Khurmi v. Intact Insurance Company, 2026 CanLII 10366

Citation: Khurmi v. Intact Insurance Company, 2026 ONLAT 24-006965/AABS

Licence Appeal Tribunal File Number: 24-006965/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:

Bhupinder Khurmi

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Robert Maich

APPEARANCES:

For the Applicant: Glen B Cox, Paralegal

For the Respondent: Omar Sewhdat, Counsel

HEARD: In Writing

OVERVIEW

1Bhupinder Khurmi, the applicant, was involved in an automobile accident on April 29, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was the driver of a motor vehicle carrying his mother, father, daughter and nephew, when another vehicle crossed the center barrier and collided head-on with the applicant’s vehicle. The impact caused airbag deployment, and the applicant was transported by ambulance to hospital where he was later discharged.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $2,389.46 per month from March 25, 2024 to date and ongoing?
2. Is the applicant entitled to the treatment plan/OCF-18 (“plan”) proposed by Limitless Rehab, as follows: i. $142.64 ($2,287.77 less $2,145.13 approved) for occupational therapy services, in a plan submitted November 2, 2023. ii. $3,010.88 for physiotherapy services, in a plan submitted April 23, 2024; iii. $1,397.12 for spinal decompression therapy, in a plan submitted August 15, 2024?
3. Is the applicant entitled to the assessments proposed by Limitless Rehab, as follows: i. $100.25 ($2,460.00 less $2,359.75 approved) for a neurological assessment, in a plan submitted April 3, 2024 ii. $7,935.40 for chronic pain assessment, in a plan submitted August 20, 2024?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is not entitled to ACB in the amount of $2,389.46 per month from March 25, 2024 to date and ongoing.

5The applicant is not entitled to $142.64 ($2,287.77 less $2,145.13 approved) for occupational therapy services, proposed by Limitless Rehab in a plan submitted November 2, 2023.

6The applicant is not entitled to $3,010.88 for physiotherapy services, proposed by Limitless Rehab in a plan submitted April 23, 2024.

7The applicant is entitled to $1,397.12 for spinal decompression therapy, proposed by Limitless Rehab in a plan submitted August 15, 2024.

8The applicant is not entitled to $100.25 ($2,460.00 less $2,359.75 approved) for a neurological assessment, proposed by Limitless Rehab in a plan submitted April 3, 2024.

9The applicant is not entitled to $7,935.40 for a chronic pain assessment, proposed by Limitless Rehab in a plan submitted August 20, 2024.

10The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

Narrowing of Issues since Case Conference Report and Order (“CCRO”)

11The applicant withdrew his claim for income replacement benefits, as described in para. [4]1 of the CCRO.

12The respondent approved in full the plans described in para. [4] 3 i, iii, iv and v of the CCRO, and as a result, they are no longer issues in dispute.

13The respondent approved in full the plans described in para. [5] i, ii and iii of the CCRO, and as a result, they are no longer issues in dispute.

Attendant Care Benefits

14The applicant is not entitled to ACB in the amount of $2,389.46 per month from March 25, 2024 to date and ongoing.

15Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. The amount of a monthly ACB is determined in accordance with the approved version of the document entitled Assessment of Attendant Care Needs (“Form 1”) that is required to be submitted under s. 42. ACB’s are only payable for non-minor injuries. The maximum payable for ACB under the Schedule is $3,000.00 per month for non-catastrophically impaired insured persons, and $6,000.00 per month for catastrophically impaired insured persons.

16An expense in respect of goods or services referred to in this Regulation is not incurred by an insured person under s. 3(7)(e) unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(a) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(b) sustained an economic loss as a result of providing the goods or services to the insured person;

17The onus is on the applicant to demonstrate that he required the care of an aide or attendant as a result of his accident-related injuries, and that he incurred the expense of hiring one. The applicant may still be entitled to ACB despite not hiring an aide or attendant if he can show that the expense was not incurred because the respondent unreasonably withheld or delayed payment of the benefit.

18The applicant submitted that he is entitled to ACB because he sustained injuries that are not included in the minor injury guideline definition and the respondent confirmed that his injuries are not a minor injury. He submitted that he has difficulties with neck pain, lower back pain involving bilateral legs, daily headaches, dizziness, nausea, balance concerns, reduced appetite, sleep disturbance, prolonged walking, prolonged sitting, and prolonged standing, light sensitivity, noise sensitivity, ear ringing, blurred vision, cognitive issues, memory challenges, difficulty with attention and focus, planning and organization, and slow processing speed, as identified in the occupational therapy assessment of Erdene-Ochir, OT dated January 5, 2024.

19I note that the physical assessment portion of the assessment indicated active range of motion within functional limit in all areas, save for back which was rated as mild restriction or ¾ of full range and that the applicant could complete self-care tasks, albeit less frequently than before the accident. I also note the applicant’s OCF-1 dated May 9, 2023 identified injuries including flashbacks, fear of driving, headaches, left arm burns, pain in chest, bilateral legs and chest.

20Further, the applicant submitted he paid $7,014.00 for attendant care from January 2025 through April 2025. The applicant also submitted that the respondent’s notice of denial of benefits letter dated January 19, 2024 is non-compliant with the requirements of s.44(5)(a) of the Schedule; specifically, because the notice applied the wrong test, was absent a medical reason and relied upon general recovery timelines not specific to the applicant’s medical condition.

21The respondent submitted that the applicant did not meet his onus to prove that he required attendant care or that he incurred the expense of hiring an aide or attendant. Further, the respondent submitted that the applicant’s assessment of attendant care needs (“Form-1”) was submitted January 5, 2024 and the respondent issued a notice of denial on January 19, 2024 in accordance with the Schedule. The respondent submitted that the medical reasons provided in the denial letter were compliant with the Schedule because the reasons refer to the insurer’s examination report dated December 13, 2023 by Dr. Kruger, physician, who concluded the applicant sustained soft-tissue injuries and that no impairment was identified.

22In addition, the respondent conducted an occupational therapy in-home assessment by Ms. Mohan dated February 27, 2024 and concluded the applicant did not require attendant care, based on the applicant’s self report and objective testing. It was noted that the applicant could meet all his self-care needs independently and had functional range of motion.

23I find the submissions of the respondent to be persuasive. The applicant’s assessor identified areas where he could benefit from attendant care, specifically including hair washing and toenail clipping, meal preparation, bathroom hygiene, bed-making, and supervisory care for walking and emergencies, however, the assessor also found that he had functional range of motion in all areas, save for his back rated at ¾ range; further, he found the applicant could complete all self care tasks, albeit not as easily or frequently as pre-accident. I also note that the most recent assessment by Mc. Mohan found no need for attendant care as the applicant was able to complete self care tasks independently. I find the medical evidence does not support a need for attendant care benefits for the above stated reasons.

24Further, I find that the notice of denial dated January 19, 2024 specifically addressed the applicant’s injuries and referenced the medical reasons for the denial and disclosed the report of Dr. Kruger as medical evidence for the denial. I find the respondent’s notice of denial was detailed beyond the requirements of s.44(5)(a), and I find it was sufficient for the applicant to understand the reasons for the denial of benefits.

25I find the applicant is not entitled to ACB in the amount of $2,389.46 per month from March 25, 2024 to date and ongoing.

Is the applicant entitled to the denied amount of $142.64 ($2,287.77 less $2,145.13 approved) for occupational therapy services in a plan submitted November 2, 2023?

26I find the applicant is not entitled to the outstanding amount of $142.64 for occupational therapy.

27Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary expenses incurred by or on behalf of the insured persons a result of an accident. It is the applicant’s responsibility to prove the medical benefits claimed are reasonable and necessary on a balance of probabilities.

28Both parties agree that occupational therapy services are reasonable and necessary, as the respondent has approved $2,145.13 of the plan with the balance of $142.64 deemed ineligible by the respondent. The applicant also raised the issue that the respondent’s notice of denial of benefit dated November 16, 2023 was non-compliant with s.38(8) of the Schedule for want of medical reasons.

29The respondent submitted that the amount of $142.64 found on the tax line item of the plan is ineligible as tax is not applicable to occupational therapy; the applicant made no submissions in this regard.

30I find the submissions of the respondent to be persuasive and find the tax amount of $142.64 is not eligible under the Schedule. Further, I find there was no defect in the letter of denial of benefits as the insurer specifically referenced the need for an assessment to address the applicant’s physical injuries. I find the respondent subsequently approved the treatment plan save for an ineligible amount under the Schedule.

Is the applicant entitled to $3,010.88 for physiotherapy services, in a plan submitted April 23, 2024?

31I find the applicant is not entitled to $3,010.88 for physiotherapy services, in a plan submitted April 23, 2024.

32I find the applicant made no submissions to support its claim that the treatment plan is reasonable and necessary. However, the applicant submitted that the notice of denial letter did not meet the requirements of s.38(8) of the Schedule for failure to disclose any medical reason for the denial.

33The respondent did not address the issue of defective notice raised by the applicant.

34Rather, the respondent submitted that this treatment plan identified as issue 3(vi) (as listed on the CCRO) is a duplicate of issue 3(iii) submitted November 21, 2023 and was submitted by the same clinic for identical services in the identical proposed amount. As issue 3(iii) had already been approved in full, the respondent submitted issue #3(vi) is moot and ought to be withdrawn.

35I find the applicant made no reply submissions in answer to the respondent’s position that the plan was duplicative.

36I find the letter of denial issued April 29, 2023 addressed the medical reasons for the denial as it specifically referenced the findings in the report of Dr. Kruger dated January 8, 2024 as the reason for the denial.

37I find the treatment plans described in the CCRO may be in the same amount and submitted by the same provider, however the dates are different, and on the face of it, may be separate treatment plans. I note applicant did not make any submissions in respect to this plan being reasonable and necessary; I find that the applicant did not discharge his onus.

38I find the applicant is not entitled to $3,010.88 for physiotherapy services, in a plan submitted April 23, 2024.

Is the applicant entitled to $1,397.12 for spinal decompression therapy, in a plan submitted August 15, 2024?

39I find the applicant is entitled to $1,397.12 for spinal decompression therapy, in a plan submitted August 15, 2024.

40The applicant submitted that $1,397.12 for spinal decompression therapy, in a plan submitted August 15, 2024, is a reasonable and necessary expense and relies upon the chronic pain assessment report (dated May 22, 2024) of Dr. Karmy, physician, who recommended spinal decompression.

41The respondent submitted that only three treatment plans remain in dispute, exclusive of the treatment plan herein. It is unclear whether the respondent approved the treatment plan, but in any event, the respondent made no submissions in specific reference to this treatment plan.

42I find the submissions of the applicant to be persuasive and I accept the applicant’s evidence that Dr. Karmy recommended spinal decompression. I note Dr. Karmy based his recommendation upon review of the applicant’s MRI findings of disc bulges and foraminal narrowing as well as the chronic pain report; Dr. Karmy recommended spinal decompression as a non-evasive treatment to relieve pressure on spinal discs. I give weight to Dr. Karmy’s recommendation as well reasoned and supported by objective diagnostic imagining. I find the medical recommendation for spinal decompression is sufficient to discharge the applicant’s onus that the treatment plan is reasonable and necessary

43I find the applicant is entitled to $1,397.12 for spinal decompression therapy, in a plan submitted August 15, 2024.

Is the applicant entitled to the denied amount of $100.25 for a neurological assessment, in a plan submitted April 3, 2024?

44I find the applicant is not entitled to the outstanding balance of $100.25 for a neurological assessment, in a plan submitted April 3, 2024.

45Both parties agree that the assessment was reasonable and necessary and the respondent approved $2,359.75 for the plan, out of the $2,460.00 requested. The applicant made no submissions with respect to the $100.25 balance. The respondent submitted that the documentation time it allotted (one hour) was sufficient for form completion, as per the Financial Services Commission of Ontario’s Professional Services Guideline.

46I find the applicant did not meet its burden of proof as no submissions were made to address the issue in dispute.

47I find the applicant is not entitled to the outstanding balance of $100.25 for a neurological assessment, in a plan submitted April 3, 2024.

Is the applicant entitled to $7,935.40 for a chronic pain assessment, in a plan submitted August 20, 2024?

48I find the applicant is not entitled to $7,935.40 for a chronic pain assessment, in a plan submitted August 20, 2024.

49The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists, that would warrant further investigation by way of an assessment.

50The applicant submitted that the respondent’s letter of denial of benefit dated August 28, 2024 was defective and did not meet the requirement of s.38(8) of the Schedule, because it did not specifically outline the medical reasons for the denial. The applicant made no submissions as to whether the plan was reasonable and necessary.

51The respondent submitted that its letter of denial of benefits was compliant with s. 38(8) and specifically outlined the medical reasons, by referring to the report of Dr. Kruger dated May 15, 2024. The respondent submits Dr. Kruger found that the applicant was suffering from physical sprain injuries and confirmed findings of no impairment. I note that the letter of denial also required the applicant to attend further insurer examinations for a second medical opinion.

52I find the submissions of the respondent to be persuasive, as the letter of denial of benefits was specific and outlined the applicant’s injuries as sprains and requested further medical opinion. I find there is no defect in the notice, and it complied with s.38(8) of the Schedule. The applicant relied solely upon his submissions with respect to 38(8) non-compliance and did not address whether the treatment plan was reasonable and necessary. I find that without any specific submissions on this issue, the applicant did not meet his burden to establish the denied treatment plan was reasonable and necessary.

53I find the applicant is not entitled to $7,935.40 for a chronic pain assessment, in a plan submitted August 20, 2024.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is entitled to interest on the overdue benefits that are the subject matter of this Order.

ORDER

55The Tribunal Orders:

i. The applicant is not entitled to ACB in the amount of $2,389.46 per month from March 25, 2024 to date and ongoing.

ii. The applicant is not entitled to $142.64 ($2,287.77 less $2,145.13 approved) for occupational therapy services, proposed by Limitless Rehab in a plan submitted November 2, 2023.

iii. The applicant is not entitled to $3,010.88 for physiotherapy services, proposed by Limitless Rehab in a plan submitted April 23, 2024.

iv. The applicant is entitled to $1,397.12 for spinal decompression therapy, proposed by Limitless Rehab in a plan submitted August 15, 2024.

v. The applicant is not entitled to $100.25 ($2,460.00 less $2,359.75 approved) for a neurological assessment, proposed by Limitless Rehab in a plan submitted April 3, 2024.

vi. The applicant is not entitled to $7,935.40 for a chronic pain assessment as proposed by Limitless Rehab, in a plan submitted August 20, 2024.

vii. The applicant is entitled to interest on any overdue payment of benefits.