Citation: Singh v. Aviva Insurance Company, 2025 ONLAT 23-003500/AABS

Licence Appeal Tribunal File Number: 23-003500/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:

Vijay Singh

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Yoni Silberman, Counsel

Kevin Hale, Counsel

For the Respondent:

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Vijay Singh, the applicant, was involved in an automobile accident on January 13, 2023, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the Case Conference on October 24, 2023, the respondent raised as a preliminary issue whether the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule. In the Preliminary Issue Hearing decision issued on December 21, 2023, the Tribunal found that the applicant had not demonstrated that he was in an accident and dismissed his application. In a Reconsideration Decision that was released on July 25, 2024, the Tribunal found that the applicant had been involved in an accident. It was ordered that this matter proceed to a three-day video conference hearing on the substantive issues.

3On August 8, 2024, the respondent filed a Notice of Motion seeking leave to appeal the Reconsideration Decision to the Divisional Court. On August 23, 2024, the respondent filed a Notice of Appeal, and on August 26, 2024, it filed an application for judicial review. On October 1, 2024, the respondent withdrew its motion for leave to appeal, the appeal itself, and its application for judicial review, after the Divisional Court gave notice that it was considering dismissing the proceedings under Rule 2.1.01(1) of the Rules of Civil Procedure, RR 1990, Reg. 194.

4On October 18, 2024, the applicant filed a Notice of Motion requesting that the Tribunal order that the videoconference hearing be converted to a written hearing. The respondent consented to this motion. The request was granted by the Tribunal on October 21, 2024.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 20, 2023, to ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $2,098.18 per month from February 17, 2023, to ongoing?

iii. Is the applicant entitled to $2,400.00 for an attendant care assessment, proposed by GLA Rehab in a treatment plan dated January 27, 2023?

iv. Is the applicant entitled to $2,394.52 physiotherapy services, proposed by Propel Physiotherapy in a treatment plan dated February 24, 2023?

v. Is the applicant entitled to $292.21 for various expenses, submitted on a claim form (OCF-6) dated February 24, 2023?

vi. Is the applicant entitled to $352.05 for various expenses, submitted on a claim form (OCF-6) dated February 27, 2023?

vii. Is the applicant entitled to $6,781.93 for occupational therapy services, proposed by GLA Rehab in a treatment plan, dated March 3, 2023?

viii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

6The Case Conference Report and Order (“CCRO”) dated October 27, 2023, lists issue 1 as, “Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?” The respondent in its submissions has indicated that the applicant was removed from the MIG by letter dated December 6, 2024. The applicant agrees that he was removed from the MIG. Therefore, I have not included this issue in the issues in dispute.

RESULT

7I find that the applicant is entitled to an IRB at the rate of $400.00 per week from February 13, 2023 to March 17, 2023, plus interest.

8I find that the applicant is not entitled to attendant care benefits in the amount of $2,098.18 per month from January 2023 to June 2023.

9I find that the applicant is entitled to the treatment plan for an attendant care assessment in the amount of $2,200.00, plus interest.

10I find that the applicant is entitled to the treatment plan for physiotherapy services in the amount of $2,394.52, plus interest.

11I find that the applicant is entitled to various expenses in the amount of $278.19, plus interest.

12I find that the applicant is partially entitled to the treatment plan for occupational therapy services in the amount of $3,415.13, plus interest.

13I find that the respondent is not required to pay an award.

ANALYSIS

The applicant is entitled to Income Replacement Benefits

14I find that the applicant is entitled to an Income Replacement Benefit (“IRB”) at the rate of $400.00 per week from February 13, 2023 to March 17, 2023.

15Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

16The issue listed in the CCRO is entitlement to IRBs in the amount of $400.00 per week from January 20, 2023 and ongoing. The applicant in his submissions, claims entitlement to IRBs for a period of 8 weeks from January 20, 2023 to March 17, 2023. He further claims that beyond this period of entitlement, there should be no further ruling by the Tribunal, and that the applicant’s claim for IRBs shall be paid, if and when, he has any further absence from work in accordance with the Schedule and his treating medical practitioner’s reports and opinions.

17At the time of the accident, the applicant was working as a Shop Foreman and Large Truck Mechanic at Miller Waste Systems, where he earned $48.00 per hour. The applicant submits that his role involved a mix of office work and physical work. He submits that 40% of his work was physical labour which involved laying down on his back on a creeper and working with his hands in the air.

18The applicant submits that following the accident, he was placed in a hard cast for two months, followed by a hard plastic brace and adjustable sling which he wore until June 2023. He submits that he was unable to work at all for a period of 9 weeks following the accident, during which time he did not receive any income from his employer. He submits that despite the recommendation by his orthopedic specialist, Dr. Jason Smith, to stay on light duties for approximately six months and to not pick up anything heavy, he returned to work on March 17, 2023.

19The applicant submits that he continued to meet the test for IRBs, despite the fact that he returned to work. He relies upon the Tribunal decision in McLean v. Primmum Insurance Company, 2023 CanLII 84386 (ON LAT), which confirmed that a reduction in work capacity of a specific employment compared to pre-accident capacity meets the test for IRBs.

20The respondent submits that the applicant returned to work on March 17, 2023, and continued in this capacity until early June 2023. He then decided to start his own business as a heavy-duty truck mechanic with Hana Transport, a long-haul trucking company. He works as the lead foreman and only licenced mechanic and is on the job 10-12 hours per day.

21The respondent submits that no benefits are payable until the respondent has received a completed OCF-1, OCF-2 and OCF-3 that support entitlement. It submits that the applicant submitted an incomplete OCF-1 on January 30, 2023, as Part 8 is incomplete. It submits that the OCF-3 dated February 8, 2023, was sent to it on February 13, 2023. It further submits that an incomplete OCF-2 dated February 3, 2023, was submitted on February 13, 2023, and the employment file was only sent to it on February 15, 2023. It therefore argues that the earliest date of entitlement based on submission of the required documents is February 22, 2023, which includes the one week waiting period. The respondent further argues that as the applicant returned to work on March 17, 2023, on a full-time basis, and continues to work in this capacity to date, there is no further entitlement to IRBs beyond the date he returned to work.

22The applicant in his reply submissions submits that the respondent did not raise issue with any of the submitted forms at the time of filing. The applicant further submits that his entitlement to IRBs should not be limited by the actions of a third party. It submits that the applicant’s employer submitted the OCF-2 that it completed on February 13, 2023, and the employment file was provided to the respondent upon receipt on February 15, 2023. The applicant further submits that the Schedule provides that IRBs are not payable “for the first week of the disability” and that the one-week waiting period does not begin when the forms are received by the respondent. It submits that his date of disability is the date of loss, and one week thereafter, is January 20, 2023.

23I find that based on review of the OCF-3 provided by Dr. C. T. Lee, family physician, dated February 8, 2023, that the applicant has proven on a balance of probabilities that he suffered a substantial inability to engage in his pre-accident employment. The OCF-3 lists the applicant’s injuries as a left fractured humerus and a concussion and indicates that he suffers a substantial inability to perform the essential tasks of his pre-accident employment as his left arm is immobilized and cannot be used. I find that he is entitled to receipt of IRBs up to the date he returned to work on March 17, 2023.

24With respect to the period of entitlement, I find that pursuant to s. 32(5) of the Schedule, the applicant submitted a completed and signed application for benefits to the respondent on January 30, 2023. Pursuant to s. 32(6), the respondent did not notify the applicant within 10 business days after receiving the application that there was any missing information. I agree with the applicant that the respondent did not advise the applicant that his OCF-1 was incomplete within 10 days of receipt.

25I further find that pursuant to s. 36(3) of the Schedule, the applicant is only entitled to IRBs after the completed disability certificate is submitted. I find that the applicant submitted his OCF-3 to the respondent on February 13, 2023. I note that the applicant has not disputed this date in his submissions.

26I do not accept the respondent’s submission that the one-week waiting period under s. 6(2) of the Schedule begins on the date the applicant submitted his OCF-3 because the language states, “for the first week of the disability”. I find that the first week of the disability begins on the date of the accident when the applicant sustained his injuries.

27I further find that the OCF-2 was provided to the respondent on February 13, 2023. I find the fact that the employment file was not provided until two days later on February 15, 2023, does not change the date of entitlement, as these documents were provided by a third party and were not in control of the applicant.

28For the reasons set out above, I find that the applicant has proven on a balance of probabilities that he is entitled to an IRB at the rate of $400.00 per week from February 13, 2023 to March 17, 2023. I further find that the issue of any future entitlement to IRBs is not before me as it was withdrawn by the applicant as set out above.

The applicant is not entitled to attendant care benefits

29I find that the applicant is not entitled to attendant care benefits (“ACBs”).

30Pursuant to s.19(1) of the Schedule, an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility.

31Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form 1”).

32Pursuant to s. 3(7)(e) of the Schedule, an expense, including the cost of an aide or attendant, is not incurred unless the applicant received the goods and services to which the expense relates, the applicant has paid the expense or promised to pay it, and the person who provided the services did so in the course of their employment, occupation or profession, or sustained an economic loss as a result of providing the services to the insured person.

33Pursuant to s. 3(8) of the Schedule, 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, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

34The issue listed in the CCRO is entitlement to ACBs in the amount of $2,098.18 per month from February 17, 2023 and ongoing. The applicant in his submissions claims entitlement for the period from January 2023 to June 2023. The applicant submits that he received ACBs from his wife in the weeks and months following the accident. He relies upon the Form 1 prepared by Melissa Tobros, occupational therapist, dated February 27, 2023, which sets out his required care. The Form 1 indicates that he requires assistance with dressing/undressing, personal grooming tasks, feeding and meal preparation, mobility supervision, personal hygiene tasks, medication management and bathing. He further relies upon s. 3(8) of the Schedule which provides the Tribunal with the authority to deem the expense to have been incurred from January to June 2023. The applicant argues that his entitlement to ACBs was never assessed or declined by the respondent on a substantive basis.

35The respondent submits that the Form 1 was submitted on March 3, 2023, and is not retroactive. Therefore, no benefits are payable prior to the date of submission. It further submits that as the applicant returned to work on March 17, 2023, which required heavy physical strength less than two weeks after the Form 1 was submitted, no ACBs would be payable beyond this date. It therefore submits that the maximum period of entitlement would be from March 3, 2023 to March 17, 2023, if the applicant can prove that attendant care expenses and services were incurred.

36The respondent submits that the section 25 in-home assessment prepared by Ms. Tobros, was conducted five weeks after the accident and included provision for services that the applicant was not responsible for prior to the accident, including meal preparation, bedroom and bathroom cleaning. The respondent submits that the services proposed in the Form 1 are not in line with the facts and are contrary to the applicant’s evidence at his Examination Under Oath (“EUO”) on July 27, 2023, wherein he stated that he was independent with his personal care tasks within three weeks of the accident.

37The respondent further submits that there is no provision in the current Schedule to deem ACBs incurred. It submits that services must be incurred which means that the services have been received by the applicant and provided by either a qualified support worker or by another individual who sustained an economic loss in order to provide the services. The respondent submits that the applicant has not submitted any expenses or documentation to support that services were incurred, therefore no benefits are payable. The respondent argues that any assistance received by the applicant was provided by his wife who is unemployed and therefore there is no economic loss.

38I find that the Form 1 and In-Home Assessment report of Ms. Tobros, dated February 27, 2023, supports the applicant’s entitlement to ACBs. Ms. Tobros provided a comprehensive assessment of the applicant’s needs and limitations as a result of the injuries suffered in the accident. However, other than submitting that his wife, who was unemployed at the time of the assessment, provided these services, the applicant has not tendered any evidence or submissions supporting that these services were incurred. While the applicant claims entitlement to ACBs on the basis that they were recommended by Ms. Tobros, he has not provided any evidence indicating that he incurred the expenses, despite it being a requirement pursuant to s. 3(7)(e) of the Schedule.

39The applicant further argues that that ACBs should be deemed to be incurred due to the respondent’s unreasonable withholding or delay in payment. I find that s. 3(8) of the Schedule requires the applicant to demonstrate that the respondent not only unreasonably withheld or delayed payment, but that he was not able to incur the benefit due to the withholding or delay. I find that the applicant has not provided me with any evidence that the respondent’s denial of his ACBs impacted his ability to incur the expense. I therefore do not deem the ACBs incurred.

40For the reasons set out above, I find that on a balance of probabilities, the applicant is not entitled to ACBs from January 2023 to June 2023.

Entitlement to medical and rehabilitation benefits

41To receive payment for a treatment and assessment plan under sections 15 and 16 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. In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.

a. The applicant is entitled to an attendant care assessment

42I find that the applicant is entitled to the treatment plan recommending an attendant care assessment.

43In the CCRO, the applicant claims entitlement to $2,400.00 for an attendant care assessment proposed by GLA Rehab in a treatment plan dated January 27, 2023. The applicant in his submissions concedes that the maximum amount payable for an assessment under the Schedule is $2,200.00. Therefore, the amount in dispute is $2,200.00.

44The applicant submits that the attendant care assessment was incurred and paid for. The report provided by Ms. Tobros, dated February 28, 2023, recommended assistive devices, occupational therapy, physiotherapy, attendant care assistance and housekeeping assistance. The applicant submits that for the first three weeks following the accident, while his arm was casted, his wife was responsible for essentially everything around the home, including assisting him with bathing. He submits that he continued to require bathing assistance until the time his cast came off in June of 2023.

45The respondent submits that the treatment plan dated January 27, 2023, recommended a flat fee of $2,000.00 for the assessment, plus $400.00 for unspecified “document support activity”. The flat fee is noted to include “travel, assessment, review medical documentation, communication with team members and family and report writing”. The respondent submits that the fee must be properly particularized with hours and rates for the proposed activities. The respondent submits that the treatment plan is deficient as it fails to provide a breakdown for the fee proposed and also includes items that are either not compensable under the Schedule or that are included in the $200.00 fee for preparation of the treatment plan. The respondent further submits that the assessment was not reasonable or necessary as it was conducted after the applicant had resumed the majority of his personal care tasks in mid-February 2023, as set out in the EUO transcript.

46I find that at the time the treatment plan dated January 27, 2023 was submitted, it was reasonable and necessary for the applicant to undergo an attendant care assessment based on the fracture to his humerus suffered in the accident and his complaints of functional limitations. I find that the treatment plan states that the applicant, “..sustained a fracture to his left upper arm. His arm is casted/he is experiencing pain/has difficulty completing daily activities/has been unable to return to work”. The goals of the treatment plan are listed as, “to assess his current functional status and his attendant care needs, including completion of a Form 1.” I find that there were grounds on which to believe that the applicant required an assessment of his attendant care needs at the time the treatment plan was submitted because of the nature of the injury he suffered and the functional limitations that would stem from such injury.

47With respect to the cost of the treatment plan, I find that neither party has provided the Tribunal with a copy of the respondent’s denial letter. I therefore find that while the respondent in its submissions is critiquing the administrative and cost elements of the treatment plan, there is no evidence that the respondent requested that the treatment provider provide further particulars about the breakdown of services.

48The Schedule is consumer protection legislation and should be read in favour of the applicant. Superintendent’s Guideline No. 03/14 (“the PSG”) states that its purpose is to establish the maximum expenses payable by an insurer under the Schedule. The maximum fee for conducting an examination under subsection 25(1)3 of the Schedule is $2,000.00 according to s. 25(5)(a). No other fee limits are described in s. 25. As a result, I conclude that the fee limits discussed in the PSG refers to the $2,000.00 fee limit on a single assessment and the production of a report. If the intention of the legislation was to impose a fee that is the lesser of the hourly rate or the $2,000.00 cap, the Schedule would say so and not simply put a cap on the total assessment fee.

49I therefore find that it was reasonable for the assessment to be charged at the flat rate of $2,000.00, plus the cost of preparation of the treatment plan in the amount of $200.00.

50For the reasons set out above, I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plan for an attendant care assessment and Form 1, in the total amount of $2,200.00.

b. The applicant is entitled to the treatment plan for physiotherapy services

51I find the applicant is entitled to the treatment plan for physiotherapy services.

52The applicant claims entitlement to $2,394.52 in physiotherapy services, proposed by Propel Physiotherapy, in a treatment plan dated February 24, 2023. The treatment plan recommends the following:

OCF-18 Completion – 1 hour: $200.00
Physiotherapy – 1 hour: $99.75
Physiotherapy – 1 hour – 16 sessions: $1,596.00
Initial Assessment Report – 3.5 hours: $349.13
Team Communication - .25 hours x 6: $149.44

53The goals of the treatment plan are to return to activities of normal living.

54The applicant submits that the treatment plan in dispute is reasonable and necessary because he has ongoing physical impairments, including pain and reduced function in his arm and shoulder, as a result of the accident. He submits that multiple medical practitioners have recommended that he receive physical rehabilitation services, including Ms. Tobros, Dr. Smith and Dr. Lee. He further submits that due to the respondent’s denial of treatment, he sought treatment at Strength-N-U Clinic and paid out of pocket for this treatment in the amount of $2,190.00.

55The respondent submits that the treatment plan in dispute references injuries that are unrelated to the accident including “other and unspecified injury of muscle and tendon of abdomen, lower back and pelvis and sciatica”. It therefore submits that the treatment proposed in the treatment plan is aimed at treating conditions that are unrelated to the accident. The respondent further submits that the applicant testified at his EUO that he had never attended Propel Physiotherapy and had no knowledge of the submitted treatment plan.

56I find that based on the medical records of Dr. Smith and Dr. Lee which support the need for physical rehabilitation treatment, that the treatment plan in dispute is reasonable and necessary. While the respondent claims that the treatment proposed is aimed at treating conditions that are unrelated to the accident, the first injury noted on the treatment plan is “fracture of shaft of humerus”, which is the injury suffered by the applicant in the accident. In addition, the treatment plan specifically notes that “the injury and sequelae information will be further updated following the initial assessment and upon receipt of any other pertinent medical documents.” Therefore, I give little weight to the respondent’s argument that there are other unrelated injuries listed on the treatment plan because these would have been further assessed if the treatment plan had not been denied.

57With respect to the respondent’s claim that the applicant never attended Propel Physiotherapy and had no knowledge of the submitted treatment plan, I find that the applicant did not attend at this clinic for the initial assessment because the treatment plan was denied.

58The issue before me is whether the treatment proposed is reasonable and necessary at the time the treatment plan was submitted. I find that based on the medical evidence documenting his ongoing arm and shoulder complaints and the recommendations for him to undergo physical therapy by his treating practitioners, that the treatment plan in dispute was reasonable and necessary at the time it was submitted.

59I do not accept the respondent’s submission that the treatment plan did not particularize the treatment proposed. The treatment plan recommended 16 one-hour sessions of physiotherapy, completion of the treatment plan, team communication and an initial assessment. I further find that again neither party has provided me with a copy of the denial letter, and therefore there is no evidence that the respondent requested further particulars of the treatment recommended in the treatment plan until it made its submissions in this hearing.

60For the reasons set out above, I find on a balance of probabilities that the applicant is entitled to the treatment plan for physiotherapy services.

c. The applicant is partially entitled to the Expense Claim Form (“OCF-6”) expenses

61I find that the applicant is partially entitled to the OCF-6 expenses dated February 24, 2023 and February 27, 2023, in the amount of $278.19.

62The applicant claims entitlement to $292.21 for the OCF-6, dated February 24, 2023. The OCF-6 claimed the following expenses:

1. Invoice from Scarborough Health Network dated January 18, 2023 in the amount of $45.00, for Ambulance Fee;
2. Invoice from Amazon dated February 9, 2023, in the amount of $23.19, for a collar and cuff sling;
3. Invoice from Amazon dated February 3, 2023, in the amount of $22.54, for a mini pillow;
4. Invoice from Rouge Valley Centenary dated January 30, 2023, in the amount of $40.00;
5. Invoice from Costco dated January 30, 2023, in the amount of $111.82, for clothing purchased to fit over cast;
6. Invoice from La Prep dated January 16, 2023, in the amount of $33.66, for drinks while waiting at hospital; and
7. Parking receipt from Scarborough Health Network dated January 20, 2023, in the amount of $16.00.

63The applicant claims entitlement to $352.05 for the OCF-6, dated February 27, 2023. The OCF-6 claimed the following expenses:

1. Parking receipt for medical appointments, in the amount of $26.00;
2. Receipt for medical note dated February 27, 2023, in the amount of $40.00;
3. Receipts for medical gauze, in the amount of $21.45;
4. Receipt for a brace, in the amount of $210.00;
5. Mileage to Dr. Torres appointment on February 23, 2023, in the amount of $7.20; and
6. Mileage to physiotherapy appointment on February 24, 2023, in the amount of $2.40.

64The applicant submits that he is entitled to these expenses pursuant to s. 15(1) of the Schedule, as they are reasonable and necessary expenses for medical benefits and other goods and services of a medical nature essential for his treatment.

65The respondent submits that pursuant to s. 38 of the Schedule, all claims for medical and rehabilitation benefits must be submitted on a treatment plan and an insurer is not required to pay an expense incurred prior to the submission of a treatment plan. It further submits that the majority of these expenses are payable by the applicant’s extended healthcare provider and should have been submitted to the said carrier for reimbursement.

66In reply, the applicant submits that s. 38(2) of the Schedule specifically allows payment of medical and rehabilitation benefits incurred before a treatment plan is submitted. The applicant further submits that the respondent forced him to incur these expenses, having denied his claim for benefits.

67Section 38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured submits a treatment plan unless specific exceptions apply. These include: the insurer agreeing to fund the expense without a treatment plan; the expense being for ambulance or emergency services provided within five business days after the accident; or the expense being reasonable and necessary for prescribed drugs or goods referred to in clause 15(1)(d) to (f) and or 16(3)(h) to (j) with a cost of $250.00 or less per item. Section 15(1)(d) to (f) list the following items: prescription eyewear, dentures and other dental devices, hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices. Section 16(3)(h) to (j) list the following items: workplace modifications and devices, home modifications and devices, and vehicle modifications.

68I find that the evidence supports that the applicant did not submit a treatment plan prior to incurring any of the claimed expenses. There is also no indication that the respondent agreed to fund the expenses without a treatment plan. The only exceptions that apply to these expenses, is the receipt for the Ambulance Fee and the expenses that fall under s. 15(1)(d) to (f) and s. 16(3)(h) to (j).

69I find that the applicant is only entitled to $278.19 for the following expenses pursuant to s. 15(1)(d) to (f):

1. Invoice from Scarborough Health Network dated January 18, 2023 in the amount of $45.00, for Ambulance Fee;
2. Invoice from Amazon dated February 9, 2023, in the amount of $23.19, for a collar and cuff sling; and
3. Receipt for a brace, in the amount of $210.00.

70I find that the remainder of the expenses claimed by the applicant do not fall within the exceptions in s. 38(2) of the Schedule and are therefore not payable.

71For the reasons set out above, I find on a balance of probabilities that the applicant is entitled to $278.19 in expenses.

d. The applicant is partially entitled to the treatment plan for occupational therapy services

72I find that the applicant is partially entitled to the treatment plan for occupational therapy services in the amount of $3,415.13.

73The applicant claims entitlement to $6,781.93 for occupational therapy services, proposed by GLA Rehab in a treatment plan, dated March 3, 2023.

74The treatment plan recommends the following services:

10 training, motor and living skills: $2,493.70
10 provider travel time, provider to treatment: $1,246.80
10 provider mileage to treatment: $2,000.00
6 hours of documentation, support activity: $598.50
Documentation support activity for claim form: $200.00
Obus Forme Back Rest: $120.00
Long handled shoehorn: $9.99
Long handled reacher: $19.99
Delivery charges: $65.00

75The goals of the treatment plan are, “to assist with devices implantation; assist with increasing participation in daily activities; complete kitchen assessment; assist with developing a meaningful daily routine; provide education on proper body mechanics; address poor sleep cycle; monitor readiness to return to driving; assist with return to work when appropriate; and others in Attendant Care Assessment Report.” The plan was also for, “an Obus Forme back rest for the client to improve sitting comfort, long handled shoe-horn to help with dressing tasks, long handled reacher to help with light lifting tasks.”

76The applicant submits that the treatment plan is reasonable and necessary based on the injuries noted by Galit Liffshiz, occupational therapist, which included a fracture of the shaft of the humerus; pain, not classified otherwise; limitation of activity due to disability; abnormalities of gait and mobility; other sleep disorders; symptoms and signs involving emotional state; and problems related to employment and unemployment. He submits that the medical records of Dr. Smith, nearly one-year post-accident, confirm that he was experiencing a worsening of symptoms, and had he received the proposed treatment, he would not have experienced this worsened state nearly one year later.

77The respondent submits that the treatment plan references conditions that are not accident related, including an abnormality in gait and mobility, and problems related to employment. It submits that the treatment plan was submitted several weeks after the applicant had returned to work and to the majority of his activities of daily living. It argues that the treatment plan proposed devices that are clearly not accident related including the Obus Forme, and services that are excessive and not warranted on the basis of the injury sustained and the applicant’s stage of recovery at the time the treatment plan was submitted. The respondent submits that there is no evidence to support the travel costs and mileage as the requisite threshold of 50 km has not been met.

78I find that the treatment plan in dispute is based on the recommendations of Ms. Tobros in her In-Home Assessment Report, dated February 28, 2023, which concluded that the applicant would benefit from occupational therapy treatment to improve his functional status, and to monitor his return to work. I find that the treatment plan recommends occupational therapy services to address the applicant’s return to work and pre-accident activities of daily living. I accept the applicant’s submissions that he returned to work due to financial concerns and not because he was completely physically recovered from his injuries. I therefore find that it was reasonable and necessary for him to receive occupational therapy services to assist him with his return to work and his problems related to employment, as well as resuming his pre-accident daily activities.

79I find that while I agree with the respondent that the treatment plan references some problems that are not accident related, it is accepted that the right humerus fracture was a result of the accident. I therefore find that the Obus Forme recommended for his back pain is not reasonable and necessary, but that the long handled shoe-horn and long handled reacher are reasonable and necessary because they are needed for his arm and shoulder limitations.

80I further agree with the respondent that the applicant has not proven that the travel costs and mileage claimed in the treatment plan are reasonable and necessary, as no evidence has been provided to support that the threshold of 50 km has been met. The treatment plan only states that the services were provided at the client’s home and other community setting and provides no further particulars.

81For the reasons set out above, I find that the applicant has proven on a balance of probabilities that the treatment plan for occupational therapy services is partially reasonable and necessary in the total amount of $3,415.13.

Interest

82Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to IRBs, and partially entitled to the treatment plans in dispute and the OCF-6 expenses, interest is payable in accordance with s. 51 of the Schedule from the date payment became overdue to the date that payment was made.

Award

83The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

84The applicant submits that he is entitled to an award because the respondent unreasonably withheld and delayed payments to him. He claims that the respondent denied his claim outright, which ultimately resulted in protracted proceedings. This included the respondent filing for an appeal as well as judicial review before the Divisional Court without statutory authority, with both proceedings ultimately being withdrawn. He submits that these tactics resulted in a 21-month delay from the date of the LAT application to the date of this written hearing. The applicant submits that he should have received payment for the benefits in dispute in light of the medical evidence and treatment plans submitted. The applicant argues that the respondent could have paid IRBs and other benefits to the applicant in light of the remedy of overpayment available to it pursuant to section 52 of the Schedule.

85The respondent submits that the basis of an award is not that an insurer made an incorrect decision but rather that the conduct of the insurer was excessive, imprudent, stubborn, inflexible, unyielding or immoderate. It relies upon the Tribunal decision in 16-002346 v. Unifund Assurance Company, 2017 CanLII 81583 (ON LAT), where the Tribunal held that the test for a special award is whether the insurer gave reasonable consideration to all the information then available to it in assessing a claim. It further states that an insurer will not face a special award just because an Arbitrator finds that the insurer got it wrong.

86The respondent further argues that the applicant was involved in a slip and fall in the parking lot of a restaurant. It submits that there is a long line of cases that support this type of incident does not constitute an accident within the meaning of the Schedule. It was therefore reasonable for it to challenge the “accident” issue which is supported by its success at first instance. It submits that any delay in the matter was caused by the applicant himself seeking a reconsideration of the initial decision.

87I find that no award is payable because the applicant has not demonstrated that the respondent unreasonably withheld or delayed payment of benefits. I find that the respondent was entitled to dispute that the applicant was involved in an accident. At first instance, the Tribunal agreed with the respondent. While this decision was ultimately reconsidered, it was not a straightforward issue. I find that although the respondent was ultimately found to be incorrect in its position, this does not amount to unreasonable behaviour. In addition, I find that until this issue was determined, the respondent did not have an obligation to pay any benefits to the applicant.

88For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that an award is payable.

ORDER

89For the reasons set out above, I find:

i. The applicant is entitled to an IRB at the rate of $400.00 per week from February 13, 2023 to March 17, 2023, plus interest;

ii. The applicant is not entitled to attendant care benefits in the amount of $2,098.18 per month from January 2023 to June 2023;

iii. The applicant is entitled to the treatment plan for an attendant care assessment in the amount of $2,200.00, plus interest;

iv. The applicant is entitled to the treatment plan for physiotherapy services in the amount of $2,394.52, plus interest;

v. The applicant is entitled to various expenses in the amount of $278.19, plus interest;

vi. The applicant is partially entitled to the treatment plan for occupational therapy services in the amount of $3,415.13, plus interest;

vii. The respondent is not required to pay an award.