Licence Appeal Tribunal File Number: 24-007879/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:
Bereket Berhe
Applicant
and
TD Home and Auto Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Applicant, Self Represented
For the Respondent:
Orest Kuchar, Counsel
Kristine Kim, Counsel
Court Reporter:
Nikita Ivachtchenko
Interpreter:
Ghirmai Abraha (Tigrigna Language) on Day 1
Araia Kidane Rede (Tigrigna Language) on Day 2
Heard by Videoconference:
June 16 & 17, 2025
OVERVIEW
1Bereket Berhe, the applicant, was involved in an automobile accident on January 31, 2022, 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, TD Home and Auto 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:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 28, 2022 to date and ongoing?
ii. Is the applicant entitled $1,472.36 for attendant care services, in a treatment plans/OCF18s (“plan”) proposed by Eglinton West Physio dated December 12, 2022?
iii. Is the applicant entitled to $2,299.52 for physiotherapy services, in a plan proposed by Eglinton West Physio dated October 17, 2022?
iv. Is the applicant entitled to $300.00 ($770.00 less $470.00 approved) for a heating pad and a bath scrubber, in a plan proposed by Eglinton West Physio dated December 14, 2022?
v. Is the applicant entitled to $2,304.75 for an attendant care assessment, in a plan dated October 4, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the respondent entitled to costs in the amount of $500.00/day x 2 days totalling $1,000.00?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an IRB.
4The applicant is not entitled to the disputed treatment plans.
5The respondent is not liable to pay an award.
6The applicant is not entitled to interest.
7The respondent is not entitled to costs.
PROCEDURAL ISSUES
8At the start of the hearing, the respondent objected to the admission of the applicant’s evidence. It submits the applicant did not exchange the evidence he was relying on for the hearing and the documents were not submitted on time, as per the Case Conference Report and Order (“CCRO”) released on December 16, 2024. The documents were to be exchanged no later than May 6, 2025. According to the respondent, the applicant submitted his pieces of evidence on different dates from June 1, 2025 onward, well beyond the timelines in the CCRO.
9The applicant pointed the Tribunal to three emails which were sent to both the Tribunal and the respondent on February 25, 2025, June 1, 2025 and then again on June 5, 2025. The emails included the same attachments; they included the applicant’s document brief (totalling 121 pages), along with a final witness list, medical evidence, prescription summaries, a sample prescription, and the recommendations of medical doctors. The respondent agued that it had not received any of the emails with the attachments but confirmed the email address the documents were sent to is the correct one.
10The respondent’s request to disallow the applicant’s evidence was denied. At the hearing, I directed the respondent to the emails sent by the applicant to the Tribunal and to the respondent, and I confirmed the respondent’s email address. The respondent agreed that the email address in the address line is counsel’s email address (which is in working order). Counsel for the respondent insisted she did not receive any of the emails. However, I am able to confirm the applicant did in fact provide the evidence he intends to rely on at the hearing to the respondent within the appropriate timelines at the contact information the respondent provided.
ANALYSIS
The applicant is not entitled to a pre 104-week IRB
11To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
12The applicant argued that he was entitled to these benefits because he was completely unable to return to his pre-accident self-employment after the accident. He testified that his impairments (namely head, neck, shoulder, and lower back pain, depression, poor memory, vertigo and dizziness, fatigue, irritability, and weakness in his lower limbs) prevent him from returning to his previous employment or any other employment.
13It is the applicant’s testimony that prior to the accident he was self-employed as a building maintenance technician. Since the accident, he testified that, due to his injuries, he is completely unable to perform any aspect of his previous self-employment. However, his description of his pre-accident employment tasks are minimal. He describes some of his tasks as changing fittings for pipes, fixing electrical problems and sometimes patching walls and painting.
14He further testified his injuries have left him debilitated and unable to continue working. Prior to the accident, the applicant testified that he was in good health, he was self-employed, had never been to the hospital and was not on any medication. Today, he relies on medication such as Gabapentin and pain injections for his pain, and he takes sleep medication.
15He relies on the testimony of his friends, Sisay Ayele Jibat, Keflom Kahsay Haile and Noh Ghebrebrhan Tesfay, who testified that the applicant has submitted to them that he can no longer work and needs assistance. He also relies on the opinion of Dr. Krystyna Prutis, physiatrist, prescription summaries, and the results of several MRIs contained in emails sent to the Tribunal and sent to the respondent, dated April 16, 2025, June 2, 2025, and June 5, 2025.
16The respondent disagrees with the applicant’s position and submits the applicant does not meet the test for IRB. It relies on the reports of Dr. Amena Syed, Psychologist, Sheri Corriero, Physiotherapist, and Dr. Jennifer Gordon, Physiatrist in support of its position.
17To meet the test for IRB, the applicant must prove he suffers a substantial inability to perform the essential tasks of his employment and must prove the quantum of his pre-accident income. The applicant has not provided either.
18I find the applicant is not entitled to a pre 104-week IRB, as he has not met his burden on a balance of probabilities proving his entitled to this benefit. When testifying about the essential tasks of his pre-accident employment and the change in his ability to complete the essential tasks post-accident, the applicant limited his testimony to describing his inability to continue working and using tools. He testified he didn’t have the strength, was fatigued, and could no longer manage his business. He testified that a person must be fit to do the job, and he is no longer able to stand, bend or lift objects. Although these were his complaints, he did not support his claim and testimony with medical evidence, nor has he established the essential tasks of his self-employment pursuant to the test for IRB under the Schedule.
19While the applicant’s friends provided testimony, I find their testimony vague. None of the witnesses were able to identify the particulars of the applicant’s essential tasks of his pre- accident employment , nor were they able to identify what tasks the applicant was substantially unable to do in his self-employment. They simply stated that they thought he was working pre-accident, and now he is not due to his medical impairments.
20Upon review of the medical records provided by the applicant, I find the applicant has not met his burden. Dr. Prutis, in notes dated June 6, 2022 and May 16, 2023, mentions that the applicant suffers pain from prolonged sitting, standing, bending forward, lifting objects and prolonged ambulation. She continues to opine that the applicant should do strengthening exercises at home. Although these are the same complaints the applicant points to when submitting he can no longer do his job, Dr. Prutis does not opine that, due to these complaints, the applicant cannot work. Further, Dr. Prutis does not provide an opinion on how injuries which may be caused by the accident prevent him from completing the essential tasks of his self-employment. I am not persuaded Dr. Prutis’ notes indicate the applicant has a complete inability complete the essential tasks of his pre-employment.
21As a result of the above, I find the applicant has not demonstrated that he has a substantial inability to perform the essential tasks of his employment as a result of the accident.
22The request for a pre-104 week IRB is denied.
The applicant is not entitled to a post-104 week IRB
23To receive payment for a post 104-week IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
24The applicant takes the position that he is physically unable to continue working in a physically demanding job. He testified that he took courses to become a maintenance technician, and to be a maintenance technician one must be fit and able to lift tools and bend. Due to his injuries, he is no longer able to meet the requirements of the job.
25The respondent argues that the applicant has not met his burden for the stricter test for post 104-week IRBs. It submits the applicant had failed to present compelling medical evidence to substantiate the claims regarding his accident-related impairments. He did not provide a comprehensive description of his pre-and post-accident employment activities, and he has not demonstrated that his injuries prevent him from any suitable employment for which he is trained.
26I find that the applicant is not entitled to post 104-week IRBs, because he did not provide compelling, contemporaneous medical evidence to support his claim that he suffered from accident-related impairments that precluded his return to any employment for which he was reasonably suited by education, training or experience.
27The applicant relies on the testimony of friends who knew him and various the clinical notes and records from Dr. Prutis and MRI records which did not speak to the post 104-week IRB issue in dispute.
28I find the testimony of his friends vague, and the notes from Dr. Prutis do not speak to the applicant’s inability to complete the essential tasks of his pre-accident employment. I also find the MRI reports indicate degenerative disc disease, and white matter lesion consistent with Multiple Sclerosis but do not provide insight into how any of these conditions are caused by the accident or how it interferes with his ability to complete the essential tasks of his pre-accident employment.
29The applicant has not met his onus on a balance of probabilities, that he meets the post 104 IRB test. I am not persuaded that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience due to the accident. Outside of his testimony that you need to be physically fit to do the job and that his injuries prevent him from bending, lifting, and standing, he has not described in detail the essential tasks of his pre-accident employment, nor has he persuaded me that he is unable to continue with those tasks.
30As such, I find that the applicant has not met his burden to show that he has a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.
31I find, on a balance of probabilities, that the applicant is not entitled to post 104-week IRB.
The applicant is not entitled to attendant care services
32Section 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 (“ACBs”) provided by an aide or attendant. Section 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”).
33It is the applicant’s testimony that, due to his injuries, he is unable attend to his personal care needs. However, he did not specify what aspects of his personal care he requires assistance with.
34The applicant relies on an OCF-3, completed on May 11, 2022 by chiropractor Dr. Silvia Vicente, indicating he suffers a complete inability to carry on a normal life and that he has an inability to perform the housekeeping and home maintenance services in his home. He also relies on the testimony of his friends, Sisay Ayele Jibat, Keflom Kahsay Haile and Noh Ghebrebrhan Tesfay.
35He testified that he still lives alone, and when he needs assistance, sometimes friends will come by and assist him at his home and sometimes he will spend the night at his extended families’ house, and they will help. When his friends and family assist, he testified no money is exchanged, and there isn’t a promise to pay for their services.
36The applicant’s friends testified that they were aware the applicant was in an accident, and that he continues to struggle with his activities of daily living. However, the witnesses were not able to articulate details of the applicant’s attendant care needs, in fact, they testified that they had infrequent in-person contact with him and knew very little of what was going on in his daily life. Aside from knowing he was in an accident and could no longer work, they were unable to provide any further details. I do not find their testimony of assistance when it comes to the determination of the applicant’s eligibility for attendant care services, therefore, I give it less weight.
37The respondent argues that, based on the applicant’s testimony alone, he is not entitled to attendant care services. The applicant testified he is able dress on his own, go for walks outside, he does prescribed exercises on his own at home and is able to feed himself. He also testified that, on the days that he feels better, he cleans his apartment on his own.
38It also submits that to meet the test the applicant must prove attendant care services have been incurred. The applicant has not provided any evidence of incurred expenses; therefore, this benefit is not payable.
39It relies on the opinion of Dr. Amena Syed, psychologist, and a paper review conducted by Dr. Jennifer Gordon, Physiatrist, dated December 15, 2022. They both opined that attendant care services are not reasonable or necessary based on their assessment of the applicant, and the applicant’s self-reporting of his daily routine and needs.
40I am not persuaded by the applicant’s arguments. The applicant further testified that, because he was having difficulty with pain, stiffness, fatigue, and dizziness, he thought he needed these services. I am unclear who the treatment provider is who advised him he may be eligible, as he has not pointed me to that opinion. Further, I agree with the respondent’s submission that the applicant’s testimony and what he reported to the s. 44 assessors is contradictory to what is indicated in the OCF-3.
41Upon review of the evidence, I find the combination of the OCF-3, the testimony of the applicant and the applicant’s friends is not enough to meet his burden. I also agree with the respondent that the applicant, by his own testimony, acknowledged he did not have an agreement to pay for attendant care services to someone in the course of their employment, nor has he provided proof of incurred which is a requirement for payment by the Schedule.
42Therefore, I find based, on the totality of the evidence, the applicant has not met his burden, and he is not entitled to ACBs.
The applicant is not entitled to physiotherapy services
43The applicant is not entitled to the physiotherapy services treatment plan.
44To receive payment for a treatment and assessment plan under s. 15 and s. 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.
45The applicant did not specifically address the issue of the physiotherapy services treatment plan at the hearing. He did testify that his treating physicians advised him to stretch, walk, bend, and do exercises at home and take walks outside, which he was doing.
46The respondent submits that the applicant has $2,200.00 in approved, unused treatment funding, and he has not had any physiotherapy treatment since 2022. It also points to an occupational therapy report, dated March 27, 2023, by Andrew Philips, as well as Dr. Gordon’s report. They both opined that the applicant should increase his level of activity at home to improve his function. This opinion is consistent with the applicant’s testimony that he was sent home and provided instructions on exercises at home.
47The Schedule requires the applicant to prove, on a balance of probabilities, that the treatment plan is reasonable, necessary, has clear achievable goals and that his injuries are as a result of the accident. Given that the applicant did not address this issue at the hearing and has not pointed me to evidence in support of the reasonableness and necessity of these services, I am not persuaded he is entitled to the physiotherapy services treatment plan.
48The applicant is not entitled to the physiotherapy services treatment plan
The applicant is not entitled to the remaining amount from the heating pad and bath scrubber treatment plan
49The applicant is not entitled to the remaining amount from the heating pad and bath scrubber treatment plan. The applicant did not address the issue of the heating pad or the bath scrubber in his testimony, nor did he point me to evidence in support of this plan.
50The respondent testified it has been confirmed the applicant already has a heating pad, and he has not demonstrated why either device is reasonable or necessary. He has not provided any medical documents in support of his position.
51Given that the applicant did not address this issue at the hearing and has not provided any submissions as to the reasonableness and necessity of these devices, the applicant has not satisfied his onus on a balance of probabilities, and I find he is not entitled to remaining portion of this treatment plan.
The applicant is not entitled to an attendant care assessment
52The applicant is not entitled to the attendant care assessment treatment plan.
53The applicant did not speak to the reasonableness or necessity of an attendant care assessment at the hearing. He relies on the testimony of his friends.
54The respondent submits that, in the absence of an expert opinion and submissions from the applicant, this issue should be denied.
55Since the applicant has not pointed me to evidence to support his claim, nor did he provide submissions as to what the purpose of the assessment is, I find he did not meet his onus.
56The request for an attendant care assessment is not reasonable and necessary.
The respondent is not entitled to costs
57Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
58Rule 19.2 requires that “A submission on costs shall set out the reasons to the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.”
59Rule 19.5 requires that the party making a request for costs shall set out the amount being requested.
60The respondent requested costs for the proceedings within the conclusion of its submissions. The respondent requested costs in the amount of $500.00 per day, totaling $1,000.00 for the two-day hearing. It submitted that it incurred costs to acquire and prepare the experts for the hearing.
61The respondent submits that the applicant had filed a previous application with exactly the same issues and withdrew it prior to the hearing. Further, the applicant failed to respond to inquiries about whether he intended to cross-examine the expert witnesses, and he did not respond to several requests for his document brief. It takes the position that the applicant’s behavior is inappropriate and unreasonable.
62The applicant testified that he provided everything the respondent asked for to the best of his ability. Costs should not be awarded.
63Pursuant to Rule 19.1, I am not persuaded the applicant acted in a manner that was unreasonable, frivolous, vexatious or in bad faith. The respondent refers to requests for the applicant’s documents brief as an example of unreasonable, frivolous, vexatious, or bad faith conduct. I disagree. I find, as per my order above, the applicant did submit the evidence he was relying on at the hearing to the respondent.
64Further the respondent made a reference to the applicant withdrawing a previous application with the exact same issues, but the respondent did not elaborate as to how that has created prejudice. I am not persuaded of any conduct that rises to the level of unreasonable, frivolous, vexatious or in bad faith that interfered with the Tribunal’s ability to carry out a fair, efficient and effective process. Therefore, the respondent’s request for costs is dismissed.
65Based on the reasons above, the respondent’s request for costs is denied.
Interest
66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
67Given there are no benefits payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
68The 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.
69As there are no benefits owing to the applicant and no benefits were withheld or delayed, I find there is no basis to grant an award.
ORDER
70For the reasons above, I find that:
i. The applicant is not entitled to an IRB;
ii. The applicant is not entitled to the disputed treatment plans;
iii. The respondent is not liable to pay an award;
iv. The applicant is not entitled to interest;
v. The respondent is not entitled to costs; and
vi. The application is dismissed.
Released: September 22, 2025
Mary Henein Thorn
Adjudicator