Citation: Mohamad v. TD General Insurance Company, 2026 ONLAT 24-010551/AABS

Licence Appeal Tribunal File Number: 24-010551/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:

Hassan Mohamad

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Muhammad Aftab Alam, Counsel

For the Respondent:

Jagdeep Khela, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hassan Mohamad, the applicant, was involved in an automobile accident on December 31, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2By letter dated September 5, 2023, the respondent determined that the applicant’s impairments meet the criteria for a catastrophic (“CAT”) impairment based on Criterion 8.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from November 27, 2023 to date and ongoing, less amounts paid?

ii. Is the applicant entitled to $21,342.56 ($25,022.10 less $3,679.54 approved) for other assistive devices, proposed by Pearson Medical Assessment Centre in a treatment plan dated December 8, 2023?

iii. Is the applicant entitled to $2,009.55 for physiotherapy services, proposed by Mackenzie Medical Rehab Centre Inc. in a treatment plan dated April 12, 2024?

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

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

RESULT

4I find that the applicant is entitled to $6,000.00 per month in attendant care benefits, less amounts paid, for the period from November 9, 2023 to April 4, 2024, plus interest, once evidence of incurred is provided. I further find that the applicant is entitled to $579.65 per month in attendant care benefits, less amounts paid for the period from April 5, 2024 and ongoing, plus interest, once evidence of incurred is provided.

5I find that the applicant is partially entitled to the balance of the treatment plan, dated December 8, 2023, in the amount of $11,604.99, plus interest.

6I find that the applicant is not entitled to the treatment plan for physiotherapy services, dated April 12, 2024.

7I find that the respondent is not required to pay an award.

ANALYSIS

Entitlement to Attendant Care Benefits

8The applicant claims entitlement to attendant care benefits in the amount of $6,000.00 per month from November 27, 2023, to date and ongoing less amounts paid.

9Section 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 the monthly attendant care benefit is determined in accordance with the approved version of the Attendant Care Needs Form (“Form 1”) that is required to be submitted under s. 42 of the Schedule. Attendant care benefits are only payable for non-minor injuries. The maximum payable for attendant care benefits 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.

10Based on a Form 1 dated August 25, 2023, the applicant was paid an attendant care benefit of $128.14 per month.

11The applicant underwent a second surgery on his left shoulder on November 8, 2023. Justin Moy, occupational therapist (“OT”), completed a new Form 1, dated November 9, 2023, and recommended $10,621.70 per month in attendant care. At the time of the assessment, the applicant had been discharged home and was deemed non-weight bearing of the left upper extremity. During self-care activities, the applicant presented with a left shoulder immobilizer limitations and an inability to use his left hand or arm throughout the assessment with dress/undress, orthotics, grooming, feeding, mobility, hygiene, bathing and housekeeping. The OT opined that the applicant needed basic supervisory care as he would have difficulty with reacting safely and independently in the event of an emergency. The OT recommended 168 hours per week of attendant care based on the applicant’s level of impairment and disability.

12By letter dated December 5, 2023, the respondent denied the Form 1 recommendations and relied on its s. 44 report dated August 25, 2023, which assessed the applicant’s monthly attendant care benefit at $128.14. It requested a copy of the notes from the applicant’s November 8, 2023 surgery pursuant to s. 33 of the Schedule.

13The applicant submits that in accordance with s. 42(7)(10)(11) of the Schedule, the respondent was obligated to either schedule a new assessment of attendant care needs or start paying the amounts recommended in the Form 1.

14On April 4, 2024, an Insurer’s Examination (“IE”) report was prepared by Curtis Wong, OT, to assess the applicant’s entitlement to attendant care benefits. Based on this assessment, he concluded that the applicant required a monthly attendant care benefit of $579.65. The respondent then began paying the applicant a monthly attendant care benefit in the amount of $579.65.

15The applicant submits that the report of Mr. Wong noted that the applicant suffered chronic ongoing pain in various areas and functional limitations, yet he only recommended $579.65 in attendant care. He submits that the recommended care is not proportionate to his findings.

16I find based on the evidence before me, that following the applicant’s surgery he was reassessed by Mr. Moy who provided recommendations for attendant care benefits based on the applicant’s current post-surgery status. I find that Mr. Moy was in the best position to determine the applicant’s needs following his surgery and to make recommendations based on his assessment at that time since his assessment was contemporaneous to the applicant’s surgery. I agree with the applicant that his attendant care needs would have been much higher post-surgery because of his left shoulder immobility. I do not accept the respondent’s submission that Mr. Moy relied only on the applicant’s subjective complaints when completing his assessment. I find that he completed a full assessment of the applicant’s abilities following his left shoulder surgery and based his recommendations on the applicant’s current functional limitations. I find that the respondent has not specifically pointed to any of the recommendations in the Form 1 that it disagrees with in its submissions and makes a general submission that the entire Form 1 is not reasonable and necessary. I therefore accept Mr. Moy’s recommendations and detailed analysis that the applicant required $10,670.70 per month in attendant care benefits at that point in time because of his assessed impairments. However, I find that as the applicant recovered from his surgery, no subsequent reassessment was performed by Mr. Moy to assess the applicant’s ongoing improvement and continued needs.

17I find that on March 21, 2024, a reassessment was performed by Mr. Wong, on behalf of the respondent, and a report was prepared dated April 4, 2024, which determined that the applicant’s current attendant care needs were $579.65 per month. I note that this was an increase from his previous Form 1, dated August 25, 2023, which recommended $128.14 per month. I find that Mr. Wong did a thorough assessment of the applicant’s needs and requirements for attendant care including an interview, observation of physical and cognitive abilities and psycho-emotional responses during functional testing, range of motion resting, and manual muscle testing. I find that following this assessment, no reassessment was completed by Mr. Moy in reply. Rather, the applicant maintained that the Form 1 completed immediately after his surgery was still reasonable and necessary.

18The applicant relies upon the progress notes of Dr. Vaselios Manolopoulos, the orthopedic surgeon, who performed the applicant’s surgery in support of the applicant’s need for $10,670.70 per month in attendant care benefits. Upon review of these progress notes, I find that Dr. Manolopoulos notes on April 15, 2024, that the applicant still has residual symptoms on the right side which may at this point be permanent. He notes that he can still improve on the left side as he is still in the therapeutic window. The progress note dated July 15, 2024 notes that the applicant’s pain is better than prior to surgery. While he notes that the applicant has some residual discomfort which is primarily with lifting, it is intermittent in nature. He has normal strength in resisted abduction and external rotation with mild impingement. Dr. Manolopoulos does not comment on any functional limitations or recommendations for care and does not recommend any restrictions on the applicant’s functionality. I therefore do not find that the records of Dr. Manolopoulos support the applicant’s ongoing need for $10,670.70 per month in attendant care benefits.

19While the applicant criticizes the findings in Mr. Wong’s report and submits that the recommended care is not proportionate to his findings, I find that he has not provided sufficient medical evidence to refute the findings. I find that no report has been provided subsequently reassessing the applicant’s attendant care needs. In addition, while he submits that the recommendations made in the report of Mr. Wong are not proportionate to his findings, he has not provided specific submissions on the recommendations or lack of recommendations made by Mr. Wong that he disagrees with. I therefore accept the recommendations made by Mr. Wong that the applicant required $579.65 in attendant care benefits from April 4, 2024 and ongoing.

20For the reasons outlined above, I find that the for the period from November 9, 2023 to April 4, 2024, the applicant is entitled to $6,000.00 per month in attendant care benefits, less amounts paid, which is the maximum payable for catastrophically impaired insured persons. I further find for the period from April 5, 2024 and ongoing, the applicant is entitled to $579.65 per month in attendant care benefits, less amounts paid.

Has the applicant incurred the attendant care benefits?

21An expense in respect of goods and services referred to in this Regulation is not incurred by an insured person under s. 3(7)(e) of the Schedule unless,

i. The insured person has received the goods or services to which the expense relates;

ii. The insured person has paid the expense, had promised to pay the expense or is otherwise legally obligated to pay the expense; and

iii. The person who provided the goods and services;

1. 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

2. Sustained an economic loss as a result of providing the goods or service to the insured person.

22The respondent argues that there is no evidence that the applicant incurred attendant care services for the period in question, which is evidence in and of itself that attendant care benefits are not needed. No further submissions were made by the respondent in this regard.

23The applicant did not respond to the respondent’s submissions with respect to whether the attendant care benefits were incurred.

24I find that in order for the applicant to be entitled to the attendant care benefits in dispute, he must present evidence that the benefits were incurred. From the evidence submitted, it appears that the applicant received attendant care services from Advanta Health Care Services as indicated in the respondent’s letter to the applicant dated November 29, 2024. The letter acknowledges the invoice from Advanta Health Care Services received by the respondent on February 5, 2024. The applicant has not pointed the Tribunal to any invoices for the period in dispute. I find that neither party has provided sufficient submissions on this issue in order for me to determine what services were incurred during the period in dispute. As such, I will not make a determination as to whether the services have been incurred by the applicant as I find that the applicant will be unduly prejudiced by this omission by his counsel in his submissions. However, in order for the applicant to claim the benefits in dispute based on my decision re entitlement, evidence of incurred will need to be provided to the applicant. I further find that the applicant has not provided any submissions as to whether the expenses should be deemed incurred and therefore, I will not provide a decision with respect to this issue.

Medical and Rehabilitation Benefits

25To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Entitlement to the balance of the Treatment Plan for Assistive Devices

26I find that the applicant is partially entitled to the balance of the treatment plan for assistive devices.

27The applicant claims entitlement to $21,342.56 ($25,022.10 less $3,679.54 approved) for other assistive devices, proposed by Mr. Moy, of Pearson Medical Assessment Centre, in a treatment plan dated December 8, 2023. The treatment plan recommends 36 assistive devices; assembly/setup/installation; documentation support activity; and provider travel time to treatment.

28By letter dated April 10, 2024, the respondent provided a copy of the IE report of Mr. Wong dated April 8, 2024. Based on this report, it approved 18 of the 36 assistive devices, plus assembly/setup/installation, documentation support activity and travel time, in the amount of $3,679.54. The following items were denied:

Line 2: Tempur-Pedic ProAdapt Orange Mattress: $4,899.00

Line 3: Tempur-Pedic Adapt Pillow: $299.00

Line 5: 10 year warranty on adjustable bed: $149.99

Line 6: Tempur-Pedic Ergo Smart 2.0 Lifestyle Adjustable Base: $4,499.00

Line 7: Malouf Refresh Mattress Protector: $279.00

Line 8: Bamboo Nights Sheet Set: $279.00

Line 9: Melrose 2.0 Headboard: $1,420.13

Line 10: Melrose Rails 2.0: $78.87

Line 12: Travel Neck Pillow: $120.00

Line 13: Sit Back Cushion: $95.00

Line 14: Adjustable Bedside Table: $250.00

Line 15: Lazy Boy Recliner Couch: $4,200.00

Line 18: Vitamix Blender: $550.00

Line 22: iRobot Vacuum: $1,200.00

Line 23: Sock Aid: $35.00

Line 24: Raised Toilet Seat with Arms: $130.00

Line 27: Cellphone Stand: $55.00

Line 36: Sonic Electric Toothbrush: $120.00

29The applicant submits that the balance of the assistive devices recommended in the treatment plan in dispute are reasonable and necessary. He relies upon the Case Management report of Wendy Edwards, dated June 30, 2024 and several Rehabilitation Support Worker (“RSW”) progress reports to support the applicant’s ongoing pains and functional limitations which support the disputed assistive devices. He further relies on the Life Care Cost Analysis Report dated April 3, 2025 prepared by Ashok Jain, MBA, OT, which recommended various assistive devices. With respect to the cost of the electric bed, the applicant relies upon the medical note of Dr. Hal Ngyuen, family physician, dated April 9, 2025 and the letter from Meera Bhat, OT, dated May 1, 2025.

30The applicant further submits that the report of Mr. Wong is deficient in regard to assessing the reasonableness and necessity of the assistive devices. He submits that Mr. Wong did not have a copy of Dr. Manolopoulos’ post-operative report dated January 15, 2024, which set out his post-surgery restrictions and limitations. He further submits that Mr. Wong did not provide an explanation as to why he found the specific assistive devices not reasonable and necessary.

31The applicant further submits that the report of Dr. David Berbrayer, physiatrist, simply expressed agreement with Mr. Wong’s recommendations of what is reasonable and necessary and what is not. The applicant therefore argues that this report carries no weight since Dr. Berbrayer did not provide any independent opinion.

32The respondent submits that the balance of the recommended assistive devices are not reasonable and necessary. It relies upon the Physiatry IE report of Dr. Berbrayer and the OT IE report of Mr. Wong, dated April 8, 2024. Mr. Wong opined that based on the applicant’s subjective reporting, he remains independent in most of his self-care activities with the exception of shaving his head and showering. He has continued some of his pre-accident recreational activities including driving. He concluded based on his assessment that the treatment plan in dispute was partially reasonable and necessary.

33I find upon review of the applicant’s submissions that he has not individually addressed the specific assistive devices that were denied by the respondent except the issue of the electric bed. I find that while he submits that support for these devices can be found in the Case Management report and several RSW reports, he has not directed the Tribunal to where in these reports to find this evidence. In my view it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v.TD Insurance Co. 2025 ONSC 184 at para. 50.

34Upon my review of the Case Management report and the RSW reports, I agree that the reports note the applicant’s ongoing pain and functional limitations, yet they do not mention the need for assistive devices anywhere in the reports. Upon review of the Life Care Cost Analysis Report, while there is a list of recommended assistive devices within this report, the applicant has not provided any submissions that these are the same assistive devices recommended in the treatment plan in dispute. Again, it is not the role of the Tribunal to make the applicant’s case, and it is his onus to prove that the disputed items are supported in the medical evidence. Upon my own comparison of the assistive devices recommended, the only item that was recommended in the treatment plan and by Dr. Ashok is the electric bed. I find that the remaining assistive devices that were denied are not on Dr. Ashok’s list of recommended items.

35I find based on the medical evidence relied on by the applicant that provision of the electric bed is reasonable and necessary. The letter from Dr. Nguyen, dated April 9, 2025, states that the applicant is diagnosed with polio and bilateral rotator cuff disease for which he has undergone surgeries. Based on his ongoing symptoms related to these diagnoses, he states that the applicant may benefit from an adjustable electric bed to help with his symptoms. The letter from Ms. Bratt to the respondent dated May 1, 2025, formally requests coverage for an adjustable bed base and therapeutic mattress. She notes that this can significantly improve the applicant’s sleep quality, which in turn supports his psychological and cognitive health, and overall wellbeing. The report of Dr. Ashok further supports the provision of an electric bed.

36I therefore find that the following items are reasonable and necessary as they relate to the provision of the electric bed:

Line 2: Tempur-Pedic Pro Adapt Orange Mattress: $4,899.00

Line 5: 10-year warranty on adjustable base: $149.99

Line 6: Tempur-Pedic Ergo Smart 2.0 Lifestyle Adjustable Base: $4,499.00

Line 7: Malouf Refresh Mattress Protector: $279.00

Line 8: Bamboo Nights Sheet Set: $279.00

Line 9: Melrose 2.0 Headboard: $1,420.13

Line 10: Melrose Rails 2.0: $78.87

37With respect to the balance of the items in dispute, I do not find that the applicant has provided sufficient medical evidence to support that the assistive devices listed in the treatment plan in dispute are reasonable and necessary other than relying on the treatment plan itself. The Tribunal has been consistent in finding that a treatment plan itself is not evidence of entitlement to a medical benefit. While I agree that Mr. Wong did not specifically provide reasons why he found the assistive devices were not reasonable and necessary within his report, the onus is on the applicant to prove that they are reasonable and necessary. I do not find that he has met his onus.

38For the reasons outlined above, I find that the applicant is entitled to the assistive devices related to the provision of the electric bed in the total amount of $11,604.99. I further find that he is not entitled to the balance of the treatment plan for the remaining assistive devices.

Entitlement to the Treatment Plan for Physiotherapy Services

39I find that the applicant is not entitled to the treatment plan dated April 12, 2024.

40The applicant claims entitlement to $2,009.55 for physiotherapy services, proposed by Mackenzie Medical Rehab Centre Inc., in a treatment plan dated April 12, 2024.

41The applicant submits that the treatment plan is self-explanatory with regard to the goals of treatment and the proposed cost is in accordance with the FSCO fee guidelines. It relies on the contemporaneous CNRs of the family physician and Dr. Manolopoulos, to support the treatment plan recommendations. He argues that the records of Mackenzie Medical Rehab Centre indicate that the goals of the treatment were being met and the applicant was reporting some benefit from the treatments. The applicant further submits that the respondent denied the treatment plan on April 18, 2024, based on Mr. Wong’s report dated August 25, 2023. He argues that while the respondent indicated that it would be requesting an IE assessment, no such assessment has been scheduled to date.

42The respondent submits that the treatment plan is not reasonable and necessary based on the IE report of Mr. Wong, dated July 3, 2023. The respondent further submits that the applicant submits that the treatment plan in dispute is for physiotherapy services, however the treatment plan is actually for a mattress, bed nozzles, bidet and other like items.

43I find on review of the treatment plan in dispute, that the following items are recommended:

Dual Nozzle Bidet: $56.93

Bed Frame: $1,241.87

Bed Wedge Pillow: $66.66

Mattress: $644.09

44I therefore find that this treatment plan is not for physiotherapy services as submitted by the applicant. As the applicant has not provided any submissions on the reasonableness and necessity of these particular items in the subject treatment plan, I find that he has not met his onus of proving that they are reasonable and necessary.

45For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that the treatment plan dated April 12, 2024 is reasonable and necessary.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to an increased amount of attendant care benefits and partially entitled to the assistive devices in the treatment plan dated, December 8, 2023, I find that interest is payable on these benefits.

Award

47The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

48The applicant submits that he is entitled to a 50% award and relies on his submissions for an award dated June 3, 2025. The applicant claims that after receiving his Form 1 in the amount of $10,620.70 the respondent proceeded with orchestrating its own IEs to create a pretext for significant reduction of such benefits to the negligible amount of $579.65. With respect to the denial of the treatment plan for assistive devices, the applicant submits that the respondent failed to reassess his need for the devices and turned a blind eye to the findings of the OT Assessment and proceeded with papering a denial by retaining its own IE OT assessment to justify a reduced amount. With respect to the treatment plan for physiotherapy treatments, the applicant submits that the respondent unjustly denied payments and had the treatment been approved, it could have prevented a further decline and decondition of the applicant’s physical condition.

49The respondent relies upon the decision in 16-002346 v. Unifund Assurance Company, 2017 CanLII 81583 (ON LAT), where the Tribunal held that, “the test for a special award is whether the insurer gave reasonable consideration to all the information then available to it in assessing a claim. An insurer will not face a special award just because an arbitrator finds that an insurer got it wrong.” The respondent submits that it acted reasonably and in good faith in adjusting the claim based on the available medical evidence and based on the opinions of the s. 44 assessors. It further submits that its position on the reasonableness and necessity of the proposed treatment plans was informed by independent medical assessors, who reviewed all the medical documents available at the time and conducted in-person assessments to render their opinions.

50I find that the applicant has not proven entitlement to an award. I find that just because I have found that the respondent was partially incorrect in its denial of the applicant’s attendant care benefits and the treatment plan dated December 8, 2023, it does not automatically entitle the applicant to an award. An insurer is not held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to make an insurer accountable for misconduct and to deter it and others from future similar actions.

51I find that the case law has established that an award should be granted only where there is unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

52I find that the respondent was entitled to rely on the opinions of its assessors in the IE reports in denying the applicant’s entitlement to the benefits in dispute. I find that the respondent continually adjusted the applicant’s claim, made ongoing requests for documentation and completed further assessments to assess the applicant’s ongoing status and entitlement to benefits. I therefore do not find that the applicant has proven that the respondent’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

53For the reasons outlined above, I do not find that the applicant has proven on a balance of probabilities that he is entitled to an award.

ORDER

54For the reasons outlined above, I find:

i. The applicant is entitled to $6,000.00 per month in attendant care benefits, less amounts paid, for the period from November 9, 2023 to April 4, 2024, plus interest, once evidence of incurred is provided;

ii. The applicant is entitled to $579.65 per month in attendant care benefits, less amounts paid for the period from April 5, 2024 and ongoing, plus interest, once evidence of incurred is provided;

iii. The applicant is partially entitled to the balance of the treatment plan, dated December 8, 2023, in the amount of $11,604.99, plus interest;

iv. The applicant is not entitled to the treatment plan for physiotherapy services, dated April 12, 2024; and

v. The respondent is not required to pay an award.