Simmers v. CAA Insurance Company, 2026 CanLII 39704

Citation: Simmers v. CAA Insurance Company, 2026 ONLAT 24-008468/AABS

Licence Appeal Tribunal File Number: 24-008468/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 Simmers

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Brennan Kahler, Counsel

For the Respondent:

Alanna Pink, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Brandon Simmers, the applicant, was involved in an automobile accident on September 7, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, CAA 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:

1. Is the applicant entitled to $3,829.70 for other assistive devices, proposed by Rehab First Inc. in a treatment plan/OCF-18 ("treatment plan") submitted June 24, 2022?

2. Is the applicant entitled to $1,115.23 for other assistive devices, proposed by Rehab First Inc. in a treatment plan submitted November 14, 2022?

3. Is the applicant entitled to $26.17 for prescription medication, submitted on a claim form ("OCF-6") on February 13, 2023?

4. Is the applicant entitled to $100.80 for mileage expenses, submitted on an OCF-6 on January 9, 2023?

5. Is the applicant entitled to $403.20 for mileage expenses, submitted on an OCF-6 on January 9, 2023?

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

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

3The applicant withdrew issue #3 set out in the Case Conference Report and Order ("CCRO") for $2,460.00 for a dietary assessment. As a result, this issue will not be addressed as part of this decision.

RESULT

4I find that:

1. The applicant is not entitled to $3,829.70 for other assistive devices in the treatment plan submitted June 24, 2022.

2. The applicant is entitled to $1,115.23 for other assistive devices in the treatment plan submitted November 14, 2022.

3. The applicant is not entitled to $26.17 for prescription medication, submitted on a claim form ("OCF-6") on February 13, 2023.

4. The applicant is entitled to $100.80 for mileage expenses, submitted on an OCF-6 on January 9, 2023.

5. The applicant is not entitled to $403.20 for mileage expenses, submitted on the OCF-6 on January 9, 2023.

6. Interest is payable on all outstanding amounts in accordance with s. 51 of the Schedule.

7. The applicant is not entitled to an award.

ANALYSIS

5To 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.

Is the applicant entitled to $3,829.70 for other assistive devices in a treatment plan submitted June 24, 2022?

6I find that the applicant has not established on a balance of probabilities that the treatment plan for assistive devices dated June 24, 2022 is reasonable and necessary.

[7]

7The treatment plan, prepared by Victor Wu, occupational therapist, seeks a total of $3,829.70 inclusive of $2,400.00 for an iphone pro max 13, an apple watch 7 at a cost of $628.00, $119.92 for fees to acquire the devices, and $200.00 for the fee to complete the OCF-18 form.

8The applicant submits that he is entitled to a replacement for his previous phone, which was funded by the respondent and which he had misplaced, because he requires a device to communicate with his care providers and manage his appointments. He submits that an iphone is best suited because he has cognitive impairments. He further submits that he requires an apple watch for fall detection.

9The respondent argues that the Schedule does not require an insurer to replace a lost phone, and that the applicant did not provide evidence in support of the specific devices requested in the treatment plan.

10The applicant has not directed me to any legal authority which would support an insured's entitlement to a replacement of a lost phone by an insurer. Even if I were to agree with the applicant's submissions in this regard, I find that he has not established that the purchase of an iphone13 pro max, and an apple watch 7 is reasonable and necessary, because the treatment plan is internally inconsistent.

11Specifically, in the additional comments sections of the treatment plan, Mr. Wu specifically identifies the iphone SES and the apple watch SES, and describes the features of those devices which would be of benefit to the applicant. However, the treatment plan seeks funding for the iphone13 pro max and the apple watch 7, and the applicant has not explained why the features of these devices are necessary. Further, the applicant has not made submissions with respect to whether the overall cost of the treatment plan is reasonable and necessary.

12Finally, the Tribunal has long held that a treatment plan must be supported by contemporaneous, corroborating evidence, and the applicant has not directed me to any such evidence with respect to his cognition, memory or risk of falls.

13For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

14Accordingly, the applicant is not entitled to $3,829.70 for assistive devices in the treatment plan dated June 24, 2022.

Is the applicant entitled to $1,115.23 for other assistive devices in a treatment plan submitted November 14, 2022?

15I find that the applicant is entitled to $1,115.23 in the treatment plan for other assistive devices.

16The treatment plan, dated November 14, 2022, and also prepared by Mr. Wu seeks a total of $1,115.23 for incontinence supplies including wipes and briefs.

17The applicant submits that the treatment plan is reasonable and necessary as the applicant continues to experience urinary incontinence as a result of his accident-related injuries. The applicant relies on the clinical notes and records ("CNRS") of the applicant's family doctor, Dr. Lande Prasad De Silva, and the consultation report of Dr. Blayne Welk, urologist, dated December 18, 2015.

18The respondent argues that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary, in part, because he has not established he was experiencing urinary symptoms at the time the treatment plan was submitted. The respondent relies on the October 22, 2022 consultation summary of Dr. Jeffery Campbell, urologist, and the November 25, 2022 report of Dr. Calvin Chan, the applicant's chronic pain specialist which reveal that the applicant denied incontinence within a month of the submission of the treatment plan

19The respondent further argues that the applicant had been non-complaint with his usage of personal hygiene products and relies on the April 13, 2021 s.44 general practitioner insurer's examination ("IE") report of Dr. Sangita Shwarma, physician.

20The evidence reveals that Dr. Welk's December 18, 2015 consultation report indicated that the applicant was diagnosed with neurogenic bladder injury. The applicant has continued to complain intermittently of incontinence to his treatment providers and assessors in the more than 7 years between his initial complaints of incontinence to Dr. Gerald Brock, urologist, on June 16, 2014, and and the submission of the treatment plan on November 14, 2022. Further, the respondent has approved a treatment plan for incontinence products to assist the applicant with his urinary incontinence as recently as May 9, 2022, less than 7 months before the November 14, 2022 treatment plan was submitted.

21I am not persuaded by the respondent's argument that the applicant will not use the incontinence supplies, as the respondent relies on the April 13, 2021 IE report, wherein Dr. Shwarma noted that the applicant's father reported significant problems with incontinence, and the applicant's compliance with personal hygiene routines, including the use of incontinence products. However, the respondent has not directed me to evidence that this non-compliance with the use of these products continued, and as noted above, the respondent continued to approve incontinence products more than a year after the April 13, 2021 IE. Further, in the November 14, 2022 treatment plan, Mr. Wu opined that the requested incontinence products have been effective in managing the applicant's incontinence issues.

22While I accept that the applicant denied current urinary incontinence to of Dr. Campbell on October 22, 2022 and November 25, 2022, the evidence reveals that the applicant has complained of and sought treatment for intermittent incontinence as a result of his accident-related injuries for more than 7 years. Further, as the applicant notes in his reply submissions, he also denied incontinence at his April 2021 IE with Dr. Shwarma, at the same time as his father noted his need for incontinence products. As the applicant's complaints relate to intermittent incontinence, I find it more likely than not that the applicant has a continued intermittent need for incontinence products.

23Overall, I find on a balance of probabilities that the incontinence products are reasonable and necessary to assist the applicant with his accident -related injuries.

22Accordingly, the applicant is entitled to $1,115.23 for other assistive devices in the treatment plan dated November 14, 2022.

OCF-6 Claim Forms

Is the applicant entitled to $26.17 for prescription medication, submitted on a claim form (OCF-6) on February 13, 2023?

23I find that the applicant has not established that he is entitled to $26.17 for the prescription medication in the OCF-6 dated February 13, 2023.

24The OCF-6 seeks payment for a prescription for Naproxen. The applicant submits that it is reasonable and necessary to treat his accident-related injuries because it was prescribed by Dr. Chan.

25The respondent argues that the applicant has not provided documentation from Dr. Chan that the prescription is for injuries sustained in the September 7, 2011 accident, because Dr. Chan's November 25, 2022 consultation report deals mainly with the applicant's injuries from a subsequent accident in May of 2022, and does not recommend Naproxen in the list of potential medications to treat the applicant's pain.

27The evidence reveals that the applicant's father did report to Dr. Chan that the applicant had sustained injuries in the September 7, 2011 accident, but the applicant complained of pain from the May 2022 accident, in which he sustained multiple broken bones and a traumatic brain injury, according to Dr, Chan's November 25, 2022 report. Further, the applicant has not directed me to evidence to substantiate that the Naproxen was prescribed to treat his pain from the September 7, 2011 accident.

28As a result, I find that the applicant has not met his burden to prove on a balance of probabilities that he is entitled to $26.17 for prescription medication to treat his accident-related injuries.

Is the applicant entitled to $100.80 for mileage expenses on an OCF-6, submitted on January 9, 2023?

29I find that the applicant is entitled to $100.80 for mileage expenses in the OCF-6 dated January 9, 2023.

30The OCF-6 seeks payment for $100.80 in mileage for the applicant's November 25, 2022 visit to his chronic pain specialist, Dr. Chan of the Hamilton Pain Clinic. The respondent denied the claim because the applicant had not provided confirmation from Dr. Chan that he had attended the clinic on November 25, 2022.

31The applicant submits that his father drove him to the appointment, and Dr. Chan's summary of the appointment, dated November 25, 2025, contains references to the applicant's attendance at his appointment, in person "today" The summary also indicates that his father was in attendance as the applicant's Power of Attorney.

32The respondent argues that the Hamilton Pain Clinic is an approved destination for the applicant's driver account provided by the respondent, and it was not clear, why the applicant did not use the account, or that the appointment was related to his September 7, 2011 accident.

33I accept that the applicant attended the Hamilton Pain Clinic on November 25, 2022, and as the respondent submits that it would have paid for the use of a car service to the visit to the clinic as an approved destination, I find that the applicant is entitled to $100.80 for mileage expenses on the OCF-6 form dated January 9, 2023.

Is the applicant entitled to $403.20 for mileage expenses, submitted on an OCF-6 on January 9, 2023?

34I find that the applicant has not established on a balance of probabilities that he is entitled to $403.20 for mileage expenses submitted on an OCF-6 submitted on January 9, 2023.

35The OCF- 6 seeks a total of $403.20 in mileage expenses for 4 visits to the Hamilton Pain Clinic on December 2, 2022, December 9, 2022, December 16, 2022, and December 30, 2022.

36The applicant submits that he has not received confirmation of his attendance at the Hamilton Pain Clinic despite multiple requests, but that he attended on those dates and is entitled to his claim for mileage. The respondent argues that the applicant has not met his onus to prove that he attended the clinic on the specified dates.

37As the applicant has not directed me to evidence that he attended the Hamilton Pain Clinic in December, 2022 for these four visits, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to $403.20 in mileage expenses on the January 6, 2023 OCF-6.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on all outstanding amounts in accordance with s.51.

Award

39The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets these criteria.

40The applicant submits that he is entitled to an award because the respondent did not consider all of the relevant medical evidence. The respondent argues that it conducted multiple IEs and reviewed all of the medical information. Further the respondent submits that a dispute over benefits is not sufficient to merit an award.

41As the applicant has not directed me to evidence that the respondent's conduct rose to the level set out above, and I have found that no payments have been unreasonably withheld or delayed, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to an award.

ORDER

42I find that:

1. The applicant is not entitled to $3,829.70 for other assistive devices in the treatment plan submitted June 24, 2022.

2. The applicant is entitled to $1,115.23 for other assistive devices in the treatment plan submitted November 14, 2022.

3. The applicant is not entitled to $26.17 for prescription medication, submitted on a claim form ("OCF-6") on February 13, 2023.

4. The applicant is entitled to $100.80 for mileage expenses, submitted on an OCF-6 on January 9, 2023.

5. The applicant is not entitled to $403.20 for mileage expenses, submitted on the OCF-6 on January 9, 2023.

6. Interest is payable on all outstanding amounts in accordance with s. 51 of the Schedule.

7. The applicant is not entitled to an award.