Citation: Rida v. Wawanesa Insurance, 2025 ONLAT 23-011141/AABS
Licence Appeal Tribunal File Number: 23-011141/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:
Hiam Rida
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Wayne Fryer, Counsel
Submissions by:
James Schmidt, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hiam Rida, the applicant, was involved in an automobile accident on January 3, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual 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 $7,037.86 for occupational therapy services, proposed by Swanson Occupational Therapists Professional Corp. in a treatment plan/OCF-18 (“plan”) dated March 24, 2022?
ii. Is the applicant entitled to $505.09 for other assistive devices, proposed by Tammy Kyle in a plan dated September 29, 2022?
iii. Is the applicant entitled to $3,646.74 ($10,633.88 less $6,987.14 approved) for psychological services, proposed by Musa Rabah in a plan dated November 24, 2022?
iv. Is the applicant entitled to $783.81 for occupational therapy craft supplies, submitted on a claim form (OCF-6) dated March 22, 2022?
v. Is the applicant entitled to $198.43 for prescription medication, submitted on a claim form (OCF-6) dated September 7, 2022?
vi. Is the applicant entitled to $226.00 for a one-time housekeeping by Green Apple Home Cleaning, submitted on a claim form (OCF-6) dated December 1, 2022?
vii. Is the applicant entitled to $194.43 for craft supplies and prescription medication, submitted on a claim form (OCF-6) dated November 3, 2022?
viii. Is the applicant entitled to attendant care benefits in the amount of $1,553.71 per month from July 17, 2021 to ongoing?
ix. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew issue (iii) listed above in her submissions, as such, I will not address the issue of psychological services in the amount of $3,646.74 as part of this decision.
RESULT
4I find that:
i. The applicant is entitled to $3,600.00 for occupational therapy.
ii. The applicant is not entitled to $505.09 for assistive devices.
iii. The applicant is entitled to $783.81 for occupational therapy craft supplies.
iv. The applicant is not entitled to $198.43 for prescription medication.
v. The applicant is not entitled to $226.00 for housekeeping.
vi. The applicant is entitled to $153.87 for occupational therapy craft supplies.
vii. The applicant has not demonstrated entitlement to $1,553.71 per month for attendant care benefits from July 17, 2021 to ongoing.
viii. The respondent is not liable to pay an award.
ix. The applicant is entitled to interest in accordance with s. 51 of the Schedule for the occupational therapy and the occupational therapy craft supplies.
ANALYSIS
The applicant has not demonstrated attendant care benefits were incurred by way of economic loss
5I find the applicant is not entitled to attendant care benefits because they have not proved the attendant care benefit was incurred in accordance with the Schedule.
6The issue in dispute is whether the services were incurred. I find the services were not incurred as defined in the Schedule and therefore not payable.
7Section 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”).
8The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.
Attendant Care Benefits
9The applicant submits the attendant care needs have been calculated at $1,553.71 per month, based on the Form 1 dated April 7, 2017 prepared by Miranda Leggasick, occupational therapist. The applicant’s attendant care is calculated as follows:
i. Routine personal care is calculated at $593.64 per month;
ii. Care for basic supervisory functions is calculated at $341.58 per month; and
iii. Care for complex health/care and hygiene functions is calculated at $618.49 per month.
10The applicant’s daughter states in her affidavit dated June 20, 2024 that she suffered an economic loss because she has foregone her education to provide care for her mother. The applicant relies on the Form 1 that was completed in 2017, and the affidavit’s prepared by herself and her daughter.
11The respondent submits the applicant’s daughter continued with her education and was employed on a part time basis and her expenses are not linked to the provision of providing attendant care services.
12The applicant’s submissions do not address what goods or services were provided or what prong of s. 3(7)(e) the benefits were incurred under. The applicant’s submission is mostly focussed on whether the ACBs are reasonable and necessary and should be deemed incurred.
13The applicant has not pointed me to evidence of what goods or services were provided by way of invoices, promissory notes, level of care or the rate of care. Neither the daughter’s or the applicant’s affidavit provide details of services or goods provided, nor details such as the allotted time for any of the services.
14I acknowledge the daughter is a family member, as opposed to a professional service provider and any ACBs payable are limited to the economic loss incurred by the applicant’s daughter.
15The affidavit then turns to her alleged economic loss that I address below.
Economic Loss
16The applicant argues she sustained an ongoing economic loss due to foregoing law school education and future paid employment. The applicant relies on Simser v. Aviva Canada and FSCO, 2015 ONSC 2363, stating that “the term “economic loss” may properly include an opportunity cost.” The applicant states she reduced her hours and her lost wages for December 1, 2022 to January 3, 2025 amount to $19,142.56. The applicant relies on her daughter’s student employment offer, pay stubs, and refers to the tentative graduation date had she successfully completed her program in the United Kingdom.
17The respondent submits the applicant’s daughter enrolled in another academic program and the applicant has not met her onus because her loss is a theoretical loss.
18Here, the attendant care benefit dispute centres on whether the benefit has been incurred in accordance with the Schedule. Section 3(7)(d) of the Schedule provides that: (e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an injured person unless,
i. the insured person has received the goods or services to which the expense relates,
ii. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
iii. the person who provided the goods or services,
A. did so in the course of the 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.
19The applicant’s affidavits do not provide specific evidence that the goods and services were provided in the course of employment, or that she suffered an economic loss as a result of providing the services. I was not directed to evidence of a promise to pay for the expenses. Furthermore, I was not directed to evidence to support the first two parts of the test, and the evidence of tuition is not evidence of goods or services for the purposes of ACBs. I am not persuaded of this being an economic loss. The applicant relies on Simser v. Aviva Canada and FSCO, 2015 ONSC 2363, however, the distinguishing feature here is that the applicant did not demonstrate what actual employment wages or employment opportunity was foregone.
20The applicant has not demonstrated the attendant care expenses were incurred by way of an economic loss, therefore the applicant is not entitled to ACBs.
The applicant is entitled to $3,600.00 for occupational therapy services
21I find on a balance of probabilities the proposed treatment plan is partially reasonable and necessary and the applicant is entitled to $3,600.00 for leisure activity and craft supplies.
22To receive payment for an OCF-18 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.
23The applicant submits the treatment plan is intended to address severe depressive episode, persistent somatoform pain disorder, post-traumatic stress disorder, and chronic intractable pain. The treatment plan was prepared by Tammy Kyle, occupational therapist, dated March 24, 2022. The goals of the plan include continued monitoring of the applicant’s pain and stress, sleep monitoring, to facilitate engagement in leisure interests. The applicant’s progress is measured by client reporting, clinician observations, and client’s participation in meaningful activities. The treatment plan includes ten counts of therapy for one and a half hour each, ten counts of providers travel time, ten counts of planning, 12 counts of materials for leisure activity, and documentation/support activity. The providers submit the treatment will be for 15 weeks.
24The applicant argues she is permanently and catastrophically injured requiring ongoing occupational therapy and relies on the reports of her occupational therapist, case manager, and psychologist. The applicant also relies on the family doctor CNRs for the period of 2012 to 2016, and the occupational therapy in-home functional and attendant care needs assessment report dated 2018, prepared by Janet Becker, occupational therapist, and the psychological assessment dated December 16, 2011, prepared by Dr. Jean Hall, psychologist. In her reply submissions the applicant relies on the case management report and rehabilitation progress report dated December 10, 2024, prepared by Tammy Kyle.
25The respondent relies on a s. 44 occupational therapy in-home assessment report dated September 26, 2022, prepared by Ms. Sherry Taillefer, occupational therapist. The report included a review of the disputed occupational therapy treatment plan. The s. 44 report states, the applicant reported pain throughout the objective testing and the applicant “has made some functional improvements”, participating in some light housekeeping tasks and crafts. The report questions the effectiveness “of further OT intervention” and did not include an assessment or opinion of the applicant’s sleep, while sleep monitoring is one of the three goals of the proposed plan.
26While I am alive to the applicant’s ongoing issues with her mood, sleep, and stress management, I find the proposed treatment plan lacks clear and measurable goals for monitoring the applicant’s pain, stress and sleep monitoring. I find the goals listed in the treatment plan are not measurable and the applicant’s crafting activities do not require treating providers. The applicant has independently pursued craft work in her home in the past and I find the proposed oversight and reporting for the therapy is not required for individual craft activity at home. I place little weight on the progress reports based on the totality of the evidence the need for the professional services in this treatment plan is not supported by contemporaneous corroborating medical evidence other than the treating providers.
27I find the 12 counts of materials for leisure activity and craft supplies totalling $3,600.00 are reasonable and necessary. Based on the totality of the evidence the craft supplies are part of the applicant’s ongoing independent and unsupervised occupational therapy facilitating her coping and reintegration into activities of daily living.
28I find on a balance of probabilities the treatment plan is partially reasonable and necessary and the applicant is entitled to $3,600.00 for leisure activity and craft supplies.
The applicant is not entitled to medical benefits in the amount of $505.09 for assistive devices
29I find on a balance of probabilities the applicant has not demonstrated that the assistive device in the treatment plan in dispute is reasonable and necessary.
30The applicant submits the OCF-18 in the amount of $505.09 dated September 29, 2022 for a stool because it helps with the pain in her lower extremities. The applicant states the stool is reasonable and necessary because it allows her to participate in activities of daily living that regulate her psychological well-being. The intended goal of the plan is to address severe depression, somatoform pain disorder, post-traumatic stress disorder, and chronic intractable pain. The applicant relies on the independent chronic pain assessment dated May 14, 2015, prepared by Dr. Kevin Smith, physician.
31The respondent’s submission is silent on the disputed issue. The denial letter from the respondent dated October 27, 2022 states the treatment plan is not reasonable and necessary because it is not related to the injuries resulting from the subject accident and this is for a new injury.
32The OCF-18 notes under “Additional Comments” that the applicant may have plantar fasciitis, and this is “a new onset pain in the sole of her right foot.” I find Dr. Smith’s assessment does not corroborate the applicant’s pain in her right foot or her need for the stool because it is distinct from the earlier diagnosis of ankle and knee pain noted in the assessment. The applicant did not direct me to evidence that the pain in her foot is due to her accident-related impairment or injuries, or that a stool was recommended by a medical practitioner who is not the recommending provider.
33I find on a balance of probabilities that the applicant has not met her burden to establish the assistive device in the treatment plan is reasonable and necessary.
The applicant is entitled to $783.81 and $153.87 ($194.43 less $40.56 for prescription medication) for occupational therapy craft supplies?
34I find the OCF-6 for craft supplies in the amount of $783.81 and $153.87 are payable reasonable and necessary. In the OCF-6 dated November 3, 2022, the total amount of craft supplies is $153.87. The remaining amount of $40.56 is for prescription medicine and not part of the applicant’s craft supplies.
35The applicant submits the OCF-6 dated March 22, 2022 for $783.81 and the OCF-6 dated November 3, 2022 for $194.43 are reasonable and necessary for previously approved occupational therapy interventions.
36The respondent relies on the s. 44 report prepared by Ms. Taillefer. The s. 44 report states the applicant has “made some functional improvements as she is participating in some light housekeeping tasks and some crafts.” The denial letter dated May 3, 2022, states, “We have not been provided any medical information to indicate why these items are being requested as a result of the injuries sustained in the motor vehicle accident.” The respondent requested further explanation.
37As I stated earlier, the craft supplies are part of the applicant’s ongoing occupational therapy facilitating her reintegration into activities of daily living.
38I find on a balance of probabilities that the expenses for the craft supplies in the amount of $783.81 and $153.87 are reasonable and necessary.
The applicant is not entitled to $198.43 for prescription medication
39I find the applicant has not met her onus to demonstrate she is entitled to the disputed amount for prescription medication.
40The applicant’s OCF-6 dated September 7, 2022 includes expenses for baclofen for $18.48, celecoxib for $22.08, nabilone for $63.97, and ketamine for $93.90. The applicant relies on prescription receipts and an email exchange requesting follow up from the respondent on the submitted OCF-6. The applicant did not direct me to a receipt for the ketamine prescription.
41The respondent’s submission is silent on the disputed expenses.
42The applicant has not directed me to contemporaneous medical evidence that she was prescribed the various medicines for her accident-related injuries or impairments.
43Accordingly, I find the applicant has not met her onus and is not entitled to the amount in dispute with respect to the prescription medication.
The applicant is not entitled to $226.00 for housekeeping services
44I find the applicant has not met her onus to demonstrate she is entitled to the disputed amount for housekeeping services.
45The applicant has not directed me to the OCF-6 dated December 1, 2022 for the disputed issue of housekeeping services.
46The respondent’s submission is silent on the disputed charge.
47Accordingly, I find the applicant has not met her onus to demonstrate entitlement to the amount in dispute with respect to housekeeping services.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is entitled to interest on the overdue benefits for the craft supplies listed in the OCF-18 for $3,600.00 and the OCF-6 in the amount of $783.81 and $153.87.
Award
49The 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. 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.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
50The applicant submits the respondent has been non-communicative, stubborn and inflexible. The applicant argues the respondent is using insurer’s examinations “to leverage for potential future settlement” and alleges the respondent makes “allegations of fraud” perpetrated by the applicant. The applicant relies on adjuster’s log notes dated June 24, 2021 to July 25, 2023. The applicant also relies on Jeyanathan Thangarajah v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 164.
51The respondent submits their actions, including the use of insurer’s examinations and surveillance, are afforded to them to assess benefits.
52The applicant relies on Jeyanathan Thangarajah v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 164 and states it is similar to this case because “the insurer was aware that the insured was receiving attendant care services from family and was provided documentation in support of an economic loss.” The applicant argues that the respondent’s failure to make inquiries unreasonably delayed payments. The distinguishing feature here is that the applicant has not directed me to evidence of the incurred expense for the attendant care benefit or of the economic loss.
53I find that the applicant has not pointed me to evidence to demonstrate the respondent’s behaviour is stubborn or inflexible. The respondent’s denial letters dated May 3, 2022, April 12, 2022, and October 27, 2022 articulates the respondent’s position on the disputed issues and provides the applicant with information on her right to dispute the determinations therein. I do not regard the respondent’s behaviour to be non-communicative, stubborn or inflexible.
54I find the applicant has not met the threshold to demonstrate the respondent’s behaviour merits an award.
ORDER
55For the reasons outlined above, I find that:
i. The applicant is entitled to $3,600.00 for occupational therapy, plus interest in accordance with s. 51 of the Schedule.
ii. The applicant is not entitled to $505.09 for assistive devices.
iii. The applicant is entitled to $783.81 for occupational therapy craft supplies, plus interest in accordance with s. 51 of the Schedule.
iv. The applicant is not entitled to $198.43 for prescription medication.
v. The applicant is not entitled to $226.00 for housekeeping.
vi. The applicant is entitled to $153.87 for occupational therapy craft supplies, plus interest in accordance with s. 51 of the Schedule.
vii. The applicant has not demonstrated entitlement to $1,553.71 per month for attendant care benefits from July 17, 2021 to ongoing.
viii. The respondent is not liable to pay an award.
Released: September 29, 2025
Aric Bhargava
Adjudicator