Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-013972/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:
Claire Poulin
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Dave Shellnutt, Counsel
For the Respondent: Parthenia Magharious, Counsel
HEARD: By way of written submissions
OVERVIEW
1Claire Poulin, the applicant, was involved in an automobile accident on September 26, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $80.68 ($4,998.46 less $4,917.78 approved) for other assistive devices, proposed by Partners in Rehab in a treatment plan/OCF-18 ("plan") submitted November 7, 2023?
ii. Is the applicant entitled to attendant care benefits in the amount of $4,067.76 ($7,067.76 less $3,000.00 approved) per month from October 24, 2024, and ongoing?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant is not entitled to $80.68 ($4,998.46 less $4,917.78 approved) for other assistive devices.
The applicant is not entitled to the remaining amount of attendant care benefits.
As there are no benefits payable, the applicant is not entitled to interest under s. 51 of the Schedule.
The applicant is not entitled to an award.
ANALYSIS
Is the applicant entitled to $80.68 for other assistive devices?
4I find that the applicant is not entitled to reimbursement of $80.68.
5The treatment plan dated November 3, 2023, for $4,998.46, was signed by Karen Pontello, an occupational therapist at Partners In Rehab. The plan's goals are pain reduction, improvement in mobility, and a return to activities of normal living. The plan outlines a preparation service, a folding lightweight power wheelchair, a floor-to-ceiling poles rental with installation, a shower stool, a long-handled reacher, a full-leg cast bag, and orthopaedic runners for support once weight bearing.
6The applicant states that the respondent did not reimburse $80.68 for assistive devices submitted with the OCF-18 dated November 3, 2023.
7The respondent states that the Explanation of Benefits ("EoB") clarified that the maximum hourly rate for occupational therapy is $99.75 for non-catastrophic injuries under the Professional Services Fee Guideline (Superintendent's Guideline No. 03/14). Since the injuries are non-catastrophic, sessions were approved at that rate, resulting in an $80.68 denial. The respondent paid according to the Guideline, and no additional amount is owed.
8I agree with the respondent and find that the EoB explained that the plan is only partially approved because, according to the Professional Services Fee Guideline, the maximum hourly rate for occupational therapy is $99.75 for non-catastrophic injuries. Since the applicant's injuries have not been deemed catastrophic, the occupational therapy sessions have been approved as non-catastrophic.
9Furthermore, I note that the applicant did not provide an explanation for why she believes she is entitled to this amount. Without any supporting evidence or argument, the applicant has failed to meet her burden of proof.
10I find that the respondent has approved the OCF-18 in accordance with the Schedule.
11Consequently, I find that the applicant is not entitled to reimbursement in the amount of $80.68.
Is the applicant entitled to attendant care benefits?
12I find that the applicant is not entitled to the remaining $4,067.76 per month from October 24, 2023, onwards for attendant care benefits.
13Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for attendant care benefit services 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").
14The applicant did not provide submissions explaining why she should receive the remaining amount.
15I have reviewed the evidence and conclude that the applicant has post-surgical needs, as documented in Form 1 dated October 6, 2023, prepared by Partners in Rehab, which recommends monthly attendant care costs of $7,067.76. The applicant contends that the respondent did not pay any amount until the November 20, 2023, EoB, which approved $3,000 per month based on the $3,000 statutory limit for non-catastrophic injuries under s.19(3) of the Schedule.
16The applicant does not contest the applicability of the statutory cap on ACBs.
17The respondent states that the file was updated once adequate documentation was received and reviewed. It argues that the attendant care benefits limit in the Schedule was correctly applied.
18As the respondent has approved the attendant care benefit at the non-CAT limits, and the applicant has not made submissions explaining why she should receive the remaining amount, I find that the applicant is not entitled to the remaining amount of $4,067.76 per month from October 24, 2023, onwards.
19I find that the applicant is not entitled to payment of attendant care benefits beyond the non-CAT limit from October 24, 2023, onwards.
Interest
20Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owed, there is no interest owing.
Award
21The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this threshold.
22I find that the applicant is not entitled to an award.
23The applicant states that despite the respondent receiving clear and repeated medical evidence as early as October 3, 2023, including a discharge report confirming an open reduction internal fixation ("ORIF") surgery, the respondent continued to be classified under the Minor Injury Guideline ("MIG") until November 20, 2023. The applicant argues that this delay demonstrates an inflexible, stubborn, and unreasonable adjusting practice. She cites several cases (Chen v Economical Insurance Company, 2024 CanLII 81190 (ON LAT); A.A. v. Aviva General Insurance Company, 2020 CanLII 19571 (ON LAT) and Jin v Certas Home and Auto Insurance Company, 2023 CanLII 13061 (ON LAT)) to support her claim that an award is justified when an insurer ignores credible medical evidence.
24The respondent contends that it acted reasonably by requesting clarification and further records, and that the delay in removing the applicant from the MIG was minimal. The respondent maintains that no conflicting medical evidence exists but denies acting in bad faith. It distinguishes Jin, where the delay was 16 months, from the current case, where the delay was less than two months.
25In this case, although there was a brief delay in reclassifying the applicant from MIG to non-MIG, I have determined that none of the disputed treatment plans are payable under the Schedule. Consequently, no benefits were withheld or payment delayed.
26Further, without a finding of entitlement to a disputed benefit, there is no basis to grant an award under section 10.
27Therefore, I conclude that the applicant is not entitled to an award.
28The applicant also requests $1,500.00 in costs in her submissions, claiming she had to cover this expense despite recommending a settlement to the respondent. However, she did not specify the reason for this request or provide any supporting evidence. Therefore, I see no reason to consider the claim for costs further.
ORDER
29For the above reasons, it is ordered that:
i. The applicant is not entitled to $80.68 ($4,998.46 less $4,917.78 approved) for other assistive devices.
ii. The applicant is not entitled to the remaining amount of attendant care benefits.
iii. As there are no benefits payable, the applicant is not entitled to interest under s. 51 of the Schedule.
iv. The applicant is not entitled to an award.
Released: August 22, 2025
Harouna Saley Sidibé
Adjudicator