Citation: Khoshsokhan v. Pembridge Insurance Company, 2025 ONLAT 22-014081/AABS

Licence Appeal Tribunal File Number: 22-014081/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:

Roxana Khoshsokhan

Applicant

And

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Sherilyn Pickering, Counsel

Brittany Stewart, Counsel

For the Respondent:

Oliver Gorman-Asal, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Roxana Khoshsokhan, the applicant, was involved in an automobile accident on November 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month from March 2, 2021, to date, and ongoing?

2. Is the applicant entitled to the med/rehab services proposed by Rehab First, in the following treatment plans (“OCF-18s”) as follows:

(i) $2,045.30 for an in-home attendant care assessment submitted December 16, 2020;

(ii) $3,342.28 for occupational therapy services submitted December 14, 2021;

(iii) $180.14 for occupational therapy service submitted March 22, 2021;

(iv) $310.67 ($2,784.55 less $2,473.88 approved) for occupational therapy services, in a treatment plan submitted May 17, 2021?

(v) $30.51 for occupational therapy services submitted August 12, 2021;

(vi) $2,818.47 for audiometric, speech language services submitted April 22, 2020; and

(vii) $2,668.84 for audiometric and speech language assessment submitted Dec 16, 2020?

3. Is the applicant entitled to $1,870.00 for a driving assessment, proposed by Rockman Psych, in an OCF-18 submitted June 28, 2021?

4. Is the applicant entitled to $1,130.00 for a catastrophic determination assessment, proposed by Rehab First, in an OCF-18 submitted March 19, 2022?

5. Is the applicant entitled to $3,200.00 for a catastrophic determination assessment, proposed by East York Physiotherapy & Orthopaedic Rehab Clinic. (“East York”), in an OCF-18 submitted May 27, 2022?

6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because

it unreasonably withheld or delayed payments to the applicant?

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

RESULT

[3] After considering both parties’ submissions and all the evidence I find as follows:

1. The applicant is not entitled to ACBs in the amount of $3,000.00 per month from March 2, 2021, to date and ongoing.

2. The applicant is not entitled to any of the OCF-18s proposed by Rehab First for occupational therapy or audiometric, speech language therapy or assessment, an in-home attendant care assessment or a catastrophic assessment.

3. The applicant is not entitled to the catastrophic assessment, proposed by East York Physiotherapy & Orthopaedic Rehab Clinic.

4. The applicant is entitled to $1,870.00 for a driving assessment, proposed by Rockman Psych, in the OCF-18 submitted June 28, 2021, plus interest pursuant to s. 51.

5. The respondent is not liable to pay an award under s. 10 of Reg. 664

ANALYSIS

The applicant is not entitled to ACBs in the amount of $3,000.00 per month for the time period claimed.

4Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. The maximum payable under the Schedule is $3,000 per month for non-catastrophic insureds and is calculated in accordance with the Form 1.

5In order for the insured person to receive payment for an ACB, there must be evidence that the expense was incurred as per s. 3(7)(e) of the Schedule. To meet the definition of “incurred” the applicant must satisfy the following three criteria:

(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 required 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.

6Section 3(8) of the Schedule provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense the Tribunal may deem the expense to have been incurred.

7The applicant argues that she requires ACBs because she suffers from dizziness, blurred vision, cognitive and emotional symptoms, and pain in the neck, back and right shoulder resulting in functional limitations in carrying out her daily activities. The applicant relies on the attendant care assessment report dated March 19, 2021, and Form 1 completed by occupational therapist Nadia El Jerbi (“OT El Jerbi”). The report states that the applicant’s occasional dizziness and psychological impairment has resulted in a lack of motivation to complete her activities of daily living. OT El Jerbi recommended that the applicant receive 701 minutes per week for assistance with dressing, grooming, feeding and mobility; 205 minutes per week for assistance with hygiene and coordination of attendant care; and 35 minutes per week for assistance with bathing. OT El Jerbi’s Form 1 proposed $1,007.18 per month in ACBs for assistance with these tasks.

8The applicant submits that she could not afford to hire a service provider to assist her with carrying out her activities of daily living and that I should deem the ACBs as incurred pursuant to s. 3(8) because the respondent unreasonably withheld the benefit.

9The respondent submits that the applicant does not require ACBs because of any accident-related impairment. It relies on the insurer examination (“IE”) attendant care assessment report of OT Laura Youm (“OT Youm”) dated July 16, 2021, who determined that the applicant has the functional capacity to carry out her activities of daily living independently. The respondent maintains that I should prefer the IE report of OT Youm over the applicant’s assessor because the applicant’s assessment took place virtually and even OT El Jerbi acknowledged that they did not have a full body picture. Moreover, it asserts that the findings of OT EL Jerbi’s report are inconsistent with the amounts recommended by the OT on the Form 1. Finally, that even if I determine that ACBs are reasonable and necessary the applicant is not entitled to payment of same because she has not incurred the benefit as per s.3(7)(e) of the Schedule. Further, the Tribunal should not deem the benefit incurred pursuant to s. 3(8) because it was denied based on its s. 44 IEs and not unreasonably denied or withheld.

10I find the applicant has not met her onus in proving that ACBs are reasonable and necessary for the following reasons:

11First, many of OT El Jerbi’s recommendations were based on the applicant’s self-reported episodes of rare dizziness lasting one to two seconds. There were no details about how often these episodes occur and there is little in the medical record which documents consistent dizziness which has resulted in impaired function. The applicant relies on the Clinical Notes and Record (“CNR”) from her family doctor dated April 14, 2021, where she reported dizziness over the previous week (the worst while driving). The CNR states that the applicant was otherwise feeling well. The family doctor indicated that they wondered if it was related to the concussion sustained in the accident the year prior. The doctor then states that the applicant is still able to function. I find this CNR inconclusive as far as its connection to the accident because the family doctor suggests the accident as a potential cause but did not conclude that it was. I find the applicant’s rare reports of dizziness (and one mention of it in the doctor’s CNRs) does not justify OT El Jerbi’s recommendations. Further, it was inconsistent with OT El Jerbi’s observations of the applicant’s function during the assessment because the OT did not observe any issues with dizziness during functional testing.

12Second, I agree with the respondent that OT El Jerbi’s report is inconsistent with the recommendations on the Form 1 for attendant care assistance with various tasks. For these reasons, I have given OT El-Jerbi’s report little weight. The following are some examples:

(i) The report notes that the applicant has the functional range of motion (“ROM”) to dress and undress pants, socks, undergarments and shoes. The OT observed her put on and take off socks and slippers with no difficulty. I find the OTs recommendations on the Form 1 that the applicant receive 70 minutes per week for dressing and undressing the lower body inconsistent with the description of the applicant’s function as reflected in the report.

(ii) The report states that the applicant was independent with transfers; she walks for 1 hour each day (with the exception of cold weather); does daily work outs two to three times a week including plank exercises to build strength. I find the OT’s recommendations on the Form 1 that the applicant receive 105 minutes per week with assistance with mobility, 35 minutes per week for supervision while walking and 70 minutes per week for assistance with transfers undermined by the findings in the report which notes that the applicant is independent with these tasks.

(iii) The report indicates that the applicant showers with no difficulty, however, showers less frequently because of poor motivation. She has no difficulty reaching parts of her body. The OT states that she has concerns about the applicant washing her lower extremities because of dizziness with prolonged bending. I find the OT’s recommendation of 35 minutes per week for supervision while bathing inconsistent with her description of the applicant’s function.

(iv) The report notes that the applicant has continued to work part time for two art studios teaching numerous kids art. She also volunteers as the social media Director for an art gallery. I find the OT’s recommendation on the Form 1 that the applicant requires 1 hour per week for assistance with coordination of ACBs inconsistent with the applicant’s ability to continue to teach post-accident as this job requires organization and making lesson plans. I find the OT fails to reconcile this in her report.

13Third, I find OT El Jerbi’s recommendations for grooming and hygiene inconsistent with the findings in OT Youm’s report about the applicant’s ability to carry out her activities of daily living. OT Youm’s report notes that the applicant continues to carry out self-care tasks independently. She still grooms her hair, nails and eyebrows but at a reduced frequency. She changes her clothes daily and can initiate self-care without any cuing. Further, she cleans her bedroom, changes her bed and does laundry when necessary. Overall, I prefer OT Youm’s report because it was more thorough because the OT carried out different tests to assess the applicant’s function and concluded that she did not require ACBs based on the test results and observations. In contrast, I find OT El Jerbi’s recommendations were based on the applicant’s self-reports. Moreover, I find OT Youm’s recommendation that the applicant does not require ACB assistance consistent with the applicant’s function described in both parties’ OT assessors’ reports.

14Fourth, I note that the Tribunal’s order indicated the quantum of ACBs in dispute was $3,000 per month. The only Form 1 the applicant has tendered as evidence recommended $1,007.18 per month. Given that I have found that the applicant has failed to establish entitlement to ACBs, I find it unnecessary to determine the quantum. However, given that the applicant did not address this in her submissions, I also find that she has not met her onus in establishing the quantum.

15Finally, since I have determined that the applicant has not established entitlement to the benefit, I find it unnecessary to address whether the benefit has been incurred pursuant to 3(7)(e) of the Schedule. Nor do I deem the benefit incurred pursuant to s. 3(8) because I do not find the respondent unreasonably denied or withheld the benefit.

16For the above-noted reasons, the applicant has not proven on a balance of probabilities that she is entitled to payment of ACBS in the amount of $3,000.00 or $1,007.18 per month for the time-period claimed.

The applicant is not entitled to the OCF-18s proposed by Rehab First for occupational therapy or speech language therapy.

Occupational Therapy

OCF-18 for $2,045.30 (In-Home Attendant Care Assessment)

17The applicant is not entitled to the OCF-18 for the in-home attendant care assessment submitted December 16, 2020.

18Section 25(1)(4) provides that the insurer shall pay for reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose. Section 25(1)(5) of the Schedule states that an insurer shall not pay more than $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada). The applicant bears the onus of establishing that the assessment is reasonable and necessary because of an accident-related impairment.

19The OCF-18 completed by Lauren Schwalm (“OT Schwalm”) proposed an in-home attendant care assessment in the amount of $2,045.30. The applicant submits that a screening assessment revealed that she was suffering from dizziness, blurred vision, cognitive and emotional symptoms, and pain in the neck, back and right shoulder resulting in functional limitations in carrying out her daily activities. The goal of the OCF-18 was to assess the applicant’s occupational performance to make recommendations on rehabilitation to facilitate safety and participation in her activities of daily living. The applicant argues that because of her functional impairments the goals of the in-home attendant care assessment are reasonable and necessary. Further that the assessment has been incurred despite the respondent’s denial. The applicant relies on the aforementioned in-home assessment completed by OT El Jerbi and the OCF-18 itself in support of her position that it is reasonable and necessary.

20The respondent denied the OCF-18 in an EOB dated January 4, 2021, based on the findings in the IE of Dr. Hope, dated September 4, 2020, where the doctor determined that the applicant was independent with meal preparation, toileting, bathing, laundry, bill payment and medication management. She was also still able to drive but did so less often. The respondent asserts that its denial of this assessment was based on the applicant’s independence with regard to her personal care tasks and there was no evidence demonstrating the need for ACBs, which is what the assessment was meant to assess. The respondent also relies on the CNRs of the applicant’s family doctor which do not mention that the applicant has any functional limitations in carrying out her daily activities.

21The respondent submits that the OCF-18 for an in-home attendant care assessment is not reasonable and necessary. It contends that the only evidence that the applicant relies on in support of the OCF-18 is the treatment plan itself and the report of OT El Jerbi dated March 19, 2021. Finally, the applicant’s submissions lump the need for an in-home attendant care assessment with her need for occupational therapy generally and do not specifically refer to the evidence which supports this treatment plan.

22I find that the applicant has not established that the OCF-18 for an in-home attendant care assessment is reasonable and necessary for the following reasons.

23First, for the reasons I have already highlighted above I did not find OT El Jerbi’s assessment persuasive in establishing that the applicant had any functional limitations in carrying out her self-care tasks or daily activities, which is what the OCF-18 was meant to assess.

24Second, throughout her submissions the applicant summarizes various medical records and reports but fails to articulate how they are relevant to the issues in dispute. For this reason, I have assigned more weight to the medical evidence from around the date the OCF-18 was submitted. For example, Dr. Hope’s IE authored two months before the OCF-18 was submitted indicates that the applicant reported being independent with her activities of daily living with the exception that she requires her husband’s assistance with some housekeeping tasks and meal preparation. Although, I acknowledge that Dr. Hope was not retained to assess the applicant’s entitlement to attendant care, his report reflects that the applicant was carrying out her activities of daily living independently.

25In addition, the progress report of Dr. Rockman dated December 31, 2020 (authored two weeks after the OCF-18 was submitted) notes significant improvement in the applicant’s psychological symptoms as the doctor notes that they are mild. In this report, Dr. Rockman does not reference any complaints of cognitive deficits such as poor memory, concentration, dizziness or difficulty with word finding. Nor, does the doctor indicate that the applicant has any functional limitations that were interfering with her ability in carrying out her activities of daily living other than stating that she “struggles with motivation”.

26Third, I agree with the respondent that the case law is well established that relying on an OCF-18 on its own is insufficient in establishing entitlement to a benefit.

27Finally, I acknowledge the respondent’s argument that the family doctor’s post-accident CNRs do not support that the applicant had any ongoing impairment because she visited multiple times and made very few accident-related complaints. Of significance, the respondent did not submit the family doctor’s CNRs in its document brief which was unhelpful in establishing this. However, I note that the onus is not on the respondent to disprove that the applicant is entitled to a benefit. Having said that, I find the applicant relied on very few post-accident CNRs of her family doctor and I note that there are none around the time the OCF-18 was submitted that note any accident-related impairments resulting in any functional limitations.

28For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that the OCF-18 for an in-home assessment is reasonable and necessary.

4 OCF-18s for Occupational Therapy

29The applicant is not entitled to any of the OCF-18s proposing occupational therapy.

30To receive payment for an OCF-18 under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

31The applicant argues that all four OCF-18s for occupational therapy are reasonable and necessary because past occupational therapy has assisted with managing her stress and anxiety by providing ongoing strategies for relaxation and calming techniques. It has also assisted with her cognitive function because she has been provided with cognitive rehabilitation activities which focused on visual perception and attention and focus. The applicant relies on the progress report of Elma Mae (“OT Mae”) dated August 26, 2021, in support of her position that all four OCF-18s are reasonable and necessary.

32The respondent submits that the applicant has not met her onus in proving that the four OCF-18s for occupational therapy are reasonable and necessary. It asserts that the applicant’s submissions lumped all of these treatment plans together and did not discuss each OCF-18 individually. As a result, the applicant has failed to make meaningful submissions which identify the goals of each OCF-18, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. Nor has the applicant provided any submissions to explain why the denied portions of the three OCF-18s that it partially approved are reasonable and necessary.

33I find the applicant has not met her onus in proving that the four OCF-18s for occupational therapy are reasonable and necessary. The applicant did not submit the OCF-18 in the amount of $3,342.28 for occupational therapy submitted December 14, 2021, as evidence for this hearing. Instead, she relied on an Auto Insurance Standard Invoice as proof that the OCF-18 had been incurred. As a result, I have no evidence before me about the goals of the OCF-18, whether any past treatment had been helpful or whether the cost was reasonable. The applicant relies on the progress report of OT Mae which she submits establishes that she benefited from past OT treatment. I find OT Mae’s report unhelpful in establishing that the OCF-18 is reasonable and necessary because it provided the applicant’s self-reports about improvement as opposed to the OT’s opinion on gains. What I find lacking is information about the OCF-18 itself, how much treatment the applicant had received to date, objective evidence noting gains and any information about the cost of treatment. Consequently, I do not have sufficient evidence before me to assess whether the OCF-18 is reasonable and necessary. Therefore, I find the applicant has not met her onus in proving entitlement to the benefit.

34Finally, the applicant did not make any submissions for why the denied portions of the three OCF-18s in the amounts of $180.14; $30.51; and $310.67 which were partially approved are reasonable and necessary. The applicant did not address the specific OCF-18s at all or indicate what her position was regarding the respondent’s partial denial of same. The onus is on the applicant to prove that she is entitled to the benefits in dispute. I find that she has not met her onus in proving that the balance of these OCF-18s for occupational therapy are reasonable and necessary.

OCF-18s for Audiometric and Speech Language Therapy

35The applicant is not entitled to either OCF-18 for an audiometric, speech language therapy assessment in the amount of $2,668.84 submitted on December 16, 2020, or $2,818.47 submitted on April 22, 2020.

36The OCF-18 completed by OT Schwalm recommended a speech language therapy assessment in the amount of $2,668.84. The plan indicated that a screening assessment revealed that the applicant reported suffering from cognitive difficulties such as memory, concentration, sustaining attention, and multitasking and difficulties with word finding and expressive communication; and

general mental fog and decreased information processing speed. The goal of the OCF-18 was to evaluate the applicant’s cognitive difficulties to develop functional goals and deliver treatment to improve these areas of difficulty.

37The OCF-18 completed by OT Faria Kazmi recommended speech language therapy in the amount of $2,818.47. The plan indicated that the applicant has ongoing cognitive communication challenges that negatively impact her ability to participate in meaningful social interactions with friends and family, complete activities of daily living effectively, vocational tasks, and re-engage in pre-MVA activities. The OCF-18 recommended 8 sessions of treatment over a 4-month period.

38The applicant maintains that both OCF-18s for speech language therapy are reasonable and necessary because she sustained a traumatic brain injury (“TBI”) as a result of the accident which has resulted in various cognitive limitations. She relies on a SPECT scan which she submits establishes same. Further, she asserts that she has consistently reported difficulty with word finding and problems with memory and concentration to all assessors throughout the history of the claim. The applicant submits that despite the respondent’s denial she has incurred the cost of these OCF-18s.

39The respondent argues that neither OCF-18 is reasonable and necessary because the only evidence relied upon to support same are the OCF-18s themselves. Moreover, it denied both OCF-18s based on the IE of Dr. Hope, neuropsychologist who determined that there was no evidence that the applicant sustained a mild TBI. In addition, after administering various neuropsychological tests the doctor concluded that there was no evidence of an accident-related neurological impairment.

40I find that the applicant has not met her onus in proving that either OCF-18 for a speech language assessment or therapy is reasonable and necessary for the following reasons.

41First, although I agree that the applicant reported various cognitive complaints to various assessors such as problems with word finding, memory and concentration, any cognitive tests administered by the applicant’s assessors did not show any evidence of a neurological impairment. For example, OT El Jerbi administered the Rowland Universal Dementia Assessment Scale which was normal and even the OT noted was inconsistent with the applicant’s self-reports. Further, the cognitive visual perceptual tests administered by Shah Baqar, OT during the driving rehabilitation assessment did not reveal any evidence of impairment.

42Second, despite the fact that the applicant incurred and underwent a speech language therapy assessment, the subsequent report was not submitted for my consideration. I agree with the respondent that relying on the OCF-18s on their own is insufficient to prove that the treatment or assessment is reasonable and necessary. The applicant refers to a SPECT scan in her submissions to support her position that she sustained a TBI which establishes a neurological impairment. However, I note that the applicant did not provide a medical opinion of a doctor to explain how the SPECT scan supports this opinion.

43In contrast, the IE of Dr. Hope determined that the applicant did not have a neuropsychological impairment which would require speech language therapy. He conducted numerous tests in which she scored low in English vocabulary and English word reading, which the doctor explained was because the tests were administered using a Farsi interpreter. However, the applicant scored well on tests of perceptual reasoning, processing speed, verbal fluency, mathematics, attention, memory, and flexible problem solving. Dr. Hope also provided an opinion that SPECT scans are not reliable in diagnosing a TBI and the doctor provided their rationale for why. Although, I acknowledge that the applicant consistently reported her cognitive complaints I give Dr. Hope’s evidence more weight because the applicant has not submitted a report or opinion which refutes it.

44For the above reasons, I find the applicant has not met her onus in proving on a balance of probabilities that the OCF-18s for a speech language therapy assessment or speech language therapy are reasonable and necessary.

The applicant is not entitled to the two OCF-18s for catastrophic assessments recommended by East York and Rehab First?

45The applicant is not entitled to $3,200.00 for the OCF-18 for a catastrophic assessment proposed by East York.

46Section 25(1)(5) of the Schedule supports that an insurer shall pay for expenses incurred by or on behalf of an insured person for reasonable fees charged for

preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

OCF-18 of East York

47The OCF-18 dated March 19, 2021, submitted by East York recommended an in-community situational assessment at a cost of $2,000.00; for an in-home occupational therapy assessment; $200.00 for preparation of the OCF-18 and $1,000 for writing the OT catastrophic assessment report, for a total cost of $5,850.00.

48On April 7, 2021, the respondent sent the applicant an EOB approving the OCF-18 in the amount of $4,720.00 which includes HST. It denied the cost of $1,000 for writing the catastrophic assessment report. The applicant is not disputing the respondent’s partial approval of the OCF-18. Instead, this dispute is about whether the approved portion of the OCF-18 has been incurred.

49The applicant submitted the invoice of East York seeking payment of $3,390.00 for the OT catastrophic assessment. The invoice noted that no report was written. On June 6, 2022, the respondent sent the applicant an EOB denying payment pending receipt of the reports from the assessments.

50The applicant argues that the incurred portion of the assessment is payable. She submits that during the assessment it was determined that she would not likely meet the test for catastrophic impairment and as a result the assessor stopped working immediately and sent the invoice for work completed which was much less than what was approved. The applicant argues that she is entitled to payment of $3,390.00 for this assessment because s. 25 of the Schedule provides that the insurer shall pay for an assessment for the purpose of determining whether she sustained a catastrophic impairment.

51The applicant relies on the decision of the Financial Services Commission of Ontario (“FSCO”) in Henderson v Wawanesa Mutual Insurance Co., 2015 CarswellOnt 1118 (“Henderson”) in support of her position that the expense is payable because there was a reasonable chance of her meeting the definition of catastrophic. She argues that there is no condition that there must be a finding of catastrophic for the expense to be payable. Further, there is no requirement in s. 25(1) (5) of the Schedule that a report be produced for the expense to be paid. If the cost were only payable if there were reports produced, it would result in reports and costs being incurred unnecessarily. In this case, an additional $2,650.00 would be unnecessarily incurred and owing, with $1,520.00 to be paid by the respondent and the rest by the applicant. Further, it would set a precedent that would make payment of expert fees contingent on a finding of catastrophic impairment when they ought not to do so.

52The respondent argues that the assessment is not payable because it has not been incurred because they are incomplete based on the fact that no reports were completed. It submits that Henderson is not relevant to this issue because the decision does not address whether a benefit has been incurred pursuant to s. 3(7) (e) of the Schedule. In addition, the applicant’s argument regarding fees being contingent on the findings and the objectivity of experts is irrelevant to the whether the assessment must be incurred to be payable. The respondent relies on this Tribunal’s decision in B. H. X. v Aviva General Insurance, 2020 CanLII 61462 (ON LAT) (“B.H.X”), where the adjudicator determined an assessment was not payable because it was not incurred.

53I find the applicant has not established on a balance of probabilities that the assessments have been incurred.

54Ultimately, I do not find the case law relied on by either party helpful in addressing this issue. Henderson dealt with the issue of whether catastrophic assessments are included in the medical and rehabilitation limit under the policy, and B.H.X. does not address payment of an OCF-18 which has been approved but not incurred because a report was not completed. However, based on the facts before me I find the respondent’s argument more persuasive.

55I find that the OCF-18 for catastrophic assessments in the amount of $3,390.00 invoiced by East York is not payable because it has not been incurred. In this case, I find the applicant has not incurred the expense pursuant to s. 3(7) (e) because she did not receive the service to which the expense relates, which was the completion of the assessment addressing the issue the assessor was asked to decide. I find that whether the opinion of the assessor is in the applicant’s favour is irrelevant. Additionally, the invoice relied upon by the applicant provides no information about what work was done by the OT and no notes or data was submitted to prove how many hours it took for any work done. In my view, the completion of the report is proof that the assessment has been incurred. Further, I find an assessment is complete pending the issuance of the report rendering an opinion on what the assessor has been asked to give an opinion on or make treatment recommendations.

56For the above-noted reasons, the applicant is not entitled to the OCF-18 in the amount of $3,390.00 for catastrophic assessments.

OCF-18 of Rehab First

57Of significance the applicant’s submissions did not address the OCF-18 in the amount of $1,130.00 for a catastrophic assessment, proposed by Rehab First submitted March 19, 2022. Nor was the OCF-18 itself relied on as evidence for this hearing. I conclude that the applicant has not met her onus in proving on a balance of probabilities that this OCF-18 is reasonable and necessary.

The applicant is entitled to $1,870.00 for a driving assessment, proposed by Rockman Psych, in the OCF-18 submitted June 28, 2021.

58The OCF-18 in the amount of $1,870.00 for a driving assessment was prepared by Dr. Rockman and the goals of the assessment were to assess the psychological sequelae related to driving and enable the applicant to return to activities of normal living. The applicant argues that the driving assessment is reasonable and necessary because she has been diagnosed with specific phobia, vehicular anxiety and the CNRs and reports are replete with evidence of the applicant’s vehicular anxiety as both a passenger and a driver. The applicant asserts that she incurred the assessment and that it achieved its goals by assessing the applicant’s impairments and by recommending ongoing treatment to improve function.

59The respondent does not dispute the fact that the applicant has vehicular phobia. However, it maintains that it did not deny the OCF-18 for a driving assessment because it was not reasonable and necessary. Instead, the OCF-18 was denied because it was a duplication of services as an OCF-18 for a driver’s rehabilitation assessment had already been approved by the respondent on May 18, 2021, just over a month before the disputed OCF-18 was submitted. It contends that the approved OCF-18 outlined the same goals and is indecipherable from the OCF-18 in dispute. The applicant’s submissions provided no distinction to assist in demonstrating why two driving rehabilitation assessments are reasonable and necessary.

60I find the applicant has proven on a balance of probabilities that the OCF-18 recommending a driving assessment is reasonable and necessary. Based on the evidence before me I find the OCF-18 referred to by the respondent at Tab 11 of its Book of Document is not an OCF-18 for a driving rehabilitation assessment. Instead, it was an OCF-18 recommending various assistive devices. Consequently, I find that the OCF-18 in dispute is not a duplication of services and since the respondent agrees that the applicant required a driving rehabilitation assessment, I find that it reasonable and necessary. I also find the applicant consistently reported her vehicular anxiety to her family doctor and to all of the assessors throughout this claim.

61For these reasons, I find she is entitled to the OCF-18 in the amount of $1,870.00 for a driving rehabilitation assessment.

The applicant is entitled to interest on the OCF-18 for the driving rehabilitation assessment.

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18 for the driving rehabilitation assessment because I have determined that the benefit is reasonable and necessary. No interest is payable on the balance of the issues in dispute since those benefits are not payable and therefore not overdue.

The respondent is not liable to pay an award under s. 10 of Reg. 664.

63The 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

64The applicant argues that she is entitled to an award because the respondent unreasonably denied and withheld the various benefits in dispute. She submits that it ignored the CNRs of her treating clinics which establish that she has ongoing impairments that required treatment and that she benefited from past treatment. The respondent also ignored all these records favouring the opinion of its IE assessors. The applicant also argues that the respondent significantly delayed scheduling IEs because it received her CNRs in April 2020, but waited until July 2020 to schedule the assessments. Further, it maintained an inflexible and unyielding position when it refused to schedule virtual IEs during COVID 19 and provided her with last minute notice of scheduled IEs. In addition, it held her in non-compliance when she failed to attend an IE because her son was sick. The respondent’s conduct resulted in a delay in her accessing important benefits. The applicant seeks an award in the amount of 50% of all the benefits in dispute.

65The respondent argues that the applicant is not entitled to an award because she has not submitted any evidence to prove same. For example, she did not submit the CNRs of York Region Psychological Services or Rehab First as evidence in this hearing. She also referred to various correspondence in support of her position that there was delay but did not rely on the correspondence or any log notes as evidence in this hearing. Further, the applicant’s non-attendance at an IE is not an issue in dispute in this hearing. Consequently, the applicant has not met her onus in proving that the respondent unreasonably withheld or delayed payment of benefits.

66In light of my decision in this matter, I find the applicant is not entitled to an award as I have determined that the respondent did not unreasonably withhold any of the benefits in dispute. I also find that she did not submit any of the documents she relied on in the further particulars of the award claim as evidence for this hearing. I conclude that the applicant did not meet her onus in proving that she is entitled to an award.

ORDER

67For all of the above reasons, I order as follows:

1. The applicant is not entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month from March 2, 2021, to date, and ongoing.

2. The applicant is not entitled to any of the OCF-18s proposed by Rehab First for occupational therapy or audiometric, speech language therapy or an assessment, or the catastrophic assessment.

3. The applicant is not entitled to a catastrophic determination assessment, proposed by East York Physiotherapy & Orthopaedic Rehab Clinic.

4. The applicant is entitled to $1,870.00 for a driving assessment, proposed by Rockman Psych, in a treatment plan submitted June 28, 2021, plus interest pursuant to s. 51.

5. The respondent is not liable to pay an award under s. 10 of Reg. 664