Citation: Mensah v. Co-operators General Insurance Company, 2026 ONLAT 24-014094/AABS

Licence Appeal Tribunal File Number: 24-014094/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:

Stephen Mensah

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Lisa Holland

Brian Norris

APPEARANCES:

For the Applicant:

Shannon Kelly, Counsel

Gus Triantafillopoulos, Counsel

For the Respondent: Court Reporter:

Daniel M Himelfarb, Counsel Marcia Gardner

HEARD: by Videoconference

September 22 to October 1, 2025

OVERVIEW

1Stephen Mensah, the applicant, was involved in an automobile accident on February 15, 2022, and sought benefits from Co-operators General 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 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. Has the applicant sustained a catastrophic impairment as defined by s. 3.1(1)8 of the Schedule?

2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $185.00 per week for the period from October 5, 2024 to date and ongoing?

3. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,390.60 per month for the period from February 1, 2024 to August 1, 2024?

4. Is the applicant entitled to ACBs in the amount of $3,290.30 per month for the period from August 1, 2024 to August 21, 2025?

5. Is the applicant entitled to the treatment plans/OCF-18s (“plans”) proposed by Neuphysio Rehabilitation, as follows:

i. $247.90 ($3,214.14 less $2,966.24 approved) for physiotherapy services, submitted January 23, 2023; and,

ii. $4,910.71 for physiotherapy services, submitted September 18, 2023?

6. Is the applicant entitled to the plans proposed by Innovative Case Management Inc., as follows:

i. $100.00 ($2,300.00 less $2,200.00 approved) for an in-home assessment and preparation of a Form-1, submitted January 24, 2024;

ii. $6,113.00 for physiotherapy services, submitted May 15, 2023;

iii. $498.75 ($4,987.95 less $4,489.20 approved) for occupational therapy services, submitted January 27, 2023;

iv. $5,444.62 for case management services, submitted February 7, 2023;

v. $1,197.00 ($3,845.89 less $2,648.89 approved) for case management services, submitted November 28, 2022;

vi. $6,186.66 for rehabilitation support worker services, submitted February 7, 2023;

vii. $1,893.66 ($3,979.30 less $2,085.64 approved) for case management services, submitted November 30, 2022;

viii. $3,914.82 for support worker services, submitted November 21, 2023; and,

ix. $3,100.00 for couples counseling services, submitted December 6, 2023?

7. Is the applicant entitled to a medical benefit in the amount of $5,922.67 for psychological services, proposed by InnerQore Health Psychology Wellness in a plan submitted April 12, 2024?

8. Is the applicant entitled to a medical benefit in the amount of $3,641.46 for occupational therapy services, proposed by KW Rehabilitation in a plan submitted September 20, 2024?

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

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

RESULT

3The panel finds:

1. The applicant did not sustain a catastrophic impairment pursuant to Criterion 8.

2. The applicant is not entitled to an IRB.

3. The applicant is not entitled to ACBs outside of the amount that has already been paid or is being paid by the respondent.

4. The applicant is entitled to any portion of the plan dated January 10, 2023 for occupational therapy services that was incurred during the period from February 11, 2023 to February 14, 2023, plus any interest pursuant to section 51 of the Schedule.

5. The applicant is not entitled to any of the remaining medical benefits claimed.

6. No interest or award is payable.

PROCEDURAL ISSUES

A. The respondent’s motion to alter the applicant’s witnesses list and to exclude their records was denied

4The respondent brought a motion to exclude all records and reports from Dr. Nayyar Razvi, family physician; Jessica Comay, occupational therapist; Zainab Bukhari, occupational therapist; and Jeremy Frank, treating psychologist, because the applicant advised that he no longer intended to call them as witnesses at the hearing.

5The respondent submits that it did not receive notice that the applicant did not intend to call the above noted experts as witnesses until 7 days before the hearing. The respondent submits that since these witnesses were on the applicant’s final witness list, it would be procedurally unfair to allow their reports and records into evidence without the benefit of cross-examination.

6The applicant argued that Dr. Razvi is not available until the last day of the hearing, and it would be prejudicial to disallow the testimony of the applicant’s family physician. The applicant further argues that he decided not to call Zainab Bukhari because of a fee issue, and the cost of paying witnesses for their attendance is prohibitive. The applicant argues that the respondent may call Zainab Bukhari as a witness for cross-examination. The applicant submits that it would be prejudicial to exclude the report of Zainab Bukhari if she does not testify.

7Additionally, the applicant submits that both Dr. Razvi and Dr. Frank are not expert witnesses, as they are treating doctors. The applicant also submits it would be unduly prejudicial to the applicant to exclude the evidence of a treating practitioner such as Dr. Frank on the basis that the applicant is unable to afford to pay for their attendance. In an effort to mitigate the issue, the applicant submits that he consents to the respondent calling Dr. Frank as a witness for cross-examination.

8The panel appreciates the applicant’s position that treating doctors are not experts and their testimony and evidence should carry more weight. We find that their records are highly relevant to the applicant’s entitlement to benefits, and their records were produced in accordance with Tribunal orders. However, we find that the respondent should have the opportunity to cross-examine occupational therapist Bukhari because she authored a component of the applicant’s catastrophic impairment report, and if she does not attend, her report will be subject to reduced weight. Following our decision at the hearing to consider the weight of occupational therapist Bukhari’s report, the applicant managed to produce her as a witness and the issue became moot.

B. The applicant’s motion to exclude surveillance evidence was denied

9The applicant brought a motion to exclude the surveillance evidence because the respondent did not comply with the case conference report and order, dated March 19, 2025 (“CCRO”), to disclose the investigator’s handwritten notes, the surveillance agreement between the respondent and the investigation company, all communications between the investigator and the respondent, invoices, and unredacted adjuster log notes that relate to surveillance.

10The applicant submits that the CCRO required that the respondent produce all surveillance materials if it is relying directly on it for the purposes of the hearing, including redacted adjuster log notes that relate to surveillance. The applicant further submits that the respondent has waived any privilege to the surveillance evidence because it disclosed the evidence to third party assessors.

11The respondent submits that the timing of the motion the day before the hearing is inappropriate, and exclusion of all surveillance evidence would be highly prejudicial to it. The respondent submits that the CCRO did not order production of invoices, which are not relevant.

12We find that the surveillance evidence is admissible because of the probative nature of the evidence. The Insurer Examination (“IE”) catastrophic reports rely on this evidence and its exclusion would create a disproportionate impact. The CCRO is vague in the use of the term “all of it”, which includes irrelevant items such as invoices for the cost of surveillance. The panel acknowledges that the investigator will testify as a witness and be subject to cross examination. In the event that a lack of disclosure is revealed, the applicant has the opportunity to argue diminished weight of the surveillance evidence in his closing submissions.

C. The applicant’s motion for unredacted adjuster log notes is partially allowed

13The applicant brought a motion for the Tribunal to review the redacted adjuster log notes regarding the property damage claim, surveillance evidence, and special unit investigations. The applicant provided pinpoint references of the redacted adjuster log notes, and the respondent produced the complete unredacted adjuster log notes that are not for privilege or reserves to the Tribunal to review before making its ruling.

14The applicant argued that the respondent has redacted portions of the log notes which are not for privilege or reserves, and he is entitled to a copy of the unredacted log notes before cross examining the adjuster.

15The respondent submitted that it has redacted log notes for relevance, and the applicant has the opportunity to cross examine the adjuster regarding her discussions with the investigator about the property damage. For example, the respondent argues that the property damage claim is not relevant to the applicant’s claim for benefits.

16We find that the applicant has made a prima facie case that some redactions may fall outside the category of privilege or reserves as set out in the CCRO. We agree with the applicant that it would be unfair to cross examine the adjuster without this information. As a result, the respondent was ordered to remove certain redactions that are not for privilege and reserves and provide a fresh copy of the adjuster’s log notes.

D. The panel finds that the rule in Browne v. Dunn was not violated

17The applicant raised the issue that the rule in Browne v. Dunn, 1893 CanLII 65 (FOREP) was violated when IE assessors based their opinion on surveillance evidence without giving the applicant an opportunity to explain the evidence.

18The respondent submits that procedural fairness does not require that it must put every piece of evidence to the applicant for an explanation, as stated in Taylor v. Zents, 2025 ONCA 662.

19We find that the rule in Brown v. Dunn was not violated. This is because the applicant had an opportunity to address the surveillance evidence. The IE assessors based their initial opinion on the medical assessment and reviewed the surveillance after that. In fact, Dr. Silverman reviewed the surveillance with the applicant, and the applicant was aware of the evidence as it was part of the respondent’s disclosure. The applicant was cross-examined on the evidence, and he had the opportunity to provide his perspective on it during re-direct examination.

20We find that surveillance is only one piece of evidence and there are more inconsistencies of the applicant’s failure to acknowledge his pre-existing condition. As will be outlined further, we find that the applicant’s self-reports to the assessors of his level of functioning before the accident created a baseline that was skewed as a basis for their opinion.

ANALYSIS

Issue i: The applicant has not sustained a catastrophic impairment as defined by the Schedule

21On August 22, 2024, the applicant applied for a catastrophic impairment determination under paragraph 8 of section 3.1(1) of the Schedule, referred to as Criterion 8.

22In order to meet the threshold for a catastrophic impairment under Criterion 8, the applicant must demonstrate that he sustained three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the “Guides”). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as outlined in the chart below.

Area or Aspect of Functioning

Class1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

23The applicant relies on the report dated August 22, 2024, by Dr. Shahzad Shahmalak, psychiatrist and the report dated April 1, 2024, by occupational therapist Bukhari. Dr. Shahmalak opined that the applicant sustained marked impairment in activities of daily living, social functioning, and adaptation. Dr. Shahmalak found that the applicant had sustained a moderate impairment in concentration, persistence and pace. Thus, the applicant cannot meet his onus to establish three marked impairments out of the four spheres of functioning, if the panel finds that he sustained less than a marked impairment in any of the spheres of activities of daily living, social functioning and adaptation.

24The respondent relies on the reports dated August 19, 2025, by Dr. Velan Sivasubramanian, psychiatrist and the IE occupational therapy in-home assessment report dated August 19, 2025, by Ms. Mary Vitali-Perrier, occupational therapist. Dr. Sivasubramanian concluded that it was unclear if the applicant sustained any mental health impairment directly related to the subject accident. Dr. Sivasubramanian found that the applicant did not sustain an impairment in any of the 4 spheres of functioning under Criterion 8 as a result of the accident because there were discrepancies between the medical evidence and the applicant’s reported level of functioning before the accident.

25The panel finds that the applicant has not demonstrated that he meets the catastrophic impairment threshold under Criterion 8 as we find he has not sustained a marked impairment in social functioning. Since we have found that the applicant does not have a class 4 impairment in the domain of social functioning, and none of the assessors found he sustained a marked impairment in the domain of concentration, persistence and pace, it is not necessary to determine whether he has a class 4 impairment in the domains of activities of daily living; or adaptation, as a result of the accident.

Social Functioning

26According to the Guides, this area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.

27The applicant demonstrates a level of function in his relationships with family and friends that does not significantly impede useful function. The applicant testified that before the accident, he was responsible for taking his children to school and to their after-school activities. The applicant testified that he continues to drive his children to activities as necessary, and he loves them deeply and spends time with them any chance he gets and is involved in family holiday celebrations. Both the applicant and his spouse, Rachel Agyei testified that in 2024, he was able to care for their 4-year-old son while Rachel attended school on a full-time basis for a year.

28The applicant demonstrates a level of function in the community that does not significantly impede useful function. The applicant testified that he does light shopping alone, but occasionally has help from his children. He is independent with his banking, so much so that his spouse, Rachel, could not confirm if he was earning more income prior to the accident than after. The applicant pays his rent and arranges his own transportation. While the applicant and his wife recently separated prior to the hearing, he testified that his friends helped him re-locate to Vaughan following the split.

29The panel finds that Dr. Shahmalak overstated the applicant’s mental and behavioural impairments. In his report, Dr. Shamalak notes that the applicant is socially isolated, and his emotional problems have caused a marital breakdown and difficulties with friends, family and community members. In contrast, the applicant testified that he has returned to driving, does light shopping in the community, and helps his children with homework. While he and his wife have recently separated, they maintain communication regarding their children and the applicant continues to see them on a semi regular basis, despite any mental and behavioural impairments. As mentioned earlier, he communicates with friends and was able to secure an apartment through one recently.

30Dr. Shahmalak understated the applicant’s ability to access the community. Dr. Shahmalak relied on occupational therapist Bukhari’s report, which indicates that the applicant is confined to his home, and he is unable to socialize or be in a social or public setting. This is clearly contrasted by the testimony of the applicant and his wife. The applicant testified that he goes out to get groceries or other items, particularly when his kids ask him for things and his wife is not around to get them. The applicant rented an apartment through as friend following his recent separation from his wife, and he has recently increased telephone communication with another friend who lives near his new residence.

31Dr. Shahmalak relied on inaccurate information to conclude that the applicant was working full-time at the time of the accident. Dr. Shahmalak reported and testified that prior to the accident, the applicant was working full-time, which required social interactions, and he had no marital problems. Dr. Shahmalak concluded that after the accident, the applicant was not participating at home, and his marriage broke down. However, the applicant testified that he was on long-term disability benefits (“LTD”) and Canada Pension Plan disability benefits (“CPPD”), and worked about two days a week, and two or three hours a day in the time leading up to the accident.

32Dr. Sivasubramanian’s opinion and report is preferred because it addresses the inaccurate self-reports. In his report and testimony, Dr. Sivasubramanian points out several discrepancies between the applicant’s self reports and other medical evidence, with respect to his pre-accident and post-accident functional abilities. These issues made it difficult for Dr. Sivasubramanian to ascertain the applicant’s level of impairment. For example, the applicant denied pre-accident financial stress, depression and anxiety, however, other evidence suggests he was receiving LTD and CPPD, and his doctor prescribed Cymbalta and Lyrica before the accident. The applicant reported his parents were alive, yet other documents indicate the death of his parents in 2022 and 2023. In testimony, Dr. Sivasubramanian noted that the applicant’s self-reports regarding his parents being deceased were inconsistent with other evidence that his parents are living, which raises an issue of credibility. In addition, the applicant denied driving independently until April 2025 and his post-accident ability to engage in intimacy, however, surveillance depicts him driving since 2023, and he filled prescriptions for Cialis from March 2021 to March 2024, including every one to two weeks in 2023. These discrepancies were brought to the applicant in testimony. He testified that his mother died over two years ago, and he reported to Dr. Sivasubramanian that his parents were alive because he did not want to discuss it. He testified that he was driving when necessary from 8 months after the accident, and that although he denied taking Cialis before the accident at his examination under oath, he actually uses Cialis more often after the accident.

33We find the applicant has at most, a moderate impairment in social functioning because his impairment levels are compatible with some, but not all useful functioning. The surveillance evidence is consistent with the applicant’s testimony that he continues to be active in the community by going shopping, banking, and maintaining his vehicle. Both the applicant and his spouse testified that he maintains a good relationship with his family and children, they get along well, and they talk frequently. Although, the applicant testified that he is easily agitated at times, there is no evidence that he is confined to his home or that he has had any altercations with any members of the public. Although his wife testified that their relationship is strained, she mentioned financial stress as a factor and the applicant’s continued use of Cialis suggests ongoing intimacy. None of the assessors had any issues with the applicant’s ability to communicate effectively. The panel finds this to be consistent with his presentation during his testimony.

34For the above-noted reasons, we find that the applicant has not met his onus to demonstrate on a balance of probabilities that he sustained a marked impairment in social functioning as a result of the accident.

35Having found that the applicant did not sustain a marked impairment in the sphere of social functioning, it follows that the applicant has not demonstrated that he suffers from a marked impairment in three of the four spheres of functioning. Accordingly, we find that the applicant has not sustained a catastrophic impairment under Criterion 8, as a result of the accident.

Issue ii: The applicant is not entitled to an IRB

36The panel finds that the applicant has not demonstrated entitlement to an IRB under s.6 of the Schedule for the reasons set out below.

37To receive payment for a post-104-week IRB under s. 6(2) of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

38The applicant submits that he meets the test for a post-104 IRB for the period from October 5, 2024 to date and ongoing due to his stress, and difficulties with focus and concentration. The applicant submits that he meets the test of disability under s. 6(2) of the Schedule based on the totality of the evidence and in consideration of all relevant factors, including the competitive real world setting and job’s nature, status and reward, as described in the Court of Appeal decision in Traders General Insurance Company v. Rumball, 2025 ONCA 656 (“Rumball”).

39The applicant submits that his difficulties with focus and concentration, inability to deal with stressful situations, and reliance on cuing to complete basic tasks render him unable to engage in any occupation. The applicant submits that Dr. Shahmalak testified that he is unable to engage in any occupation for which he is reasonably suited by training, education, and experience. The applicant also relies on the observations of his functional abilities in the reports of Anjali Vasandani, case manager; Mary Vitali-Perrier, occupational therapist; Zainab Bukhari; and Rhoda Breen, occupational therapist in support of his inability to work.

40We give less weight to the reports of Vasandani, Vidali-Perrier, Bukhari, and Breen because these assessors base their opinions on the premise that the applicant was working full-time before the accident. Ms. Vasandani testified that the applicant’s post-accident financial stress created marital conflict which aggravated his poor memory, concentration, organization and problem solving. OT Bukhari admitted on cross-examination that she did not have a clear picture of the applicant’s pre-accident functional abilities, and she relied on his self-reports that he worked full-time in his self-employment business before the accident. OT Breen also testified that she did not know the applicant was receiving LTD and CPPD at the time of the accident.

41The applicant submits that the IE report of Dr. Silverman should not be given any weight because he based his opinion on credibility of the applicant after reviewing surveillance evidence and without providing the applicant an opportunity to explain the surveillance. In Dr. Silverman’s testimony and report dated September 16, 2024, a determination was made based on unreliable psychometric testing which also undermined the applicant’s credibility.

42The applicant has provided conflicting information in his testimony and to assessors regarding his ability to work before the accident. The applicant testified that he was receiving LTD and CPPD at the time of the accident, which would suggest that he had an unrelated severe and prolonged disability from working in any occupation. His testimony was that he attempted to return to work in the two to three months before the accident at a rate of 2-3 hours per day, twice per week. He stated that his ability to work was restricted before the accident due to right ankle pain and functional limitations. Yet, his report to Dr. Shahmalak, Dr. Silverman, and others, was that he was working on a full-time basis prior to the accident. The applicant’s testimony regarding his pre-accident self-employment conflicts with his reports to various assessors that he was working on a full-time basis before the accident. In addition, the applicant reported to Manulife on January 14, 2022, one month before the accident, that his condition was unchanged from the 2015 accident, and that he remained unable to work or participate in sports, and he had no other sources of income.

43When assessing entitlement to an IRB, we give virtually no weight to the opinion of Dr. Shahmalak, because his assessment of the applicant’s ability to engage in employment was based on inconsistent information. Dr. Shahmalak was unaware that the applicant was receiving LTD and CPPD at the time of the accident. Further, Dr. Shahmalak’s opinion was based on the incorrect belief that the applicant was self-employed and working full-time at the time of the accident, which was demonstrated in the hearing to be untrue.

44We find that the applicant’s functional impairments pre-date the subject accident and agree with the opinions of Dr. Silverman in the September 16, 2024 IE report, and Dr. Khan, in the March 22, 2023 IE report, and their testimony. In both instances, the applicant reported to the assessors that he was self-employed at the time of the accident, working approximately 40 hours per week, which directly contradicted his testimony. Dr. Silverman found that the applicant was more capable of what he claimed and that his scores on psychometric testing fell well below the cutoff, lower than those with severe brain injuries, suggesting that the applicant was likely intentionally selecting incorrect answers. Dr. Khan found no medical contraindications to the applicant engaging in his pre-accident self-employment and he does not suffer from a substantial inability to perform his pre-accident job duties as a buyer and seller of auto parts. This opinion was based on the assessment results, which found no accident-related diagnoses, associated impairments or ongoing objective underlying pathology that would preclude the applicant from performing his pre-accident job duties.

45We find that, overall, the evidence and testimony supports a finding that the applicant’s impairments do not preclude him from engaging in any employment or self-employment for which he is suited by way of education, training and experience. If we are wrong, and the applicant is impaired from engaging in employment or self-employment, we find that the impairment pre-dates the accident based on the applicant’s testimony and the fact that the applicant was receiving LTD and CPPD retroactively to 2016. The logical conclusion from that information is that the applicant satisfied the test of a prolonged and severe disability from working in any occupation prior to the accident.

46The panel finds that the applicant has not met his burden of proving on a balance of probabilities that as a result of the accident, he has a complete inability to engage in any employment for which he is suited by reason of education, training or experience. As a result, the applicant has not established on a balance of probabilities that he is entitled to an IRB under the post-104-week test from October 5, 2024 to date and ongoing. We find that since the applicant has not met his burden to establish entitlement to a post-104-week IRB, it is not necessary to determine the quantum of IRB payable.

Issue iii: The applicant is not entitled to an attendant care benefit

47The panel finds that the applicant has not met his onus to demonstrate on a balance of probabilities that he is entitled to ACBs for any period.

48Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (“ACBs”) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). The maximum payable under the Schedule is $3,000.00 per month for non-CAT insureds, however, the applicant has optional benefits, so the available limit is $6,000.00 per month.

49Section 42(3) of the Schedule provides that within 10 business days after receiving the assessment of attendant care needs, the insurer shall give the insured person a notice that specifies the expenses described in the assessment of attendant care needs the insurer agrees to pay, the expenses it refuses to pay, and the medical and any other reasons for the insurer’s decision.

ACB in the amount of $1,390.60 per month ($3,260.90 per month less $1,899.70 per month approved) from February 21, 2024 to August 22, 2024

50Neither party spent much time addressing the amount of attendant care the applicant is claiming of $3,260.90 per month, less amounts paid. Although the applicant relies on a Form 1 dated February 21, 2024, by Jessica Comay, occupational therapist, we note that the Form 1 is not included in the reassessment of attendant care needs report dated March 1, 2024, by Jessica Comay. In her report, Jessica Comay recommended that the applicant receive $3,290.30 per month.

51The parties agreed that the respondent paid ACBs in the amount of $1,899.70 per month for the period from February 21, 2024 to August 22, 2024 as recommended in a s.44 Form 1 dated April 24, 2023, by Tanja Jakovlkevic, registered nurse.

52Although we find that the evidence supports that the applicant has functional limitations as a result of his accident-related impairments, we find that not all of the amounts recommended in the report of Jessica Comay are supported by the medical record before us. Under Level 1, we find that the therapists’ recommendation for assistance with shaving and nail care of 20 minutes per week is reasonable and necessary because of the applicant’s functional limitations of reaching, stooping and bending. However, we find that the amounts recommended by the therapist for mobility tasks for supervised walking of 2 hours per day are not reasonable and necessary because the applicant’s spouse, Rachel testified that the applicant is able to go out for walks or shop independently.

53We find that the amount of 45 minutes per day 7 times per week for assistance with meal prep for a total of 315 minutes per week is reasonable and necessary. This is because both therapists agreed that the applicant was functionally limited with this task. The total weekly minutes we find reasonable and necessary under Level 1 is 335 minutes which when calculated using the formula on the Form 1 is $357.72 per month.

54Under Level 2 we find the 58 minutes per week recommended by Jessica Comay for bathroom and bedroom hygiene is reasonable and necessary. This is because of the applicant’s limitations with reaching, stooping and bending. We find Jessica Comay’s recommendations that the applicant requires 5 hours per day to ensure comfort and safety in the bedroom environment was not justified by the OT in their report. Jessica Comay makes this recommendation based on the applicant’s reported lack of motivation and dependence on his wife to provide emotional support and cueing. We find that these recommendations conflict with Rachel’s testimony that in 2024, that the applicant was alone during the day with their youngest child while she was attending school full-time. In addition, we find that 60 minutes recommended by Jessica Comay for coordination of ACBs is not reasonable and necessary for the same reasons. The total weekly minutes we find reasonable and necessary under Level 2 is 58 minutes per week which when calculated using the formula on the Form 1 is $58.19 per month.

55Under Level 3 we find that Jessica Comay’s recommendation that the applicant requires assistance with his exercise program is not reasonable and necessary. This is because the therapist did not provide any rationale for this assistance. We accept the amount recommended by the therapist for 3 minutes 7 times per week for applying creams and supervision with transfers into and out of the shower because of the applicant’s limitations with reaching, bending and stooping. We do not find the applicant requires assistance with maintaining control over medication because he testified that he sets reminders for himself to take medication, and his spouse, Rachel testified that she did not know that he takes Cialis on a regular basis. The total weekly minutes which we find to be reasonable and necessary under this category is 21 minutes per week which when calculated using the formula on the Form 1 is $31.77 per month.

56The total amount of ACBs under Levels 1, 2 and 3 when calculated in accordance with the formula on the Form 1 equals $447.68 per month. This amount is less than the monthly amount of $1,899.70, paid by the respondent. Accordingly, we find that the applicant had not demonstrated that he is owed ACBs above and beyond the amounts paid.

ACB at a rate of $3,290.30 per month from August 1, 2024 and ongoing

57We find that the applicant has not demonstrated entitlement to ACBs above the $421.40 approved by the respondent for the period from August 1, 2024 to date and ongoing.

58We find that the applicant needs less ACBs during this period than the period preceding it. We agree with the Form 1 by Rhoda Breen, dated May 21, 2024. There, the assessor determined that the applicant had returned to all his pre-accident personal care tasks, and he only required cueing and reminders to complete these tasks. As a result, the applicant’s entitlement to ACB was reduced to the amount of $421.40 for the period from August 22, 2024 to August 21, 2025.

59We find that the amount of $421.40 per month is an accurate assessment of the applicant’s need for attendant care. We rely on our findings related to the period immediately pre-dating this period of claim. Additionally, we find that this amount factors in the fact that the applicant’s impairments improved by this time and allowed him to complete more of his personal care tasks. For the same reasons, we conclude that the Form 1 dated February 21, 2024, prepared by Jessica Comay, which recommended attendant care at a rate of $3,290.60 per month, is not an accurate depiction of the applicant’s needs.

60The respondent has paid ACBs in the amount of $421.40 per month, for the period ending August 21, 2025. Therefiore, we find that the applicant is not entitled to ACBs outside of the amount already paid by the respondent for the period from August 22, 2024 to August 21, 2025.

61We find that the applicant has not incurred ACBs after August 21, 2025. The applicant’s wife provided him with care during the period of his claim. However, that care ended when the applicant moved into his own apartment, on or around August 21, 2025. Since then, the applicant and his wife testified, that they only see each other when she brings his children to see him, which typically occurs at a mall. This evidence indicates that the applicant no longer receives ACBs and has not incurred that expense since he moved.

62Therefore, we find that the applicant has not met his onus on a balance of probabilities to demonstrate entitlement to ACBs after August 21, 2025.

Compliance with s. 42(11) and 45(4) of the Schedule

63We find that the applicant is not entitled to ACBs pursuant to section 45(4) of the Schedule.

64Section 42(7) of the Schedule permits the respondent to request a new assessment of attendant care needs if it wants to determine if an insured person is still entitled to ACBs, wants to determine if ACBs are being paid in the appropriate amounts, or wants to do both.

65Sections 42(11) of the Schedule forces an insurer to continue paying ACBs pending the receipt of a new assessment of attendant care needs or the report related to a s. 44 assessment.

66Section 45(4) of the Schedule provides that if an application is made for CAT determination not more than 260 weeks after the accident and immediately before the application was made, the insured person was receiving attendant care benefits, then:

(a) the insurer shall continue to pay attendant care benefits to the insured person during the period before the insurer makes a determination under this section; and

(b) the amount of the attendant care benefits for the period referred to in clause (a) shall be determined on the assumption that the insured person’s impairment is a catastrophic impairment.

67The applicant applied for a CAT determination on August 23, 2024. The applicant states that pursuant to s. 45(4) of the Schedule, he is entitled to ongoing attendant care benefits until the applicant has completed the CAT IEs scheduled by the respondent. He also takes the position that the respondent is required to assume that the applicant is CAT and must fund the attendant care benefits to a maximum of $6,000 a month until the CAT status is determined.

68The applicant argues that once he submitted an OCF-19 on August 23, 2024, he became entitled to an ACB at a rate of $3,260.90 in accordance with s. 45(4) of the Schedule. The applicant submits that he was receiving ACBs at a rate of $3,290.60 per month on August 23, 2024.

69The respondent submits that there is no obligation to pay a s.25 Form 1 if there is already an earlier s.44 Form 1 that was approved. It submits that it would be an absurd result if an applicant could compel an insurer to pay a higher Form 1 amount merely by submitting a new Form 1, when other Form 1s have been produced. The respondent submits that “the same rate” is the rate paid at the time the request for the new Form 1 is made, not the rate in the new Form 1.

70The respondent also submits that section 45(3) is intended to protect an individual receiving attendant care but then facing termination of same due to the five-year limit on claiming benefits, or reaching the $65,000.00 funding limit, and awaiting a CAT determination. The respondent submits that section 45(3) does not apply because the applicant was not at risk of termination of the benefit due to the five-year limit on claims, or due to the funding limit of $65,000.00 because the applicant holds optional benefits, providing him with access to ACBs of up to $6,000.00 per month, regardless of whether he sustained a CAT impairment.

71We agree with the respondent and find that the applicant is not entitled to increased ACBs by operation of s. 45(4) of the Schedule. The provisions outlined in s. 45(4) of the Schedule operates to protect insured persons from having their claims for ACBs denied due to the funding time limit, while waiting for the outcome of a CAT determination. In the applicant’s case, the respondent never denied ACBs and continued to pay them at a rate it agreed to pay prior to the CAT determination. The subsequent Form 1s he filed do not entitle him to an increased rate.

72To receive payment for a treatment plan (OCF-18) 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. The applicant bears the onus of proving on a balance of probabilities that each item in an OCF-18 is reasonable and necessary.

73Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

74If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred 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 notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

75The Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

76In closing submissions, the applicant submits that the evidence supports a finding that the plans in dispute are reasonable and necessary as a result of the accident. He relies on the testimony of Dr. Razvi and Ms. Vasandani that the applicant requires multidisciplinary treatment to address his chronic pain. The applicant does not address whether each OCF-18 is reasonable and necessary, and instead, he argues that with respect to issues 5(i), 5(ii), 6(i), 6(ii), 6(iii), 6(v), 6(vi) and 6(vii), the respondent provided notices with deficient “medical and other reasons”, and at times, no medical reasons at all, which is non-compliant with the Schedule. The applicant’s position is that he is entitled to his claims, as a consequence from the ‘shall pay’ provision in s. 38(11)(2). However, no submissions were made specifically addressing this argument in relation to the OCF-18s in dispute or the denials.

77The respondent submits that it is not required to provide a medical reason for a denial where the reason for the denial was not of a medical nature, as in Varriano v. Allstate Insurance Company of Canada, 2023 ONCA. The respondent submits that the denials in question were based on something other than a medical reason, and that it is not required to manufacture medical reasons where the basis of the denial did not call for one.

78We will address each plan in turn.

OCF-18 dated January 23, 2023 for physiotherapy services in the amount of $247.90 ($3,214.14 less $2,966.24 approved)

79We find that the applicant has not met his onus on a balance of probabilities that this plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to the plan due to a non-compliant denial.

80The plan proposes exercise equipment, ice packs, a TENS unit, physiotherapy, documentation and travel charges.

81The respondent partly approved this plan within 10 business days after receiving it. The denial amounts are related to planning time. The respondent denied it on the basis that the fee is an administrative cost, which is included in the hourly rate of the treatment provider.

82We find that the respondent provided a proper reason for its denial, and it is not necessary to provide a medical reason under s.38 if the reason for denial is not a medical reason. The Professional Services Guideline (the “PSG”) states that insurers are not liable for any administrative or other costs that have the result of increasing the effective hourly rates. Planning time is an administrative fee which is captured under the service provider’s hourly rate. Therefore, we find that the applicant has not demonstrated that he is entitled to the unapproved amount of this plan.

Denial of OCF-18 dated September 18, 2023 for physiotherapy services in the amount of $4,910.71

83We find that the applicant has not met his onus on a balance of probabilities that this plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to the plan due to a non-compliant denial.

84The plan seeks funding for resistance bands, massage therapy, physiotherapy, transportation, and service fees.

85The respondent denied the plan entirely on October 2, 2023, within 10 business days after receiving an OCF-18 dated September 18, 2023. The respondent states in the denial that the applicant’s family doctor supported three months of physiotherapy in February 2022, and the IE report dated March 15, 2023, by Dr. Khan describes the applicant’s injuries as minor. The respondent further requested updated CNR’s from his family doctor and it requested a s. 44 assessment to determine whether further treatment is reasonable and necessary. We find these are sufficient medical and other reasons.

86We find that this plan is not reasonable and necessary based on Dr. Razvi’s testimony and recommendation. Dr. Razvi opined that further physiotherapy would not benefit the applicant without injection therapy. Dr. Razvi is in thew best position to opine on the applicant’s injuries and treatment due to the nature of their ongoing doctor-patient relationship over a period of approximately 12 years. This reasoning is consistent with the opinion of Dr. Khan, in the November 17, 2023 report. Dr. Khan found no significant objective accident-related physical impairments or objective musculoskeletal pathology. Dr. Khan also noted that the applicant received adequate facility-based therapy and denied achieving any cumulative overall benefit and that it is not expected to provide any subjective or objective improvement.

OCF-18 dated January 17, 2024 for Form 1 completion for $100.00 ($2,300.00 less $2,200.00 approved)

87We find that the applicant has not demonstrated on a balance of probabilities the unapproved balance of this plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to the plan on the basis of an improper denial.

88The plan seeks funding for an in-home assessment in the amount of $2,000.00 and documentation fees totaling $300.00.

89We find that the respondent provided a compliant response within 10 business days after receiving this plan on January 24, 2024. The respondent approved the assessment in the amount of $2,000.00, plus the cost of OCF-18 form completion for $200.00, pursuant to se. 25(1) of the Schedule and the PSG. We find that the respondent is not liable for the unapproved balance of this plan because it is not liable for any administrative or other costs that have the result of increasing the effective hourly rates. As there is no medical reason to deny the administrative fee, no medical reason is required.

Denial of OCF-18 dated April 17, 2023 for alternative housing in the amount of $6,113.00

90We find that the applicant has not demonstrated on a balance of probabilities that the alternative housing plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to the plan on the basis of an improper denial.

91This plan seeks funding for 12 months of rent, at $500.00 per month, plus administrative fees.

92The respondent provided a denial dated May 18, 2023, within 10 business days after receiving the plan. In the denial letter, the respondent stated that there is no medical evidence that the applicant requires an independent living situation for his recovery. The respondent indicates that although Dr. Silverman recommended cognitive-behavioural therapy on February 28, 2023, and 16 sessions of psychological treatment with Dr. Frank was approved on March 27, 2023, the applicant has not attended many sessions. The respondent further states that rental costs are not considered medical and rehabilitation benefits under s.15 and s.16 of the Schedule. These are valid medical and other reasons for the denial.

93We find that the applicant has not demonstrated on a balance of probabilities that this plan is reasonable and necessary as a result of the accident. There is no evidence before the panel demonstrating that the applicant’s relationship with his wife is a barrier to recovery and that they require time apart for his recovery. We also agree with he respondent and find that the applicant should engage in the approved treatment prior to seeking alternative housing arrangements.

Partial denial of OCF-18 dated January 10, 2023 for occupational therapy services in the amount of $498.75 ($4,987.95 less $4,489.20 approved)

94We find that the applicant has not demonstrated on a balance of probabilities the unapproved balance of the occupational therapy plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to the plan on the basis of an improper denial.

95The plan seeks funding for occupational therapy services. The denied portion of the plan relates to planning fees.

96The respondent provided a denial dated February 14, 2023, within 12 business days after receiving the plan for occupational therapy services, submitted by Innovative Case Management on January 27, 2023. The respondent denied planning time in the amount of $498.75 because it is an administrative cost which is included in the hourly rate of the treatment provider.

97We find that the respondent provided a proper reason for its denial, albeit two days late, and it is not necessary to provide a medical reason under s.38 when the reason for the denial is not a medical reason. We agree with the respondent that planning fees are captured in the service provider’s hourly rate, as outlined in the PSG and discussed earlier.

98Due to the untimely response by the respondent, the applicant is entitled to any portion of the treatment plan incurred between day 11 and the date a proper denial was received, or from February 11, 2023 to February 14, 2023, plus any applicable interest. Otherwise, the applicant has not met his onus to demonstrate on a balance of probabilities that the planning fees are reasonable and necessary as a result of the accident.

Denial of OCF-18 dated January 23, 2023 for case management services in the amount of $5,444.62

99We find that the applicant has not demonstrated that case management services are reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to this plan due to an improper denial.

100This plan seeks funding for various case management services as well as associated fees such as parking and travel.

101The respondent provided a valid denial dated February 7, 2023. The denial was delivered the same day the respondent received the plan dated January 23, 2023. In the letter, the respondent states that the CNRs of the applicant’s family doctor indicate that he sustained soft tissue injuries and a concussion and highlights the amount of treatment received following the accident, as well as the time lapsed since the accident. The respondent states that it requires a s. 44 assessment to determine whether further case management services and rehabilitation support worker are reasonable and necessary. These are valid medical and other reasons for the denial.

102We find that the applicant has not demonstrated that case management services are reasonable and necessary as a result of the accident. The applicant has not proven that he requires a person to coordinate the goods and services related to his recovery. The evidence during the hearing was that the applicant missed only one appointment, due to car troubles, and does not require help attending appointments.

OCF-18 submitted February 7, 2023 for rehabilitation support services in the amount of $6,186.66, and OCF-18 dated November 15, 2023 for rehabilitation support worker services in the amount of $3,914.82

103We find that the applicant has not demonstrated that rehabilitation support services are reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to these plans due to improper denials.

104These plans seek funding for rehabilitation support worker sessions to provide supervision, support, appropriate prompting and instructions to facilitate rehabilitation objectives.

105The respondent provided a denial dated December 4, 2023, within 10 business days after receiving the plan dated November 15, 2023, submitted by Innovative Case Management on November 21, 2023. The respondent stated that in a s.44 assessment on April 24, 2023, Tanja Jakovlevic, registered nurse determined that the applicant demonstrated sufficient range of motion and strength to perform his personal care tasks independently, and further rehabilitation support services are not reasonable and necessary.

106The respondent provided a valid denial dated February 7, 2023, within 10 business days of receipt of the second plan. In the letter, the respondent states that the CNRs of the applicant’s family doctor indicate that he sustained soft tissue injuries and a concussion and highlights the amount of treatment received following the accident, as well as the time lapsed since the accident. The respondent states that it requires a s. 44 assessment to determine whether further case management services and rehabilitation support worker services are reasonable and necessary. These are valid medical and other reasons for the denial.

107The respondent provided a valid denial dated December 4, 2023, within 10 business days of receipt of the plan. In the letter, the respondent refers to the IE with registered nurse Tanja Jakovljevic, stating that the applicant demonstrates physical tolerances and functional strength to resume his personal tasks and that further rehabilitation support services are not reasonable and necessary.

108We find that the applicant has not demonstrated that rehabilitation support services are reasonable and necessary as a result of the accident. The applicant has not led evidence to support the need for a rehabilitation support worker to provide supervision, support, appropriate prompting and instruction to facilitate rehabilitation objectives. The evidence indicates that when the applicant attends treatment sessions, he does so independently and without the need for a rehabilitation support worker.

Partial denial of OCF-18 dated November 28, 2022 for case management services for $1,893.66 ($3,979.30 less $2,085.64 approved)

109We find that the applicant has not demonstrated that the unapproved balance of the case management plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to this plan due to an improper denial.

110This plan seeks funding for case management services. The respondent approved this plan, but at the hourly rate of a case manager and not the hourly rate of an occupational therapist, as proposed.

111The respondent provided a denial dated December 7, 2022, within 10 business days after receiving the plan for case management services, submitted by Innovative Case Management on November 28, 2022. The respondent partially approved the OCF-18 dated November 28, 2022, for $2,085.64, and reduced the provider rate of a case manager to $58.19 per hour pursuant to the PSG and denied parking expenses for a virtual assessment. The applicant provide no submissions as to why the case manager would be entitled to a higher hourly rate other than what is outlined in the PSG.

112We find that the respondent provided proper reasons for its denials, and it is not necessary to provide a medical reason under s.38 if the reason for denial is not a medical reason. We find that the applicant is not entitled to the outstanding amounts of these plans.

OCF-18 dated November 23, 2022 for occupational therapy services for $1,197.00 ($3,845.89 less $2,648.89 approved)

113We find that the applicant has not demonstrated that the unapproved balance of the occupational therapy plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to this plan due to an improper denial.

114This plan seeks funding for am in-home assessment and Form 1. The plan also proposes three in-home occupational therapy sessions.

115We find that the respondent provided a valid denial on December 7, 2022, within 10 business days after receiving the plan for occupational therapy. The respondent partially approved the OCF-18 dated November 23, 2022, for $2,648.89 and denied provider travel time for $598.50; planning services for $299.25; and reduced training time to 1.5 hours, or less a difference of $299.25. The denial is valid and does not require medical reasons because it relates to the cost of services provided.

116We find that the applicant has not demonstrated that the unapproved balance of this plan is reasonable and necessary as a result of the accident. There is no rationale for travel and parking expenses for virtual sessions and the applicant has not indicated why this and the other denied fees are reasonable and necessary.

Denial of OCF-18 dated November 29, 2023 for couple’s counselling in the amount of $3,100.00

117We find that the applicant has not demonstrated that couples counselling is reasonable and necessary as a result of the accident. We also find that the applicant tis not entil4ed to this plan due to an improper denial.

118The plan seeks funding for couple’s counselling for the applicant and his wife.

119The respondent provided a valid denial dated December 13, 2023, within 10 business days after receiving the plan on December 6, 2023. The respondent denied this because it had not received updated medical records to support the plan and that it requires an opinion from an upcoming IE. The respondent also stated that it requires a progress report from Dr. Frank and updated medical records from the applicant’s treating physicians, which had not been provided since October 14, 2022. We find that this denial is valid because it includes medical and other reasons.

120We find the applicant has not demonstrated that couple’s counselling is reasonable and necessary as a result of the accident. This is because the applicant’s wife has refused to participate in couple’s counselling. A plan for couple’s counselling cannot be reasonable and necessary if one of the participants refuses to engage in the services.

Denial of OCF-18 dated April 2, 2024 for psychological services in the amount of $5,922.67

121We find that the applicant has not demonstrated that this plan for psychological services is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to this plan due to an improper denial.

122This plan proposes 16 one and a-half hour psychological treatment sessions, 21 planning sessions, a reassessment, and documentation and form fees.

123The respondent provided a denial dated April 19, 2024, within 10 business days after receiving the plan. The respondent denied the plan in full and stated the IE report dated February 28, 2023, by Dr. Silverman determined that the applicant would benefit from 14 one-hour sessions before attempting to return to work in 3-4 months. This is a valid medical and other reason.

124We find that ongoing psychological treatment is not reasonable and necessary as a result of the accident because the applicant did not use the treatment previously approved for him. The respondent approved psychological treatment prior to this plan, but the applicant did not use it all. Further psychological services are not reasonable and necessary if the applicant does not use the services already approved for him.

Denial of OCF-18 dated September 20, 2024 for occupational therapy services in the amount of $3,641.46

125We find the applicant has not demonstrated that this occupational therapy plan is reasonable and necessary as a result of the accident. We also find that the applicant is not entitled to this plan due to an improper denial.

126This plan seeks occupational therapy services, travel time, and documentation and form fees.

127We find the respondent provided a valid denial dated October 3, 2024, within 10 business days after receiving the plan. The respondent stated that based on the opinions in the IE reports by Dr. Khan and Dr. Moddel, the applicant has not sustained a traumatic brain injury, and he has soft tissue injuries with reduced range of motion in his neck, shoulders, right knee and ankles. The respondent indicates that Dr. Khan recommended an active self-directed home exercise program and that further facility-based treatment beyond what has already been provided is not expected to provide any subjective or objective improvement. These are valid medical and other reasons for the denial.

128We find that the applicant has not demonstrated that this plan is reasonable and necessary as a result of the accident. We find that the applicant has not demonstrated that he would benefit from ongoing occupational therapy. The evidence does not indicate that the applicant had ongoing functional impairments at this time to support ongoing occupational therapy. The evidence confirms that the applicant was independent with his personal care and activities of daily living at the time of this plan and he has not indicated how he would benefit from ongoing occupational therapy.

The applicant is not entitled to interest and an award

129Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits have been unreasonably withheld or delayed, there is no interest payable.

130Under s. 10 of Reg. 664, 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.

131The applicant submits that the respondent acted unreasonably for the following reasons:

i. It unreasonably refused to remove the applicant from the MIG until November 15, 2022;

ii. it conducted numerous rounds of surveillance which was disclosed to service providers, and it obtained AutoPlus and VIN searches;

iii. it changed the IEs after receiving the reports, which have not been produced;

iv. it demanded an examination under oath after the applicant submitted an OCF-19, and it scheduled CAT IE assessments nearly 7 months later;

v. it failed to comply with sections 42(11) and 45(4) in not paying the rate of ACBs submitted by the applicant.

132In response, the respondent submits that the applicant was removed from the MIG in the fall of 2022, after it received the CNR’s of Dr. Razvi, which indicated he was diagnosed with a concussion. The respondent submits that it did not withhold or delay benefits as a result of obtaining surveillance, an AutoPlus or VIN searches. In addition, the respondent denies changing IE reports, and it removed surveillance from the questions directed to one assessor. The respondent submits that the applicant’s benefits were not withheld or delayed as a result of the applicant’s application for CAT impairment, the rate of ACB paid, or the timing of the CAT IEs.

133Since we found no benefits are payable, we find that the respondent did not unreasonably withhold or deny benefits. Therefore, there is no basis for an award.

ORDER

134For the reasons set out above, we find that:

i. The applicant has not demonstrated that he has sustained a catastrophic injury pursuant to Criterion 8.

ii. The applicant is not entitled to an IRB.

iii. The applicant is not entitled to an ACB.

iv. The applicant is entitled to any portion of the plan dated January 10, 2023 for occupational therapy services that was incurred during the period from February 11, 2023 to February 14, 2023, plus any interest pursuant to section 51 of the Schedule.

v. The applicant is not entitled to any of the remaining medical benefits claimed.

vi. The applicant is not entitled to further interest, or an award.