Licence Appeal Tribunal File Number: 21-005665/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:
Kavitha Vivekanantham
Applicant
and
Certas Home and Auto Insurance Company
Respondent
RECONISDERATION DECISION
ADJUDICATOR:
Gurleen Thethi
Caley Howard
APPEARANCES:
For the Applicant:
Doug Q Wright, Counsel
Aryeh Samuel, Counsel
For the Respondent:
Bruce Chambers, Counsel
Court Reporter:
Guido Riccioni
HEARD by Videoconference:
November 17 and 18, 2025
By review of the record and transcripts of the March 27 – 31, 2023 videoconference hearing
OVERVIEW
1Kavitha Vivekanantham, the applicant, was involved in an automobile accident on June 1, 2018, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Following a videoconference hearing held from March 27 – 31, 2023, the Tribunal issued a decision on October 24, 2023. The applicant requested reconsideration of the Tribunal decision and on March 7, 2024, the Tribunal dismissed the applicant’s request.
3The applicant then appealed to the Divisional Court (“the Court”). In a decision released on November 12, 2024, the Court granted the applicant’s appeal. It found that the Tribunal erred in law when it failed to consider whether it should make an award under s. 10 of Reg. 664, and the Tribunal breached procedural fairness when it admitted and relied on the report of Dr. Sivasubramanian despite his refusal to attend the hearing and be cross-examined.
4The Court set aside the Tribunal’s decision and reconsideration decision and ordered that the matter be referred back to the Tribunal to be heard by another adjudicator, to be conducted in accordance with the findings in the Court’s reasons.
5A Motion Order by the Tribunal dated August 19, 2025 ordered a hybrid hearing as follows:
i. That the evidence portion of the rehearing proceed on the basis of the complete written record filed at the original hearing held March 27 – 31, 2023, together with the certified transcripts of all witnesses who gave evidence at that original hearing;
ii. That the respondent be permitted to call Dr. Sivasubramanian to provide viva voce evidence at the rehearing, for examination-in-chief and cross-examination, so as to cure the sole procedural defect identified by the Divisional Court;
iii. That the parties be permitted to make concise oral opening submissions at the outset of the rehearing, and oral closing submissions at its conclusion; and,
iv. That the proceeding be scheduled to allow completion of all evidence and submissions within approximately one to one-and-a-half hearing days, rather than the five days reserved for a full hearing de novo.
6In addition to the submissions of the parties and the testimony of Dr. Sivasubramanian, we have reviewed and considered the record and transcripts of the original hearing.
ISSUES
7The issues in dispute are:
i. Has the applicant sustained a catastrophic (“CAT”) impairment as defined by the Schedule? Note: Criterion 8.
ii. What quantum of attendant care benefits (“ACBs”) is the applicant entitled to per month from June 1, 2018, to date and ongoing?
iii. 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
8The applicant did not sustain a CAT impairment as a result of the accident.
9The applicant is not entitled to ACBs.
10The respondent is liable to pay an award.
ANALYSIS
The applicant has not sustained a CAT impairment as defined by the Schedule.
11To qualify as CAT under Criterion 8, an individual must sustain a Class 4 (“marked impairment”) as a result of the accident in three out of the four spheres of functioning or a Class 5 impairment (extreme impairment) in one or more areas of function, outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), due to a mental or behavioural disorder.
12The Guides set out that mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment.
Area or Aspect of Functioning
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)
13In support of her position that she meets CAT status under Criterion 8, the applicant relies on a Psychiatric Evaluation report of Dr. Parekh, Psychiatrist, conducted in January 2023, and a Psychological Assessment of Dr. Pillai, Psychologist, conducted in May 2021. The applicant also relies on the report of Laura Burnett, Occupational Therapist (“OT Burnett”), undertaken in January 2023. Dr. Parekh opined that the applicant sustained a marked impairment in the spheres of Activities of Daily Living, Social Functioning, and Adaptation, and a moderate impairment in Concentration, Persistence and Pace.
14The respondent relies on the CAT assessments of Dr. Sivasubramanian, Psychiatrist, undertaken in September 2022, and Dr. Zakzanis, Neuropsychologist, undertaken in August 2022. The respondent also relies on the reports of Vanita Tandon, Occupational Therapist (“OT Tandon”), undertaken in November 2022, and Lee Birbrager, Occupational Therapist (“OT Birbrager”), undertaken in October 2021. Dr. Sivasubramanian concluded that the applicant has a moderate impairment in the spheres of Activities of Daily Living, Concentration, Persistence and Pace, and Adaption, with a mild impairment in social functioning.
15The parties’ respective positions are set out below:
Area or Aspect of Functioning
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Activities of Daily Living
Respondent
Applicant
Social Functioning
Respondent
Applicant
Concentration, Persistence and Pace
Applicant Respondent
Adaptation (Deterioration in a work-like setting)
Respondent
Applicant
16Based on the following reasons, we do not find that the applicant has marked impairments in three out of the four spheres of functioning
Concentration, Persistence and Pace
17As the reports of the parties’ assessors agree that the applicant suffers from a moderate impairment in this aspect of functioning, we find that the applicant does not have a marked or extreme impairment for this sphere. Our analysis will focus on the remaining three areas of functioning.
Activities of Daily Living
18We find the applicant’s limitations in activities of daily living to be consistent with a moderate impairment under the Guides.
19The Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
20The applicant testified to some limitations across several areas. She reported reduced social and recreational engagement, including no longer attending family gatherings or the temple, spending much of her time in bed, and experiencing feelings of sadness and worthlessness. While the applicant reported social withdrawal, the evidence does not support a finding that her limitations significantly impede useful functioning.
21The applicant testified to having sleep patterns that are disrupted, with prolonged periods of 12–14 hours in bed. The applicant testified to being partially independent. She is able to shower, dress herself, perform light cooking and light cleaning, and move around the home. She does, however, require assistance with tasks such as shampooing, laundry, and heavier cleaning. The applicant testified that she avoids driving due to headaches and anxiety. The applicant’s daughter confirmed this in her testimony, noting that she often has to encourage the applicant to drive and that, without such encouragement, the applicant generally does not do so. While the applicant is able to drive on a limited basis when supported, her avoidance of independent driving reflects reduced adaptive functioning related to her mental and behavioural symptoms but does not rise to the level of significantly impeding useful functioning.
22The applicant testified that approximately two months after the accident, she travelled to Sri Lanka for one month following the death of her sister‑in‑law. The trip involved international air travel with a stopover and additional travel by car. Although the applicant reported experiencing swollen feet and back discomfort during the trip, the ability to undertake international travel shortly after the accident is relevant when assessing the extent of her functional limitations. This evidence demonstrates retained functional capacity and supports a finding that her impairments, while impactful, do not rise to the level of marked.
23The testimony of the applicant’s daughter and husband was consistent with the applicant’s evidence and confirms that the applicant often requires cueing from her daughter to initiate certain activities.
24The applicant relies on Dr. Parekh’s report, in which Dr. Parekh assigned a marked impairment rating following a virtual assessment that took place over 90 minutes. The respondent relies on Dr. Sivasubramanian’s report, which assessed a moderate impairment in this sphere.
25Dr. Parekh testified that the applicant retains the capacity to complete activities of daily living, but experiences difficulty with initiation, motivation, and often requires cueing or prompting from her daughter to get started. This assessment is generally consistent with the testimony provided by the applicant and her daughter, which emphasized the need for reminders, cues, or prompting. However, this level of support does not rise to the threshold of significantly impeding useful functioning.
26A marked impairment under the Guides requires more than a demonstration that tasks are performed inconsistently, reluctantly, or with prompting. While we accept Dr. Parekh’s evidence regarding the applicant’s initiation difficulties and reliance on cueing, this does not meet the level of an impairment that significantly impedes useful functioning in this sphere. Further, the testimony of the applicant’s daughter confirms that the applicant completes the activities once prompted. With prompts, the applicant can shower, dress herself, complete light cooking, and light cleaning. The evidence demonstrates that the applicant remains able to carry out these activities, despite reduced independence, and is an indication that she retains some but not all useful functioning in this area, which is consistent with a moderate impairment.
27We find that the applicant has not proven, on a balance of probabilities that she sustained a marked impairment in the sphere of Activities of Daily Living, because of the accident. We find that she sustained a moderate impairment in this sphere threshold. As a result of this finding and the finding under the sphere of Concentration, Persistence and Pace, the applicant is unable to meet the test of having three marked impairments. For completeness, we will conduct an analysis on the remaining two domains.
Social Functioning
28We find that the applicant has a moderate impairment in the sphere of Social Functioning.
29The Guides indicate that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics.
30The applicant testified that she no longer attends family gatherings, avoids temple activities, and spends most of her time lying in bed. Her testimony indicates feelings of sadness and worthlessness, and she requires prompting from her daughter to get out of bed and engage in basic activities. These factors reflect diminished motivation and withdrawal from social contexts. Although she maintains some contact with family members and uses social media, these interactions are minimal and do not offset the broader pattern of withdrawal and diminished participation in community or family life.
31While the applicant reported conflicts with members of her extended family, these appear to stem from financial and household issues rather than an inability to communicate effectively. The applicant’s testimony spoke to there being a cultural stigma surrounding mental health, so this has contributed to family tension. We were not pointed to evidence that these conflicts arose from an inability to communicate effectively or interact appropriately with others.
32The applicant’s daughter testified that the applicant becomes easily irritated and, at times, reacts by becoming upset and yelling. Further, the applicant, in OT Burnett’s report, indicated an incident in which she broke dishes while yelling at her son. This incident was referenced in Dr. Parekh’s report and confirmed in the applicant’s testimony. While this evidence reflects emotional dysregulation and difficulty managing frustration, it does not demonstrate an inability to interact appropriately or communicate effectively with others. Aside from this one incident noted, there is no evidence that these reactions have resulted in altercations, evictions, firings, fear of strangers, or an avoidance of interpersonal relationships of the severity contemplated by a marked impairment under the Guides. Rather, this evidence supports a finding of reduced, but not markedly impaired, social functioning.
33Further, the applicant testified that the accident contributed to the breakdown of her marriage. OT Burnett confirmed that the applicant reported leaving the matrimonial home to live with her sister‑in‑law and brother‑in‑law for approximately two to three months in 2020, due to marital issues. We were not persuaded by the evidence, on a balance of probabilities, that the breakdown in their relationship was a result of the accident, as we were not pointed to evidence establishing a causal link, and the applicant’s testimony lacked sufficient detail and corroboration.
34In addition, we note that the applicant’s testimony was inconsistent with some of the medical records. Dr. Chan’s clinical notes reflect limited temple visits due to knee pain, feelings of depression before the accident, and a need for housekeeping assistance from her brother-in-law and sister-in-law in December 2016. Records also noted difficulty engaging in social activities, and in January 2017, Dr. Blessing, a psychologist, reported severe anxiety, quickness to anger, and a tendency to yell. These factors suggest that some of the restrictions she attributes solely to the accident likely predated it. Further, while the applicant described severe post-accident limitations, medical records, such as those from Dr. Chan shortly after her return from Sri Lanka, do not reference any specific complaints.
35With respect to the CAT assessors, Dr. Parekh assessed the applicant with a marked impairment in social functioning, while Dr. Sivasubramanian assessed a mild impairment. In these circumstances, we find that the majority of the evidence supports neither the opinion of Dr. Parekh nor Dr. Sivasubramanian.
36We find that the applicant has a moderate impairment in social functioning. While Dr. Parekh assessed a marked impairment, we do not accept that opinion, as it does not adequately account for evidence of some useful functioning in this sphere. The applicant maintains ongoing relationships with immediate and some extended family members, is able to communicate her needs within the family unit and was capable of residing with relatives for several months following marital difficulties. We find these to be examples of useful functioning in interacting appropriately and communicating effectively with others, as described in the Guides.
37Although the applicant demonstrates reduced social engagement, emotional reactivity, and withdrawal from community and religious activities, these limitations do not result in a pervasive inability to function socially. The evidence does not establish the type or severity of social dysfunction associated with a marked impairment, such as a sustained inability to interact appropriately, communicate effectively, or maintain relationships. Rather, the applicant’s impairment interferes with some, but not all, useful social functioning, which is most consistent with a moderate impairment under the Guides.
Adaptation
38We find that the applicant has a moderate impairment in the sphere of Adaptation.
39The Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” An impairment in adaptation affects the ability to function across all activity areas.
40We acknowledge that the applicant has had a reduction in her performance of household chores, as discussed under the sphere of Activities of Daily Living.
41With respect to employment at the time of the accident, the applicant testified to working a full-time job as a receptionist, in addition to providing cleaning services part-time. Post-accident the applicant has not been able to return to work.
42Dr. Sivasubramanian testified to having assigned the applicant with a moderate impairment in adaptation. Dr. Sivasubramanian, did little to justify his ratings during testimony and in his report. We found his reports heavily relied on the reports of OT Tandon. OT Tandon in her report confirmed that the applicant would terminate tasks prematurely due to reports of pain, she also cited pain as the barrier to returning to work.
43Dr. Parekh testified to assigning the applicant with a marked impairment in adaptation, citing that the applicant would not be able to return to her previous role, given the busy nature of medical clinics, constant flow of people, and constant decision making, which the applicant struggles with. OT Burnett testified to the applicant having difficulty with time management, planning, organization, decision making, and attention to detail. OT Burnett’s report cited that the applicant would have difficulty completing tasks in an efficient manner and was observed to avoid eye contact and interaction with cashiers in the community.
44While we have carefully considered Dr. Parekh’s opinion that the applicant has a marked impairment in adaptation, we do not accept that the evidence supports this level of impairment. Dr. Parekh’s conclusion placed significant weight on the applicant’s inability to return to her pre‑accident employment in a fast‑paced medical clinic, rather than on a broader assessment of her adaptive functioning across everyday contexts, as required by the Guides. In particular, Dr. Parekh did not sufficiently account for evidence of the applicant’s retained functional abilities, including her capacity to manage some activities of daily living, attend appointments, function independently in the community, and complete tasks with structure and support.
45While the applicant experiences reduced efficiency and increased stress when faced with complex or time‑pressured tasks, the evidence does not demonstrate repeated decompensation, withdrawal from most situations, or a pervasive inability to respond to routine stressors of daily life. The occupational therapy and medical evidence reflect moderate functional limitations rather than the global failure to adapt contemplated by a marked impairment under the Guides.
46We find that the applicant has not met her onus on a balance of probabilities that she has three marked impairments in the spheres of functioning under Criterion 8. Although we acknowledge that the applicant sustained some impairments as a result of the accident which have negatively impacted her life, these impairments do not meet the CAT threshold in accordance with the Schedule.
The applicant is not entitled to attendant care benefits
47We find that the applicant has not met her evidentiary onus in relation to incurred ACBs. Thus, the applicant is not entitled to payment of this benefit.
48Section 19(1) of the Schedule states that ACBs shall pay for all reasonable and necessary expenses that are incurred by the applicant as a result of the accident for services provided by an aide, attendant or a long-term care facility.
49The applicant relies on the Assessment of Attendant Care Needs Form (“Form 1”) dated May 7, 2021, and the In-Home Assessment dated May 7, 2021, completed by Elsa Poon, occupational therapist. The Form 1 states the applicant requires $4,652.89 in monthly attendant care benefits. As we have not found the applicant to be catastrophically impaired, the amount of $4,652.89 is beyond the non-catastrophic limit of $3,000.00 per month imposed by the Schedule.
50Also relevant to this matter is section 3(7)(e) provides that a person has “incurred” an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.
51The definition of “incurred” in s. 3(7)(e) sets out two categories of attendant care providers: professional service providers who provide services in the course of employment, occupation, or profession they would ordinarily be engaged but for the accident; and non-professional service providers. In either case, there must be evidence that the services were provided and that the insured person was legally obligated to pay for them.
52The applicant has not pointed or directed us to any information or evidence to show that she incurred attendant care services during the period in dispute, whether from a professional or non‑professional service provider, as required under s. 3(7)(e) of the Schedule.
53The applicant claims entitlement to expenses for attendant care services. While the applicant does not claim to have incurred these services, she claims that they should be deemed incurred pursuant to section 3(8), on the basis that the respondent improperly kept her in the MIG, the limits of which had been exhausted, until shortly before the case conference. By that point, the applicant had also exhausted the non-CAT, non-MIG limit of $65,000.00 and the applicant could not afford to pay for attendant care benefits. The applicant has the onus to prove on a balance of probabilities that the services were incurred.
54For the following reasons, we find that the applicant has not met this onus.
55We have carefully considered the applicant’s reliance on section 3(8) of the Schedule, which deems certain expenses to be incurred where an insurer has unreasonably withheld or delayed payment of a benefit to which an insured person is entitled. While we understand the applicant’s argument that she was deprived of the opportunity to incur attendant care expenses due to the respondent’s alleged delay in removing her from the MIG, we find that section 3(8) does not assist her in the circumstances of this case.
56We find that the applicant has not proven that s. 3(8) operates to deem expenses incurred where the applicant has chosen not to incur the expense due to the exhaustion of statutory limits. On a plain reading of s. 3(8), the application of the provision requires us to first determine that an expense was not incurred because the insurer “unreasonably withheld or delayed payment of a benefit in respect of the expense”. The applicant did not direct us to any evidence that the respondent unreasonably withheld or delayed payment of ACBs. Nor did the applicant direct us to any authority to suggest that s. 3(8) can be applied to deem the ACBs incurred in the applicant’s situation. Therefore, we find that s. 3(8) cannot be applied to deem that the applicant has incurred ACBs.
57As a result, we find the applicant is not entitled to the ACBs being claimed.
Award
Is the appellant entitled to an award?
58The applicant sought an award under s. 10 of Regulation 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 an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning its behaviour is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, the respondent’s conduct meets this threshold.
59The applicant seeks an award under s. 10 arising from two types of benefits: first, the respondent’s delay in paying the outstanding in income replacement benefits (“IRBs”) and second, its delay in approving the disputed treatment plans identified in the case conference report and order, despite the applicant’s removal from the MIG. The treatment plans encompass a value greater than the $65,000.00 non-MIG limits and are noted below for reference:
i. Is the applicant entitled to $6,209.47 for Nursing Services, proposed by Gibson Wellness Centre Inc. in an OCF‑18 / treatment plan (“plan”) submitted March 22, 2021?
ii. Is the applicant entitled to $7,610.65 for Nursing Services, proposed by Gibson Wellness Centre Inc. in a plan submitted August 20, 2021?
iii. Is the applicant entitled to $14,115.69 for Physiotherapy Services, proposed by Gibson Wellness Centre Inc. in a plan submitted March 3, 2022?
iv. Is the applicant entitled to $15,877.30 for Exercise and Occupational Therapy Services, proposed by Gibson Wellness Centre Inc. in a plan submitted August 20, 2021?
v. Is the applicant entitled to $11,032.73 for Physiotherapy Services, proposed by Gibson Wellness Centre Inc. in a plan dated June 9, 2022?
vi. Is the applicant entitled to $14,015.03 for Exercise and Recreational Activities, proposed by Gibson Wellness Centre Inc. in a plan dated June 9, 2022?
vii. Is the applicant entitled to $11,032.73 for Physiotherapy Services, proposed by Gibson Wellness Centre Inc. in a plan dated July 25, 2022?
viii. Is the applicant entitled to $14,015.03 for Exercise and Recreational Activities, proposed by Gibson Wellness Centre Inc. in a plan dated July 25, 2022?
ix. Is the applicant entitled to $2,360.65 for an Attendant Care Assessment, proposed by Gibson Wellness Centre Inc. in a plan dated March 22, 2021?
x. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Dr. Arunkumar Thankappan Pillai in a plan dated May 27, 2021?
xi. Is the applicant entitled to the assessments proposed by Allied Med Trauma Evaluation, as follows:
i. $3,955.00 for a Worksite – Little Star Caretaker Assessment, in a plan dated May 20, 2021; and
ii. $3,955.00 for a Worksite – Total Healthcare Assessment, in a plan dated May 20, 2021?
60We find that an award is payable in respect of the treatment plans identified above, subject to the applicable non‑CAT limit of $65,000.00 and reduced by any amounts already paid prior to the original hearing.
61The applicant submits that, once the respondent removed her from the MIG in September 2022, right before the case conference, the respondent unreasonably continued to deny treatment plans despite there being available entitlement within the non-CAT limits. The respondent, on the other hand, submits that its reliance on the MIG was reasonable based on the available medical evidence, including early clinical records and insurer examinations. It argues that it continued to reassess the claim over time and removed the applicant from the MIG when appropriate, and that its handling of treatment plans was consistent with the MIG framework and supported by the evidence available at the time.
62We note that a delay in the change of a MIG designation, on its own, does not give rise to entitlement to an award. This is because the MIG is not a benefit, but a status.
63The evidence establishes that, at the time of the original hearing in March 2023, treatment had not been approved up the $65,000.00 limit, and in fact the respondent had paid less than the MIG limit of $3,500.00. The applicant submits that despite this, the respondent did not reassess or approve previously denied plans, rather the respondent left these plans unpaid.
64The adjuster acknowledged in testimony during the original hearing that these treatment plans had not been paid, that there was no reason for the continued non‑payment, and that the insurer would now pay any treatment plans in dispute up to the non-MIG limits. We find that the respondent’s failure to act on an acknowledged entitlement from September 2022 to March 2023, for more than 6 months, constitutes unreasonable withholding of benefits.
65While the applicant argues that the medical evidence was largely consistent over time and sufficient to support removal from the MIG well before that date, she does not point to any discrete report, assessment, or material change that would have compelled the respondent to alter its position earlier. We are not satisfied, on a balance of probabilities, that the respondent had clearly identifiable new medical information at a specific earlier point in time that required the applicant’s removal from the MIG prior to September 2022 and failed to act on it.
66That said, the evidentiary record raises concerns about the timing and rationale for the respondent’s decision-making. The evidence indicates that the decision to remove the applicant from the MIG was made on the advice of counsel, as reflected in the adjuster’s testimony and log notes, rather than in response to clearly identified new medical evidence. This raises a concern that the change in position may not have been driven by a substantive reassessment of the applicant’s impairments.
67Therefore, we find that the respondent’s conduct warrants an award. The respondent’s sustained failure to pay or meaningfully reassess the treatment plans for a period exceeding six months, despite removing the applicant from the MIG, reflects conduct that is stubborn, inflexible, and immoderate within the meaning of the s. 10 test. The record supports a finding that its approval of treatment plans occurred late in the process and without clear explanation. In these circumstances, the respondent’s delay in addressing and paying the disputed treatment plans amounts to an unreasonable delay and withholding of benefits.
Income Replacement Benefits
68We also find that the respondent unreasonably withheld income replacement benefits.
69The applicant submits that the insurer unreasonably terminated her entitlement to IRBs in May 2019 based on unclear and inconsistent reasoning, including reliance on both the pre- and post-104 week tests. She argues that the insurer failed to properly reassess her entitlement despite ongoing medical evidence supporting disability, and did not correct its position until early 2023, when benefits were reinstated on the advice of counsel without adequate explanation. The applicant emphasizes that this delay caused significant financial hardship and reflects a lack of transparency and diligence in claims handling. In contrast, the respondent submits that the termination of IRBs was reasonable based on the medical evidence available at the time, including section 44 assessments and an absence of supporting documentation for continued entitlement. It maintains that it fulfilled its ongoing duty to reassess the claim and appropriately reinstated IRBs in January 2023 pending further evaluation, and that this conduct reflects proper claims management rather than unreasonable delay or withholding of benefits.
70The applicant submits the IRBs from May 29, 2019, to February 14, 2023, were unreasonably withheld. The respondent effectively cancelled IRB payments upon receipt of s.44 reports dated May 27, 2019. Based on the reports, the respondent determined that the applicant did not suffer a substantial inability to perform essential tasks of her employment. On January 27, 2023, the respondent reinstated the IRBs, and on February 17, 2023, the respondent paid the arrears of IRBs plus interest for the period of May 29, 2019, to February 14, 2023. The applicant submits that IRBs were terminated in May 2019 based on unclear and internally inconsistent reasoning, including reliance on both pre‑ and post‑104‑week entitlement tests. The respondent’s internal notes later acknowledged that the IRB stoppage was “not very clear.”
71The respondent submits that it acted reasonably in terminating the applicant’s IRBs in May 2019 based on the insurer examination and the lack of evidence to the contrary at that time. It further argues that the reinstatement of IRBs in January 2023 represented a lawful reassessment and did not amount to an admission that the original termination was unreasonable.
72We accept that, at the time IRBs were initially terminated, the respondent had medical evidence upon which it was entitled to rely. However, an insurer’s obligation under the Schedule includes an ongoing duty to reassess entitlement in light of evolving information, its own records, and the passage of time. In the context of assessing whether an award is payable, reasonableness must be assessed based on the respondent’s entire course of conduct, not solely on the initial denial.
73Further, the adjuster’s log notes indicate that the applicant’s weekly IRBs entitlement ought to have been increased to reflect her optional benefits, and that a lump-sum payment had been issued. The log notes specifically confirm that, in December 2017, the IRB optional benefit was “missed,” and that the claim was subsequently recalculated, with a lump-sum payment issued and a new recurring amount set.
74However, the applicant submits that no such adjustment was ever made, and that the quantum of her IRBs remained incorrect until shortly before the original hearing when IRBs were reinstated. She maintains that her IRBs were calculated at approximately $388.00 per week as of August 2018, and that she continued to receive this amount until the benefits were terminated in May 2019. The applicant submits that her correct entitlement should have been approximately $564.00 per week. The respondent has offered no satisfactory explanation for this discrepancy or for the failure to properly adjust the benefits in a timely manner.
75The respondent reinstated IRBs only in January 2023, nearly four years after termination and after the matter had progressed to a hearing. The evidence does not establish that this reversal was prompted by new medical information. Rather, the decision appears to have been made following discussions with counsel, yet the reasoning underlying the reinstatement was not documented in correspondence to the applicant, nor were we pointed to any evidence of the same.
76While insurers are entitled to revisit benefit determinations, late‑stage reversals without clear explanation may support an inference that earlier decisions were not reasonably maintained. In this case, the respondent continued to deny IRBs for years and unilaterally reinstated IRBs with no explanation. This prolonged inaction reflects an inflexible and unyielding approach rather than a measured reassessment of entitlement.
77We find that while the initial termination of IRBs may have been reasonable, the respondent’s sustained failure to correct the quantum for 9 months, correct a denial that the respondent acknowledged was “not very clear”, or provide an explanation as to the why IRBs were reinstated, in the absence of any new medical information and despite written requests for explanation from the applicant, was unreasonable. The respondent’s conduct, viewed as a whole, meets the threshold of being stubborn, inflexible, and immoderate within the meaning of the s. 10 award test. We find that the prolonged failure to correct the IRB quantum or reinstate benefits, in the face of available information and acknowledged error, amounts to unreasonable delay and withholding of benefits.
Conclusions re whether an award is payable
78We find that an award is payable in respect of the treatment plans that were denied for 6 months after the applicant was no longer subject to the MIG, as noted above, and the income replacement benefits that were unreasonably withheld or delayed.
What is the appropriate quantum of the award for the respondent’s unreasonably withholding and delaying payment of the benefits?
79Under s. 10 of O. Reg. 664, the Tribunal may award up to 50 per cent of the amount of benefits payable where an insurer has unreasonably withheld or delayed payments. The purpose of an award is not to punish the insurer, but to denounce unreasonable claims handling, compensate for the impact of delay, and deter similar conduct, while remaining proportionate to the circumstances.
80We have already determined that the respondent unreasonably withheld and delayed payments of both benefits, so we will not repeat those findings. The applicant submits that we should award 50% because of the length of the delay, blameworthiness of the respondent’s conduct, and need for deterrence. The respondent submits that no award is warranted, and thereby no quantum of award should be ordered.
81The applicant submits that an award is warranted and seeks compensation in two components. First, the applicant seeks an award equal to 50% of non‑MIG accident benefits paid or payable as of the last hearing, in the amount of approximately $61,000.00, calculated at being $30,851.50, plus applicable interest. Second, the applicant seeks an award of 50% in respect of arrears of income replacement benefits, calculated for the period from May 29, 2019, to February 14, 2023, a total of 194 weeks, in the amount of approximately $159,000.00, and calculated at being $67,979.42. The respondent submits that no award is payable, and that the claim for an award should be dismissed.
82In determining quantum, the Tribunal’s caselaw has established that it is guided by the following factors:
i. the blameworthiness of the insurer’s conduct;
ii. the severity and length of the delay;
iii. the harm or potential harm to the insured;
iv. whether the insurer gained financially from the delay;
v. the need for deterrence;
vi. whether there are mitigating or aggravating factors; and
vii. overall proportionality.
Blameworthiness and Length of Delay
83With respect to the treatment plans, we find the respondent’s conduct to be highly blameworthy. Even after advising at the case conference that the applicant had been removed from the MIG, the respondent continued to deny treatment plans up until the original hearing. No explanation was provided to the applicant for this change in designation, nor were previously denied plans reassessed following the removal.
84We find that prolonged inaction combined with unexplained reversals shortly before a case conference supports a finding that the insurer unreasonably maintained its position. Here, the respondent’s effective reversal of its MIG reliance occurred only when adjudication became imminent, despite no material change in the evidentiary record. This persistence in denying treatment in the face of its own position change weighs strongly in favour of a meaningful award.
Harm and Potential Harm
85The continued reliance on the MIG deprived the applicant of timely access to medical and rehabilitation treatment. We find that a delay in paying treatment benefits can itself constitute meaningful prejudice, particularly where the statutory scheme is designed to facilitate prompt rehabilitation. The applicant led evidence that, had benefits been approved when initially sought, she would have pursued additional care that was ultimately foregone due to financial constraints.
Insurer Gain and Deterrence
86By maintaining the MIG designation and continuing to deny treatment plans, the respondent retained funds it was ultimately required to pay, thereby benefiting financially from the delay. An award is necessary to deter insurers from maintaining untenable MIG positions and failing to reassess treatment eligibility once the MIG is no longer relied upon.
Income Replacement Benefits
Blameworthiness and Length of Delay
87The respondent’s handling of the applicant’s IRB claim is also significantly blameworthy. IRBs were withheld for nearly four years, despite internal log notes acknowledging that the basis for termination was unclear and despite the applicant having initiated dispute resolution proceedings. Although the respondent initially relied on an insurer examination, it failed to meaningfully reassess entitlement over time, even as inconsistencies in its position became apparent.
88The respondent reversed its IRB position only shortly before the hearing, reinstating benefits without providing a clear or contemporaneous explanation for the change. This unexplained reversal occurred in the absence of new medical information and only when adjudication was unavoidable. This pattern reflects inflexibility and an unreasonable maintenance of an indefensible position.
Harm and Potential Harm
89The applicant led compelling evidence of substantial financial hardship arising from the prolonged denial of IRBs, including reliance on social assistance, borrowing money, accumulation of debt, and difficulty meeting basic household expenses. While proof of actual hardship is not required to justify an award, the evidence establishes that the respondent’s delay caused serious and foreseeable harm, which aggravates the unreasonableness of its conduct.
Insurer Gain and Deterrence
90Although interest was eventually paid on IRB arrears, the respondent nevertheless retained funds for an extended period, to the applicant’s detriment. Deterrence is a central consideration under s. 10 of the Schedule. An award is necessary to discourage insurers from allowing income benefits to remain unpaid for years while disputes linger, only to reverse course at the threshold of a hearing.
Mitigating Factors and Proportionality
91We have considered mitigating factors applicable to both the treatment plan and IRB claims, including that the respondent initially relied on medical evidence and ultimately paid the withheld benefits. However, eventual payment does not substantially mitigate conduct where the delay is excessive, unexplained, and compounded by a failure to reassess entitlement in a timely manner.
Conclusion on Quantum re IRBs and Treatment Plans
92Balancing all relevant factors, including the length of delay, the seriousness of the respondent’s conduct, the harm suffered by the applicant, the financial benefit to the respondent, and the need for deterrence, we find that an award at the middle of the permissible range is justified as a full 50% award would exceed what is necessary to achieve the objectives of s. 10 in these circumstances.
93Accordingly, we find that an award in the amount of 25% of the IRBs, and 25% of the medical and rehabilitation benefits that were unreasonably withheld or delayed, is appropriate and proportionate. The respondent’s conduct was clearly blameworthy, as demonstrated by its prolonged failure to reassess entitlement to treatment plans, and its delay in the payment of IRBs. These delays resulted in significant harm to the applicant, including well‑documented financial hardship, while the respondent retained funds it was ultimately required to pay, engaging both compensation and deterrence considerations. However, we also take into account important mitigating factors. The respondent initially relied on medical evidence to support its decisions, and ultimately did pay the disputed benefits, including interest. Further, while its conduct reflects inflexibility and poor claims handling, we have not found that it acted in bad faith, engaged in deliberate misconduct, or knowingly disregarded clearly determinative evidence at a defined point in time. As such, this is not a case falling within the most egregious range of insurer conduct that would justify the maximum award. Balancing the seriousness of the respondent’s conduct against these mitigating considerations, we find that an award of 25% of the benefits unreasonably withheld or delayed fairly reflects the degree of blameworthiness, the harm caused, and the need for deterrence.
94The respondent is liable to pay an award as follows, expressed in an equation, the formula is: 25% x (A + B + C). Where “A” is the amount of benefits unreasonably withheld or delayed, which is the sum of $61,000.00 for treatment plans and $159,000.00 for IRBs; “B” is the interest on these benefits pursuant to section 51 of the Schedule; and “C” is the compound interest under s. 10 of Regulation 664.
ORDER
95The applicant did not sustain a CAT impairment as a result of the accident.
96The applicant is not entitled to ACBs.
97The respondent is liable to pay the applicant an award at 25% of the $61,000.00 for treatment plans, and an award at 25% of the $159,000.00 for IRBs, with interest payable in accordance with s. 10 of Reg. 664 as set out above.
Released: May 15, 2026
Gurleen Thethi
Adjudicator
Caley Howard
Adjudicator
