

b) $3,555.96 for aquatherapy proposed by Healthmax Physio in an OCF-18 on March 9, 2020.

c) $2,200.00 for a home renovation assessment proposed by Miranda Mo & Associates in an OCF-18 submitted on October 2, 2020.

d) $4,189.25 for multidisciplinary concussion treatment proposed by Healthmax Physio in an OCF-18 submitted on November 12, 2020.

The applicant is not entitled to the following:

a) $248.00 for transportation expenses submitted via OCF-6 on April 20, 2020.

b) $2,200.00 for a neurological assessment proposed by Novo Medical Services in a treatment plan ("OCF-18") submitted February 13, 2019.

c) $2,454.35 for a chronic pain assessment proposed by Healthmax Physio in an OCF-18 submitted on September 9, 2020.

The applicant is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary.
Aviva is liable to pay an award in the amount of $9,041.12, plus interest payable in accordance with Reg. 664.
Aviva is not entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules.

PROCEDURAL ISSUES

Intact's Request to Limit Time Period of ACBs in Dispute

6At the outset of the hearing, Intact sought to limit the scope of the time period of the applicant's entitlement to ACBs from April 19, 2020 to March 2, 2022, which is the date of the Tribunal's previous decision. It submits that it would be procedurally unfair for me to consider the issue beyond that date for the following reasons:

i. It has prepared for this hearing based on this time period and has called its witnesses accordingly;

ii. The applicant filed a subsequent application with the Tribunal disputing his ongoing entitlement to ACBs, which is set out in the Tribunal's case conference report and order dated March 25, 2025. If I address the applicant's ongoing entitlement to the benefit it will result in a duplication of proceedings; and

iii. Four years have transpired since the initial hearing and there have been multiple ACB assessments completed.

7The applicant opposed Intact's request because it participated in the case conference and never requested to limit the scope of the proceedings. Nor did it bring a motion to address same. Further, the ACB issue was phrased in the Tribunal's case conference report and order dated November 13, 2024 ("order"), as being disputed from April 19, 2020, to date and ongoing. The applicant maintains that he has prepared for this hearing to address his ongoing entitlement to the benefit.

8I declined Intact's request to limit the scope of the applicant's entitlement to an ACB on the basis that this is how the issue was phrased in the Tribunal's order and the Divisional Court's decision remitting the matter back to the Tribunal for a re-hearing. In my view, if the issue was incorrectly worded in the Tribunal's order Intact should have requested an amendment to the order or alternatively brought a motion to address it in advance of the hearing. Finally, Intact did not provide me with a reasonable explanation for why it was only making this request at the outset of the hearing.

Insufficient Notice of Witnesses

9Intact opposed the applicant's intent to call Dr. Chang, physiatrist, Dr. Chiu, family doctor and Bridgette Marshall, occupational therapist ("OT Marshall") as witnesses because he served it with a revised witness list on the Friday before the hearing. It submits that it would be procedurally unfair to allow the applicant to call these witnesses because it did not have an opportunity to prepare and will be unable to defend the case against it. Further, the applicant did not comply with the Tribunal's order which ordered the parties to exchange their final witness lists and will-say statements 30 days before the hearing. Intact also requested that I exclude the testimony of Cecilia Garcia and Dr. Chang because their evidence is not relevant to the issues in dispute because they did not render an opinion on ACBs.

10The applicant acknowledged that he did not provide timely notice of the change to his witness list by oversight and had to make a last-minute change to call OT Marshall instead of Angela Chan, occupational therapist ("OT Chan") because OT Chan was not available to testify at the last minute. He also submits that the respondent had notice of his intention to call Ms. Garcia and Dr. Chang because these witnesses were listed in the Tribunal's order. He conceded that there was a typo in the order which listed Dr. Chang as Dr. Chung, physiatrist. However, the respondent should have been aware that he was calling this witness because Dr. Chang issued a CAT report. Finally, he argues that the Tribunal's order contained another typo as it listed a family member instead of the family doctor.

11I permitted the testimony of Ms. Garcia and Dr. Chang because they were listed in the Tribunal's order. Although there was a typo in the order of Dr. Chang's name, I find the respondent would have known who was testifying because the doctor was a physiatrist who authored a CAT report. I also permitted the applicant to call OT Marshall because ACBs are in dispute and he would be prejudiced if I excluded this witness. Further, the OT's report was in the parties' joint document brief, so Intact would not be surprised by this evidence. I advised the respondent that it could make submissions on the weight I should give OT Marshall's testimony given the late notice.

12I declined the applicant's request to call Dr. Chiu because I was not given a reasonable explanation for the last-minute decision to call this witness. Nor was I convinced that this was a typo in the Tribunal's order. I find the applicant is not prejudiced by my decision because he can still rely on the family doctor's clinical notes and records ("CNRs").

Intact and Aviva's Request to Rely on Initial Written Submissions

13Both respondents requested that I consider the written submissions relied on by the parties in the previous hearing. Aviva also requested that I exclude any fresh evidence put forth by the applicant that was not relied on in the initial hearing. Aviva relied upon the Supreme Court of Canada's decision in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. ("671122"), [2001] 2 S.C.R. 983, 2001 SCC 59, which it maintains supports its position. This decision addressed reopening a trial and the introduction of new evidence which could have been obtained before trial.

14The applicant opposed the respondents' request because the court ordered that the matter be remitted to the Tribunal for a fresh hearing. Consequently, any relevant evidence pertaining to the issues in dispute should be considered. Further, the Tribunal's order scheduled a four-day videoconference hearing not a written hearing. As a result, the Tribunal should not consider the initial written submissions filed by the parties because this is a new hearing.

15I issued an oral ruling declining both respondents' requests that I consider the initial written submissions. I find 671122 is irrelevant to the matter before me because that case involved reopening a hearing that had concluded and the consideration of new evidence that could have been obtained prior. In this case, the Divisional Court quashed the Tribunal's decision for insufficient reasons and remitted the matter back to the Tribunal for a new hearing. This matter is not a reconsideration or a reopening of the previous hearing. Further, the parties participated in a case conference and agreed that the matter would proceed to a four-day videoconference hearing. Had the parties intended to rely on their initial written submissions the Tribunal's order would have stated that and the matter would have proceeded to another written hearing.

BACKGROUND

16Prior to the accident the applicant did not have any significant health issues. This was confirmed by the pre-accident OHIP summary.

17On March 17, 2017, the applicant, was involved in an accident when he was hit by a vehicle in a parking lot, which propelled him into a brick wall. As a result of the accident, he was diagnosed with a mild traumatic brain injury, mild neurocognitive disorder, post-concussion syndrome, soft tissue injuries to his cervical and lumbar spine which developed into chronic pain and various psychological impairments. He has also developed a substance abuse disorder.

18In February 2020, the applicant was deemed to be catastrophically ("CAT") impaired by the respondent under Criterion 8 in the spheres of activities of daily living, social functioning, and adaptation.

ANALYSIS

The applicant does not require 24-7 supervisory ACBs from April 19, 2020, to date and ongoing.

19Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aide or attendant. A Form 1 prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable. The maximum amount of ACBs payable for a person who has sustained a CAT impairment under the Schedule is $6,000.00 per month.

20The applicant has been assessed for ACBs six times since the beginning of his claim. Three times by the applicant's s. 25 assessors and three times by s. 44 insurer examination ("IE") assessors. Both parties' assessors agreed that the applicant required ACBs up until June 2024, however, there is a significant disagreement between the assessors regarding the amount. The applicant also maintains that he requires ACBs on an ongoing basis.

21The applicant submits that prior to the accident he was independent in carrying out his activities of daily living. He worked full-time at a factory, completed his self-care and housekeeping and home maintenance tasks, and could independently access the community. The applicant argues that he requires 24-7 supervisory ACBs from April 19, 2020, to date and ongoing because of his physical, cognitive, and psychological impairments. He concedes that he has the physical capacity to carry out his activities of daily living, however, he lacks motivation because of the severity of his psychological impairment. Following the accident, he requires someone to monitor his medication and ensure that he is carrying out his self-care consistently. He maintains that the lack of supervisory ACBs has resulted in a deterioration of his psychological condition. He developed an opioid addiction, started using meth and developed a substance use disorder. His psychological impairments and problems with addiction resulted in him getting kicked out of his family home. He is now residing in a homeless shelter and asserts that he is a danger to himself if left unsupervised.

22Intact argues that the applicant requires minimal ACBs and that it has already paid $1,029 per month as per the Tribunal's previous decision. It submits that the applicant's testimony is unreliable because of his issues with memory. Further, his own assessors do not all support that he requires 24-7 supervision. Intact also submits that he is not entitled to ACBs for any period that he was non-compliant with attending s.44 IEs. In addition, he has not produced an opinion from a psychological expert which supports that he requires 24-7 supervision because of any psychological impairments. Finally, his OT assessors did not consider that a more reasonable alternative to 24-7 care would be a rehabilitation program to address his substance abuse issues.

23I find the medical record does not support that the applicant requires 24-7 supervisory ACBs for the following reasons.

24First, although the family doctor's CNRs note suicidal ideation the doctor states that the applicant was not an active suicide threat. This was also confirmed by the applicant to various assessors throughout the history of this claim. Moreover, no doctor has recommended that the applicant be monitored 24-7 because of any concern that he is a danger to himself. As a result, I find 24-7 supervision is not required for this reason.

25Second, I find the applicant's testimony about his post-accident function unreliable because he responded to many of the questions asked during both his in-chief and cross examination with "I do not remember". However, I find his memory selective. For example, he could recall the details of the s.25 assessment of OT Chan completed in 2020, but he could not recall what happened in OT Nicholas Livadas' ("OT Livadas") assessment. I do not believe that the applicant was deliberately being evasive because I acknowledge that he has sustained serious psychological issues and a cognitive impairment. However, I find his testimony was not helpful in setting out the chronology of what has happened and filling in the gaps which the medical evidence did not address. For this reason, I find the medical evidence and opinions of doctors and assessors that much more important.

26Third, other than the psychiatric and OT CAT assessments, what I find lacking in this case is an opinion from a psychiatric/psychological expert or treating practitioner recommending that the applicant requires 24-7 supervision because of his accident-related impairments. The CAT assessments do not address the applicant's need for 24-7 supervisory care. Moreover, I do not find the recommendations that the applicant requires 24-7 supervision by the applicant's OT assessors persuasive which I will discuss below. In addition, I agree with the respondent that 24-7 supervision by a personal support worker ("PSW") is not a solution to address the applicant's problems with addiction. The applicant's treatment team have recommended that he attend a rehabilitation program, however, he has not followed through on this advice.

27Fourth, I find the medical evidence does not support that the applicant would be unable to respond in an emergency because of any physical or psychological impairment. While I accept that the applicant suffers from chronic pain there is little evidence before me that establishes that he could not safely exit his home because of any physical impairment. In addition, I do not find the testimony of Dr. Chang helpful in assessing his need for ACBs. Dr. Chang authored a physiatry CAT assessment which did not discuss the applicant's functional limitations in detail or his need for ACBs. Nor was I directed to any evidence to support that he would not be able to call 911 or know how to respond in an emergency because of any cognitive or psychological impairment.

28Finally, I do not find the case law relied upon by the applicant helpful. The applicant submits that his need for 24-7 supervisory ACBs is similar to the insureds in the Tribunal's decisions in Malitskiy v. Unica Insurance Inc., ("Malitskiy") 2020 ONLAT 18-010164; Shwaluk v. Royal & Sun Alliance, ("Shwaluk") 2023 CanLII 19831 (ON LAT) and Vaillancourt v. The Guarantee Company of North America ("Vaillancourt") 2023 CanLII 9261 (ON LAT). I find the facts in these decisions distinguishable from the matter before me for the following reasons:

i. In Malitskiy, the adjudicator heard evidence from numerous medical experts including a neuropsychiatrist and a treating psychotherapist. As already highlighted above, I do not have this evidence before me.

ii. In Shwaluk, the insured was diagnosed with conversion disorder that resulted in unpredictable full body tremor attacks, which resulted in physical limitations and the insured living in complete isolation. The adjudicator also had expert testimony that supported that the insured could not respond in an emergency because of this diagnosis and thus required 24-7 supervision.

iii. In Vaillancourt, I find it unclear what medical evidence the adjudicator had before them but note that the PSW testified about the insured's limitations and required daily assistance because of having numerous falls because of poor balance. In this case, I do not have the benefit of the testimony of any of the PSWs who provided the applicant with assistance.

29For the above-noted reasons, I find that the applicant has not met his onus in proving on a balance of probabilities that he requires 24-7 supervisory ACBs because of his psychological, physical, or cognitive impairments.

30I will now address the applicant's entitlement to ACBs in the three different time periods the Form 1s address and my findings regarding same.

Time Period - April 19, 2020 to May 23, 2022

31I find the applicant has established entitlement to an ACB in the amount of $3,997.95 per month from April 19, 2020 to May 26, 2022.

32For this time period, there are competing reports and Form 1s of s.25 assessor OT Chan dated April 22, 2020, who recommended that the applicant receive $6,245.89 per month in ACBs and the s. 44 IE of OT Livadas dated September 23, 2020, who recommended that the applicant receive $1,029.42 per month in ACBs.

33I find limitations in the reports and opinions of both parties' OT assessors. For example, OT Chan's assessment was conducted virtually so it is unclear how the OT conducted physical testing to assess the applicant's physical limitations. However, I acknowledge that the assessment was completed during the height of the COVID-19 pandemic, so it was not possible for the assessment to be done in person. That said, I also find that OT Chan thoroughly considered the applicant's post-accident medical file in making many of the recommendations for ACBs.

34In contrast, I find that OT Livadas' assessment heavily focussed on the functional testing of the applicant's physical limitations and overlooked the well documented history of psychological and cognitive impairments outlined in the medical file. Despite being aware that the applicant had been deemed to be CAT because of a mental and behavioural impairment the OT seemed to question the extent of his psycho-emotional issues. However, the severity of the applicant's psychological issues had just been confirmed in February 2020 by the respondent's own CAT assessors. During cross-examination, OT Livadas acknowledged that the applicant's inability to carry out his daily activities was because of his psychological impairment. For this reason, I accept many of the recommendations made by OT Chan over OT Livadas. Having said that, I find that OT Chan inflated the time allocated for some tasks.

35The chart below summarizes the recommendations of each party's OT and the amounts I have determined to be reasonable and necessary and my rationale follows.

OT Angel Chan's Form 1 dated April 19, 2020

OT Nicholas Livadas Form 1 dated September 23, 2020

My Finding

Level 1: Dressing: 140 mins Grooming: 10 mins Feeding: 1225 mins Mobility Supervision: 550 mins Total = 1925 mins

Level 1 =0

Level 1: Dressing= 140 mins Grooming=10 mins Feeding = 420 mins Mobility Supervision = 480 mins Total = 1050 mins

Level 2: Bathroom Hygiene: 105 mins Bedroom Hygiene: 70 mins Clothing prep: 35 mins Clothing care: 70 mins Supervisory Care: 4028.01 mins Coordination of ACBs: 60 mins Total: 4368.01 mins

Level 2 = Supervisory Care: 1260 mins

Level 2 Bathroom Hygiene =105 mins Bedroom Hygiene =70 mins Clothing prep = 35 mins Clothing care = 70 mins Supervisory Care = 2520 mins Coordination of ACBs =60 mins Total = 2860 mins

Level 3: Supervises Exercise: 210 mins Skin Care: 105 mins Monitors medication:35 mins Medication supply = 7 Maintains equipment = 35 min Total = 392 mins

Level 3 = 0

Level 3 Supervises Exercise: 210 mins Skin Care: 105 mins Monitors medication:35 mins Medication supply = 7 Maintains equipment = 0 Total = 357

$6,245.89

$1,029.42

$3,997.95

Level 1

Dressing and Grooming

36I accept OT Chan's recommendation of 20 minutes per day, seven times a week to assist the applicant with dressing and undressing for a total of 140 minutes per week over zero recommended by OT Livadas. I also prefer OT Chan's recommendation of 10 minutes per week for assistance with toenail care. Although I acknowledge that the applicant has the physical ability to carry out these tasks, I find that the medical evidence supports that he did not because of a lack of motivation because of his accident-related psychological impairment. The CAT and OT assessments completed around the same time support that he was not carrying out these tasks independently. The applicant is described as unkempt, having body odor, long hair and dirty fingernails and he is described as wearing the same clothes for days in a row by some assessors. I also find the time OT Chan recommended for these tasks reasonable. I find that the applicant requires daily cueing and supervision to ensure that he is carrying out these tasks consistently.

37In contrast, OT Livadas concluded that the applicant had resumed most of his personal care tasks which was inconsistent with the applicant's reports to him that he needed assistance with shaving, toenail care, travelling to access the community and medical appointments, purchasing medication, hanging and sorting clothes, bed making and linen changes. Regardless of this conflicting information from the applicant (and as noted in other assessments) OT Livadas concluded that the applicant did not require assistance with dressing or grooming because of any cognitive or physical impairment. I find the therapist's opinion inconsistent with the medical record and was based on the applicant's physical ability to carry out tasks.

Meal Preparation

38For the same reason, I find the applicant would require assistance with meal preparation because of the lack of motivation due to his psychological impairment. However, I find the time recommended by OT Chan to be excessive. For example, the therapist recommended that he receive five minutes per day, five times per day for the preparation and delivery of snacks; 30 minutes per day for preparation of breakfast; and 60 minutes each for the assistance with lunch and dinner for a total of 1225 minutes per week. The applicant reported to assessors that he can make himself a snack such as ramen noodles, so I find 25 minutes per day for snack preparation unsubstantiated. I also find 150 minutes per day for preparation of all three meals excessive. I find 60 minutes per day for a total of 420 minutes per week for assistance with meal preparation to be reasonable and necessary. I find the applicant would require assistance with meal preparation to ensure he was eating well balanced nutritional meals on a consistent basis. Once again, I find that OT Livadas overlooked the applicant's psychological impairment when considering his functional limitations.

Mobility

39I find 480 minutes per week allotted by OT Chan to supervise the applicant while walking reasonable for this time period. The CAT reports establish that post-accident he rarely left his home and was socially isolated due to anxiety. I find he would require assistance in the form of cueing and supervision to increase his comfort level in accessing the community, walking in the neighbourhood, and running errands. However, I find the 70 minutes recommended by OT Chan for assistance with transfers from wheelchair to bed or supervision while stair climbing unsupported. Nor was the applicant's ability to climb stairs tested by OT Chan. Therefore, I find 480 minutes per week to be reasonable and necessary for assistance with mobility.

40I find 1050 minutes of weekly assistance for Level 1 care to be reasonable and necessary which when calculated as per the formula on the Form 1 equals $1,121.23 per month.

Level 2

Hygiene & Clothing Care

41I also find the time allocated on OT Chan's Form 1 for bathroom and bedroom hygiene more reasonable than OT Livadas' recommendation of zero for the same reasons noted above. OT Chan proposed 15 minutes per day, seven times a week to assist the applicant with cleaning the tub, sink and toilet; and 10 minutes per day to assist the applicant with changing the applicant's bedding. I also find OT Chan's recommendation for assistance with clothing preparation and hanging clothes reasonable because he would not routinely carry out these tasks independently and required cueing. The evidence supports that during this time period the applicant spent most of his time in his bedroom and avoided interaction with his mother and sisters. Collateral interviews with the applicant's sister support that the applicant's bedroom was dirty, he would not clean it and would rely on his family members to clean up after him.

Supervisory Care

42OT Chan recommended that the applicant receive 575.43 minutes (approximately 9.5 hours) of supervisory care per day seven days per week for a for a total of 4028.01 minutes per week. The therapist then revised her Form 1 to avoid double counting under the other categories and recommended that he receive a total of 16 hours of supervisory care per day (10 hours during the day and 6 hours at night). To justify this recommendation the therapist stated that the applicant needs supervision at night because of frequent anxiety and nightmares. Additionally, because of his emotional state and cognitive impairment he would require supervision if faced with a challenging situation requiring good judgment and problem-solving skills.

43OT Livadas agreed that the applicant required some supervisory care because he recommended that he receive three hours per day, seven times a week to encourage, motivate, initiate, and ensure that he follow through on tasks because of his psycho-emotional issues.

44I reject both OT's recommendations for supervisory care. I do not find that the medical evidence supports that he requires bedside supervisory care due to anxiety and nightmares. As noted above, he has the physical capacity to exit his home in the event of an emergency. Further, although he was diagnosed with a mild neurocognitive disorder by IE assessor, Dr. Zakzanis, the doctor's report does not state that he lacks the capacity to understand or respond in an emergency. Nor was it clear whether OT Chan asked him questions about how he would respond in an emergency during the assessment. For these reasons, I find there is insufficient evidence before me to support that he lacks the cognitive ability to respond in an emergency that would require that level of supervision.

45On the other hand, I find the time allotted by OT Livadas insufficient. The assessments throughout the claim up until this point (including the CAT assessments) highlight that the applicant was very socially withdrawn, would rarely leave the home and carried out very little meaningful daily activity. For these reasons, I find an additional 6 hours per day for supervisory care to encourage and motivate the applicant to carry out his daily activities reasonable to ensure he was carrying out his daily activities in a meaningful way.

Co-ordination of ACBs

46I accept OT Chan's recommendation of 60 minutes per week for the coordination of the applicant's ACBs because the evidence supports that he has limitations with short-term memory and planning and organization which are documented in the assessments throughout the claim.

47For the above-reasons, I find 2860 minutes of weekly assistance for Level 2 services reasonable and necessary which when calculated as per the formula on the Form 1 totals $2,336.62 per month.

Level 3

48To avoid repetition, I find most of the amounts recommended by OT Chan under Level 3 to be reasonable and necessary because the applicant lacked motivation because of his psychological impairment to consistently carry out his exercises. Therefore, he requires motivation, prompting and assistance to ensure he carries out this task. He suffers from chronic pain and somatic symptom disorder and required assistance in applying ointment for pain relief to his back which he could not reach. Further, I find the evidence clear that he required assistance with monitoring and maintaining his medication supply because both parties agreed that the applicant developed a substance abuse disorder and became addicted to opioids post accident. However, I find OT Chan's report lacked an explanation for the 35 minutes per week recommended for monitoring equipment, so I do not find this amount to be reasonable and necessary.

49I find 357 minutes of weekly assistance for Level 3 services to be reasonable and necessary which when calculated as per the formula on the Form 1 is $540.10 per month.

50When the amounts for Levels 1, 2 and 3 are added up, I find the applicant has established entitlement to a monthly ACB in the amount of $3,997.95 per month from April 19, 2020, to May 26, 2022.

Time Period – May 26, 2022 to December 10, 2023

51I find the applicant is entitled to $897.31 per month from May 27, 2022 to September 18, 2022, in accordance with the Form 1 of OT Dori Isakow-Weiss ("OT Isakow-Weiss"). I find the applicant is entitled to $1,397.19 per month from September 19, 2022 to December 10, 2023, as per Shoabana Kugathsan's ("OT Kugathsan") Form 1.

52The applicant was next reassessed for ACBs in May 2022 by s. 25 assessor OT Isakow-Weiss who recommended $897.31 in ACBs. He was then assessed by s. 44 IE OT assessor, OT Kugathsan on November 29, 2022, who recommended that he receive $1,397.19 per month.

53Neither party spent much time at the hearing addressing these reports and Form 1s and it is unclear to me what the respondent approved or denied. OT Marshall testified that the Form 1 and report of OT Isakow-Weiss were flawed because the therapist did not consider the applicant's psychological or cognitive impairments in carrying out the assessment. For this reason, OT Marshall stated that OT Isakow-Weiss underestimated the applicant's ACB needs, and that 24-7 supervision was required.

54As already highlighted above, I do not find that the applicant requires 24-7 supervision. Further, I do not find OT Marshall's testimony regarding OT Isakow-Weiss' Form 1 and report persuasive because the CNRs of Dr. Chiu note that the applicant was making steady improvements towards the end of 2021 up until May 2022. For example, a CNR on November 25, 2021, states that the applicant's chronic pain is 50% better; a CNR dated April 19, 2022, states that overall he has improved and a note dated May 10, 2022 indicates that "overall he has gotten better - less pain - sleep is better - mood is not bad but still low." In the next couple of visits in 2022, the accident was not mentioned. Consequently, I accept that since the applicant had been making some improvements his need for ACBs would have decreased.

55Since neither party provided submissions addressing why I should prefer one Form 1 or assessment over the other I find the applicant has established entitlement to $897.31 per month from May 27, 2022, to September 18, 2022, in accordance with the Form 1 of OT Isakow-Weiss and $1,397.19 per month as per OT Kagathsan's Form 1 from September 19, 2022, to December 10, 2023.

Time Period - December 11, 2023, to date and ongoing

56The applicant was next assessed by OT Marshall in December 2023 who prepared a report and Form 1 recommending $8,614.36 per month in ACBs. The respondent sent the applicant an explanation of benefits ("EOB") advising that it had approved $6,000 per month for ACBs pending the outcome of its IE. It then sent the applicant an EOB terminating the applicant's entitlement to ACBs as of June 19, 2024, relying on the Form 1 and report of s.44 IE of OT Reema Shafi ('OT Shafi") who recommended zero in ACBs.

57Overall, I prefer the report and Form 1 of OT Shafi over OT Marshall because I find OT Marshall's ACB report wholly inconsistent for the following reasons:

(i) The OT concludes that the applicant has impaired mobility that requires supervision. The report then notes that the applicant goes on two-to-three-hour mental health walks per day. The OT states that his balance is off which results in falls but there is nothing in the medical record that refer to any injuries sustained.

(ii) The OT recommended that the applicant requires assistance with transfers into the bathtub but then refers to him independently taking two-hour baths twice a day for pain management.

(iii) The OT proposes that the applicant requires supervision when negotiating stairs, but earlier assessments refer to the applicant doing the stairs in his building as a form of exercise.

(iv) The OT notes that the applicant reported he can overhead reach but avoids it because its uncomfortable and then states he needs assistance with the task.

(v) Under basic supervisory care, the OT states that the applicant "is able to mobilize at home and throughout the community independently." Then she states, "It is the opinion of the writer that in the event of an emergency should his elevator be out of service and descending stairs was his only route he would require additional time and support to safely exit the building - 24-7 supervision is recommended."

58Because of these inconsistencies I have given OT Marshall's report and testimony little weight. I also find OT Marshall's depiction of the applicant's physical limitations at odds with previous assessments and the report of OT Shafi done a few months later which I will discuss further below. Moreover, because of the applicant's insufficient notice to the respondent that he was calling OT Marshall as a witness I have given her testimony criticizing the respondent's IE assessments little weight because had the respondent been aware that the applicant was calling this witness, it would likely have called OT Shafi to testify.

59I find that the report of OT Shafi establishes that as of April 2024, the applicant had returned to independently carrying out his daily activities. The applicant advised the OT that he was independent with most of his daily activities with the exception that he relies on the PSW for meal preparation once a week and occasional toenail care, organizing and cleaning. He reported that he accesses the community on foot or by public transit, he attends a gym four to seven days a week for one hour where he does 30 to 40 pound-weights and leg and chest presses. He also engaged in 30 to 60 minutes of cognitive exercises on his phone and computer daily. He eats three meals a day, prepares his own breakfast, makes his own dinner, and makes batch meals to avoid cooking everyday. Occasionally he relies on Uber eats for delivery.

60He also advised the OT that he sleeps 10 hours per night, quit doing drugs two weeks prior to the assessment and is studying for his driver's test. The assessor noted that his hygiene and grooming were appropriate. In consideration of the applicant's function, OT Shafi concluded that the applicant no longer required ACBs.

61During cross-examination, the applicant was asked about his reports about his function to OT Shafi. He could not recall reporting these things to the assessor but stated that he was healing and getting stronger during this time. The respondent also relies on the report of Dr. Mandel issued in May 2024, where the applicant reported similar improvements in function. Dr. Mandel concluded that the applicant did not require ACBs because of any psychological impairment.

62Overall, I do not give Dr. Mandel's report and opinion any weight because the doctor did not review any medical records in completing the assessment. However, it is the applicant's onus to prove ongoing entitlement to the benefits in dispute.

63The applicant testified that he remained in his apartment for four months and got kicked out. A note of Ms. Garcia from July 2, 2024, states that the applicant was unable to pay for rent and food and was now living in a homeless shelter. A progress report of OT Marshall indicated that he obtained another apartment at the end of July 2024. A subsequent note of Ms. Garcia from August 22, 2024, states that the applicant has a stable home and had been referred to Bellwood addictions. Ms. Garcia testified that the applicant became homeless again in September 2024 and has remained in a homeless shelter. I find the evidence unclear regarding what transpired with the applicant's housing situation and why. As highlighted above, the applicant's testimony is unreliable and did not assist in filling in the gaps of missing information.

64I find there is a significant gap in the medical evidence before me to assist in determining the applicant's entitlement to an ACBs beyond this date. I conclude that the applicant has not met his onus in proving his ongoing entitlement to an ACB from June 2024 onwards.

65Finally, the respondent raised issues with the applicant's non-compliance with attending s. 44 IEs, however, did not provide submissions addressing the time he failed to comply or direct me to the evidence regarding same. For this reason, I find it unnecessary to address this issue further.

Were the ACBs incurred?

66I find that the ACBs have not been incurred by the applicant.

67Under subsection 3(7)(e) of the Schedule, for the applicant to receive payment for ACBs, there must be evidence that the expense was incurred. An incurred expense requires that the following conditions be met:

i. The applicant received the service to which the expense relates;

ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and

iii. The person who provided the service did so:

A. in the course of their employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or

B. sustained an economic loss as a result of providing the goods or services to the insured person.

68The applicant relies on the invoices of WS Management between March 2021 and June 2024 in support of his position that ABCs have been incurred. I note that all of the invoices note the month, indicate that the service provided was for attendant care and most of the invoices are in the amount to $3,361.75 per month. Based on the evidence before me, it is unclear when these invoices were submitted to the respondent. However, Intact acknowledged that it had some of these invoices as of the written hearing date in 2022.

69Although the invoices support that the applicant received ACBs, I find they do not provide sufficient information about what services were provided to the applicant as they do not provide any information or a breakdown about what the service provider did for the applicant. Moreover, I have no other evidence before me from the service provider regarding same. As a result, I do not have any information about whether they were providing Level 1, 2 or 3 services. Consequently, I find there to be insufficient evidence before me to support that the applicant received the expenses to which the service relates, and that the applicant has not proven that the ACBs were incurred. As a result, he is not entitled of payment of the various amounts that I found to be reasonable and necessary for the time period in dispute.

MEDICAL BENEFITS

70Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.

OCF-18 for Social Work

71I find the OCF-18 for social work is partially reasonable and necessary in the amount of $4,290.00.

72The OCF-18 was authored by OT Chan and the goal was for social work and family counselling to address issues living with a family member with an altered lifestyle and behaviour. Under the additional comments section, it stated that in-home social work services are required for the client to address trauma sequalae, to provide education strategies to improve the client's coping skills for psycho-emotional problems, and to assist with applications to benefit programs such as CPP-D or ODSP.

73The cost of the OCF-18 can be broken down as follows: three hours for an assessment service in the amount of $350.00, eight sessions of two-hour counselling, mental health and addictions for a total cost of $1,920.00, an hour and a half of provider travel time at a cost of $1,820.00; five hours of counselling, promoting health and preventing disease for a cost of $500.00; education, promoting health and preventing disease for $720.00; eight hours for documentation to support activity in the amount of $950.00, and $200 for form preparation which including tax totalled $7,460.00.

74The respondent sent the applicant an EOB dated August 20, 2020, indicating that it was unable to determine whether the OCF-18 for social work counselling was reasonable and necessary. It also advised that it required the applicant to attend an IE. The medical reason provided was that a recent multi-disciplinary independent medical examination did not include the proposed goods and services in the recommendations made for ongoing treatment. In addition, it stated that other providers were addressing similar goals such as the rehab support worker and the occupational therapist. And it noted that psychotherapy is already being administered by another provider to address the claimant's psycho-emotional issues and provide coping techniques. The OCF-18 was later denied because the applicant failed to attend an IE.

75The applicant submits that this OCF-18 is reasonable and necessary because post-accident he has significant emotional outbursts because of his psychological impairment which resulted in a breakdown of the family relationship with his mother and sisters. The purpose of the OCF-18 was to reintegrate him into his family and provide counselling to the family. The OCF-18 was supported by the progress report of OT Chan which noted increased and ongoing family conflict.

76I find the OCF-18 for social work to be reasonable and necessary because I find the medical evidence supports that post-accident the applicant started having ongoing conflict with his family members. The CAT assessments of both parties' assessors determined that he became socially isolated and withdrawn post accident and the collateral interviews done with the family members establish that there was ongoing conflict within the family because of his psychological impairment.

77In addition, I find the purpose of the OCF-18 is to provide family counselling as opposed to individual psychotherapy to the applicant. In addition, during cross-examination the adjuster clarified that if the OCF-18 had been submitted by a psychologist or psychotherapist it would been approved which I find perplexing because a social worker has the qualifications to provide this type of treatment. The respondent did not argue that the cost of the OCF-18 was excessive. Nor did the applicant make any submissions regarding same. Without further explanation, I find the OCF-18 excessive and to some degree a duplication of services. For these reasons, I find the OCF-18 is partially reasonable and necessary in the amount of $4,290.00 which includes $350.00 for an assessment; 8 sessions of counselling at a cost of $1,920.00; $1,820.00 for provider time and $200.00 for form preparation.

OCF-18 for Aquatherapy

78I find the OCF-18 for aquatherapy is partially reasonable and necessary in the amount of $3,555.96.

79The OCF-18 was authored by Dr. Ikatar, chiropractor and indicated that the goal was to increase the applicant's strength, range of motion ("ROM") and muscle endurance to return him to his activities of daily living. Under the additional comments section it provided details of the aqua therapy program. It also noted that the program assists individuals with chronic pain by achieving overall core stability and muscle activation with a reduction in pain; allow the applicant to carry out exercises with stressing joints and muscles and maximize effort with ROM, and warm water will assist in relieving muscle stiffness.

80The cost of the OCF-18 can be broken down as follows: 18 sessions of an hour and a quarter of aquatherapy for a cost of $3,045.60; $135.36 for report preparation; $135.36 for a progress report; $200.00 for preparation of the OCF-18; $2,250.00 for the facility fee for private lessons; $95.00 for aquatherapy fitness belt and $80.00 for aquatherapy shoes which including tax totalled $6,256.57.

81The respondent sent the applicant a notice dated August 24, 2020, denying the OCF-18 and scheduled an IE with Dr. Levy to determine whether the treatment was reasonable and necessary. The IE never took place because the applicant refused to attend.

82The applicant argues that the OCF-18 is reasonable and necessary because he suffers from chronic pain and the goal was to increase his strength and ROM and reduce his pain.

83Although the IE with Dr. Levy never took place, the respondent argues that the applicant has reached maximum medical recovery from facility-based treatment. It relies on the opinion of Dr. Rabinovitch, physiatrist in support of this position.

84I find that the evidence supports that the applicant suffers from chronic pain and somatic symptom disorder and that as of the date this OCF-18 was submitted he had not reached maximum medical recovery. This is confirmed by Dr. Chiu's CNRs which noted ongoing pain in 2019 and 2020 and the applicant's consistent reports of ongoing pain to assessors. Consequently, I find that the goals of the OCF-18 for pain reduction and to increase strength, ROM, and muscle strength to be reasonable objectives.

85I do not accept Dr. Rabinovitch's opinion that the applicant had reached maximum medical recovery when the OCF-18 was submitted. I note that Dr. Rabinovitch saw the applicant once, almost one year after this OCF-18 was submitted and the doctor's report did not address this OCF-18. In addition, Dr. Rabinovitch acknowledged during cross-examination that treatment that results in a reduction of pain is a valid reason to obtain treatment.

86Having said that, the applicant did not address the breakdown of the cost of the OCF-18. I was provided with no explanation for why the $2,250.00 cost for the facility fee for private lessons is needed and the applicant did not explain why two reports would be required. Consequently, I find that the applicant is partially entitled to the OCF-18 in the amount of $3,555.96 which represents $3,045.60 for aquatherapy sessions; $135.36 for report preparation, $200.00 for form preparation and $175.00 for equipment.

OCF-18 for Concussion Treatment

87The applicant is entitled to $4,189.25 for the concussion treatment program.

88The OCF-18 was authored by Dr. Ikatar, chiropractor and the goal was to increase strength, increase range of motion ("ROM") and increase muscle endurance to return the applicant to his activities of daily living. Under barriers to recovery the plan noted that applicant experiences signs and symptoms of concussion, headaches, sleep disturbances, difficulties with memory and recall and concentration.

89The cost of the OCF-18 can be broken down as follows: two total body tests for a cost of $338.40; 14 sessions of manipulation, multiple body sites for a cost of $947.52; four sessions of exercise multiple body cites for a cost $299.24; 11 sessions of physical rehabilitation for a cost of $598.32; seven sessions of therapy, multiple body sites for a cost of $528.49; $200.00 for preparation of the OCF-18; eight sessions of exercise, multiple body sites for a cost of $541.44 and eight sessions of exercise for a cost of $541.44 which including tax totalled $4189.25.

90The respondent sent the applicant an EOB indicating that the OCF-18 was denied because the proposed treatment was inconsistent with the diagnosis. The respondent also relies on the report and opinion of Dr. Rabinovitch who determined that the OCF-18 was not reasonable and necessary because the applicant had attained maximum medical recovery.

91I find the goal of the OCF-18 to be a reasonable objective because the applicant was diagnosed with a TBI and neurocognitive disorder by Dr. Zakzanis which is inconsistent with Dr. Rabinovitch's opinion that there was no evidence of a concussion. I also find the evidence clear that the applicant has experienced various cognitive issues post-accident and symptoms consistent with a concussion. Further, the fact that the applicant was making gains from past treatment was confirmed in the CNRs of Dr. Chiu after the OCF-18 had been submitted. As a result, I find that he had not attained maximum medical recovery when the OCF-18 was submitted.

92For the above reasons, I find the OCF-18 for the concussion treatment to be reasonable and necessary.

Transportation Expenses

93The applicant has not established entitlement to the balance of the OCF-6 in the amount of $248.58 for transportation expenses.

94Both parties agree that the applicant was entitled to reasonable and necessary expenses for transportation. The applicant did not submit the OCF-6 for transportation expenses as evidence at the hearing. He argues that the disputed amount is payable because the EOB denying it did not indicate that $248.58 was specifically being denied. Therefore, the notice was insufficient, and the balance of the OCF-6 is payable. I disagree.

95The respondent sent the applicant a notice which denied specific portions of the travel expenses from 2018 to 2020 and it identified the amounts claimed for each year and the amounts that were denied. Further, the notice also indicated that it approved all the Uber trips which had the trip locations identified. I find that although the EOB did not specifically indicate that $248.58 was denied the notice provided sufficient information for the applicant to understand what was being denied and why. In addition, I do not have the OCF-6 attaching the receipts for the transportation expenses, the Uber confirmations, or any evidence about same to conclude that the balance of the OCF-6 is reasonable and necessary. I find the applicant has not met his onus in relation to this issue.

COST OF EXAM EXPENSES

96Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00, plus applicable tax. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.

OCF-18s for Neurological and Chronic Pain Assessments

97The applicant is not entitled to either OCF-18 for a neurological or a chronic pain assessment. The respondent denied both OCF-18s on the basis that the applicant had access to a neurologist and a chronic pain specialist through OHIP and denied the assessments pursuant to s. 47(2) of the Schedule. Since both OCF-18s were denied for the same reasons, I am addressing them together.

98Under s. 47(2) of the Schedule an insurer is not required to pay for an expense for which payment is reasonably available to the insured under any insurance plan or law, which includes OHIP.

99The applicant submits that both OCF-18s are reasonable and necessary because the medical evidence is clear that he sustained a neurological impairment and suffers from chronic pain as a result of the accident. The applicant relied on the Tribunal's reconsideration decision in G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ON LAT) in support of his position that it is the respondent's onus to prove that benefits are reasonably available through OHIP. In this decision the executive chair highlighted that when an insurer takes this position it must advance some evidence or argument that the benefit at issue was reasonably available from a collateral provider. The burden then shifts to the insured person to prove that the benefit was not reasonably available.

100I find the evidence establishes that the applicant was referred to Dr. Roussev, neurologist by his family doctor in 2017. In a consult note dated June 26, 2017, the doctor diagnosed the applicant with ulnar sensory neuropathy and indicated that there were no functional issues noted. The other consult notes do not note any ongoing neurological issues. In the final consult note, Dr. Roussev indicated that the applicant did not require any further neurological follow-up, but he would be happy to reassess him in the future. I find the respondent has met its onus in proving that the services of Dr. Roussev are reasonably available to the applicant. The applicant did not provide me with any evidence to the contrary to support that Dr. Roussev is not reasonably available to him.

101I also find the evidence demonstrates that the applicant was referred by his family doctor to Dr. Rod, a chronic pain specialist at the Polyclinic in 2018 to treat his accident-related chronic pain. A note from the applicant's family doctor dated January 17, 2019, stated that he had not seen Dr. Rod because of a lack of funds. However, I note that the applicant continued to see this this doctor in 2020 and a case management progress report dated February 28, 2023, notes that he continued to receive injections from Dr. Rod at the pain clinic which is covered by OHIP. The decoded OHIP summary also supports that this clinic is funded by OHIP. I conclude that the respondent has met its onus in proving that the applicant's treatment for chronic pain has been managed by an OHIP funded clinic. I find the applicant has not submitted any evidence to the contrary that certain services are not funded.

102For the above-noted reasons, the applicant has not proven that the above OCF-18s for a chronic pain and neurological assessments are reasonable and necessary.

Home Renovation Assessment

103The applicant is entitled to the OCF-18 in the amount of $2,200.00 for the home renovation assessment.

104Section 16 (1) provides that the insurer shall pay for rehabilitation benefits for all reasonable and necessary expenses for the purpose of reducing or eliminating the effects of any disability resulting from an impairment. Section 16 (3) (i) states that the insurer shall pay for home modifications, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home.

105The OCF-18 was authored by OT Chan and recommended a home renovation assessment in the amount of $2,000, plus $200 for form preparation. Under the additional comments section, it stated that the client's home is not conducive to optimal rehabilitation due to his accident-related injuries and psychological sequalae. The purpose of the assessment was to determine solutions to all barriers from a physical, psychological, and cognitive perspective. It stated that an OT home modification needs assessment is required to identify potential housing barriers to determine whether a housing accessibility assessment should be completed.

106The applicant submits that the OCF-18 for a home assessment is reasonable and necessary to assess whether he should be given his own space or relocated to have less interaction with his family due to conflict because of his accident-related impairments.

107The respondent submits that the OCF-18 for a home assessment is not reasonable and necessary because the applicant demonstrated the physical and cognitive abilities to carry out his daily activities and safely access his home.

108I find the applicant is entitled to the home assessment. The applicant testified that at the time of the accident he was living in a three-bedroom apartment with his mom and two sisters and that he had increased conflict with his family members post-accident. As highlighted above, following the accident the applicant is socially withdrawn and prone to emotional outbursts which has caused significant conflict within the family unit. I find these issues are well-documented in the progress report of OT Chan which recommended that he move out and the family conflict was also highlighted in Ms. Garcia's notes. Further, the applicant has been kicked out of his mother's home because of these conflicts. Consequently, I find a home assessment to be reasonable and necessary to explore alternative housing.

The applicant is entitled to interest.

109Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary.

Aviva is liable to pay an award.

110The 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.

111In analyzing whether an insurer's conduct in withholding or denying a benefit warrants an award an insurer's behaviour must be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for an award is high and the case law is well established that an award is not meant to punish the unsuccessful party at a hearing or penalize an insurer for getting it wrong.

112The applicant argues that he is entitled to an award because both Aviva and Intact unreasonably withheld and delayed payment of various benefits. He submits that Aviva has a history of non-compliance with s. 38(8) of the Schedule in that it did not respond to numerous OCF-18s within 10 business days after receiving them. Nor did it provide sufficient medical reasons for denying various benefits. He also maintains that he was subjected to unreasonable s. 44 IE requests when the respondent had enough medical information to adjust his claim. Moreover, Aviva's unreasonable denial of various OCF-18s for medical benefits led to a deterioration of his psychological condition and ultimately resulted in him getting kicked out of his family home and living in a homeless shelter.

113Intact opposed the applicant's request to order an award against it on the basis that Aviva had carriage of the claim when the benefits in dispute were denied. Further, the parties agreed at the case conference that the claim for an award would proceed solely against Aviva not Intact.

114Aviva maintains that most of the issues in dispute were submitted during the first six months of the COVID 19 pandemic when offices were closed. It submits that it approved many OCF-18s on a without prejudice basis. Aviva acknowledges that many mistakes were made. For example, it did not comply with the 10-business-day timelines to respond to OCF-18s and the contents of some of its notices were deficient. However, to date the applicant has not submitted proof that he has incurred any of the OCF-18s. Consequently, the "shall pay" consequence of s. 38 (11) of the Schedule does not apply. Aviva submits that it dealt with the applicant in good faith as it approved over $70,000 in treatment. However, this duty of good faith is reciprocal, and the applicant failed to attend IEs which delayed its ability to assess his entitlement to benefits. Finally, the respondent relied on the reports of IE assessors to deny the applicant's benefits. It asserts that the fact that it relies on the finding of its IE assessors does not justify an award.

115I decline the applicant's request to address the issue of the award against Intact because no prior notice or particulars of the award claim against Intact had been given. Further, the main reason why Aviva was added as a party to this proceeding was to address the award issue.

116Overall, I find Aviva's conduct in its adjustment of this claim meets the threshold for an award. I find the many errors made in the adjuster's handling of this claim go beyond making a few mistakes because of the COVID 19 pandemic. I find that Aviva repeatedly failed to meet its procedural obligations as far as responding to treatment plans within 10 business days after receiving the claims (sometimes three months late). I find there was a pattern of disregard and delay in assessing the applicant's entitlement to accident benefits. In addition, it issued several deficient notices denying OCF-18s where the medical reasons made little sense based on the medical records. I find the transcript of the adjuster's cross-examination demonstrates that many of the OCF-18s were denied for no valid reason at all.

117In addition, I find Aviva engaged in an unfair practice where it pre-emptively denied OCF-18s before IE assessments were carried out as the adjuster testified that Aviva had a process where the adjuster would send denial letters, outlining the reason for the denial to IE assessors before the assessments were completed, and the assessment company would send out the denial. I find this practice egregious and completely inappropriate. Aviva owed a duty of good faith to a CAT impaired applicant to adjust his entitlement to accident benefits fairly and promptly and this was not done in this case. I will now discuss the conduct in relation to the benefits in dispute.

OCF-18 for Chiropractic Services

118The applicant is entitled to an award on the OCF-18 for chiropractic treatment in the amount of $3,847.03.

119The applicant submits that he is entitled to an award on this OCF-18 because the respondent approved the OCF-18 prior to the hearing, however, has refused to pay for it. Aviva submits that the applicant is not entitled to an award on this issue because he has not submitted any proof that the benefit has been incurred.

120I find this OCF-18 was unreasonably denied and there was an unreasonable delay in Aviva's approval of this benefit. The parties relied on the transcript from the cross-examination of the adjuster which took place on July 22, 2021, where the adjuster acknowledged that it first sent the applicant notice partially approving this OCF-18. However, it then issued a subsequent notice denying it. The adjuster conceded that the second notice was sent to the applicant by error and confirmed that it would partially approve the OCF-18.

121I find that there was an unreasonable delay in the respondent approving the OCF-18 as it was not until the cross-examination of the adjuster (long after the case conference) that the applicant was advised that this OCF-18 was partially approved. I find this delay imprudent as Aviva should have been aware at the case conference whether this issue was approved or denied or that a mistake had been made. Instead, the applicant did not find out about the status of this OCF-18 until July 2021 and should not have had to wait over a year to find out that it was approved. I find Aviva breached its duty of good faith to the applicant in its adjusting of this OCF-18. Finally, I find whether the OCF-18 has been incurred is irrelevant to whether an award is payable. Section 10 of Reg. 664 only speaks to the applicant being "entitled" to the benefit, and not whether the expense has been "incurred," in order to ground an award.

OCF-18s for Social Work & Home Assessment

122The applicant is entitled to an award on the OCF-18s for social work treatment and home assessment.

123The applicant argues that the respondent's denial of the OCF-18 for social work was unreasonable because family counselling was needed, and the lack of treatment resulted in him being kicked out of his family home. Further, Aviva's request that he attend an IE was unreasonable because he had already attended multiple psychological assessments and another one was unnecessary.

124Aviva submits that its denial of this OCF-18 for social work was reasonable because it sought a duplication of services. Further, the applicant did not have any functional limitations within the home that would require a home assessment.

125I find the respondent was unreasonable in its denial of both of these OCF-18s because as noted above, I find the applicant's conflict with his family post-accident was supported throughout the medical records. Further, the adjuster acknowledged during cross-examination that the goal of the OCF-18 was reasonable but could be dealt with by another service provider who was already providing treatment such as a rehabilitation support worker or the OT. The adjuster also conceded that she had received the report of OT Chan in 2021 which discussed his ongoing conflict with family, social isolation and not independently accessing the community. Despite this, the adjuster did not revisit its denials of these OCF-18s. I find Aviva had sufficient medical evidence to partially approve the OCF-18 for social work and approve the OCF-18 for a home assessment and that it did not require another IE because it had recently done CAT assessments which found significant psychological impairments and functional limitations as a result.

OCF-18 for Concussion Treatment

126The applicant is entitled to an award on the OCF-18 for the concussion treatment.

127I find the respondent unreasonably denied this OCF-18. The respondent denied this OCF-18 because it was inconsistent with the applicant's diagnosis. During the adjuster's cross-examination she conceded that the reason for its denial was inconsistent with the CAT IEs because Dr. Zakzanis, neurologist diagnosed the applicant with a mild neurocognitive disorder because of a traumatic brain injury sustained in the accident. However, it was the adjuster's opinion that this TBI should have healed by the time this OCF-18 was submitted. I find the adjuster is a not a doctor and was making up new reasons for why this OCF-18 was denied.

128The respondent also relied on the IE of Dr. Rabinovitch to deny this OCF-18 who determined that it was not reasonable and necessary because of any musculoskeletal impairment. I find Dr. Rabinovitch's opinion inconsistent with the opinion of Dr. Zakzanis and the rest of the medical record which document the applicant's post-concussive symptoms. I find Aviva's denial of this OCF-18 unreasonable because the adjuster had an obligation to fairly assess all of the medical information in its file and not blindly rely on the IE report of one assessor which was inconsistent with the medical record it had in its possession.

OCF-18 for Aquatherapy

129I find the applicant has not established that an award is warranted with respect to the OCF-18 for aquatherapy as I find his submissions did not adequately explain how this benefit was improperly adjusted. Nor was the reason obvious after I reviewed the transcript from the adjuster's cross-examination.

Attendant Care Benefit

130The applicant is not entitled to an award on Aviva's denial of ACBs.

131The applicant has not established that an award is warranted with respect to the Aviva's denial of his ACBs. As highlighted above, I have determined that the ACB reports and Form 1s of both parties' assessors had their limitations and did not fully accept the findings of either party' OTs. I find the fact that the respondent denied the applicant's entitlement based on its IE report insufficient to establish that an award is warranted. Moreover, I determined that the medical record did not establish that the applicant required 24-7 supervision. In addition, I have determined that the applicant has not proven ongoing entitlement to the benefit.

132For the above-noted reasons, I find Aviva is liable to pay an award.

Quantum - Factors affecting the amount of the award

133Neither party addressed the quantum of the award. This Tribunal has routinely considered the following factors when determining the quantum of an award (see: M. M. v Aviva Insurance Canada, 2020 CanLII 42663 (ON LAT), para. 34, which adopted the Financial Services Commission's decision in Persofsky v. Liberty Insurance, 2003 ONFSCDRS 9).

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 from the misconduct; and

vi. take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

134I note that the length of the delay is often another consideration considered by the Tribunal which is also included in the wording of the regulation (see, e.g., 17-006757 v. Aviva, 2018 CanLII 81949 (ON LAT)).

Blameworthiness of the insurer's conduct

135Aviva is a sophisticated party and was represented by counsel when it continued to maintain its denials on the various OCF-18s in dispute. I find Aviva is fully responsible for its decision because it had the medical records to approve many of the OCF-18s in dispute. Further, I find that it has exhibited a stubborn and unyielding position in maintaining its denials of the OCF-18s in dispute. For these reasons, I find the respondent is fully to blame for its handling of the claim.

Vulnerability of the insured person

136The applicant is particularly vulnerable. Aviva determined him to be CAT impaired which should have prompted it to pay the utmost care and due diligence in handling his file, which did not happen.

The need for deterrence

137There is a clear power balance between an insurance company and its insured and the respondent's conduct in this case needs to be deterred so that it adjusts its files in good faith in the future.

The advantage wrongfully gained by the insurer from the misconduct

138The applicant did not address any advantage wrongfully gained by the respondent. However, I acknowledge that the advantage to the respondent is that it did not have to pay for the disputed benefits for a long period of time.

Harm or potential harm directed at the insured person

139I find Aviva's denial of many of the OCF-18s in dispute have had negative consequences for the applicant. For example, he and his family members did not receive the social work treatment needed to address conflict in the family which eventually led to him being kicked out of the family home. Moreover, the respondent arbitrarily denied the housing assessment which prevented him from accessing alternative housing which ultimately landed him at a homeless shelter.

140I have considered the amount of the benefits that the respondent unreasonably withheld from the applicant and the length of time that payment of those benefits has been withheld.

141After considering the above factors, I am ordering an award on the unreasonably withheld benefits in the amount 50%, as I do not find there to be any mitigating factors in this case. I find Aviva is liable to pay an award in the amount of $9,041.12 which is 50% of the total value of the OCF-18s that I have determined were unreasonably denied. The applicant is also entitled to interest on the award payable according to Regulation 664.

Aviva is not entitled to costs.

142Aviva is not entitled to costs.

143Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 ("Rules") provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.2 provides that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

144The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award and is an exceptional remedy.

145In its closing submissions Aviva requested an order for costs on the basis that the applicant narrowed the issues he was claiming an award on at the last minute. Further, none of the witnesses he called had anything to do with Aviva's involvement in the case. I find that Aviva has failed to establish that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. In my view, the fact that he narrowed the issues regarding his award claim is not conduct that justify costs.

ORDER

146For the above reasons, I make the following order:

The applicant has established entitlement to ACBs in the amounts reflected below. However, he is not entitled to payment of same because he has not proven that the benefit has been incurred.