Licence Appeal Tribunal File Number: 24-010838/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:
Tanya Nye
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Tahisha Scoon-Allan, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Tanya Nye, the applicant, was involved in an automobile accident on April 22, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,021.95 ($2,145.55 less $1,123.60 approved) per month from July 22, 2024, to ongoing?
ii. Is the applicant entitled to $448.80 ($3,042.56 less $2,593.76 approved) for psychological services, proposed by Oshawa Physiotherapy and Rehabilitation Center in a treatment plan/OCF-18 (“plan”) dated July 19, 2024?
iii. Is the applicant entitled to $45.00 for ambulance services submitted on a claim form (OCF-6) dated August 14, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant withdrew her claim for medication, listed as issue 4 in the Case Conference Report and Order dated December 13, 2024.
RESULT
4The applicant is not entitled to ACBs in the amount of $1,021.95 ($2,145.55 less $1,123.60 approved) per month from July 22, 2024, to ongoing.
5The applicant is not entitled to the unapproved amount in the plan for psychological services.
6The applicant is entitled to $45.00 for ambulance services.
7The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
ANALYSIS
The applicant is not entitled to ACBs in the amount of $1,021.95 ($2,145.55 less $1,123.60 approved) per month from July 22, 2024, to ongoing
8The applicant has not met her onus of establishing on a balance of probabilities that she is entitled to ACBs in the amount of $1,021.95 ($2,145.55 less $1,123.60 approved) per month from July 22, 2024, to ongoing.
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 (ACBs) provided by an aide or attendant. Section 3(7)(e) provides that an expense is incurred if the insured person received the goods and services to which the expense relates and is liable for that expense. Additionally, s. 3(7)(e) distinguishes between two types of service provider: professional service providers who provide the services in the course of their regular occupation or profession; and non-professional service providers, such as family members, who sustain an economic loss as a result of providing the services.
10Section 3(8) of the Schedule permits the Tribunal to deem an expense to have been incurred if it finds that the insurer unreasonably withheld or delayed the payment of the benefit in respect of the expense.
11The applicant relies on the in-home assessment of Valerie Marshall, occupational therapist (“OT”), conducted on July 17, 2024, who recommended ACBs in the amount of $2,145.55 per month. The services recommended were hair care, toenail trimming, meal preparation, serving and feeding, walking assistance, cleaning the shower, sink, and tub, exercise and walking assistance, medication monitoring, and bathing and drying. The applicant submits that the respondent’s in-home insurer’s examination (“IE”) completed by Stewart Tsuji, OT, on August 22, 2024, resulting in the approval of $1,123.60, does not adequately reflect her day-to-day functional limitations and does not account for her endurance challenges and the safety concerns arising from her accident-related impairments.
12The IE assessment recommended the same services as the applicant’s assessment, but with less time allocated to each service, and with the exception of bathing and drying.
13The applicant further submits that Ms. Marshall’s care plan is clinically appropriate, individualized, and grounded in an understanding of how the applicant’s needs fluctuate throughout the day, considering her ongoing pain, reduced mobility, and fatigue.
14The applicant also argues that, given her chronic impairments and the need for safe, consistent, and supportive care, Ms. Marshall’s recommendations are reasonable and necessary, they reflect the functional impact of the injuries sustained, and they are aligned with best practices in occupational therapy and the purpose of ACBs under the Schedule.
15The respondent submits that the absence of proof of incurred ACBs is determinative because s. 19 of the Schedule explicitly requires an expense to be incurred to be payable. The respondent further submits that the dispute is not whether the respondent will fund ACBs, but rather whether the applicant has met her onus to prove that she has incurred these expenses.
16The respondent refers to its letter dated June 16, 2025, indicating that it paid out $1,242.50 based on a properly submitted invoice for services rendered between December 1, 2024, and March 31, 2025 by the applicant’s daughter in her professional capacity as a PSW.
17I note that the letter indicates that expenses were approved for “showing” (which in context I interpret to mean showering), making bed, lunch and dinner preparation, exercises, laundry (hanging and putting away clothes), cleaning the bathroom, swimming, and appointment time. The letter indicates that the remainder of the invoice in the amount of $1,242.50 that was not approved was for services that are not considered attendant care, i.e., sweeping, washing and drying laundry, doing dishes, mopping, cleaning floors, vacuuming, cleaning kitchen, grocery shopping, and packing a bag and gathering things.
18The respondent argues that the applicant has failed to submit any invoices beyond March 31, 2025 and therefore has not proven that any other amounts have been incurred, nor does she address the reason for her failure to produce further invoices.
19In reply, the applicant submits that the purpose of obtaining a Form 1 pre-approval before attendant care is provided is to establish the maximum amount the insurer is willing to fund. She further submits that it is therefore reasonable that she would try not to submit invoices above the approved amount as she has no assurance that those expenses would be reimbursed and she does not have the funds to incur them because she is not working.
20The applicant also submits that the remaining balance of the invoice she submitted was not paid because certain services were not pre-approved or exceeded the respondent’s interpretation of the Form 1. However, the applicant argues, the services were incurred, and they were genuinely rendered in response to her medical need.
21Section 19 of the Schedule is clear. It deals with the respondent’s obligation to pay for all reasonable and necessary ACBs that are “incurred,” unless s. 3(8) applies. The applicant does not make submissions with respect to the application of s. 3(8) of the Schedule and why it might apply to deem the expenses incurred.
22With respect to the unapproved balance of the ACBs from the invoice submitted for services rendered between December 1, 2024 and March 31, 2025, I find that the services that were not approved were for such things as cleaning the home, grocery shopping, and doing dishes. The applicant has not established that these are attendant care services.
23For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that she is entitled to ACBs in the amount of $1,021.95 ($2,145.55 less $1,123.60 approved) per month from July 22, 2024, to ongoing.
The applicant is not entitled to the unapproved amount in the plan for psychological services
24The applicant has not met her onus to establish that the unapproved amount in the plan for psychological services is reasonable and necessary.
25To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
26The plan was prepared by Fahimeh Aghamohseni, psychologist. The plan proposes twelve sessions of cognitive behavioral therapy ($1,795.32), a psychological reassessment ($299.22), a progress report $299.22), completion of the treatment plan ($200.00), and twelve sessions of pre and post session preparation ($448.80). The goals of the plan are to help the applicant process the traumatic accident and promote de-sensitization, to provide psycho-education, to introduce in-vehicle cognitive-behavioral strategies, to provide education about appropriate sleep hygiene techniques, to practice relaxation exercises, to implement the use of writing strategies to process emotional and cognitive distress, and to return to activities of normal living.
27The portion of the plan that was denied is $448.80 for twelve sessions of pre and post session preparation.
28The applicant submits that the respondent’s denial is an incorrect application of the Financial Services Commission of Ontario’s Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”) and the Schedule because these services were not administrative overhead, but rather clinically necessary components of care such as treatment planning, case formulation, and review of psychological history, performed by a regulated health professional. The applicant further submits that these activities are integral to safe and effective treatment and fall within the scope of compensable professional services under the Schedule. The applicant takes the position that denying compensation for these essential planning tasks undermines the quality of care and is inconsistent with the intent and application of the Schedule.
29The respondent submits that under s. 16(4)(a) of the Schedule, an insurer is not liable to pay for expenses for rehabilitation services that exceed rates beyond what is prescribed by the Guideline.
30The respondent further submits that the Tribunal has upheld Guideline rates in relation to preparation service fees that go beyond therapy sessions: see Felipe v. Chubb Insurance Company of Canada, 2023 CanLII 96317 (ON LAT) at para. 44, Gordon-Tennant v. Aviva General Insurance, 2021 CanLII 45660 (ON LAT) at paras. 23, 24, and 35, and Feng Lei v. The Dominion of Canada General Insurance Company, 2025 CanLII 61163 (ON LAT) at paras. 49 to 51. Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in these cases.
31The respondent also submits that the applicant argues that the additional cost is related to “essential planning” and “clinically necessary components of care,” but the treatment plan provides no details regarding these things. The service provider simply states the expense is related to “pre and post-session preparation,” which the respondent argues ought to fall in the definition of administration and overhead expenses, and should be submitted in accordance with the hourly rates prescribed by the Guideline. The respondent points out that, even though the denial was sent to the service provider, the service provider did not respond to clarify its OCF-18 or to indicate why in their view the respondent was in error.
32In reply, the applicant submits that the denied services directly support the quality, effectiveness, and safety of the therapy being delivered, including the customization of treatment plans, review of patient progress, and coordination with other treatment providers.
33The applicant also submits that the Guideline is not a strict cap, nor does it negate the need for an insurer to assess whether a given expense is reasonable in context. The applicant relies on the decision of S. K. v. Aviva General Insurance, 2020 CanLII 126933 (ON LAT) (“S.K.”), submitting that the Tribunal has shown that flexibility in applying the Guideline is possible, especially when the sum is reasonable for completing the necessary tasks to provide such care. The applicant takes the position that the nature of her impairments and treatment needs justify additional time for case-specific planning and that the amount requested (i.e., $37.40 per session) is not a grossly unreasonable amount for the task being performed. I have reviewed the decision of S.K. and although the Tribunal may have shown “flexibility” in applying the Guideline, I do not agree that it should be applied in a way that places an obligation on insurers to pay amounts that are more than those set out in the Guideline.
34Although the applicant provides submissions with respect to why she feels that the pre and post session preparation costs are reasonable and necessary, submissions are not evidence.
35Pursuant to the Guideline, 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 Guideline. The applicant does not address whether the claimed fees would have the prohibited result of increasing maximum hourly rates. Further, I find that the applicant has not provided evidence of a breakdown with respect to the preparation service costs or why the fee is required in addition to the recommended treatment.
36Although the applicant submits that the denied fees would include customization of treatment plans, review of patient progress, and coordination with other treatment providers, there is no such indication in the plan. Further, I am not directed to particulars with respect to what type of “coordination” would have to be made with other treatment providers, who these treatment providers would be, or why this would be necessary. In any event, in my view, the hourly rate for professional services includes things like communicating with others and review of patient progress.
37For these reasons, I find that the applicant has not met her onus to demonstrate that the unapproved amount in the plan for psychological services is reasonable and necessary.
The applicant is entitled to the OCF-6 for ambulance services
38The applicant has met her onus to prove on a balance of probabilities that the OCF-6 for ambulance services are reasonable and necessary.
39The OCF-6 dated August 14, 2024 is related to an ambulance fee to the hospital on May 11, 2024.
40The applicant submits that she had to attend the hospital by ambulance following an episode of grogginess, severe lower back pain, and a sudden inability to use her legs. She also reported numbness in the perineal region and urinary incontinence. The applicant further reported that her limited mobility, caused by accident-related impairments, prevented her from safely reaching the bathroom, resulting in incontinence and a decline in her condition. The applicant submits that she was diagnosed with acute kidney injury, pneumonia, urinary tract infection, and chronic low back pain. She argues that these conditions were directly caused or materially contributed to by her ongoing inability to ambulate and void properly, which are functional impairments stemming from the injuries sustained in the accident.
41The respondent submits that the CNRs indicate that the applicant was brought to the hospital because she suffered some confusion while driving and could not find her way home. The respondent further submits that the applicant’s dominant complaint was of abdominal pain. The respondent also argues that the applicant was discharged a few days later with a diagnosis of urinary retention and iron deficiency anemia, neither of which are related to the accident. The respondent submits that there is not a single mention of the accident.
42In reply, the applicant submits that she was transported to the hospital on May 11, 2024 because she experienced severe back pain and loss of leg function, both of which are ongoing, well documented complaints that arose as a result of the accident.
43I note that the CNRs indicate that the applicant felt “groggy” in the morning, took her grandson home in the afternoon and then had to call her daughter because she could not find her way home. When the family checked in on her, they “felt she was still off.” The applicant reported that she had pain in her back, that her legs would not “work right” and she was carried out of the house by EMS. The Discharge Summary indicates she was “admitted with urinary retention, AKI, and acute on chronic back pain” and lists her issues as urinary retention, iron deficiency anemia, AKI, BP control, and back pain.
44I also find there is mention of the accident in the CNRs. The Admission Note indicates that the applicant reported chronic bowel and urinary incontinence but believed it might be due to inability to make it to the washroom given limited ambulation, and that she had bilateral lower extremity weakness since her accident.
45Although the applicant does not direct me to medical evidence substantiating her submission that her kidney or urinary issues are accident-related, I find that there is substantial evidence of accident-related back pain. The applicant has consistently reported lower back pain caused by the accident to her family physician, Dr. Omar Qureshi. I note a reference to back pain caused by the accident in the CNRs dated April 28, and May 29, 2023. On May 16, 2023, Dr. Qureshi completed a Disability Certificate, listing lower lumbar / sacral pain as an accident-related injury. Further, on July 12, 2023, the applicant reported back pain radiating to the left leg. On August 8, 2023, the applicant was admitted to hospital due to ongoing worsening back pain radiating to left leg. In addition, in a progress note dated August 10, 2023, Diane Trafford, OT, noted left-sided calf atrophy, with the applicant demonstrating an inability to plantar flex or dorsi flex the left foot. Ms. Trafford recommended the use of a wheelchair for long distance mobility and a walker for indoor use.
46Although the respondent points to CNRs indicating that the applicant’s back pain pre-existed the accident, I note that Dr. Qureshi indicated in the Disability Certificate dated May 16, 2023 that her back pain had been stable for the past few years.
47The applicant submits that her extreme physical limitation is not only consistent with her accident-related impairments, but it also directly necessitated the ambulance call. The applicant also argues that the fact that back pain, a consistent and central symptom since the accident, was present during the May 11, 2024 hospital visit, confirms that the ambulance call was substantially connected to the accident, regardless of other co-occurring medical issues.
48Given that the applicant reported back pain, an inability to use her legs, and had to be carried out of the house by EMS, and the Discharge Summary indicates that she was admitted with, among other things, chronic back pain, I find that the ambulance call was directly related to this accident-related injury.
49For these reasons, I find that the applicant has met her onus of demonstrating on a balance of probabilities that the ambulance services claimed on the OCF-6 are reasonable and necessary.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
51For the above reasons, I find:
i. The applicant is not entitled to ACBs in the amount of $1,021.95 ($2,145.55 less $1,123.60 approved) per month from July 22, 2024, to ongoing.
ii. The applicant is not entitled to the unapproved amount in the plan for psychological services.
iii. The applicant is entitled to the OCF-6 for ambulance services.
iv. The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
Released: March 16, 2026
__________________________
Laura Goulet
Adjudicator