Citation: Kotov v. Aviva General Insurance Company, 2026 ONLAT 24-009821/AABS

Licence Appeal Tribunal File Number: 24-009821/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:

Nataliya Kotov

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Olga Poznyakova, Paralegal

For the Respondent:

Tefiney E Scarlett, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Nataliya Kotov, the applicant, was involved in an automobile accident on June 7, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General 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:

1. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from August 17, 2023, to June 7, 2025?

2. Is the applicant entitled to the treatment proposed by Essential Physio Rehabilitation Inc. in treatment plans (“OCF-18”), as follows:

i. $2,553.80 ($5,147.56 less $2,593.76 approved) for psychological services, in an OCF-18 submitted on March 21, 2024; and

ii. $972.44 ($3,416.64 less $2,444.20) for psychological services, in an OCF-18 submitted on July 31, 2024?

3. Is the applicant entitled to the treatment and assessments proposed by ALCAT Assessments Inc., as follows:

i. $2,656.55 ($5,549.51 less $2,892.96 approved) for psychological services, in an OCF-18 submitted on January 17, 2024;

ii. $2,200.00 for a physiatry assessment, in an OCF-18 submitted on March 25, 2024; and

iii. $2,200.00 for an in-home assessment, in an OCF-18 submitted on March 25, 2024?

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

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

6. Is the respondent liable to pay $1000.00 in costs?

3I have also added the applicant’s request for costs to the issues in dispute. Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), provide that a party can make a request for costs “at any time before the decision or order is released.”

RESULT

4The applicant is not entitled to a NEB in the amount of $185.00 per week from August 17, 2023, to June 7, 2025.

5The applicant is entitled to the treatment plans for the physiatry assessment and in-home assessment, plus interest.

6The expenses incurred under the treatment plan for psychological services dated March 21, 2024, are payable pursuant to s. 38(11) of the Schedule, plus interest.

7The applicant is not entitled to unapproved portions of the treatment plans for psychological services dated January 17, 2024, and July 31, 2024.

8The applicant is not entitled to an award or costs.

ANALYSIS

Non-Earner Benefits

9I find that the applicant is not entitled to a NEB in the amount of $185.00 per week from August 17, 2023, to June 7, 2025.

10Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

11The applicant submits that she meets the test for NEBs, as she has sustained a complete inability to carry on a normal life as a direct result of the accident. The applicant relies on the clinical notes and records of her family practitioner, Dr. Brian Sheffield; s. 25 psychological report of psychologist, Dr. Valda Lopo, dated December 9, 2023; s. 25 physiatry report of physiatrist, Dr. Joseph Wong, dated September 27, 2024; s. 25 in-home assessment report of occupational therapist, Ms. Malin Lindgren, dated July 4, 2024; s. 44 occupational therapy in-home assessment of occupational therapist, Robert Campos, dated December 8, 2023; s. 44 psychological assessment of neuropsychologist, Dr. Mohammad Nikkhou, dated November 30, 2023; s. 44 orthopaedic surgery assessment of orthopaedic surgeon, Dr. Gilbert Yee, dated November 15, 2023; and OCF-3, dated August 17, 2023, to support that she is unable to carry on a normal life.

12The respondent submits that the applicant has failed to meet the test outlined in Heath and has not provided sufficient evidence to demonstrate that the accident resulted in a complete inability to carry on a normal life. The respondent further submits that the applicant has not proven that she has been continuously prevented from engaging in substantially all of her pre-accident activities, as required under s. 3(7) of the Schedule.

13The OCF-3, completed by chiropractor, Dr. Ashley Narula, dated August 17, 2023, states the “Applicant reports increase pain with ADL's, household chores and some self-care. She reports headaches, anxiety, stress, nightmares, chest pain and rib pain since the accident.” I give little weight to the OCF-3, as it is based on the applicant’s self-reported limitations, rather than a medical opinion opining on her functional impairments. Moreover, there must be contemporaneous evidence, so in my view, an OCF-3 alone is not sufficient to establish entitlement to NEBs.

14The applicant has pointed me to several s. 25 and s. 44 reports that speak to the applicant’s functional abilities. Most of the reports are largely consistent with respect to the applicant’s daily activities. I find that the applicant’s pre-accident activities included various household chores such as cooking, laundry, and cleaning. The applicant also reported she took her dog for daily long walks, cared for her garden, shovelled snow, participated in a book club, and enjoyed watching her grandchildren. I also find that the applicant’s accident-related impairments have been reported as neck pain, back pain, and right knee pain.

15Conversely, the applicant’s self-reported functional impairments post-accident vary. For example, to s. 25 psychologist, Dr. Lopo, the applicant reported that she “can’t do anything”, and to s. 44 neuropsychologist, Dr. Nikkhou, the applicant reported that she is unable to do all of her daily tasks. The applicant reported to s. 25 physiatrist, Dr. Wong, that her “pastimes” have been performed much less since the accident, and she is unable to perform vacuuming, mopping, carrying heavy laundry, or groceries. However, the applicant reported to s. 44 orthopaedic surgeon, Dr. Yee, that she is independent with the majority of her personal care tasks, can lift or carry light objects, and has resumed driving, but is unable to socialize, go for walks or do household chores. The applicant reported to s. 25 occupational therapist, Ms. Lindgren, that she is unable to cook, clean, garden, shovel snow, is anxious driving, and no longer socializes with her friends. However, Ms. Lindgren reports that the applicant is able to care for her daily hygiene, albeit requiring longer to complete these tasks. The applicant reported to s. 44 occupational therapist, Mr. Campos, that her daughter helps with toenail care, putting on her socks, washing her hair and tub transfers, but she is able to complete all other self-care tasks, albeit slowly and with difficulty. The applicant further reported to Mr. Campos that she can go grocery shopping, prepares simple things such as eggs and toast, performs light cleaning, wash dishes for 10 minutes, can fold and sort laundry, she can read for up to 15 minutes, supervise her grandchildren, albeit for a little while, she has resumed driving, and she can socialize with friends, albeit not as often as before and often on the phone. However, the applicant reported she is unable to make her bed, mow the lawn, she no longer participates in book club, takes walks, or travels.

16The conclusions of the aforementioned assessors are also polarizing. While s. 25 psychologist, Dr. Lopo, stated that the applicant’s physical disability keeps her from pursuing many of her previous recreational and social activities and fully manage family responsibilities, s. 44 neuropsychologist, Dr. Nikkhou opined that, from a psychological perspective, the applicant does not suffer a complete inability to carry on a normal life as a direct result of the accident. Moreover, s. 25 occupational therapist, Ms. Lindgren reports that the applicant is prevented from engaging in substantially all activities in which she engaged before the accident, whereas s. 44 occupational therapist, Mr. Campos found that the applicant demonstrated sufficient mobility, range of motion, strength, as well as cognitive and psychosocial functioning to resume her normal activities of daily living. Lastly, while s. 25 physiatrist, Dr. Wong opined that the applicant suffered an impairment that continuously prevents her from engaging in household tasks, self-care activities, recreational and leisure activities, as well family activities, s. 44 orthopaedic surgeon Dr. Yee opined, from an orthopaedic perspective, the applicant does not suffer a complete inability to carry on a normal life as a direct result of the accident.

17Together, I find that these reports are unpersuasive with respect to the applicant’s entitlement to NEB, because the functional impairments are largely self-reported by the applicant and at times inconsistent. Coupled with the fact that the opinions of the assessors are polarizing, I also find that these reports are less persuasive because they are completed during a singular assessment, as such, these assessors do not have an ongoing relationship with the applicant that would speak to the change and progression of the applicant’s functional abilities.

18In the balance, I look to the applicant’s family doctor, Dr. Sheffield, or any treatment clinic that could corroborate the applicant’s self-reported complaints to the above assessors, that would satisfy the high bar set in Heath.

19I have reviewed the clinical notes and records of Dr. Sheffield, and I find the evidence does not support an impairment that continuously prevents the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident. While there is mention in CNRs of Dr. Sheffield on March 19, 2024, and April 2, 2024, of “decreased rom”, it is not clear what is limited, or how it is impacting the applicant’s daily activities. The CNRs of Dr. Sheffield do not speak to any daily activities that the applicant is unable to engage in as a result of the accident.

20The applicant has not provided any pre-accident CNRs of Dr. Sheffield that would speak to the applicant’s pre-accident functional abilities or limitations, if any. The applicant has also not provided any treatment records from Essential Physio Rehabilitation, Inc. other than account summaries, to corroborate her self-reported functional limitations to the above assessors.

21Given the foregoing, I find that the applicant has not proven that she has an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Consequently, I find the applicant is not entitled to NEB in the amount of $185.00 per week from August 17, 2023, to June 7, 2025.

The Psychological Services, dated January 17, 2024

22I find that the applicant has not proven, on a balance of probabilities, that the unapproved portion of the psychological services are reasonable and necessary.

23To receive payment for a treatment and assessment plan 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. 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.

24The OCF-18 completed by psychologist Dr. Valda Lopo, dated January 17, 2024, sought funding for:

Line 1: $3,590.72 for therapy sessions (16, 1.5 hour sessions at $224.42/session);

Line 2: $1,196.96 for Service planning (16 sessions at $74.81/session);

Line 3: $448.83 for documentation support activity;

Line 4: $100.00 for educational material; and

Line 5: $200.00 for treatment plan (OCF-18)

25The applicant submits that the OCF-18 was never reviewed by s. 44 neuropsychologist, Dr. Nikkhou, whose opinion was relied upon for the partial approval. The applicant submits that the respondent also approved two subsequent OCF-18s dated, March 21, 2024, and July 22, 2024, recommending further psychological treatment, but failed to approve the additional hours recommended by Dr. Lopo in the subject OCF-18 dated January 17, 2024.

26While the respondent submits that it partially approved the treatment plans at a rate of $99.75/hour instead of the proposed $149.61/hour rate, the denial letter states otherwise.

27The respondent’s denial letter, dated February 4, 2024, for the proposed treatment plan states:

“We have reviewed the above treatment plan submitted by ALCAT Assessment Inc dated January 17, 2024, for psychological treatment. We have determined these expenses are partially payable under the Statutory Accident Benefits Schedule. Please refer to the Insurer Examination report completed by Mohammad Nikkhou from Viewpoint dated December 27, 2023. He has recommended that you receive 12 one-hour weekly session of psychological therapy in the form of cognitive behavioral therapy. The treatment plan would include 18 clinical hours at the rate of $149.61 plus appliable taxes. Therefore, the treatment plan has been partially approved up to $2,892.98.

We will not pay for the following services

1. Client related Supervision services

a. Insufficient medical information has been presented indicating that client related supervision services are reasonable and necessary. We will require additional information as to why client related supervision services are reasonable and necessary.

2. Any goods/services relating to planning/preparation/brokerage, as they are included in the $200.00 maximum fee allowable for an OCF 18 completion.”

28As such, the evidence indicates that the respondent approved 18 “clinical hours” at a rate of $149.61 totalling $2,692.98, and the $200.00 fee for Line 5: treatment plan/OCF-18, for a grand sum of $2,892.98.

29While the applicant relies on the report of Dr. Lopo dated December 9, 2023, Dr. Lopo only recommended 16 one-hour sessions of psychological therapy. The respondent does not make submissions as to why it approved 18 hours of treatment, over and above the recommendation of its s. 44 psychological assessor, Dr. Nikkhou. Given that Dr. Nikkhou only recommended 12 one-hour therapy sessions, and that the respondent approved more treatment than recommended by both Dr. Lopo and Dr. Nikkhou, I find that the remaining portion of Line 1: therapy sessions, to not be reasonable and necessary.

30The applicant does not make submissions with respect to the reasonableness and necessity of the unapproved services listed above as Line 2: service planning, Line 3: documentation support activity, and Line 4: education material. I am not pointed to evidence that would confirm the purpose of these line items. As such, I find that there is insufficient information to make a determination with respect to whether these goods or services are reasonable or necessary.

31I find that the applicant has not proven, on a balance of probabilities, that unapproved portions of the treatment plan for psychological services are reasonable and necessary.

The denial letter dated February 4, 2024 is compliant with s. 38(8) of the Schedule

32I find that the denial letter dated February 4, 2024, is complaint with s. 38(8) of the Schedule.

33The applicant also submits that the respondent’s denial letter was non-complaint with s. 38(8) of the Schedule because it lacks sufficient/relevant medical and other reasons as it ignores relevant medical evidence and the report of Dr. Lopo.

34Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

35If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

36I find that the respondent’s denial letter complies with s. 38(8) of the Schedule. In this letter, the respondent provided a medical reason, that being the opinion/recommendation of Dr. Nikkhou. As such, I find that the respondent’s denial was clear and sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the denial.

37I find that the respondent’s denial letter is complaint with s. 38(8) of the Schedule.

The Psychological Services, dated March 21, 2024

38I find that the denial letter is non-compliant with s. 38(8) of the Schedule.

39The applicant submits that the respondent’s denial letter was non-complaint with s. 38(8) of the Schedule because it lacks sufficient/relevant medical and other reasons.

40While the respondent submits that it partially approved the treatment plans at a rate of $99.75/hour instead of the proposed $149.61/hour rate, the denial letter neither specifies what parts of the treatment plan were approved nor at what rate.

41The denial letter dated April 5, 2024, for the proposed treatment plan states:

Details OCF-18

Type of Service

Amount Claimed

Amount Payable

Medical Benefits

Psychological treatment

$5,147.56

$2,593.76

We have reviewed the above treatment plan submitted by Essential Physio Rehabilitation Inc. dated March 21, 2024, for psychological treatment. We have determined these expenses are partially payable under the Statutory Accident Benefits Schedule. Please refer to the Insurer Examination report completed by Mohammad Nikkhou from Viewpoint dated December 27, 2023. He has recommended that you receive 12 one-hour weekly session of psychological therapy in the form of cognitive behavioral therapy. The treatment plan would include 18 clinical hours at the rate of $149.61 plus appliable taxes. Therefore, the treatment plan has been partially approved up to $2,892.98.

We will not pay for the following services

1. Client related Supervision services

a. Insufficient medical information has been presented indicating that client related supervision services are reasonable and necessary. We will require additional information as to why client related supervision services are reasonable and necessary.

2. Any goods/services relating to planning/preparation/brokerage, as they are included in the $200.00 maximum fee allowable for an OCF 18 completion.”

42I agree with the applicant that denial letter is unclear in that the explanation for the denial seems to be a copied from the prior denial dated February 4, 2024, stating that “the treatment plan has been partially approved up to $2,892.98”, despite approving only $2,593.76.

43While the denial letter states a medical reason, being that of Dr. Nikkhou, I find that the denial letter does not identify the goods/services in the treatment plan that the respondent agreed or disagreed to pay. As such, the letter is confusing such that an unsophisticated person would not be able to make an informed decision to either accept or dispute the partial denial.

44I find the respondent’s denial letter, dated April 5, 2024, is not compliant with s. 38(8) of the Schedule. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under the treatment plan for psychological services, dated March 21, 2024, between the 11^th business day after the plan was submitted until the day the respondent cured its deficient notice.

The Psychological Services, dated July 31, 2024

45I find that the applicant has not proven, on a balance of probabilities, that the unapproved portion of the treatment plan is reasonable and necessary.

46The OCF-18 completed by psychologist, Dr. Cody Eriken, dated July 31, 2024, sought funding for:

Line 1: $2,244.20 for individual psychotherapy (10, 1.5 hour sessions at $224.42/session);

Line 2: $374.00 for testing/scoring/interpretation (10 sessions at $37.40/session);

Line 3: $149.61 for treatment planning;

Line 4: $448.83 for progress report; and

Line 5: $200.00 for completion of the treatment plan (OCF-18)

47The applicant submits that the treatment plan should have been approved as the applicant continues to suffer from psychological issues that affect her functionality, relying on s. 25 physiatry report of Dr. Wong, and the psychological progress report of Dr. Eriksen, dated June 28, 2024.

48The respondent submits that the unapproved portions of the treatment plan are not reasonable and necessary for the treatment of injuries sustained in the accident and exceed the allowable rates under the Schedule.

49I find that the unapproved portions of the denial letter are Line 2: testing/scoring/interpretation, Line 3: treatment planning, and Line 4: progress. The applicant does not make submissions with respect to the reasonableness and necessity of these unapproved services, and I am not pointed to evidence that would confirm the purpose of these line items. As such, I find that there is insufficient information to make a determination with respect to whether these goods or services are reasonable or necessary.

50I find that the applicant has not proven, on a balance of probabilities, that unapproved portions of the treatment plan for psychological services are reasonable and necessary.

The denial letter dated August 1, 2024, is complaint with s. 38(8) of the Schedule

51I find that the denial letter dated August 1, 2024, is complaint with s. 38(8) of the Schedule.

52The applicant submits that the respondent’s denial letter was non-complaint with s. 38(8) of the Schedule.

53The denial letter, dated August 1, 2024, for the proposed plan states:

“We have approved Line 1 - 10 (1 hour) Psychological Treatment for $2,244.20.

We have approved Line 4 - OCF 18 Treatment Plan completion for $200.00.

We are not approving Line 2 - Testing/Scoring/Interpretation for $374.00 because: Other

We are not approving Line 3 - Treatment Planning for $149.61 because: Other

We are not approving Progress report for $448.83 because: Other

Other

Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.”

54Unlike my finding for the denial letter dated April 5, 2024, I find that this denial letter, dated August 1, 2024, clearly states what proposed goods and services the respondent agreed and disagreed to fund. Moreover, s. 38(8) states that the respondent shall provide the medical and other reasons for its denial. If an insurer is relying on a non-medical ground to deny the applicant of their benefits, then the provision requires only that the insurer provide notice of the non-medical reason for its denial: Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78. In the present case, the respondent’s denial letter is clear that the unapproved portions of the treatment plan were denied because the respondent determined that the goods/services were not payable pursuant to the Professional Services Guideline. The applicant may disagree with the stated reasons for the denial, but that does not render the denial invalid.

55As such, I find that the respondent’s denial letter, dated August 1, 2024, is compliant with s. 38(8) of the Schedule.

The Physiatry Assessment, dated March 25, 2024, and The In-Home Assessment, dated March 25, 2024

56I find that the applicant has proven, on a balance of probabilities, that the proposed treatment plans are reasonable and necessary.

57Despite the CCRO indicating that the proposed treatment plans for the physiatry assessment and in-home assessment are dated March 24, 2024, the applicant and the respondent’s submissions refer to plans dated March 22, 2024. I find that the evidence supports that the treatment plans are dated March 22, 2024.

58The OCF-18 completed by chiropractor, Dr. John Balkansky, dated March 22, 2024, sought funding in the amount of $2,200.00 for a physiatry assessment. The goals of the treatment plan are to reduce pain, increase strength and range of motion, and to diagnose the applicant’s condition and provide appropriate recommendations on future treatment plans.

59The OCF-18 completed by occupational therapist, Tovit Rubin, dated March 22, 2024, sought funding in the amount of $2,200.00 for an in-home assessment. The goals of the treatment plan are to compare the pre-accident and post-accident limitations that the applicant is experiencing.

60The applicant submits that due to her functional impairments, there was a clear and medically justified basis to proceed with a physiatry assessment. The applicant submits that an assessment by a physiatrist – who is trained in physical medicine and rehabilitation – is reasonable and necessary to determine prognosis, treatment planning, and ongoing disability. The applicant further submits that based on the s. 44 occupational therapist in-home assessment report of Mr. Robert Capos, occupational therapist, dated December 8, 2023, that documented ongoing significant impairments, supported by objective findings, an in-home assessment by the applicant’s own provider was essential to offer an independent, context-specific understanding of her limitations.

61The respondent submits that the applicant advised she no longer wished to receive treatment from ALCAT Assessments Inc., and would resubmit the plans through her chosen facility, Essential Physio Rehabilitation Inc. As such, the respondent denied the treatment plans by way of Explanation of Benefits (“EOB”), dated April 5, 2024.

62I am unpersuaded that the applicant continuing to undergo the assessments at ALCAT, despite their intention to switch to Essential Physio Rehabilitation inc., in some way negates the reasonableness and necessity of the proposed plans.

63I find that the medical evidence supports the reasonableness and necessity of the physiatry assessment and the in-home assessment.

64The CNRs of the applicant’s family doctor, Dr. Brian Sheffield, show the applicant attended on a number of occasions between September 8, 2023, and June 28, 2024, complaining of accident-related impairments such as back pain and knee pain. The evidence also indicates that the applicant made similar physical complaints to s. 25 psychologist, Dr. Valda Lopo, and s. 44 assessors, orthopedic surgeon, Dr. Gilbert Yee, neuropsychologist, Dr. Mohammad Nikkhou, and occupational therapist, Mr. Robert Campos.

65Dr. Lopo reported in a psychological assessment dated December 9, 2023, that the applicant experienced pain in the back, neck, shoulders, and right leg, knee and foot. Dr. Lopo also indicated that the applicant made complaints of impairments that prevent her from engaging in pre-accident recreational activities due to mobility issues and pain. The s. 44 orthopedic surgeon report of, Dr. Yee, dated November 15, 2023, the s.44 psychological assessment of Dr. Nikkhou dated November 30, 2023, and the s. 44 occupational therapist in-home assessment of Mr. Campos, dated December 8, 2023, all reported physical complaints of neck pain, right knee pain, and low back pain and opine on a number of the applicant’s alleged functional limitations such as changes in her self-care, household tasks, and leisure activities. In my view, the evidence supports that the applicant made ongoing and consistent complaints that align with the goals of the proposed treatment plans. As such, I find that there is contemporaneous evidence to support the need and reasonableness of the proposed treatment plans.

66What is more, while I am not bound by Tribunal decisions, I find the applicant’s reliance on the Tribunal’s reasons in 16-003821 v. Co-Operators General Insurance Company, 2018 CanLII 13192 (ON LAT) to be persuasive in the present case. The respondent conducted its own occupational therapy in-home assessment in order to determine whether the applicant would be entitled to an NEB. Given the applicant’s ongoing complaints to her family practitioner, s. 25 and s. 44 assessors, and that the respondent had an occupational therapist examine the applicant, it would follow that the applicant’s own occupational therapist in-home assessment is, therefore, reasonable and necessary.

67Given the foregoing, I find that the applicant has proven, on a balance of probabilities, that the proposed treatment plan for a physiatry assessment, dated March 22, 2024, and an in-home assessment, dated March 22, 2024, are reasonable and necessary.

Interest

68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award and Costs

69The applicant combines her submissions with respect to award and costs.

70The 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.

71Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

72The applicant submits that awarding costs in this matter is appropriate and necessary because the respondent failed to comply with the “Order” by failing to provide productions as well as adjuster’s log notes, relying on the Tribunal decision in 16-000435 v Wawanesa Mutual Insurance Company, 2017 CanLII 9818 (ON LAT). The applicant seeks $1000.00 in costs.

73The respondent submits that it sent the log notes on December 6, 2024, via “Box” and did not know prior to the applicant’s email correspondence on July 14, 2025, that the documents were not in the applicant’s possession. The respondent submits that it acted in good faith and reasonably believed the documents had been delivered.

74I find that the applicant has not met the test set out in Rule 19. I have reviewed the email correspondence sent between the respondent and applicant on July 14, 2025. I find that the applicant sent email correspondence notifying the Tribunal that it had not received the documents due on January 2, 2025, and the respondent notified the applicant of the date and to which email address it provided the documents. The applicant has not provided evidence that she attempted to obtain these documents from the respondent during the 6 months between the due date and the date the correspondence was sent to the Tribunal. As such, I believe the respondent reasonably believed the documents had been delivered and received by the applicant and I am not persuaded that the high threshold for costs has been met. I am also not persuaded the respondent’s conduct was in bad faith such that it would substantiate the request for an award.

75As such, the applicant is not entitled to costs or an award.

ORDER

76I find that:

1. The applicant is not entitled to a NEB in the amount of $185.00 per week from August 17, 2023, to June 7, 2023;

2. The applicant is entitled to the treatment plan for the physiatry assessment, plus interest;

3. The applicant is entitled to the treatment plan for the in-home assessment, plus interest;

4. The expenses incurred under the treatment plan for psychological services dated March 21, 2024, are payable pursuant to s. 38(11) of the Schedule, plus interest;

5. The applicant is not entitled to unapproved portions of the treatment plans for psychological services dated January 17, 2024, and July 31, 2024; and

6. The respondent is not liable to pay an award or costs.