Licence Appeal Tribunal File Number: 25-003249/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:
Brandon Ingram
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Hisham Imtiaz, Counsel
For the Respondent:
Murleen McLean, Counsel
Court Reporter:
Danice Earle
HEARD by Videoconference:
January 26, 27, 28, 2026
OVERVIEW
1Brandon Ingram, the applicant, was involved in an automobile accident on June 29, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 6, 2023 to present?
ii. Is the applicant entitled to $1,476.80 for an occupational therapy assessment, proposed by Swanson Occupational Therapists Professional Corp., in a treatment plan/OCF-18 (“plan”) dated August 8, 2024?
iii. Is the applicant entitled to $2,683.97 for occupational therapy services, proposed by Swanson Occupational Therapists Professional Corp., in a plan dated November 6, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I have considered the evidence to which I was directed and the submissions of the parties, and I find:
i. The applicant is entitled to IRBs in the amount of $115.41 per week for the period of April 23, 2024 to May 22, 2024.
ii. The applicant is entitled to $1,397.00 for an occupational therapy assessment, proposed by Swanson Occupational Therapists Professional Corp., in a plan dated August 8, 2024.
iii. The applicant is entitled to $2,484.45 for occupational therapy services, proposed by Swanson Occupational Therapists Professional Corp., in a plan dated November 6, 2024.
iv. The applicant is entitled to interest on overdue payment of benefits.
v. The respondent is liable to pay an award under s. 10 of Reg. 664.
PROCEDURAL ISSUES
IRB Time Period in Dispute
4The applicant filed a motion on January 15, 2026, seeking to amend the time period in dispute for the IRB, from the date entered on the application in error, to June 29, 2023, the date of the accident.
5At the start of the hearing, the parties advised that on consent the time period in dispute would be from July 6, 2023, which is one week post-accident, and ongoing.
Late filed Book of Authorities
6At the start of the hearing the applicant sought to have the respondent’s late filed amended book of authorities excluded. The motion was made on the grounds that it was received on January 23, 2026, less than one business day before the hearing and the applicant has not had sufficient time to appropriately respond to the new case law presented. In the alternative, the applicant sought leave to late file an amended book of authorities.
7The respondent opposed the exclusion of the amended book of authorities on the grounds that there are no authorities that would exclude an authority brief.
8I directed the respondent to the Licence Appeal Tribunal Rules, 2023, Rule 9.4.3c., which requires a PDF copy of the evidence and authority brief containing only the evidence and authorities the party intends to rely on at the hearing, which must be indexed, tabbed and consecutively page numbered, to be filed and served on the other party, no later than 21 days before an electronic or in-person hearing. The purpose of the Rule being to ensure the parties have sufficient time to consider and research the authorities upon which the opposing party will be relying.
9The applicant did acknowledge having had time to hastily respond to the amended book of authorities and served an amended book of authorities of their own this morning, before the start of the hearing, but requested additional time to thoroughly consider the respondent’s case law. To mitigate prejudice to the applicant, I granted leave for the applicant to serve and file an amended book of authorities by 9:30am on the third day of the hearing, limited to case law in response to the new cases presented by the respondent in its late filed book of authorities.
ANALYSIS
Income Replacement Benefits
10For the reasons that follow, I find the applicant has established entitlement to IRBs for the period of April 23, 2024 to May 22, 2024. This represents the period of time between the submission of the OCF-3 and the date the IRB was suspended for non-compliance with s. 33(6) of the Schedule. The quantum is $115.41 per week.
11Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
12To receive payment for a post-104-week IRB under s. 6 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.
13I find that since the accident occurred on June 29, 2023, the post 104-week IRB period begins on June 26, 2025. Pursuant to the Divisional Court’s decision in Paesano v. Coseco Insurance Co., 2025 ONSC 3245, an applicant must apply for benefits and establish that he suffered a substantial inability within the first 104-week period to qualify for post 104-weeks IRBs.
14The applicant submits that due to a concussion he sustained as a result of the accident, he is unable to perform the essential tasks of his employment. The applicant relies on Dr. Michel Rathbone’s, neurologist, assessment report and testimony. Dr. Rathbone opines the applicant has “a complete inability to engage in any employment or self-employment”.
15The respondent submits that the applicant returned to work four days after the accident and continued for six months post accident before being laid off due to a shortage of work, and therefore, he has not proven that he meets the test for pre-104-week IRBs. The respondent relies on the neurological assessment of Dr. Brandon Kucher. Also, the respondent submits that the applicant is not eligible for IRBs until the Disability Certificate OCF-3 has been submitted, and it was not submitted until April 23, 2024. Further, the respondent made a request for an Employer’s Confirmation Form OCF-2, which is required to determine the applicant’s entitlement. To this date, he has not submitted the OCF-2, and therefore pursuant to s. 33(6), the respondent is not liable to pay the benefit. Finally, the respondent submits that the applicant returned to employment in September of 2025 and therefore does not meet the legal test for post-104 week IRBs.
Substantially unable to perform the essential tasks of his employment.
16I heard testimony from the applicant who I find is a credible witness and his testimony is persuasive. His testimony is consistent with his reporting to his treating physicians and expert assessors. He testified that as a result of the concussion he sustained in the accident, he has headaches which are brought on by light, sound and having to concentrate. As a result of the headaches, his mental health is strained, and he is receiving psychological counselling. He described being easy to anger, having low emotional control which affects him socially because it results in him being rude or sharp with people. He described having difficulty with his memory, and anomia aphasia which causes him frustration. He avoids bright lights, noisy environments, and has reduced his activity levels significantly.
17The applicant testified that he is in sales and before the accident he was good at his job. He is paid a base salary but earns commissions on sales and was able to advance in the company based on his sales rate. He described the essential tasks of his employment as making cold calls, which requires a lot of talking on the phone and the need for clear articulation and persuasion, and the ability to accept rejection without frustration. His work required the use of a computer for data entry to keep records and tracking. The applicant quantified his tasks advising the expectation of his employer was 100 minutes per day of talk time on the phone and a month over month increase in sale-closings.
18After the accident the light in the office setting and the noise of the other employees on their phones caused frequent headaches. He struggled to concentrate and articulate clearly when speaking to clientele and had difficulty managing his emotions with rejections on cold calls, sometimes becoming inappropriate with clientele. He struggled to complete the data entry because the computer screen worsened his headache, and his concentration diminished. As a result of his symptoms his sales rates declined significantly, and his income amounted to a base salary. His employer was compassionate and accommodated him, recognizing that he was not fulfilling the requirements of his position, but allowed him to continue in his role for the base income.
19Pursuant to s. 11 of the Schedule, a person may return to or start employment at any time during the first 104 weeks for which he is receiving the benefit without affecting his entitlement to resume receiving any benefits to which he is entitled, if he is unable to continue the employment or self-employment.
20The respondent submits that the reason the applicant lost his position in January 2024 is because the regional office closed, not because he was fired due to lack of performance.
21I find that the reason for the applicant’s termination does not prove or disprove the applicant’s ability to perform the essential tasks of his employment. I find the medical opinion of Dr. Rathbone, neurologist supports that the applicant’s reported symptoms would collectively impair his ability to function in the workforce.
22Dr. Rathbone’s neurological assessment was conducted on July 22, 2025. His findings were compatible with Dr. Kucher’s finding for an Mild Traumatic Brain Injury (MBTI). However, in comparison, Dr. Rathbone’s report provides more detail in both the applicant’s symptomology as well as social function. He attributes the applicant’s neurocognitive deficits to “other post-traumatic factors” including chronic post-traumatic headaches, myofascial pain, insomnia, fatigue, and psychological disturbances, as a result of the accident.
23Dr. Rathbone opined that based on the applicant’s symptomatology, that the applicant’s cognitive inefficiencies, chronic headaches, photosensitivity, pain, fatigue, and psychological symptoms, collectively impair his ability to function in the workforce. Also, that these symptoms diminish his mental stamina, processing speed, communication skills, and his capacity to retain and apply new information. I find Dr. Rathbone’s opinion strongly supports the applicant’s testimony that he is substantially unable to perform the essential tasks of his pre-accident employment.
24Although the respondent’s position is that at no time has the applicant qualified for IRB; in a letter dated October 11, 2024, the respondent gives notice of an examination “to address your ongoing entitlement to the Income Replacement Benefit.” [Emphasis added]. The Insurer’s Examination was with Dr. Brandon Kucher, Neurologist on November 6, 2024.
25I find that the Insurer’s Examination neurological assessment conducted is limited in persuasiveness for the following reasons.
26In Dr. Kucher’s neurology assessment report dated December 2, 2024, his clinical findings on physical examination and neurological examination did not reveal any objective neurological impairments. Dr. Kucher concluded that from a neurological perspective, the applicant’s accident-related diagnoses includes a concussion/MTBI, with subjective complaints of headaches.
27Dr. Kucher testified that a finding of no objective neurological impairments is expected for a concussion/MTBI. He also testified that headaches are subjective and cannot be objectively measured, and that he will not discount a reporting of headaches, but he does not consider headaches to be an impairment. Dr. Kucher accepted the applicant’s symptoms to be as he reported them. Dr. Kucher testified as to the time period for resolution for “the majority of cases” being within 6-9 months. He did not offer an opinion on the resolution period for the applicant. However, in his report he opined that the applicant does not suffer a substantial inability to perform the essential tasks of his employment. Dr. Kucher testified that he did not consider or opine on the effects that the post-concussion symptoms or headaches would have on the applicant’s ability to perform his essential tasks of employment, which include screen time and conversing with people.
28In his report Dr. Kucher recommended the applicant follow-up with his family physician for “assessment and management” of his headaches. In consideration that Dr. Kucher had reviewed the records of Dr. Jonathan Moulton, family physician, and Dr. David Mai, concussion specialist it seems to me that Dr. Kucher should have been aware that the applicant had been assessed, and was receiving ongoing treatment and headache management. Regarding diagnosis and findings, Dr. Kucher testified that he agreed with the applicant’s neurologist, Dr. Rathbone. Ultimately, I find Dr. Kucher’s report and opinion are not helpful because he does not take into consideration the applicant’s concussion symptoms of headaches, photophobia and phonophobia, and attention, concentration and memory decline, nor does he consider the essential tasks of his employment. I find that without these considerations, the conclusion that the applicant is not entitled to IRBs is of little value.
29I note that neither assessor identifies the essential tasks of the applicant’s employment, nor do either identify or consider the applicant’s education, training, or experience to determine his suitability for alternate employment.
30I accept and rely on the credible testimony of the applicant to identify the essential tasks of his employment. I find that the applicant has proven on a balance of probabilities that as a result of and within 104 weeks after the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment and is therefore established entitlement to IRBs.
Complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
31I find the applicant has not established entitlement to post-104 weeks IRBs for the reasons that follow.
32During Dr. Rathbone’s assessment the applicant provided information regarding his attempt to return to work, which was unsuccessful because he could not maintain focus, learn the required tasks, or communicate effectively. Dr. Rathbone opined that the applicant may be able to perform limited duties in a low-stimulation environment with minimal social or cognitive demands, even these would require frequent breaks, accommodations, and a reduced schedule, and would not constitute gainful or competitive employment. For these reasons Dr. Rathbone opined that the applicant has a “complete inability to engage in reasonable employment or self-employment as a direct result of the accident”.
33I find that Dr. Rathbone’s conclusion about the applicant’s ability to engage in any employment is weakened by the fact that his education, training and experience were not identified or considered. Also, Dr. Rathbone was unaware that the applicant did return to employment shortly after the assessment was complete and remains employed to this date. It should be noted that his current position is modified in that it does not require verbal interaction with clientele, and written correspondence is highly scripted. Also, he works remotely which allows him to accommodate himself with lighting, sunglasses, sound and frequency of breaks from the computer screen.
34I have heard limited testimony that provides information about the applicant’s education, or training. I did hear testimony from the applicant that his previous employment was in product development at Tweed, a cannabis distillery, and he has worked in sales. However, without evidence to support a meaningful analysis of the legal test regarding his education and training, I find the applicant has not met his onus.
35I find the applicant has not proven on a balance of probabilities that as a result of the accident he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience, and therefore has not established entitlement to post-104 week IRBs.
OCF-3
36The respondent gave notice to the applicant on August 25, 2023, that based on his application for accident benefits he may be eligible for an IRB. The letter informed him that a Disability Certificate OCF-3 had not been submitted, and was required pursuant to s. 36(2) of the Schedule, and that until it was received, IRBs were not payable pursuant to s. 36(3) of the Schedule. The letter goes on to invite the applicant to contact the insurer if he is having difficulty obtaining an OCF-3.
37The respondent submits that IRB eligibility does not start until the OCF-3 is submitted.
38The applicant submitted the OCF-3 on April 23, 2024. I note that it was dated by his family physician on November 22, 2023, and Parts 1, 2, and 3 were not complete. The applicant testified that he had believed the OCF-3 had been submitted shortly after Dr. Moulton completed it. He provided no further explanation as to why the OCF-3 was not submitted for eight months.
39In a letter dated May 1, 2024, the respondent acknowledged receipt of the OCF-3 and confirmed his entitlement to IRBs. The letter goes on to remind the applicant that an OCF-2 has not been received, and makes a s. 33(1) request for it to be submitted. The respondent also advised the applicant that if the document is not received by May 25, 2024, his IRB will be suspended until it is received.
40On May 22, 2025, the respondent informs the applicant by letter that because the OCF-2 was not returned, his IRB is suspended immediately. I note that at no time prior to this had the respondent paid IRB. Also, this suspension is executed three days in advance of the May 25, 2024 deadline he was issued on May 1, 2024. I have not heard testimony or been directed to evidence to explain this discrepancy. However, I find the discrepancy inconsequential because I note that s. 33(1) requires the applicant to respond within 10 business days, which ended on May 15, 2024, and the respondent’s deadline provided additional time. Also, to this day, the applicant has not submitted the OCF-2 to the respondent for adjustment of his claim.
41The applicant submits that the s. 33 suspension is not valid because the OCF-2 is not necessary for the calculation of the IRB.
42Section 33(1)1 requires the applicant to provide, upon request, any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. I disagree with the applicant that the OCF-2 is not a reasonable request for the calculation of the IRB quantum. The OCF-2 confirms his employment status and duration pre-accident and provides details of his earnings in the four weeks prior to the accident. Also, I have not been directed to evidence of any other financial documents, such as paystubs, that would potentially have provided these details for determining the applicant’s entitlement and quantum of the IRB. Also, I note, that the applicant’s own accountant report for the calculation of the IRB appears to have relied on the information that would have been contained in the OCF-2. I find the s. 33 request is reasonable, and because it has not been satisfied, the benefit suspension is valid.
43Further, I have not heard submissions as to why the OCF-3 should be deemed submitted based on a reasonable explanation for the delay in submission, pursuant to s.34 of the Schedule. I heard testimony from the applicant that he thought the OCF-3 had been sent to the respondent, however, by whom or when he did not know.
44I find the period of eligibility for IRB is from the date the OCF-3 was provided on April 23, 2024 to the date of the benefit suspension due to the s. 33 non-compliance on May 22, 2024, which is 4-weeks.
Quantum
45The applicant has submitted and relies on an IRB report prepared by J.S. Held ULC dated December 29, 2025. The document indicates for the eligible time period the applicant is entitled to $115.41 per week, after deduction of Employment Insurance benefits received.
46The respondent has not submitted any calculations for the IRB and submits that the OCF-2 has not been received to make the calculations, and further, the applicant’s report cannot be relied on because it is not complete. I have not heard submissions as to in what way the applicant’s report is not complete.
47I do note that the applicant’s report contains a one-page summary of benefits and six one-page schedules, all of which is watermarked “Draft”. The income amounts do match the Income Tax Returns and Notices of Assessment for 2023 and 2024, including Employment Insurance income in 2024.
48I find that based on the evidence before me, the applicant is entitled to IRBs in the amount of $115.41 per week, for the eligible period set out above.
Ontario Works
49The respondent submits that the applicant was on Ontario Works (OW), however the records have not been provided. The respondent submits that OW is deductible from the IRB. The respondent relies on case law from the Social Benefits Tribunal (SBT), however, I find SBT legislation does not apply to this Tribunal and its case law is not persuasive.
50The applicant submits that deduction of OW is not considered in the Schedule, and because it is social assistance, it is not deductible.
51I find that s. 60 of the Schedule requires that the insurer shall pay benefits described in the Schedule even though the insured person is entitled to or has received social assistance or similar payments, services or benefits under an Act of the Legislative Assembly or under similar legislation in another jurisdiction, which includes OW. Therefore, any OW payments received are not deductible from the IRB owing.
52I find the applicant has established entitlement to IRB from April 23, 2024 to May 22, 2024 in the weekly amount of $115.41.
53I find the applicant is partially entitled to the treatment plans for an occupational therapy assessment dated August 8, 2024 in the amount of $1,397.00; and occupational therapy services dated November 6, 2024 in the amount of $2,484.45.
54To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
55The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Assessment Plan
56I have reviewed the treatment plan for the occupational therapy assessment, which identifies the applicant’s injuries as a concussion, reaction to severe stress (unspecified), headache, and pain. The proposed assessment includes $200.00 for completion of the OCF-18; Four hours for an In-home functional assessment at a cost of $399.00; Provider travel time at a cost of $79.80; seven hours for completion of a report; and one hour for documentation review; For a total proposed cost of $1,476.00.
57I have reviewed the treatment plan for the occupational therapy services, which identifies the applicant’s injuries as a concussion, reaction to severe stress (unspecified), headache, and pain. The goals of treatment are identified as:
a. To provide education to promote the acquisition of insight and awareness of his cognitive symptoms;
b. Facilitate the acquisition and application of compensatory strategies for his cognitive deficits;
c. Facilitate the acquisition and application of fatigue management and energy conservation techniques;
d. To gradually increase activity tolerances through functional activity scheduling for reactivation; and
e. To facilitate reduced sleep disturbances using a cognitive behavioral approach.
58The proposed treatment includes: $200.00 for completion of the OCF-18; eight 1.5 hours of therapy, cognition and learning sessions, at a cost of $1,197.04; Provider travel time for each of the eight sessions, at a cost of $638.40; three hours to complete a progress report, at a cost of $299.25; four half-hour sessions of time to communicate with team members (as needed) at a cost of $199.52; two half-hour sessions for research time for community resources and equipment (as needed), at a cost of $99.76; and therapy supplies (unspecified) at a cost of $50.00; for a total proposed cost of $2,683.97.
59The applicant submits the assessment and treatment plan are reasonable and necessary to support the applicant’s rehabilitation for the concussion he sustained as a result of the accident. He relies on the clinical notes and records of Dr. Jonathan Moulton, family physician, and Dr. David Mai, concussion specialist, who both recommend rehabilitation therapy.
60The respondent submits that there were no medical records to support the treatment plans and therefore Insurer’s Examinations were required. The respondent relies on the results of the assessments conducted by Dr. Margaret White, Sports Medicine, and later Dr. Brandon Kucher, neurologist, who determined that the treatment plans were not reasonable and necessary.
61I place limited weight on the assessment conducted by Dr. White on September 13, 2024, report dated September 25, 2024, and her testimony. The OCF-18 for an occupational therapy assessment was primarily regarding the applicant’s post-concussion symptoms. Dr. White confirmed in her testimony that she declined to comment with regards to headaches or concussion symptoms as these are not her area of expertise. Therefore, her report and opinion are strictly from a musculoskeletal perspective that I find provides very little assistance in determining if the OCF-18 is reasonable and necessary.
62In Dr. White’s report, the respondent had posed the question “As defined by the [Schedule], has the insured sustained a minor injury (or injuries) as a result of the accident?” Dr. White responded stating only that the applicant sustained a WAD I with normal functional examination. Although having reviewed the documents of Dr. Moulton, including the Disability Certificate dated November 7, 2023, and the clinical notes and records of November 7, 2023, and January 4, 2024, all of which identifies the applicant sustained a concussion, Dr. White did not identify that the concussion would remove the applicant from the MIG. I find this narrow view in an assessment by a medical doctor, who is qualified to diagnose, or confirm a diagnosis of a concussion undermines the purpose of requiring the applicant undergo an Insurer’s Examination.
63Dr. White opined that the OCF-18s were not reasonable and necessary from a musculoskeletal perspective. The respondent relied on her opinion to maintain the MIG position and deny the treatment plans.
64The applicant also attended an Insurer’s Examination with Dr. Kucher on November 6, 2024, report dated December 3, 2024. I also place little weight on Dr. Kucher’s reports and testimony. Dr. Kucher reviewed the clinical notes and records of Dr. Moulton, and the records of Dr. David Mai dated February 22, 2024, which clearly indicate a diagnosis of a concussion, as well as referrals for ongoing treatment. Dr. Kucher testified that he is not a concussion specialist, rather he specialises in traumatic brain injuries such as strokes and Parkinson’s Disease. Dr. Kucher gave his opinion that the “the majority” of concussion symptoms resolve in 6 – 9 months. Although Dr. Kucher testified that he accepted the applicant’s symptoms are ongoing and well beyond 9 months, he did not provide an opinion specific to the applicant’s anticipated recovery. Dr. Kucher opined that the applicant did not require treatment outside of the MIG, even though the records he reviewed clearly indicate the applicant was receiving ongoing treatment for his concussion symptoms, which is in direct contradiction to his opinion.
65The paper review completed by Dr. Kucher indicates that it was for the purpose of determining if the OCF-18s were reasonable and necessary. Dr. Kucher opined that based on his previous assessment on November 6, 2024, which did not find any neurological impairments, the treatment plans were not reasonable and necessary. He testified that for a concussion there would not be neurological findings, and he does not consider headaches to be an impairment. His opinion regarding the treatment plan was based on a neurological perspective only. Again, I find that such a severely narrow opinion is not helpful. If the assessor is unable to provide an opinion on the substance of the applicant’s condition or treatment plan, on which the respondent intends to rely, then the assessment should be deferred to an expert who is able to provide an informed conclusion.
66I find the most persuasive evidence before me are the records of Dr. Moulton and Dr. Mai. The records are clear in the diagnosis of a concussion and post-concussive symptoms. Both doctors recommended ongoing treatment for the persistent symptoms. I find these records strongly support that the occupational therapy assessment and treatment are reasonable and necessary.
67I must also consider the cost of the proposed plans. I did not hear submissions from either party regarding the cost of the plans.
68The occupational therapy assessment plan includes $79.80 for the provider’s travel time. I find that this expense is not within the definition of “authorized transportation expense” pursuant to s. 3 (1) of the Schedule, and therefore is not reasonable or necessary and will be deducted from the treatment plan. I find the remainder of the treatment plan is reasonable and necessary at a cost of $1,397.00
69I must also consider the cost of the treatment plan. I find that the treatment plan for occupational therapy services indicates at Part 9(d) that there is no concurrent treatment. There are no further details to explain or support the need for the proposed cost of time to communicate with team members. Therefore, I find the proposed cost of $199.52 is not reasonable and necessary and will be deducted from the treatment plan. I find the remainder of the treatment plan is reasonable and necessary at a cost of $2,484.45.
70I find the applicant has proven on a balance of probabilities that the plan for occupational therapy assessment is partially reasonable and necessary in the amount of $1,397.00. Further, I find the applicant has proven on a balance of probabilities that the plan for occupational therapy services is partially reasonable and necessary in the amount of $2,484.45.
Interest
71The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
72I find the applicant is entitled to an award in the amount of $1,980.22 under s. 10 of Reg. 664 for the reasons that follow.
73The 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.
74The case law is well established that in determining whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.”
75The Tribunal has established the factors for consideration when making an award under Reg. 664 as follows.
i. the blameworthiness of the insurer's conduct;
ii. the vulnerability of the insured person;
iii. the harm or potential harm directed at the insured person;
iv. the need for deterrence;
v. the advantage wrongfully gained by the insurer from the misconduct;
vi. take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and
vii. overall length of the delay.
76As outlined in Persofsky v Liberty Mutual Insurance, 2000 ONFSCDRS 113, determining the quantum of the award is grounded in the principles of rationality and proportionality. Rationality requires that the determination of the amount of the award sufficiently promotes the objectives of punishment and deterrence without exceeding what is necessary to fulfill those goals. Proportionality ensures that the consequences imposed bear a rational connection to the misconduct.
77The applicant submits that an award of 50 per cent is appropriate in consideration that the applicant was held in the MIG for 18 months after the accident, in spite of the respondent having clear medical evidence of the concussion diagnosis and recommendation for treatment. The applicant submits that the blameworthiness of the insurer’s conduct, vulnerability of the applicant, the harm of the applicant not receiving treatment, the need for deterrence and the overall length of the delay, all support an award of 50 per cent.
78The respondent submits that no award is owing because the applicant has not met his burden. The respondent submits that an award requires the respondent to have been malicious, which it has not. The respondent should not be held to a standard of perfection. The claim was adjusted based on the documents in its possession at the time of determinations. The first mention that the applicant struck his head was on August 14, 2023 when the OCF-1 was received. Further, that there has been no delay in treatment because there were no treatment plans submitted. When the Occupational Therapy treatment plan was received, the insurer’s examinations were scheduled promptly.
79I find that an award of 50 per cent is appropriate based on the handling of the claim, whereas I find the respondent’s conduct fails on every level of consideration. The respondent’s refusal to remove the applicant from the MIG for 18 months, in the face of clear medical evidence of a concussion, which does not fall within the MIG, and the further denial of treatment plans for the treatment of his concussion symptoms, flies in the face of the consumer protection spirit of the legislation.
80The respondent made contact with the applicant on July 6, 2023. He informed the adjuster that he had struck his head on the windshield. The owner of the vehicle had already informed the adjuster on July 5, 2023, that the windshield of the vehicle had been broken in the accident. An OCF-1 was received on August 25, 2023, which also indicated the applicant had struck his head on the windshield. Once the OCF-1 was received, the treatment confirmation form (OCF-23), was approved. On December 12, 2023 a Minor Injury Treatment Discharge Report (OCF-24) was submitted to the respondent from the treatment provider. The adjuster’s log notes indicate “Discharge Status: Additional intervention outside of the Minor Injury Guideline is required.” The adjuster’s analysis and action plan indicate ”continue to medically manage within the MIG at this time.” Seven days later, the respondent received the clinical notes and records of the applicant’s family physician, Dr. Moulton.
81The records indicate on September 20,2023 the applicant was referred for a CT Scan on an urgent basis due to a “head injury two months ago. Persistent worsening headache and blurry vision.” “Gave patient handout regarding concussions from my health Alberta and reviewed with patient symptoms of concussion and red flag symptoms and reasons to go to the emergency room.” On November 7, 2023, Dr. Moulton’s records indicate “No changes with concussion.” According to the adjuster’s log notes these records of a diagnosis of a concussion is not accepted and the adjuster maintains the position that the applicant is within the MIG. I find that the respondent was imprudent when refusing to accept the family doctor had in fact made a diagnosis of a concussion, which does not fall within the MIG.
82I heard testimony from the current adjuster assigned to the claim. She stated that the removal from the MIG is based on a diagnosis, not treatment. However, she also stated that the MIG position was maintained because there was no treatment plans submitted and therefore no reason to remove the applicant from the MIG. I find this is a circular unyielding argument that only benefits the respondent.
83On February 21, 2024, the adjuster responded to the applicant’s counsel in email correspondence. Counsel had requested the applicant be removed from the MIG. The adjuster stated that “A majority of concussions resolve on their own, without additional intervention. There is no indication that additional intervention was required to treat the reported concussion.” I find this response to be inflexible because the response appears to be acknowledging the diagnosis of the concussion, which should result in the removal from the MIG, based on diagnosis. However, the adjuster appears to hold the MIG position on the grounds that the condition might resolve itself. Further, the adjuster testified that the MIG position was being maintained as no treatment plans were submitted. I find that this is clearly not a standard on which a claim should be adjusted.
84On April 23, 2024 the respondent received the records of Dr. David Mai, concussion specialist, dated February 22, 2024. I heard testimony from the adjuster that the diagnosis is not clear on these documents and that the cause of the concussion was not indicated, therefore the records do not support removal from the MIG. Upon review of the documents, I find it was very clear in the documents that Dr. Mai had made recommendations for occupational therapy, cognitive behavioural therapy, neuro-optometry and concussion physiotherapy due to “concussion with ongoing symptoms”. I note that these recommendations are written on what appears to be prescription note pads. However, there is clear indication of a concussion diagnosis, ongoing concussion symptoms and a need for treatment, as a result of the June 29, 2023 accident. The adjuster’s log notes identify the “prescriptions”, however there is no indication that the content of the records was reviewed. I find this response to be immoderate as it seems to be an active attempt to find ways to justify denying the applicant’s removal from the MIG.
85Then on May 1, 2024, the respondent received the Disability Certificate (OCF-3) completed by Dr. Moulton. This document clearly identifies “Concussion and Blunt Trauma” as the injuries sustained in the accident. The adjuster’s response to these records was to require the applicant to undergo an Insurer’s Examination for IRB. I find this response to be stubborn, as there is no mention of consideration toward removal from the MIG.
86On June 18, 2024, the applicant’s counsel once again inquired on the applicant’s removal from the MIG. In her response, the adjuster states “I have reviewed the file and can confirm that we have received medical documentation in which a concussion is noted. Unfortunately given the nature of concussion recovery being varied from person to person it does not warrant a removal from the MIG automatically.” I disagree with the respondent. A concussion is not within the definition of a minor injury and therefore a concussion diagnosis warrants removal from the MIG, whether treatment is sought or incurred is irrelevant. Further, the medical documentation could not be clearer, that the applicant requires ongoing treatment, whether a treatment plan has been submitted or not, so there should be no question as to the “nature of concussion recovery” in this applicant’s case. I heard testimony from the adjuster that the respondent’s standard of care is to ensure their clients receive the treatment they require to support their recovery. I find that the adjuster is being oppositional without any support for her position and did not adhere to the respondent’s stated standard of care.
87I further note that on August 14, 2024, the adjuster received a treatment plan for occupational therapy concussion treatment, and the treatment plan was denied. The adjuster’s log notes indicate “Rationale for decision: No indication of a concussion diagnosis in the CNRs.” The applicant is then given notice to attend an Insurer’s Examination assessment to determine MIG. I find that the requirement for an insurer’s examination in this instance is not reasonable or necessary because the applicant was sent to doctors who did not opine on the very diagnosis in issue, a concussion. In fact, I find the need for Insurer’s Examination assessments was excessive because the file contains clear contemporaneous records that diagnose the applicant with a condition that is beyond the MIG.
88Of concern to me, is that the applicant is then sent to a physician for an assessment to determine if the applicant should be removed from the MIG, however, the selection of the assessor does not take into any consideration on which grounds the applicant is seeking removal from the MIG. The applicant is assessed by a physician who refuses to comment on the applicant’s concussion and concussion symptoms. Yet, she offers an opinion that the applicant should be held within the MIG. The physician does recommend an assessment by a neurologist, thereby requiring the applicant to undergo further scrutiny. Then, the neurologist confirms the concussion diagnosis; confirms the concussion is out of the MIG; seemingly ignores the clinical notes and records provided to him which identify the ongoing treatment; and then opines the applicant can be kept within the MIG as no treatment is required – although he should see his family doctor for follow-up of his symptoms.
89It is not until the handling adjuster changes and a file review is completed on December 12, 2024, that the applicant is removed from the MIG. Unfortunately, there does not appear to be any reconsideration of the two occupational therapy treatment plans that were denied on the basis of MIG.
90I find that the maximum award of 50 per cent is appropriate because the respondent’s conduct is blameworthy, as there appears to be an active effort to deny the applicant’s removal from the MIG. I find the applicant is vulnerable as a result of his ongoing symptoms, and without the treatment he required, he is at risk of harm in that his recovery is being prolonged. I believe I have been clear in my reasons above, that the behaviour of the respondent is unacceptable and must be deterred. The respondent’s gain has been minimal, which further adds confusion to the respondent’s insistence to deny the applicant’s removal from the MIG and treatment plans. I am unaware of any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct. I find the delay of 18 months in the applicant’s access to treatment was unreasonable and unnecessary.
91On the preponderance of evidence, I find that the respondent is liable for a 50% award under s. 10 of Reg 664, for the treatment plans in dispute. The amount of the award is $1,940.73 plus 2% interest pursuant to Reg 664.
ORDER
92For the reasons above, I find:
i. The applicant is entitled to IRB for the period of April 23, 2024 to May 22, 2024, in the amount of $115.41 per week.
ii. I find the applicant is partially entitled to the treatment plan for an occupational therapy assessment dated August 8, 2024, in the amount of $1,397.00.
iii. I find the applicant is partially entitled to the treatment plan for occupational therapy services dated November 6, 2024, in the amount of $2,484.45.
iv. The applicant is entitled to interest on the IRB and treatment plans.
v. The applicant is owed a s. 10 award in the amount of $1,980.22, with interest pursuant to Reg. 664.
Released: April 15, 2026
Tami Cogan
Adjudicator