Licence Appeal Tribunal File Number: 24-005174/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:
Tom Koitsis
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Holly Schmid, Counsel
For the Respondent:
Matthew Wasserman, Counsel
HEARD:
In Writing
OVERVIEW
1Tom Koitsis, the applicant, was involved in an automobile accident on June 6, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant has already been declared catastrophically impaired, and is disputing several treatment plans and claim forms (OCF-6) that the respondent has denied as not being reasonable and necessary.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $3,800.00 for home modifications, driveway resurfacing, proposed by FunctionAbility in a treatment plan/OCF-18 (“plan”) dated December 16, 2022?
ii. Is the applicant entitled to $20.76 for other assistive devices (bathmat), proposed by FunctionAbility in a plan dated November 7, 2022?
iii. Is the applicant entitled to $324.30 for other assistive devices, proposed by Melinda Edmonds, Dietician, in a plan dated May 1, 2023?
iv. Is the applicant entitled to $44.06 for medication (Omega 3 supplements), submitted on an OCF-6 dated April 28, 2022?
v. Is the applicant entitled to $58.98 for medication, submitted on an OCF-6 dated July 5, 2022?
vi. Is the applicant entitled to $219.92 for medication, submitted on an OCF-6 dated November 7, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ix. Is the respondent entitled to costs?
RESULT
4The applicant is not entitled to the disputed OCF-18s or OCF-6s.
5Neither interest nor an award are payable.
6The respondent is not entitled to costs.
7The application is dismissed.
PROCEDURAL ISSUES
8The respondent raised a motion asking the Tribunal to not consider specific evidence because the applicant missed document exchange deadlines. The respondent also requested costs due to abuse of process.
9The applicant did not dispute the motion, and submitted that it will not rely on the evidence in question.
10As the issue appears to have been resolved on its own, I do not find it necessary to make further findings on the respondent’s motion.
ANALYSIS
Is the applicant entitled to $3,800.00 for home modifications?
11The applicant is not entitled to the treatment plan for home modifications.
12Section 16 (1) provides that the insurer shall pay for rehabilitation benefits for all reasonable and necessary expenses for the purpose of reducing or eliminating the effects of any disability resulting from an impairment. Section 16 (3) (i) states that the insurer shall pay for home modifications, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home.
13The applicant submitted an OCF-18 on December 16, 2022 for home modifications which had already been conducted earlier in the year. The work was for resurfacing the front walkway and driveway with a newer, non-slip surface. The applicant included invoices for completed work, along with payment receipts showing the front walkway and driveway was resurfaced, with an invoice dated August 25, 2021 and further payments made June 16 and June 23, 2022.
14The applicant did not submit a home modification report with the OCF-18.
15The applicant argues the home modifications are reasonable and necessary because of a documented history of balance and gait issues. To support his claim, the applicant relies on a letter from Social Worker Michelle Diamond, dated December 16, 2022. In the letter, Ms. Diamond also makes reference to a Physiotherapy in-home assessment conducted by Physiotherapist M. Ibrahim, where the physiotherapist noted in July 2021 that the applicant was at a high risk for a fall.
16The respondent argues that this proposed treatment plan violates section 38(2) of the Schedule, which says “An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan.”
17I agree with the respondent. I find that the evidence shows that the home modifications were done before the OCF-18 was submitted on December 16, 2022. In this regard, I note that the invoices for the resurfacing project are dated August 25, 2021, June 16 and June 23, 2022. Section 38(2) provides that the respondent is not liable for these expenses as they were incurred before the OCF-18 was submitted.
18For this reason, I find on a balance of probabilities that the applicant has not established entitlement to $3,800.00 for home revisions.
Assistive Devices in the amount of 345.06 (issues ii and iii)
19The applicant is not entitled to the OCF-6 for assistive devices in the amount of $345.06.
20The applicant has claimed $20.76 for a bathmat, submitted that a bathmat is required to address a safety issue due to the applicant’s decreased ability to balance. The applicant relies upon the OT In-Home Assessment that was conducted for his Catastrophic designation, completed by OT Lynn Rutledge and dated August 23, 2022.
21The respondent states that it had already approved the purchase of a bathmat, and the OCF-6 does not provide any detailed reason for why a second bathmat was necessary.
22I agree with the respondent. Without submissions as to why a second bathmat is necessary, I find the applicant has not established that the expense is reasonable and necessary.
23The applicant has also submitted an OCF-18 for a blender, submitting it is reasonable and necessary to cut up fruits and vegetables, which is important because the applicant is suffering from obesity, which is exacerbated by the accident. He relies on a report from Dietician Melinda Edmonds, dated February 14, 2023 and a report from Occupational Therapist Mr. Ronald Findlay, dated May 21, 2024, which state that the applicant requires improved nutritional habits and access to healthy food choices.
24The respondent disagrees, saying a blender is not necessary and there is no reason why the applicant cannot consume supplements and vitamins in pill format if they are required. Further, it points out the applicant weighed more pre-accident than he did at the time of the submission of the OCF-18. Further, the respondent argues that $324.30 is an excessive amount to pay for a blender and that there are a number of blenders which will accomplish the same thing for far less money.
25I agree with the respondent, although I note that according to the OCF-18, the blender itself is only $110, while documentation and support activity is $200. In any event, I was not led to any references to a blender in Ms. Edmond’s report. I give no weight to Mr. Findlay’s report of May 21, 2024 because it was authored over a year after the fact and not contemporaneous to the treatment plan in dispute.
26For this reason, I find the applicant has not met his onus to establish entitlement to a blender.
Medicine and Supplements totalling $322.96 (issues iii, iv and v)
27The applicant claims entitlement to a variety of medicines and supplements, designed to support the applicant’s brain and mental health. The applicant acknowledges that he was on a number of medications prior to the accident for mental health issues, but submits that he has displayed increased symptomology as a result of the accident.
28The respondent submits it has not received a prescription for any of the supplements in question. It also submits that the applicant was on Clonazepam, Coversyl and Velaxafine prior to the accident for mental health issues, and those prescriptions continue, but they are in no way attributable to the accident.
29The applicant submits that there was a new prescription for Rexulti, prescribed by Psychologist Dr. Nwachukwu. The respondent submits this is the only new prescription, and that prescription was approved and paid for on April 14, 2023.
30While I am alive to the argument that the applicant may be exhibiting increased symptomology as a result of the accident, I have not been led to any supportive medical evidence which indicates a new prescription, or a change in the dosage of the pharmaceuticals in question, to support this submission.
31I have also not been led to any new prescriptions for the supplements in question, nor have I been led to evidence that supplements should be considered because the applicant is missing these vitamins and nutrients as a result of the accident.
32For these reasons, I find on the balance of probabilities that the applicant has not met his onus to establish entitlement to the medications or supplements in question.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
34The 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. As no benefits were unreasonably withheld or delayed, no award is payable.
Costs
35The respondent raised the issue of costs where, in accordance with Rule 19.1, a party can request costs when “a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.” This request was made regarding the procedural issue documented above, starting in paragraph 8.
36As it appears the parties have resolved the document exchange issue amicably, I do not find it necessary to award costs for what is essentially a document exchange dispute.
ORDER
i. The application is dismissed.
ii. The applicant is not entitled to any of the OCF-18s or OCF-6s in question.
iii. Neither interest nor an award are payable.
iv. The respondent is not awarded costs.
Released: January 7, 2026
Jeff Chatterton
Adjudicator