Citation and Parties

Citation: Tahir v. Wawanesa Mutual Insurance Company, 2026 CanLII 2241 Licence Appeal Tribunal File Number: 24-005734/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: Dilber Tahir, Applicant and Wawanesa Mutual Insurance Company, Respondent

Decision Vice-Chair: Robert Maich

Appearances: For the Applicant: Aylina Dhanji, Counsel; Sareena Samra, Counsel For the Respondent: Michelle Panagiotakos, Counsel

Heard: In Writing

OVERVIEW

1Dilber Tahir, the applicant, was involved in an automobile accident on March 12, 2024, 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, Wawanesa Mutual Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant was involved in a motor vehicle accident while she was crossing Dundas Ave. W. at the intersection while on her electric mobility scooter/wheelchair and was struck on her left side by a truck at low speed. The applicant hit her head and lost consciousness; she was subsequently transported to St. Michael's Hospital by ambulance.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic ('Somatic") in a treatment plan/OCF-18 ("plan") submitted March 18, 2024?

ii. Is the applicant entitled to $80.00 ($4,019.48 less $3,939.48 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted March 27, 2024?

iii. Is the applicant entitled to $4,977.61 for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted July 23, 2024?

iv. Is the applicant entitled to $80.00 ($3,829.56 less $3,749.56 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted May 23, 2024?

v. Is the applicant entitled to $723.24 ($2,718.68 less $1,995.44 approved) for occupational therapy services, proposed by Uheal Rehab Centre in a plan submitted June 5, 2024?

vi. Is the applicant entitled to $183.65 ($4,179.60 less $3,995.95 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted July 29, 2024?

vii. Is the applicant entitled to $748.05 ($2,144.93 less $1,396.88 approved) for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan submitted July 24, 2024?

viii. Is the applicant entitled to $24.62 for medication, submitted on a claim form (OCF-6) dated April 10, 2024?

ix. Is the applicant entitled to $175.00 for an electric wheelchair assessment, submitted on a claim form (OCF-6) dated July 3, 2024?

x. Is the applicant entitled to $550.00 for an eye exam and glasses, submitted on a claim form (OCF-6) dated August 15, 2024?

xi. Is the applicant entitled to $347.00 for dental services, submitted on a claim form (OCF-6) dated July 24, 2024?

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

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

RESULT

4The applicant is entitled to $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted March 18, 2024, provided the expenses were incurred prior to June 17, 2024, and no entitlement beyond the approved amounts after June 17, 2024.

5I find the applicant is not entitled to $80.00 ($4,019.48 less $3,939.48 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted March 27, 2024.

6I find the applicant is not entitled to $4,977.61 for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted July 23, 2024.

7I find the applicant is not entitled to $80.00 ($3,829.56 less $3,749.56 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted May 23, 2024.

8I find the applicant is entitled to $183.65 ($4,179.60 less $3,995.95 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted July 29, 2024.

9I find the applicant is not entitled to $748.05 ($2,144.93 less $1,396.88 approved) for a psychological assessment.

10I find the applicant is entitled to $24.62 for medication, submitted on a claim form (OCF-6) dated April 10, 2024.

11I find the applicant is entitled to $550.00 for an eye exam and glasses, submitted on a claim form (OCF-6) dated August 15, 2024.

12I find the applicant is entitled to $347.00 for dental services, submitted on a claim form (OCF-6) dated July 24, 2024

13I find interest applies to the amounts payable.

14I find the respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant. I order an award of $75.00 representing 50% of the sum of the treatment plans described in issues [3] i. Item 8, for unreasonably withheld benefits, plus interest.

ANALYSIS

15The disputed treatment plans for assessments and services will be addressed under three general headings: occupational therapy, physiotherapy services and psychological services.

16The OCF-6 claims for reimbursement will be addressed in a separate grouping.

17Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary expenses incurred by or on behalf of the insured persons a result of an accident. It is the applicant's responsibility to prove the medical benefits claimed are reasonable and necessary. To do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable. As for assessments, in determining whether one is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect she has the condition for which she seeks the assessment.

Occupational Therapy, Issues [3] i, iii and iv

Issue [3] i.

18I find the applicant is entitled to the treatment plan described in issue [3] i., specifically, $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted March 18, 2024, provided the expenses were incurred prior to June 17, 2024, and no entitlement beyond the approved amounts after June 17, 2024.

19The applicant submitted the 8 items described in the OCF-18 of March 18, 2024 proposed by Raymond Wong, Occupational Therapist ("OT"), of Somatic are reasonable and necessary and supported by the Mr. Wong's home safety assessment report dated March 17, 2024. Further, the applicant submitted the respondent failed to give proper notice of denial pursuant to s. 38(8) of the Schedule.

20The respondent submitted that it approved most items fully or in part save for items: 1, communication with team as it is properly part of item 2 for the completion of the OCF-18; 3, delivery charge for electric wheel chair as free delivery is included with available venders; 6, folding commode as the applicant is ambulatory with a walker; and 8, installation of bed railing as a family member was available to complete the task. Further, the respondent submitted Item 8, rental hospital bed was not necessary, but partially approved in the form of a bed rail for the applicant's existing bed. In addition, the respondent partially approved the following items: 4, electric wheelchair approved for Decomil Portable Mobility Scooter at $1,329.95 with free delivery as opposed to $1,450.00 quoted in the plan; 5, bath bench approved for $96.99 Homcom Bath and Shower bench as opposed to $140.00 quoted for similar item. The respondent also submitted its notice of denial for the treatment plan was not defective.

21I find the respondent failed to provide a proper notice of denial in respect to the OCF-18 of March 18, 2024 as the Schedule provides that the insurer must respond within 10 business days after receiving the OCF-18. I find the insurer did not provide a valid notice of denial of benefits until June 17, 2024. Section 38(11) of the Schedule provides the insurer shall pay for the goods and services in a treatment plan from the 11th day after the treatment plan was received in respect to this treatment plan in dispute the insurer is liable to pay for all goods and services described in the treatment plan from March 29, 2024 until June 17, 2024 when a proper denial notice was given to the applicant.

22I find after June 17, 2024, the respondent is not liable to pay for any of the goods and services described as the applicant did not meet her burden that the items were reasonable and necessary beyond the amounts approved by the respondent as no evidence was relied upon other than the statements by the proponent of the treatment plan, save for item 8 of the plan.

23In respect to item 8, installation of bed rail, the respondent improperly asserted a family member could install the bed rail without compensation to the insurer's benefit; as the respondent deemed a bed rail as reasonable and necessary, it is liable to pay its full installation cost. I further note the respondent denied the applicant the proposed use of a hospital bed on the basis that installation of a bed rail was sufficient to meet the applicant's needs. I find that the respondent's decision to deny the installation cost of the bed rail under the assumption that a family member would complete the installation of the insurer's behalf, to constitute unreasonably withholding payment of a benefit valued at $150.00 at line 8 of the treatment plan.

Issue [3] iii

24I find the applicant is not entitled to $4,977.61 for occupational therapy services, specifically a wheelchair, proposed by Somatic Assessments and Treatment Clinic in a plan submitted July 23, 2024.

25The applicant submitted the report of Mr. Wong supported the need for a wheelchair as a recommended assistive device. Further, the applicant submitted the wheelchair previously owned by the applicant was damaged in the accident and should be replaced.

26The respondent submitted the applicant previously had a motorized wheelchair approved following the OCF-18 of March 18, 2024 proposed by Mr. Wong. The respondent submitted another wheelchair would be duplicative of goods and services previously provided in absence of a rationale proved by the applicant for a second motorized wheelchair.

27I found the respondent's submission to be persuasive and it is not reasonable and necessary to provide a duplicate benefit. Therefore, on a balance of probabilities, I find the applicant is not entitled to $4,977.61 for occupational therapy services

Issue [3] v

28The applicant is not entitled to $723.24 ($2,718.68 less $1,995.44 approved) for occupational therapy services, proposed by Uheal Rehab Centre in a plan submitted June 5, 2024

29The applicant submitted that the treatment plan falls within and is supported by the recommended course for recovery as outlined Mr. Wong's report of March 17, 2024. The applicant submitted that the treatment plan is reasonable and necessary as recommended by Mr. Wong, OT.

30The respondent submitted that the therapy portion of the treatment plan is reasonable and necessary, however, components found at lines 3, 4 and 6 (planning documentation and support) totaling $723.24 were denied because the components were not within the Professional Services Guideline, Superintendent's Guideline No. 03/14 ("PSG 03/14") . The respondent submitted that all administrative costs are covered by the fixed amount payable for an OCF-18 of $200.

31I find the respondent's submission to the persuasive and a correct interpretation of the permissible amount to be charged for administrative tasks. I find all administrative charges are properly captured within the $200 fee prescribed by the PSG 03/14 specifically: "Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline."

32I find the applicant is not entitled to $723.24 ($2,718.68 less $1,995.44 approved) for occupational therapy services, proposed by Uheal Rehab Centre in a plan submitted June 5, 2024.

Physiotherapy Services

Transportation

33I find the applicant is not entitled to $80.00 ($4,019.48 less $3,939.48 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted March 27, 2024 nor to $80.00 ($3,829.56 less $3,749.56 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted May 23, 2024.

34Section 15(1)(g) of the Schedule provides that medical benefits shall pay for all reasonable and necessary expenses incurred for transportation of the insured person to and from sessions, including transportation for an aide or attendant.

35Section 3(1) of the Schedule provides: ' "authorized transportation expense" means, in respect of an insured person, expenses related to transportation, (a) that are authorized by, and calculated by applying the rates set out in, the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that, unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip.'

36The applicant submitted she was recommended and approved physiotherapy services and required transportation due to the nature of her injuries and damage to her primary mode of transportation in the accident. Further, the applicant submitted the notice of denial was defective for lack of a detailed explanation.

37The respondent submitted the treatment facility was 24km away from the applicant's home creating a round trip of 48km, less than the prescribed distance payable in accordance with Financial Services Regulatory Authority of Ontario, Superintendent's Guideline No. 04/16 ("FSRA 04/16").

38I find the respondent's submissions to be persuasive, s. 3(1) of the Schedule provides that authorized travel expense is defined as over 50km distance and paid at the rate prescribed by FRSA 04/16.

39I find on a balance of probabilities that the respondent is not liable for transportation of the applicant to the treatment facility, in respect to both treatment plans herein.

Forearm Crutches

40I find the applicant is entitled to $183.65 ($4,179.60 less $3,995.95 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted July 29, 2024.

41The unapproved amounts are for forearms crutches and a bed handle described in the plan.

42The applicant submitted Mr. Afifi, physiotherapist, recommended forearms crutches and a bed handle due to the nature of her injuries arising out of the accident to assist her with mobility when rising from a sitting position.

43The respondent made no submissions on the recommended forearms crutches and a bed handle.

44I find the applicant's submissions to be persuasive in the absence of any submissions by the respondent. I find the applicant is entitled to $183.65.

Is the applicant entitled to $748.05 ($2,144.93 less $1,396.88 approved) for a psychological assessment?

45I find the applicant is not entitled to $748.05 ($2,144.93 less $1,396.88 approved) for a psychological assessment.

46The applicant submitted that she was diagnosed with post traumatic stress disorder with specific phobia (situational travel). The applicant submitted that the partial approval was based upon a brokerage fee which included communications with various team members. Further, that the notice of denial for the portion not approved was non-compliant with the Schedule as it did not clearly set out the reasons for the denial.

47The respondent submitted that the two additional hours for brokerage fees outlined in the OCF-18 are not payable by operation of s.16(4)(a) of the Schedule. Specifically, that all administrative costs, including communications and brokerage fees, are included in the maximum fee of $200 for filing the form.

48I find the respondent's submission to the persuasive and a correct interpretation of the permissible amount to be charged for administrative tasks. I find additional administrative fees are not condoned in the Schedule; the fees for administering an OCF-18 are clearly set at $200 as prescribed by PSG 03/14.

49I find the applicant is not entitled to $748.05 ($2,144.93 less $1,396.88 approved) for a psychological assessment.

Are the OCF-6 Items Reasonable and Necessary?

50I find the applicant is entitled to $24.62 for medication, submitted on a claim form (OCF-6) dated April 10, 2024 as identified herein at paragraph [3] viii. I find the claim of $24.62 for reimbursement of medications is reasonable and necessary as support by the clinical notes and records of the applicant's physician.

51I find the applicant is not entitled to $175.00 for an electric wheelchair assessment, submitted on a claim form dated July 3, 2024 as identified herein at paragraph [3] ix. The applicant submitted she requires a wheelchair as supported in the report of Mr. Wong. The respondent submitted a wheelchair had already been paid for by the insurer and an assessment was not necessary. I find the submission of the respondent to be persuasive as the insurer had previously paid the benefit that was the subject matter of the assessment. I find the claim of $175.00 reimbursement for a wheelchair assessment not to be reasonable and necessary; I find the applicant is not entitled to $175.00 for an electric wheelchair assessment.

52I find the applicant is entitled to $550.00 for an eye exam and glasses, submitted on a claim form dated August 15, 2024 as identified herein at paragraph [3] x. The applicant submitted her glasses were damaged as a result of the accident; the respondent submitted there was no evidence of the applicant's glasses being damaged in the accident. I find the applicant's submissions to be persuasive, I find on a balance of probabilities that her glasses were damaged as a result of the accident by rational inference when the applicant was knocked off her wheelchair in the accident and struck her head.

53I find the applicant is entitled to $347.00 for dental services, submitted on a claim form dated July 24, 2024 as identified herein at paragraph [3] xi. The applicant submitted as she was knocked off her wheelchair and struck her head as a result of the accident, dental damage also occurred requiring repair; the dental invoice indicates emergency repair. The respondent submitted there was no evidence that the applicant damaged her teeth as a result of the accident. I find the applicant's submissions to be persuasive, I find on a balance of probabilities that her teeth were damaged as a result of the accident and by rational inference when the applicant was knocked off her wheelchair in the accident causing her head to be struck.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find interest applies to the amounts payable.

Award

55The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

56The applicant submitted that the relationship between an insured and an insurer is one of utmost good faith. The insurer should be expected to investigate and assess the applicant's claim fairly, and in a balanced and reasonable manner with care not to take advantage of the insured's vulnerabilities. The payment of premiums by the insured creates an expectation that in the case of an accident, a claim would be processed in good faith and in a transparent manner. The applicant relies upon the factors to be assessed in Liberty Mutual Insurance Company v. Persofsky, 2003 ONFSCDRS 9 as follows:

1. the blameworthiness of the insurer's conduct;
2. the vulnerability of the insured person;
3. the harm or potential harm directed at the insured person;
4. the need for deterrence;
5. the advantage wrongfully gained by the insurer from the misconduct; and
6. take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

57The respondent submitted s.10 of Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal has discretion to order an award. However, the insurer's conduct must be "so egregious that it should have been patently obvious" that the insured was entitled to a specific benefit. In other words, the insurer's conduct must be "excessive, imprudent, stubborn, inflexible, unyielding or immoderate." Furthermore, insurance adjusters are not medical professionals and should not be held to that standard. Adjusters are entitled to rely on the expertise of professional assessors who conduct assessments in good faith. Where benefits are properly denied based on medical and insurer examination evidence, as in this case, an award is not warranted. The respondent submitted there is no merit to or evidence to support the applicant's request for an award.

58I find the respondent's submissions to be persuasive for each OCF-6 in dispute. I find there was no OCF-18 in issue where the respondent did not have medical evidence to base its decision, save for issue [3]2 i, item 8, installation of bed rail. When examining the issue in dispute, specifically the installation of the bed rail, the respondent's conduct can only be described as "excessive, imprudent, stubborn, inflexible, unyielding or immoderate" I find the insurer conduct in its expectations that a family member of the applicant is available and able to complete work that is the responsibility of the insurer on a gratuitous basis meets the standard for an award; deterrence of this conduct is in the public interest.

59I grant the applicant's request for an award at $75.00 representative of 50% of the amounts in dispute for the treatment plan described in issue [3]2 i., Item 8.

ORDER

60The Tribunal's final Orders:

i. The applicant is entitled to $2,802.14 ($4,786.35 less $1,984.21 approved) for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted March 18, 2024, provided the expenses where incurred prior to June 17, 2024, and no entitlement beyond the approved amounts after June 17, 2024.

ii. The applicant is not entitled to $80.00 ($4,019.48 less $3,939.48 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted March 27, 2024.

iii. The applicant is not entitled to $4,977.61 for occupational therapy services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted July 23, 2024.

iv. The applicant is not entitled to $80.00 ($3,829.56 less $3,749.56 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted May 23, 2024.

v. The applicant is entitled to $183.65 ($4,179.60 less $3,995.95 approved) for physiotherapy services, proposed by Uheal Rehab Centre in a plan submitted July 29, 2024.

vi. The applicant is not entitled to $748.05 ($2,144.93 less $1,396.88 approved) for a psychological assessment.

vii. The applicant is entitled to $24.62 for medication, submitted on a claim form (OCF-6) dated April 10, 2024.

viii. The applicant is entitled to $550.00 for an eye exam and glasses, submitted on a claim form (OCF-6) dated August 15, 2024.

ix. The applicant is entitled to $347.00 for dental services, submitted on a claim form (OCF-6) dated July 24, 2024

x. Interest applies to the amounts for benefits payable.

xi. The respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant. I order an award of $75.00 in respect to withheld payment for issue [3]2 i., Item 8, plus interest.