Licence Appeal Tribunal File Number: 25-000957/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:
Tracy Campbell
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATORS:
Rebecca Hines Lisa Holland
APPEARANCES:
For the Applicant:
Murad Huseynov, Paralegal
For the Respondent: Court Reporter:
Omar Sewhdat, Counsel Guido Riccioni
Network Reporting
HEARD: by Videoconference
October 27 to 28, 2025
OVERVIEW
1Tracy Campbell, the applicant, was involved in an automobile accident on October 26, 2023, and sought benefits from Intact Insurance Company (the respondent) 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute
PRELIMINARY ISSUES
2The respondent raised the following preliminary issue:
- Is the applicant barred from proceeding to a hearing for the following benefits: Issues 2, 4(iv) and 4(ix), because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?
3At the hearing the respondent confirmed that it was not raising a preliminary issue on issue 1 below, and that it was listed in the Tribunal’s case conference and order by error.
SUBSTANTIVE ISSUES
4The substantive issues in dispute at the hearing are:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from November 2, 2023 to date and ongoing?
Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month from October 26, 2023 to date and ongoing?
Is the applicant entitled to services proposed by Mackenzie Medical Rehabilitation (“Mackenzie Medical”) in the following treatment plans (“OCF-18s”):
i. $2,041.00 ($3,622.73 less $1,581.73 approved) for physiotherapy services, in an OCF-18 dated October 30, 2023;
ii. $743.44 ($919.96 less $176.52 approved) for assistive devices, in an OCF-18 dated June 25, 2024;
iii. $1,399.09 ($2,188.76 less $789.67 approved) for physiotherapy services dated September 18, 2024;
iv. $2,188.73 for physiotherapy services dated October 30, 2024;
v. $1,175.76 ($2,023.03 less $847.27 approved) for physiotherapy services dated March 21, 2024;
vi. $199.98 ($1,300.00 less $1,100.02 approved) for physiotherapy services dated February 1, 2024;
vii. $1,175.76 ($2,023.03 less $847.27 approved) for physiotherapy services dated June 13, 2024; and,
viii. $1,525.84 for physiotherapy services dated January 17, 2025?
- Is the applicant entitled to the services proposed by Princeton Hills Medical Assessments (“Princeton Hills”) in the following OCF-18s:
i. $4,720.00 for a psychiatry assessment dated October 21, 2024;
ii. $2,520.00 for a neurological assessment dated October 22, 2024;
iii. $2,200.00 for an attendant care assessment dated November 27, 2023;
iv. $2,200.00 for an attendant care assessment dated October 16, 2024;
v. $3,093.87 for psychological services dated January 18, 2024;
vi. $837.76 ($2,260.00 less $1,422.24 approved) for a chronic pain assessment dated October 22, 2024;
vii. $1,945.72 for a driver reintegration assessment dated November 29, 2023;
viii. $2,200.00 for a psychological assessment dated November 29, 2023; and,
ix. $20,218.90 for assistive devices dated December 18, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant liable to pay costs to the respondent in the amount of $150.00 pursuant to Rule 19?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5After considering the testimony of the applicant and reviewing all the evidence, we find:
The applicant is not statute-barred from proceeding with her application under s.55 of the Schedule regarding her claim for an ACB, attendant care assessment or claim for assistive devices.
The applicant is not entitled to an IRB in the amount of $400.00 per week for the time period claimed.
The applicant has established entitlement to an ACB in the amount of $612.75 per month from October 26, 2023, to date. However, she is not entitled to payment because the benefit has not been incurred.
The applicant is entitled to both OCF-18s proposed by Princeton Hills in the amount of $2,200.00 for attendant care assessments dated November 27, 2023 and October 16, 2024.
The applicant is partially entitled to the OCF-18 for assistive devices proposed by Princeton Hills dated December 18, 2024, in the amount of $1,485.86.
The applicant is partially entitled to the OCF-18 for a neurological assessment dated October 22, 2024, in the amount of $2,200.00.
The applicant is partially entitled to $777.76 for the chronic pain assessment proposed by Princeton Hills dated October 22, 2024.
The applicant is not entitled to any of the other medical benefits, interest, or an award.
The applicant is not liable to pay costs of $150.00 to the respondent.
PROCEDURAL ISSUES
Motion for Unredacted Log Notes
6At the outset of the hearing, the applicant brought a motion for the Tribunal to review the unredacted adjuster log notes titled “medical issues” and argues the respondent has redacted portions of the log notes, without providing a reasonable explanation.
7The respondent submits that it has redacted log notes for reserves only, and all the log notes are entitled “medical issues” which has no reference to the content of the notes.
8We declined the applicant’s request for the respondent to produce the unredacted log notes because the request was untimely. The Tribunal’s case conference report and order (“order”) ordered the respondent to produce its log notes within 30 days from the date of the case conference which was held on April 22, 2025. We find that the applicant has provided no reasonable explanation for bringing this motion on the eve of the hearing with no notice to the respondent when there were several months between her receipt of the adjuster’s log notes in May 2025 and the hearing. In addition, based on the applicant’s submissions we are also not persuaded that the log notes were improperly redacted.
Motion to exclude the Respondent’s Evidence and Witnesses
9At the outset of the hearing, the applicant brought a motion to exclude the respondent’s witnesses, Dr. Bains, general practitioner, and Dr. Chan, psychologist, from testifying as well as their IE reports. The applicant argues that the respondent did not file a witness list within 21 days before the hearing pursuant to the Licence Appeal Tribunal Rules, 2023 (the “Rules”); and it did not produce the clinical notes and records (“CNRs”) of the IE assessors and the assessment centre which did not comply with the Tribunal’s order. For these reasons, the applicant submits that the testimony and reports of these IE assessors should be excluded.
10The respondent submits that the applicant’s motion is untimely, which creates procedural unfairness. However, the respondent decided not to call these doctors as witnesses because the applicant decided at the last minute that she would not call her witnesses to testify at the hearing. It argues that the reports of Dr. Bains or Dr. Chan should not be excluded because the applicant was served with their IE reports by the deadline provided in the Tribunal’s order. Consequently, this evidence should not come as a surprise. Further, it submits that it made best efforts to request the CNRs of the IE assessors and the assessment centre and they were not provided. It submits that these third-party records are beyond its care and control.
11We find that the respondent did not notify the applicant within 21 days before the hearing that it would or would not be calling the above IE assessors. However, we find that neither party is prejudiced because the applicant decided not to call her expert witnesses to testify without notice to the respondent. Consequently, we find that both parties may rely on their expert reports.
Motion to Quash Summons
12Prior to the hearing, the respondent filed a motion seeking an order from the Tribunal quashing the Tribunal’s Summons of Elisa Lachapelle, claims manager because the applicant did not provide particulars of her claim for an award. It submits that it would be procedurally unfair to allow the applicant to proceed on her award claim because she did not provide it with particulars of the award within 30 days after she received its adjuster’s log notes as per the Tribunal’s order. Further, Ms. Lachapelle was not the adjuster and therefore has limited information about how the claim was handled. For these reasons, it submits Ms. Lachapelle should not be compelled to testify.
13The applicant argues that Ms. Lachapelle was the claims manager and has knowledge about how the applicant’s claim was handled because she responded to the applicant’s complaints about the adjuster. Further, she served the summons on Ms. Lachapelle in accordance with the Rules and Statutory Powers and Procedures Act (“SPPA”). She submits that she will be prejudiced if Ms. Lachapelle does not testify. In addition, she asserts that the basis of her claim for an award are set out in the adjuster’s log notes which should not come as a surprise to the respondent.
14We declined the respondent’s motion quashing the summons for Ms. Lachapelle because we find the summons was properly served on this witness. Further, there is an award claim in dispute which the applicant claims are based on the adjuster’s log notes. In addition, we accept that Ms. Lachapelle responded to complaints made by the applicant about the handling adjuster which is supported in the log notes. Consequently, this witness would have knowledge regarding how the claim was handled. For these reasons, the respondent’ s motion was denied. We advised the respondent that it could make submissions regarding the weight we should assign this evidence because the applicant did not provide it with particulars of the award claim.
Request for an Adjournment
15On the second day of the hearing, the respondent advised that Ms. Lachapelle was unavailable to testify because of an unforeseen death of a close family member. The respondent requested that the hearing be adjourned for a period of time to allow for the witness to testify.
16The applicant agreed to the adjournment or alternatively to have the adjuster attend the hearing to testify. The respondent opposed the applicant’s request to have the adjuster testify on the basis that they were not served with a summons.
17We declined the parties request for an adjournment because it would result in an unnecessary delay in a determination being made in this matter. We find that the parties can rely on the adjuster’s log notes and correspondence from the insurer in support of their respective positions on the award issue.
Motion for an Order for Contempt
18In response to our denial of the adjournment request, the applicant requested an order from the Tribunal stating a case to the Divisional Court for contempt of the hearing claiming that the respondent was intentionally interfering with the summons and Ms. Lachapelle’s obligation to testify. She submits that the summons was properly served in accordance with the SPPA and the Tribunal’s Rules. The applicant also requests that the Tribunal draw an adverse inference from Ms. Lachapelle’s failure to attend the hearing and testify on the award issue.
19The respondent argues that the applicant’s request for an order referring the matter to the court for contempt because Ms. Lachapelle was unavailable to testify is shocking. Further, counsel is an officer of the court and in no way has interfered with the witnesses’ summons or availability to testify. The death of the witnesses’ family member is beyond counsel’s control.
20Section 13 of the SPPA allows the Tribunal to state a case to the Divisional Court so that the court may inquire and decide whether that person is guilty of contempt of court. In this case, we find that the applicant has not established a prima facie case that this case be referred to the court for contempt. We find the applicant has not directed us to any evidence regarding the conduct of counsel for the respondent to support a referral to the court for contempt. In fact, the respondent agreed to adjourn the hearing to allow for the testimony of Ms. Lachapelle which the Tribunal found to be unnecessary. The fact that the respondent brought a motion seeking to quash the summons of Ms. Lachapelle prior to the hearing on the basis that no particulars were provided on the award claim is not conduct that the respondent or counsel for the respondent was deliberately attempting to obstruct or interfere with justice. For these reasons, the applicant’s request is denied.
ANALYSIS
The applicant is not statute barred from proceeding with her claim disputing her entitlement to an ACB, or the OCF-18s for an attendant care assessment dated October 16, 2024, or assistive devices dated December 18, 2024 for non-attendance at s. 44 IEs
21We find that the applicant is not barred from disputing the above-noted benefits for failing to attend s. 44 IEs.
22Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE. This section stipulates that this must not be done more often than is “reasonably necessary.”
23Section 44(5) of the Schedule supports that it an insurer requires an examination under this section, they shall give the insured person a notice setting out a) the medical and any other reasons for the examination; b) whether the attendance of the insured person is required at the examination; c) the name of the person or persons who will conduct the examination along with their titles and specialization; and d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
24Section 44(9)(2)(iii) of the Schedule requires an insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.
25Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
26The respondent must prove that a notice of examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit being denied, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
27However, we find that whether or not the respondent’s notices complied with s. 44(5) of the Schedule is not at the crux of this dispute. Instead, it is about whether the applicant had a reasonable explanation for not attending and whether the IE is reasonably necessary. The case law supports that the Tribunal should apply the following criteria: 1) the timing of the insurer’s request; 2) the possible prejudice to both parties; 3) the number and nature of the previous IEs; 4) the nature of the IE being requested; 5) whether there are any new issues being raised by the applicant’s claim that require evaluation; and 6) whether there is a reasonable nexus between the IE requested and the applicant’s injuries. In addition, the Tribunal must also consider whether an insurer is attempting to bolster its position in preparation for litigation. It is the applicant’s onus to prove that she had a reasonable explanation for not attending the s. 44 IEs.
28We find the applicant had a reasonable explanation for not attending the IEs addressing the OCF-18s for the attendant care assessment dated October 16, 2024, and assistive devices dated December 18, 2024, as well as her claim for an ACB for the following reasons.
29The respondent argues that as of the date of this hearing the applicant has never provided an explanation for her non-attendance at the IEs. However, we find that the evidence before us establishes otherwise.
30It is undisputed that the applicant attended two IEs in May 2024, with Dr. Bains and OT Pataki to address whether a previous OCF-18 for an attendant care assessment dated November 27, 2023 was reasonable and necessary. Both of these IE assessors determined that the applicant was not entitled to the OCF-18 because there was no compelling evidence that she required attendant care services. Based on the evidence before us, we find that there was a significant delay in the applicant receiving the IE report of OT Pataki flowing from this assessment. The adjuster’s log notes support that the applicant’ s legal representative emailed the adjuster four times (on September 19, 2024, October 2, 2024, October 7, 2024 and November 19, 2024) requesting a copy of the IE report of OT Pataki from the May 2024 assessment. The adjuster did not respond to the applicant’s requests for a copy of this report and her requests for the name of her manager which led to her filing an Ombudsman complaint.
31On January 27, 2025, Ms. Lachapelle, the adjuster’s manager responded by email to the applicant’s legal representative indicating that the IE report of OT Pataki was sent to the applicant on June 12, 2024, along with correspondence denying the benefit. She also indicated that the report was faxed to the applicant’s legal representative on the same date. Ms. Lachapelle then attached a copy of the June 12, 2024 letter and report to the email. However, despite the applicant’s legal representative’s requests, Ms. Lachapelle never sent the fax confirmation sheets confirming that the IE report of OT Pataki was sent.
32Based on the evidence before us, we find that the IE report of OT Pataki was not sent to the applicant or her legal representative until January 2025, which we find to be a lengthy delay of almost one year. Of significance, we also find that the report of OT Pataki from May 2024, supported that the applicant had various functional limitations which will be discussed further below. We find that this lengthy delay, coupled with what transpired next constitutes a reasonable explanation for her not attending future IEs with the same assessor in March and April 2025.
33We find that the respondent has displayed a pattern of not providing the applicant with copies of OT IE reports. In response to the second OCF-18 for an attendant care assessment, the respondent sent the applicant a NOE dated November 8, 2024, which advised that paper reviews would be conducted with Dr. Bains on November 22, 2024; and with OT Pataki on December 6, 2024. On February 19, 2025, the respondent sent another EOB in response to the applicant’s submission of the Form 1 and attendant care assessment of OT Gupta advising that she attended IEs on November 22, 2024 and December 6, 2024, however she did not sign the OT consent form. As a result, the respondent did not receive the report. The NOE then advised that because of this a second opinion was required and that additional IEs would be scheduled. A third IE was scheduled with OT Pataki in March 2025, to which the applicant did not attend. This IE was rescheduled for April 2025, which the applicant again did not attend.
34We find it unclear whether the November 22, 2024 and December 6, 2024 IEs were conducted in person or by paper review. Nevertheless, we find that the adjuster’s log notes support that these two IEs were completed. We find that between the NOE dated November 8, 2024 and the NOE dated February 19, 2025, the adjuster never followed up with he applicant regarding the missing consent form. The adjuster’s log notes establish that the applicant’s legal representative emailed Ms. Lachapelle on February 25, 2025 advising that it was unclear why additional IEs were being scheduled when they had not received the previous reports from November and December 2024. The email then states “My client will not attend any further IEs until the reports are released.” Ms. Lachapelle then emailed the applicant’s legal representative stating that “the vendor has been unable to complete and release the OT reports because your client has not signed and returned the OT paper review (“PR”) consent form. Please have your client complete it and return.” There is no indication that the consent forms were attached to this email.
35Based on the evidence before us, we find the adjuster never followed up with the applicant or sent these PR consent forms to be signed after the November and December 2024 IEs. In our view, we find it unreasonable for the applicant to attend additional IEs with the same occupational therapist addressing whether the attendant care assessment was reasonable and necessary when the reports from the previous assessments were still pending and never received by the applicant.
36We find the respondent did not provide meaningful submissions regarding what authority it was relying upon to support its position that the IE reports could not be released to the applicant for failing to provide a consent form. We also note that the applicant was not asked whether she signed the consent form during cross-examination. Moreover, the respondent did not comply with the Tribunal’s order for it to produce the CNRs of the clinic and assessment companies. Although we note that these are third party records which are beyond the respondent’s control, we find these records may have assisted in filling in the gaps regarding what occurred. Further, we find the respondent did not produce any evidence regarding the efforts it took to obtain these records. Under the circumstances, we draw an adverse inference from the respondent’s failure to produce these records. Especially, when it seeks to bar the applicant’s claims for the disputed benefits for failing to attend IEs.
37Based on the above-noted reasons, we conclude that the applicant had a reasonable explanation for not attending the respondent’s subsequent requests for her to attend IEs scheduled with OT Pataki in March and April 2025 to address her entitlement to the above-noted OCF-18s, and her entitlement to ACBs. Consequently, we find that she is not statute barred from proceeding with her dispute regarding both OCF-18s for the attendant care assessment and assistive devices or her claim for ACBs.
The applicant is not entitled to an IRB in the amount of $400 per week from November 2, 2023 to date and ongoing
38To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-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. At the post-104 mark, under s. 6 of the Schedule the applicant must prove that she suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. The applicant bears the burden of proving, on a balance of probabilities, that they meet both tests.
39The applicant testified that she started working at Splash Window Cleaning Inc. in April 2022 as a customer service representative. The essential tasks of her pre-accident employment included placing lawn signs in the community for advertising, preparing invoices for payments, and booking appointments with customers. The applicant testified that she received sickness benefits from employment insurance (“EI”) until December 16, 2023, then regular EI benefits until April 27, 2024. The applicant testified that she has not returned to full-time work after the accident because of her physical and psychological impairments.
40The applicant argues that she meets the disability test for entitlement to IRBs because post-accident she returned to work as a result of financial necessity on modified hours and duties but has not been working in the same capacity because of her accident-related physical and psychological impairments. She relies on the chronic pain assessment of Dr. Wilderman dated March 10, 2025 who determined that the applicant is unable to return to her pre-accident employment.
41The respondent submits that the applicant has not met her onus in proving that she is substantially unable to perform the essential tasks of her pre-accident employment as a result of the accident. The respondent relies on the IE report of Dr. Bains dated December 21, 2023, who concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment, which are sedentary, and she has been working since the accident. It also maintains that the applicant has not proven that she has sustained an income loss.
42We find that the applicant has not proven that she meets either the pre- or post-104 test for entitlement to IRBs for the following reasons.
43First, we find the medical evidence relied upon by the applicant does not support that she has a substantial inability to perform the essential tasks of her employment within the 104-week period. For example, in a letter of her family doctor dated December 12, 2023 medically cleared her to return to work. Moreover, we do not find the applicant’s need to have bariatric surgery post-accident to be accident related because we find that the applicant’s struggle with weight gain was well documented in the family doctor’s CNRs prior to the accident. We find that the applicant has not linked an exacerbation of this condition to the accident.
44The applicant also relies on the psychological report of Dr. Gladshteyn, psychologist dated January 18, 2024, which was completed at approximately two months post-accident. Dr. Gladshteyn indicates that the applicant has not resumed employment because of her pain complaints and emotional concerns and that there were no modified duties available. Although we acknowledge that the doctor diagnosed the applicant with a psychological impairment, we find the applicant’s self-reports that there were no modified duties available to her at work inconsistent with her testimony which will be discussed further below. In addition, we find Dr. Gladshteyn’s report provides little discussion regarding what the essential tasks of the applicant’s employment were and why the applicant is unable to complete them because of any accident-related psychological impairment.
45In addition, we find the chronic pain assessment completed by Dr. Wilderman unhelpful because the assessment was done virtually, and the doctor does not explain how they completed their physical examination or explain what any of the results of the physical testing mean. Moreover, the doctor states that the applicant has not returned to work and is unable to return to work because of ongoing chronic pain and psychological symptoms. We find that the doctor’s report showed little insight into the applicant’s post-accident function because she did return to work following the accident which will be discussed further below. Nor does Dr. Wilderman provide any analysis about what accident-related impairments resulted in a substantial inability for the applicant to carry out the essential tasks of her employment. For these reasons, we find this report unhelpful in establishing that the applicant meets the pre-104 disability test for IRBs.
46We also find limitations in the IE reports of Dr. Bains and Dr. Chan. We find Dr. Bains’ report dated December 21, 2023 assessing the applicant’s entitlement to an IRB inconsistent with the findings in the report. For example, the report notes that the applicant reported that she requires assistance from her neighbour for bathing and household tasks, and she is unable to return to her workplace on the second floor of a building with no elevator. In addition, the doctor’s physical examination revealed that the applicant demonstrated limited range of motion in the cervical and thoracolumbar spine and knee, and she reported significant pain throughout the assessment. The doctor noted that her presentation was consistent with accident-related sprain/strain injuries of the cervical and thoracic spine, left shoulder, left elbow and left knee, mechanical low back pain, and suspected concussion/mild traumatic head injury, with associated headaches. Despite these findings, the doctor concluded that these impairments would not preclude the applicant from performing the essential tasks of her pre-accident employment, which is sedentary in nature. We also find Dr. Chan’s report dated June 28, 2024 unhelpful because the doctor does not address the applicant’s entitlement to an IRB. However, we find that it is the applicant’s onus to prove entitlement to the benefits in dispute.
47Second, we find even if we are wrong in our assessment of the medical evidence, we find the applicant’s testimony about her inability to return to full-time employment because of her accident-related impairments to be inconsistent with the EI file and income tax records.
48The applicant relies on the CNRs of her family doctor, which indicate that the applicant had pre-existing conditions of anxiety attacks, depression, workplace stress, and obesity.
49The respondent submits that the employment file from Splash Window Cleaning Inc. and the EI file demonstrate that there was a trend of seasonal work with similar earnings before and after the accident, and there is no indication of a modified work arrangement with her employer after the accident.
50We find that the applicant has not met her burden in proving that she has suffered a substantial inability to perform the essential tasks of her employment as a customer service representative at Splash Window Cleaning Inc. within 104 weeks after the accident.
51We find that prior to the accident there was a pattern of the applicant receiving seasonal EI benefits, and that pattern continued post-accident. For example, the Employer’s Confirmation of Income (“OCF-2”) form dated November 6, 2023, indicates that the applicant only worked 37 of the 52-weeks before the accident, earning an income of $29,136.20, which includes commissions. We find that a Record of Employment (“ROEs”) dated December 27, 2022, from Splash Window Cleaning indicates that she was laid off due to a shortage of work on December 15, 2022. She received regular EI benefits from December 18, 2022 to May 27, 2023, despite returning to work on March 20, 2023, and therefore she was not working for a 52-week period before the accident as her work was seasonal which did not change after the accident.
52In addition, an ROE dated February 22, 2023 from Synergie Hunt International indicates the applicant was working for the period from December 22, 2022 to February 6, 2023, while she was also collecting EI benefits. We find that the applicant also received regular EI benefits for the period from October 4, 2020 to September 12, 2021, while she was working at TH3123 Ontario Limited from November 23, 2020 to June 4, 2022.
53We find that the applicant continued to work after the accident until October 30, 2023. We find she received sickness benefits from EI after the accident from November 5, 2023 to December 16, 2023, when Dr. Forbes provided medical clearance for her to return to work full time.
54We also find that although the applicant testified that she has not returned to full-time work after the accident, she was only working part-time at before the accident. We find that her paystubs from Splash Window Cleaning before the accident for the period from September 18, 2023 to October 29, 2023 indicate that she was working an average of 24.6 hours per week, at a rate of $18.00 per hour, or $442.71 gross per week, 70% of which is $309.89. Her income also includes commissions. We also find that the applicant received post accident income from EI after the accident which was similar to her hourly salary, at $405.00 gross per week, or $385.00 net. We find that an employment agreement with Splash Window Cleaning indicates the applicant was hired for full-time, but it does not indicate the number of hours. Therefore, we find that the applicant received EI benefits after the accident, which is greater than her IRB entitlement, at 70% gross of her hourly salary in the 4-weeks before the accident.
55We find that the evidence supports that she has returned to her pre-accident part-time level of work.
56The applicant did not address the question of whether she satisfies the test for post-104-weeks IRBs. We find that the income tax returns from 2024 support that the applicant has continued to work. We also find that the applicant’s testimony did not address whether she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Nor did the applicant’s medical evidence address this element of the test.
57For the above-noted reasons, we find that the applicant has not met her burden of proving on a balance of probabilities that she meets the pre- or post-104 IRB test. As a result, she is not entitled to payment of an IRB in the amount of $400.00 per week from November 2, 2023 to date. We will now address whether the applicant is entitled to the OCF-18s recommended by Mackenzie Medical.
The applicant is not entitled to the various OCF-18s for physiotherapy and assistive devices proposed by Mackenzie Medical
58To receive payment for a medical benefit under s. 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. 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 same are reasonable.
59Under s.25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Financial Service’s Commission of Ontario’s Professional Services Guideline, Superintendent’s Guideline No.03/14 (“Guideline”).
60We find that the applicant is not entitled to the outstanding amounts for physiotherapy services and assistive devices listed in issues 3(i) to 3(viii) because she has not met her burden to establish whether the OCF-18s or partial denials of the OCF-18s are reasonable and necessary.
61The applicant testified that the physiotherapy services and assistive devices she received at Mackenzie Medical were all helpful, however, she did not address why the partially denied amounts of the OCF-18s are reasonable and necessary. The applicant relies on the CNRs of Mackenzie Medical which we find unhelpful in determining whether the past physiotherapy the applicant received met the stated objectives of increasing her range of motion (“ROM”) and strength in order to return to her daily activities. While the CNRs support that the applicant attended the clinic for treatment the notes themselves are not legible.
62In closing submissions, the applicant relied on the IE report of Dr. Bains and the adjuster log notes in support of her position that the respondent unreasonably denied and withheld these benefits. The applicant submits that the respondent’s partial approval was not supported by Dr. Bains’ report and was arbitrarily denied by the adjuster.
63The respondent submits that the applicant has not provided medical evidence in support of the disputed OCF-18s and that it is well established law that relying on OCF-18s on their own is insufficient evidence. The respondent also submits that the amount listed on the OCF-18s for form completion exceeds the Guidelines, and issue 3(iv) is a duplicate of issue 3(iii) and should be withdrawn. The respondent relies on the report of Dr. Bains, in which the doctor found that the applicant sustained uncomplicated soft tissue injuries, and there is no objective physical impairment or disability. Dr. Bains also opined that the applicant had achieved maximum recovery from passive treatment and recommended that she continue with active treatment.
64We find that the applicant has not met her onus in proving that any of the disputed OCF-18s for either physiotherapy or assistive devices proposed by Mackenzie Medical are reasonable and necessary. We find the applicant’s testimony that the treatment received was helpful and relying on the OCF-18s themselves insufficient evidence for the applicant to meet her onus. In addition, we find the adjuster’s partial approval of some of the OCF-18s was in line with Dr. Bains’ recommendations that the applicant continue with active therapy.
65For the above-notes reasons, we conclude that the applicant has not met her onus in proving that any of the disputed OCF-18s are reasonable and necessary. Now we will address the applicant’s entitlement to the attendant care assessments and ACBs.
The applicant has established entitlement to both OCF-18s proposed by Princeton Hills in the amount of $2,200.00 for attendant care assessments dated November 27, 2023 and October 16, 2024
66Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete as assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence also supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.
67The first OCF-18 dated November 27, 2023, was authored by OT Gupta. The goal was to complete an attendant care assessment and Form 1 in order to return the applicant to her activities of daily living. Under the additional comments section, the therapist notes that they conducted a pre-screen interview where the applicant reported various impairments which were interfering with her ability to carry out her activities of daily living. The OCF-18 recommended an assessment at a cost of $2,000.00 plus $200.00 for form completion. Based on the evidence before us, this assessment was not incurred.
68As highlighted above, the respondent denied the OCF-18 based on the IE assessments conducted by Dr. Bains and OT Pataki in May 2024. As highlighted above, we have determined that the applicant did not receive a copy of OT Pataki’s report until January 2025. A second OCF-18 was then submitted by OT Gupta dated October 16, 2024, which recommended another attendant care assessment. The goals were the same and under the additional comments section the therapist indicated that the applicant had various impairments which were causing functional limitations.
69We find that the results of the IE assessments support that the OCF-18s proposed by OT Gupta recommending the attendant care assessments are reasonable and necessary.
70First, we find Dr. Bains opinion that the OCF-18 is not reasonable and necessary inconsistent with the doctor’s report which indicated that the applicant reported that she requires assistance from her mother sometimes with bathing because she is unable to bend down or lift her arms. She also reported that she has not returned to her housekeeping and home maintenance tasks including cleaning, laundry or cooking or her leisure activities. The doctor’s physical examination revealed that the active ROM testing of the applicant’s cervical spine, thoracic spine, left shoulder and knee were all moderately limited. Further, there was evidence of crepitus in the applicant’s left knee. The doctor conceded that evidence of ongoing impairment was appreciated during the assessment. In addition, the doctor determined that the functional and physical limitations described by the applicant were consistent with the findings of the assessment.
71Dr. Bains concluded that although the applicant presents with ongoing pain due to accident-related injuries, which is contributing to impairment in function her injuries are not sufficient to necessitate attendant care. We find the conclusion of Dr. Bains inconsistent with the doctor’s physical examination, as well as her finding that the applicant had functional limitations as a result of her accident-related impairments.
72Second, we also find that the IE report of OT Pataki completed around the same time supports that the OCF-18 recommending the attendant care assessment is reasonable and necessary. We find OT Pataki’s report demonstrates that the applicant was experiencing numerous functional limitations. The following are some examples from OT Pataki’s report:
i. The applicant is currently unable to perform squatting, crouching or kneeling which demonstrates limitations in her ability to reach low surfaces while performing her daily tasks.
ii. The applicant reported that she was capable of independently showering, however sometimes required her mother’s assistance with dressing. The therapist states that while she is independent with self-care it is clear that these activities are difficult for her, and she uses nearby unstable objects for assistance when transferring in and out of spaces.
iii. The applicant demonstrated notable changes in her ability to meet housekeeping and home maintenance tasks such as cleaning, meal preparation, dishes, grocery shopping and laundry. The report notes that there are functional deficits present. Later on in the report, the therapist states she demonstrates the ability to adapt her approach to activities. For example, she orders meal delivery or washed dishes in a seated position. The report states she relies on family and friends for assistance.
iv. In commenting on the applicant’s ability to engage in her pre-accident leisure activities the therapist notes that although the changes are subtle it is unlikely that she would be comfortable engaging in social activities in the way she did pre-accident. There are functional deficits present.
v. OT Pataki concludes that because the applicant is independent in self care tasks such as bathing and grooming the attendant care assessment is not reasonable and necessary.
73We find OT Pataki’s conclusion that the OCF-18 for the attendant care assessment is not reasonable and necessary wholly inconsistent with the many functional limitations set out in the therapist’s report. The purpose of the attendant care assessment is to determine whether the applicant requires assistance with things like dressing, hygiene, meal preparation and laundry tasks. We find the findings in both of the above-noted IE reports support the need for the attendant care assessment proposed by OT Gupta.
74Finally, we find some of the functional limitations set out in OT Gupta’s attendant care assessment report and Form 1 dated January 9, 2025 consistent with the functional limitations outlined in Dr. Bains and OT Pataki’s IE reports. The following are some examples:
i. The applicant reported that she was no longer engaging in social and leisure activities because of ongoing pain and functional limitations.
ii. The applicant still experiences limitations in her ability to squat, kneel and bend which prevents her from reaching low surfaces.
iii. The applicant still has limitations with meal preparation, doing laundry and other housekeeping and home maintenance tasks.
75For the above-noted reasons, we find both OCF-18s proposed by OT Gupta recommending attendant care assessments to be reasonable and necessary. In addition, we find the amounts of both OCF-18s reasonable because they fall within the $2,000 cap set out in s. 25(5) of the Schedule. Now we will address the applicant’s entitlement to an ACB.
The applicant has established entitlement to an ACB in the amount of $612.75 per month from October 26, 2023 to date which is not payable without evidence or invoices that the services were incurred
76Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. The maximum payable under the Schedule is $3,000 per month for non-catastrophic insureds and is calculated in accordance with the Form 1.
77In order for the insured person to receive payment for an ACB, there must be evidence that the expense was incurred as per s. 3(7)(e) of the Schedule. To meet the definition of “incurred” the applicant must satisfy the following three criteria:
i. the applicant received the service to which the expenses relates;
ii. the applicant paid the expense or promised to pay the expense or is legally required to pay the expense; and
iii. the person who provided the service did so,
in the course of their employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
sustained an economic loss as a result of providing the goods or services to the insured person.
78Neither party spent much time addressing the various recommendations made by OT Gupta who recommended that the applicant receive $4,002.57 in ACBs per month which we note is above the non-catastrophic limit provided for in the Schedule.
79Although we find that the evidence supports that the applicant has functional limitations as a result of her accident-related impairments, we do not accept all of the amounts recommended by OT Gupta because we find some of her recommendations are not supported by the medical record before us. Under Level 1, we do not accept the therapists’ recommendation for assistance with dressing and undressing because the applicant demonstrated the ability to put on a jacket and socks during the assessment. We accept the 20 minutes once per week recommended by OT Gupta for assistance with shaving because both parties’ occupational therapists agreed that the applicant has functional limitations with prolonged stooping, bending and reaching lower levels. However, we find 20 minutes per week for assistance with toenail care excessive and find 10 minutes per week reasonable for assistance with this task. We do not accept the amounts recommended by the therapist for other grooming tasks for things such as washing and combing hair because the applicant has reported that she can shower independently and simulated these tasks during the assessment.
80We also accept the amount of 30 minutes per day 14 times per week for assistance with meal prep for a total of 420 minutes per week because both therapists agreed that the applicant was functionally limited with this task. However, we do not find 20 minutes per week recommended by OT Gupta for laundering bedding due to incontinence to be reasonable because the medical record before us does not support that the applicant suffers from incontinence because of the accident. The total weekly minutes we find reasonable and necessary under Level 1 is 450 minutes which when calculated using the formula on the Form 1 is $425.38 per month.
81Under Level 2 we accept the 8 minutes per day 7 times per week recommended by OT Gupta for bathroom and bedroom hygiene for a total of 112 minutes per week because of the applicant’s limitations with reaching, stooping and bending. We find OT Gupta’s recommendations that the applicant requires 8 minutes 7 times per week to ensure comfort and safety in the bedroom environment was not justified by the OT in their report. In the same vein, we do not accept OT Gupta’s recommendation that the applicant requires 240 minutes per day 7 times per week for a total of 1680 minutes per week because she lacks the ability to respond to an emergency. OT Gupta makes this recommendation based on the applicant’s reports of poor memory and concentration. We find that we do not have sufficient medical evidence before us to support that the accident resulted in any impairments in memory and concentration. Further, we do not have any evidence before us to support that the applicant lacks the ability to respond in an emergency. In addition, we do not accept the 25 minutes recommended by OT Gupta for coordination of ACBs for the same reasons. The total weekly minutes we find reasonable and necessary under Level 2 is 112 minutes per week which when calculated using the formula on the Form 1 is $90.30 per month.
82Under Level 3 we do not accept OT Gupta’s recommendation that the applicant requires assistance with her exercise program because the therapist did not provide any rationale for this assistance. We accept the amount recommended by the therapist for 10 minutes 7 times per week for applying creams because of the applicant’s limitations with reaching, bending and stooping. We do not find the applicant requires assistance with maintaining control over medication or assistance with bathing as she reported independence with these tasks. The total weekly minutes which we find to be reasonable and necessary under this category is 70 minutes per week which when calculated using the formula on the Form 1 is $97.07 per month.
83The total amount of ACBS under Levels 1, 2 and 3 when calculated in accordance with the formula on the Form 1 equals $612.75 per month.
84Although we find that the applicant has established entitlement to ACBs in the amount of $612.75 per month, she is not entitled to payment of same because she has not proven that the expense has been incurred pursuant to s. 3(7)(e) of the Schedule. The applicant has not proven that she received the service to which the expense relates, and we have no evidence before us that she paid the expense or promised to pay the expense. Now we will address whether the applicant is entitled to the remaining OCF-18s recommended by Princeton Hills.
The applicant is partially entitled to the OCF-18 for assistive devices dated December 18, 2024, in the amount of $1,485.86
85OT Gupta also authored this OCF-18 and recommended 30 assistive devices including a bariatric bathtub transfer bench and commode chair, non-slip floor mats, handheld shower head including installation, and various long handled tools (including a loofah, sock aid, bathtub cleaner, toilet cleaner, broom, dustpan, Swiffer mop, duster, and reacher); a lightweight vacuum, back support and gel seat cushion. It also recommended a bariatric easy lift chair, adjustable bed with mattress, bariatric bed rail, a cane, heating pad and left sided descending handrail from the main to the upper level of the home. The goal of the recommended assistive devices was for pain reduction and increase in strength and the recommendations were made in the above-noted attendant care assessment of OT Gupta dated January 9, 2025. The total cost of the OCF-18 is $20,218.90.
86We find that documentation support activity, delivery, long-handled loofah, handled shower head, long-handled shoehorn, sock aid, long-handled bathtub cleaner, long-handled toilet cleaner, long-handled broom, long-handled dustpan, long-handled Swiffer mop, dry refills for Swiffer mop, wet refills for Swiffer mop, lightweight vacuum cleaner, long-handled dusting device, long-handled reacher, high back support, gel seat cushion, cane and heat pad (set out in lines 1, 2, 7, 8, 10 to 23, and 28 and 29) to be reasonable and necessary for a total cost of $1,485.86. We find the reports of Dr. Bains, OT Pataki and OT Gupta all support that the applicant had functional limitations in carrying out her daily tasks that required bending, kneeling, squatting and reaching in order to access lower surfaces because of her accident-related impairments. Although the applicant is for the most part independent with self-care tasks such as showering and dressing, we find the various long handled cleaning tools, as well as the handheld shower head and sock aid proposed by OT Gupta would assist in reducing the applicant’s pain in carrying out her housekeeping and home maintenance activities. We also find the back support and gel seat to be reasonable and necessary because the applicant consistently reported persistent pain with prolonged sitting.
87However, we do not accept all of OT Gupta’s recommendations and find that the devices recommended in lines 3, 4, 5, 6, 9, and 24 to 27, and line 30 are not reasonable and necessary because we find they are being recommended for the applicant’s bariatric condition, which we find to be unrelated to the accident. In addition, we find the recommendation for a bilateral stair handrail in the amount of $1,959.50 excessive because OT Gupta observed the applicant independently ascend the stairs.
The applicant is partially entitled to the OCF-18 for a neurological assessment dated October 22, 2024, in the amount of $2,200.00
88The OCF-18 recommended a neurological assessment for a total cost of $2,520.00.
89The respondent denied the assessment and scheduled a s. 44 assessment with Dr. Desai for December 5, 2024. The applicant relies on the IE report of Dr. Bains who noted that she likely sustained a mild traumatic brain injury and a concussion. The applicant argues that a neurological assessment is reasonable and necessary to investigate her concussion symptoms.
90Although the respondent did not seek to add this as a preliminary issue, it submits that the applicant did not attend a s. 44 assessment scheduled for December 5, 2024, or the re-scheduled assessment on January 21, 2025 with Dr. Desai. Therefore, she is precluded from disputing this benefit. The adjuster’s log notes indicate that the respondent sent a NOE dated November 15, 2024 to the applicant by mail and to the applicant’s representative by fax, and a subsequent NOE dated January 2, 2025 to the applicant and her representative by email. The respondent made no submissions regarding the reasonableness of the cost of the assessment.
91We find that the adjuster’s log note dated November 29, 2024 supports that because of the postal strike, the applicant may not have received the NOE dated November 15, 2024. In addition, despite notations in the logs that the applicant will be notified by mail and her representative by fax, the log notes dated December 10, 2024 and January 2, 2025 indicate that the applicant and her representative were notified by email that the IE with Dr. Desai was re-scheduled to January 21, 2025. Of significance, the applicant and her representative advised the respondent that they would not accept documents from the respondent by email. Therefore, we accept that the applicant and her representative did not receive proper notice of the scheduled and re-scheduled s. 44 assessments with Dr. Desai.
92Finally, we also find that since Dr. Bains removed the applicant from the MIG on the basis that she suspected that the applicant sustained a concussion in the accident. We find it is reasonable for her to obtain a neurological assessment to investigate her symptoms. As a result, we find that the neurological assessment is reasonable and necessary. However, we note the cost of the OCF-18 is above the cost of the $2,000 cap set out in s. 25(5) of the Schedule. Consequently, we find the amount of $2,000.00 payable plus $200.00 for form completion for a total cost of $2,200.00.
The applicant is entitled to $776.76 for the partially denied portion of the OCF-18 for a chronic pain assessment dated October 22, 2024
93The OCF-18 for the chronic pain assessment was in the amount of $2,260.00, which can be broken down as follows: $250.00 for a total body examination, $333.00 for preparation service, $1,417.00 for preparation of the report, $200.00 for form preparation and $60.00 for claimant transportation.
94On December 17, 2024, the respondent partially approved the OCF-18 in the amount of $1,422.24 and indicated that it was reducing the physician rate as per the OMA Guidelines for a specialized physician and it also reduced the number of hours for the completion of the report and form completion fee as per the practitioner rate. It denied the amount of $60.00 for transportation expenses citing s. 38(14)(a) of the Schedule as its authority.
95The applicant submits that there is nothing in the Schedule that reduces the cost of the assessment for a specialized physician as per the OMA Guidelines. The respondent did not make any submissions addressing why this OCF-18 was partially approved.
96We find s. 25(5)(a) of the Schedule is clear that the insurer shall not pay more than $2,000 plus applicable taxes for any one assessment or examination and for preparing any report connected to it. We find that Dr. Wilderman is a physician and was permitted to charge $2,000.00 for the assessment. We also find that the Guideline allows for a maximum of $200.00 for the completion of the OCF-18 irrespective of the hourly rate of the service provider. Finally, we were provided with no explanation for the respondent’s reliance on the OMA Guidelines in partially denying the OCF-18.
97The applicant did not make any arguments to support that the transportation expenses are payable. We note that the respondent’s denial cited the incorrect section of the Schedule for denying transportation expenses. Section 15(2)(c) of the Schedule, provides that the insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. Further, s. 3(1) of the Schedule defines “authorized transportation expenses” as expenses related to transportation (a) that are authorized by, and calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip. We find the applicant did not meet her onus in proving that the transportation expense is payable.
98For the above-noted reasons, we find the applicant is entitled to the balance of the OCF-18 in the amount of $776.76.
The applicant is not entitled to the OCF-18s for a psychological assessment, psychological treatment or the driving evaluation.
99Since all three of the above OCF-18s deal with the same evidence they will be addressed together. The OCF-18 for a psychological assessment was authored by Estelle Tulman, occupational therapist, and the goal was for pain reduction in order to return the applicant to her pre-accident psychological functioning. The applicant argues that the psychological assessment is reasonable and necessary because she is experiencing ongoing psychological symptoms post-accident. She relies on the CNRs of Dr. Forbes; the counselling notes of Yana Shcherbina, therapist; and above-noted report of Dr. Gladshetyn, psychologist, who recommended psychological treatment and the driving evaluation. The applicant also submits that the IE report of Dr. Bains opines that a mental health provider is more appropriate to explain her pain-focused and fear avoidant behaviours contributing to her perceived level of disability.
100The respondent denied the OCF-18 for a psychological assessment on July 18, 2024. It relies on the IE report of Dr. Chan, psychologist dated June 28, 2024, who determined that the applicant did not meet the criteria for a DSM-5 psychological diagnosis as a result of the accident. In addition, the doctor determined that psychometric testing revealed that the applicant had a grossly invalid profile which raised serious issues with credibility. It also argues that as an occupational therapist, Ms. Tulman is not qualified to recommend the psychological assessment.
101We find the applicant is not entitled to the OCF-18 for the psychological assessment for the following reasons.
102First, the applicant relies on hundreds of pages of CNRs of Dr. Forbes in support of her position that she reported ongoing psychological issues post-accident. However, despite the Tribunal’s direction to identify the specific page numbers relied upon, the applicant did not adhere to the Tribunal’s instructions. We note very few CNRs of Dr. Forbes were brought to our attention by the applicant. The respondent also highlighted various CNRs that support the applicant suffered from anxiety and depression prior to the accident.
103Second, we do not accept Dr. Gladshetyn’s diagnosis of adjustment disorder with mixed anxiety and depressed mood and specific phobia situational (vehicular and pedestrian type) because it was heavily based on the applicant’s self-reports which we find unreliable. For example, the applicant reported to Dr. Gladshteyn that she did not have any pre-accident medical or mental health issues which is not accurate. In addition, it does not appear that Dr. Gladshetyn reviewed any CNRs as part of the assessment. Because we do not accept Dr. Gladshetyn’s opinion, we do not find the OCF-18s recommending psychological treatment, or a driving evaluation are reasonable and necessary.
104We acknowledge that the applicant attended counseling in 2024 and 2025 which support that she reported experiencing ongoing physical pain on a few occasions. We find the CNRs of the counsellor vague and do not assist in assessing the extent of any accident-related impairment.
105Finally, Dr. Chan reviewed the applicant’s medical records and acknowledged the applicant’s history of anxiety, depression and family tragedy. In addition, we find the results of Dr. Chan’s psychometric tests revealed significant validity issues to the extent that the doctor did not find the applicant’s self-reported symptoms to be credible.
106Although we acknowledge that the applicant suffers from chronic pain and likely has experienced some psychological symptoms, we find the evidence of an accident-related psychological impairment unclear. Further, we find that there was a lack of submissions from the parties addressing the conflicting reports of Dr. Gladshteyn and Dr. Chan, and specifically, on whose expert opinion we should accept and why. For the above reasons, we find the applicant has not met her onus in proving on a balance or probabilities that the OCF-18s for a psychological assessment, psychological treatment or driving evaluation are reasonable and necessary.
The applicant is not entitled to $4,720.00 for the OCF-18 for a psychiatry assessment
107The applicant relied on the OCF-18 dated October 21, 2024, also authored by Ms. Tulman which recommended a psychiatry assessment with Dr. Milenkovic, psychiatrist in the amount of $4,720.00. The goals of the assessment are to evaluate the applicant’s mental health status. The applicant made no submissions to explain why the psychiatry assessment is reasonable and necessary.
108We conclude that the applicant has not met her onus in proving that this OCF-18 is reasonable and necessary.
The applicant is entitled to interest
109Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is owed interest on the OCF-18s we have determined to be reasonable and necessary.
The applicant is not entitled to an award
110Under 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.
111The applicant argues that she is entitled to an award because the respondent unreasonably withheld the various benefits in dispute. For example, the adjuster arbitrarily reduced the various OCF-18s for physiotherapy based on no medical rationale. In addition, the adjuster breached its duty of good faith by not considering all of the medical evidence before it. In addition, the respondent kept the applicant in the MIG when its own IE assessor suspected a concussion. Finally, there was an unnecessary delay in assessing the applicant’s entitlement to ACBs because it withheld the IE report of OT Pataki and refused to release the IE reports for the assessments in November and December 2024. The applicant relies on the adjuster’s log notes in support of her position on the award issue.
112The respondent submits it would be procedurally unfair for the Tribunal to entertain the applicant’s claim for an award because it was never provided with particulars regarding the award claim which was in non-compliance with the Tribunal’s order. It submits that it has a right to know the case it must meet. As a result, it submits that the applicant’s submissions regarding the award should not be given any weight.
113We give the applicant’s submissions regarding the award issue little weight because she did not comply with the Tribunal’s order and provide the respondent with full particulars of the award claim. Further, the applicant provided no explanation for her failure to provide particulars of the award claim. In addition, we find that it would be procedurally unfair for us to consider the applicant’s submissions because the respondent was not prepared to respond and as a result is prejudiced. Consequently, we find it unnecessary to address this issue further.
The respondent is not entitled to costs
114Under Rule 19, the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
115In seeking an amount of $150.00 in costs from the applicant, the respondent made no specific submissions on how the applicant acted unreasonably, frivolously, or in bad faith in pursuing her application. We find the respondent has not met its onus in proving that costs are warranted in this case.
ORDER
116For the reasons set out above, we find that:
i. The applicant is not statute-barred from proceeding with her application pursuant to s. 55 of the Schedule regarding her claim for an ACB, attendant care assessment or claim for assistive devices.
ii. The applicant is not entitled to an IRB in the amount of $400.00 per week for the time period claimed.
iii. The applicant has established entitlement to an ACB in the amount of $612.75 per month from October 26, 2023, to date. However, she is not entitled to payment because the benefit has not been incurred.
iv. The applicant is entitled to both OCF-18s proposed by Princeton Hills in the amount of $2,200.00 for attendant care assessments dated November 27, 2023 and October 16, 2024.
v. The applicant is partially entitled to the OCF-18 for assistive devices proposed by Princeton Hills dated December 18, 2024, in the amount of $1,485.86.
vi. The applicant is partially entitled to the OCF-18 for a neurological assessment dated October 22, 2024, in the amount of $2,200.00.
vii. The applicant is partially entitled to $777.76 for the chronic pain assessment proposed by Princeton Hills dated October 22, 2024.
viii. The applicant is not entitled to any of the other medical benefits, interest, or an award.
ix. The applicant is not liable to pay costs in the amount of $150.00 to the respondent.
Released: February 10, 2026
Rebecca Hines
Adjudicator
Lisa Holland
Adjudicator
