Citation: Leslie v. Intact Insurance Company, 2026 ONLAT 25-002760/AABS

Licence Appeal Tribunal File Number: 25-002760/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:

Lorraine Leslie

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Brian Norris

APPEARANCES:

For the Applicant: Piera A. Segreto, Counsel Alexandra Di Stefano, Counsel

For the Respondent: Tracy Brooks, Counsel Laura Meschino, Counsel

Court Reporter: Elio Legault

HEARD: by Videoconference on November 24, 25, & 26, 2025

OVERVIEW

1Lorraine Leslie ("the Applicant"), was involved in an automobile accident on October 16, 2020, and sought benefits from Intact Insurance Company ("the Respondent") 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2Tribunal Member Melissa Shea was a co-adjudicator during the hearing of this matter. Due to her unavailability, Adjudicator Shea did not participate in the writing of this decision.

ISSUES

3The issues in dispute are:

i. Has the Applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the Applicant entitled to a medical benefit in the amount of $4,289.85 for occupational therapy services, proposed by Function Ability Rehabilitation Services in an OCF-18/treatment plan ("plan") dated December 12, 2023?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,009.57 for occupational therapy services, proposed by Function Ability Rehabilitation Services in a plan dated December 12, 2023?

iv. Is the Applicant entitled to a medical benefit in the amount of $7,345.00 related to the unapproved balance of the catastrophic impairment assessments, proposed by Omega Medical Associates in a plan dated December 21, 2023?

v. Is the Applicant entitled to a medical benefit in the amount of $777.54 for massage therapy services, proposed by PT Health in a plan dated February 28, 2024?

vi. Is the Applicant entitled to a medical benefit in the amount of $2,164.76 for physiotherapy services, proposed by Lifemark in a plan dated June 26, 2024?

vii. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

viii. Is the Applicant entitled to interest on any overdue payment of benefits?

ix. Is the Applicant entitled to costs?

RESULT

4The Applicant has not met her onus to demonstrate on a balance of probabilities that she sustained a catastrophic impairment as a result of the accident.

5The following plans are reasonable and necessary, and the Applicant is entitled to incur them, if not done so already, and the Respondent is liable to pay for them once properly invoiced:

i. The OT plan in the amount of $2,009.57, dated December 12, 2023;

ii. The massage therapy plan in the amount of $777.54, dated February 28, 2024; and

iii. The physiotherapy plan in the amount of $2,164.76, dated June 26, 2024.

6The Applicant is entitled to interest on the plans listed above, pursuant to section 51 of the Schedule.

7The following plans are not reasonable and necessary, and the Respondent is not liable to pay for them:

i. The OT plan in the amount of $4,289.85, dated December 12, 2023; and

ii. The unapproved balance of the catastrophic impairment assessment plans dated December 21, 2023.

8The Applicant is entitled to costs in the amount of $500.00.

9No award is payable.

BACKGROUND

10The Applicant was the driver of a vehicle that was struck on the passenger side by another vehicle which was exiting a suburban parking lot. Following the accident, she called a friend who came to the scene and took the Applicant to the collision reporting centre and then home. She sought no medical attention at the scene of the accident or that day.

11The Applicant followed up with her family physician about three days later. Her complaints of a stiff neck and headaches were secondary to her complaints of high blood pressure and stress and anxiety related to the passing of her sister and brother. The Applicant was off work at the time of the accident due to stress and anxiety related to the passing of her siblings.

12The Applicant regularly reports to assessors that her back pain progressed following the accident, culminating in a fall incident on February 21, 2021. The Applicant reports that her low back pain started to intensify and radiate to the front and down her right leg to her foot. She reports that she continues to experience back pain and also experiences neck pain and currently rates the intensity of her back and neck pain as 2 to 5 out of 10 on a good day, and 8 or 9 out of 10 on a bad day.

13The Applicant reports that her mood fluctuates following the accident, but that she often feels sad and depressed. She reports that her emotional symptoms are precipitated by exposure to stressors and pain escalation. At the time of the hearing, the Applicant confirmed that she is not receiving any psychological or mental health counselling and suggested that she does not regularly use medication for anxiety or depression.

14The Applicant claims that her psychological impairments have developed into a catastrophic mental and behavioural impairment.

15For the following reasons, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that she sustained a catastrophic impairment as a result of the accident.

ANALYSIS

Catastrophic impairment

16The onus is on the Applicant to demonstrate that she sustained a catastrophic impairment as a result of the accident. To do so, she must show she suffers from an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition ("the AMA Guides"), results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning, due to a mental or behavioural disorder, or a class 5 (extreme impairment) in any of the spheres of functioning.

17The assessment pursuant to criterion 8 excludes consideration of any physical impairments and is based solely on mental and behavioural disorders. Pursuant to criterion 8, mental and behavioural impairments are measured in four areas: 1) Activities of Daily Living ("ADLs"); 2) Social Functioning ("SF"); 3) Concentration Persistence and Pace ("CPP"); and 4) Adaptation in Work or Work-like Settings ("adaptation").

18According to the AMA Guides, the impairment rankings are as follows:

Class 1: No Impairment No impairment is noted

Class 2: Mild Impairment Impairment levels are compatible with most useful functioning

Class 3: Moderate Impairment Impairment levels are compatible with some, but not all, useful functioning

Class 4: Marked Impairment Impairment levels significantly impede useful functioning

Class 5: Extreme Impairment Impairment levels preclude useful functioning

19The AMA Guides state that a class 4, marked, impairment significantly impedes useful functioning. Moreover, the AMA Guides note that a marked impairment in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired in all four categories of functioning would be limited in ability to carry out many, but not all complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.

20The Applicant relies on the catastrophic impairment assessment and report, dated April 11, 2024, to support her claim that she sustained a catastrophic impairment as a result of the accident. In that report, Dr. S. Shahmalak, psychiatrist, concluded that the Applicant sustained a moderate impairment in the domain of activities of daily living, and marked impairments in the domains of SF, CPP, and Adaptation. To be successful in this hearing on the issue of catastrophic impairment and meet the threshold of three marked impairments in at least three of the four domains of function, the Applicant must demonstrate that she sustained marked impairments in the domains of SF, CPP, and adaption as found by Dr. Shahmalak in the report.

21The Respondent relies on the catastrophic impairment assessment and report, dated January 24, 2025. In that report, Dr. A. Jwely, psychiatrist, concluded that the Applicant sustained a mild impairment in the domain of ADLS, and moderate impairments in the domains of SF, CPP, and Adaptation.

22For the following reasons, I find that the Applicant has not demonstrated that she suffers from a marked impairment in SF. Having determined that she does not suffer from a marked impairment in SF and given that she has been rated as having only a moderate impairment in ADLs, it follows that the Applicant does not suffer from marked impairments in three of the four domains. Accordingly, the Panel finds that she does not meet the criteria for a catastrophic impairment.

Social Functioning ("SF")

23I find that the Applicant has not demonstrated that she suffers from a marked impairment in SF. To me, the Applicant's mental and behavioural impairments do not significantly impede useful function in the domain of SF.

24According to the AMA Guides, SF refers to an individual's capacity to interact appropriately and communicate effectively with other individuals. This includes the ability to get along with others, such as family members, friends, neighbours, and people in the community. Impairments in SF may be demonstrated by a history of altercations, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strength in SF may be demonstrated by an individual's ability to initiate social contact with others, communicate clearly with others, and interact and participate in group activities.

25Dr. Shahmalak diagnosed the Applicant with Major Depressive Disorder, moderate, and Somatic Symptom Disorder, with predominant pain, persistent, and concluded that the Applicant sustained a marked impairment in SF. Dr. Shahmalak's diagnosis and conclusion regarding SF is based on findings outlined in the report, dated April 11, 2024. Dr. Shahmalak noted that the Applicant isolates herself since the subject accident, going out about once per month, typically for brunch. It was noted that the Applicant reported being highly social prior to the accident, but has drifted apart from many friends, maintaining relationships with only a few people. Dr. Shahmalak wrote that the Applicant is single and reported she has no desire to date. During the assessment, the Applicant commented on a breakdown in her relationship with her son and reported that her son never visited her at the hospital and does not answer her phone calls. She reported to Dr. Shahmalak that she talks to her sister on the phone regularly and has maintained relationships with her siblings since the accident, and that the relationships are similar to prior to the accident.

26Occupational therapist ("OT") N. D'Souza conducted two assessments on the Applicant as part of the catastrophic assessment and report, dated April 11, 2024. OT D'Souza recorded that the Applicant reported her mood overall as bad, feels worried about her future, gets anxious when having to complete paperwork and attend appointments, and that she is easily irritable and frustrated.

27OT D'Souza noted that the Applicant reported the following changes in her social pursuits and interpersonal relationships:

Pre-accident reported function

• Would go out for dinner with friends once per week
• Went to the movies "quite a bit"
• Enjoyed shopping and going to the mall at least weekly
• Completed home renovation projects
• Maintained close relationships with her friends and saw them regularly
• Her relationship with her son was drifting at the time of the accident

Post-accident reported function

• Rarely goes out for dinner
• Rarely goes to the movies
• No longer goes shopping
• No longer completes home renovation projects
• Maintains positive relationships with only three friends, and they are not that close
• She reported no longer having a relationship with her son

28Overall, I find that the impairments in SF, both observed by Dr. Shahmalak and OT D'Souza and reported by the Applicant, demonstrate impairment levels that are compatible with some, but not all useful functioning. When additional information, such as the testimony of the Applicant and the various experts, it becomes clear to the me that the Applicant's mental and behavioural impairments in the domain of SF do not significantly impede the Applicant's useful functioning.

29The Applicant demonstrated impairment levels that are compatible with some useful function when she participated in a community outing as part of the assessment with OT D'Souza. The Applicant attending at a grocery store to document the price of items on a shopping list. OT D'Souza highlighted in her report that during the evaluation, the Applicant avoided an aisle that had three customers in it. The Applicant was then observed to carry on with the task in another aisle and return to the previous aisle, once it wasn't as busy. This behaviour shows that the Applicant demonstrated an ability to independently access the community because waiting for an aisle to clear of customers and returning to it when the customers clear the aisle shows impairments levels that are compatible with some, but not all, useful function.

30The Applicant has demonstrated an ability to maintain friendships and testified to making new friends following the accident, indicating that her social function is not significantly impeded by her mental and behavioural impairments. OT D'Souza recorded that the Applicant had a friend accompany her to the in-clinic portion of the catastrophic impairment assessment. In testimony, the Applicant confirmed that she attends at the hair salon regularly, approximately once every 8 or 9 weeks, attends at the nail salon every third week, and sought out and joined a group aquafit class weekly and sometimes twice a week, where she interacts with other attendees. The Applicant testified that she is approachable to strangers and remains cordial with them. She noted that she met a new friend at the hair salon and even went out with them once. The Applicant even attempted to repair her relationship with her son, which was estranged prior to the accident, when she hosted him for thanksgiving dinner in 2024. That relationship however, remains estranged, but the Applicant's attempt to repair it demonstrates little social function impairment.

31Further examples of social function include the Applicant's ability to engage in dating, travel to Cuba, and participate in employment and executive board work. The Applicant testified that during the past year she has engaged in online dating and has gone out on "a couple dates" and had a longer relationship with at least one new partner. This is in contrast with the Applicant's reports to Dr. Shahmalak, which stated that she had no desire to date. The Applicant also shared with OT Robinson that she has travelled to the mall with friends by using a transit pass. The Applicant travelled to Cuba at least two times since the accident. On one occasion, the Applicant travelled with a friend, and went alone on the other occasion. The Applicant testified that she was happy with the service at the resort she stayed at and never reported any issues interacting with staff throughout her travel and stay. Additionally, the Applicant has engaged in minor part-time sales work, selling CPAP machines once a week for a period of about a year starting November 2022. She has also engaged in some executive board work, but that stopped because the board was since dismantled. To me, these examples demonstrate impairment levels that are compatible with some, but not all useful function.

32The Applicant demonstrated unimpaired communication and social interaction with her assessors. OT D'Souza found the Applicant to be a polite individual who communicated openly, and used humour at times, and did not display socially inappropriate behaviours. The Applicant was also noted to relay concerns in an appropriate manner when she was frustrated or unsure about the nature of tasks requested of her. Additionally, the Applicant was noted to initiate and engage in casual conversation with OT D'Souza on occasion. OT D'Souza noted that the Applicant reported two separate occasions where she had friends visit her for weeks at a time to assister her when needed. She was also noted to be chatting with her friend while waiting at the assessment centre. With Dr. Shahmalak, the Applicant was described as pleasant, co-operative and polite throughout the assessment. The Applicant engaged in a craft-making activity with OT Robinson, as documented in the January 24, 2025 IE report. The Applicant was observed to have an improved mood during the craft-making activity and engaged in multiple social conversations with the assessor. During testimony, the Applicant reported that she was unaware of the length of time she spent engaging in the craft activity because she was socializing with OT Robinson.

33I find that the evidence above demonstrates that the Applicant has suffered from some impaired social function as a result of mental and behavioural impairments. However, I find the Applicant's impairment in the domain of social function to be compatible with some, but not all, useful functioning. Accordingly, I find that she sustained, at most, a moderate impairment in the domain of SF.

34Having determined that the Applicant does not suffer from a marked impairment in SF, and given that she has been rated as having only a moderate impairment in ADLs, it follows that the Applicant does not suffer from marked impairments in three of the four domains. Therefore, I find that she does not meet the criteria for a catastrophic impairment.

Costs Associated with the Catastrophic Impairment Report

35I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that she is entitled to the unapproved portion of the catastrophic impairment assessments.

36Pursuant to section 25(1)5 of the Schedule, the Respondent shall pay reasonable fees charged for preparing an application for a determination of whether their impairment is a catastrophic impairment, including any assessment or examination necessary for that purpose. Section 25(5)(a) of the Schedule provides that despite any other provision in the regulation, an insurer shall not pay more than a total of $2,000.00 plus HST in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it.

37The fees proposed for the catastrophic impairment assessment and the amounts approved are as follows:

Service	Cost Proposed	Cost Approved	Difference
Form fee for OCF-18	$200.00	$200.00	$0.00
Form fee for OCF-19	$200.00	$200.00	$0.00
Clinical coordinator assessment and review	$2,000.00	$0.00	$2,000.00
Physiatry assessment	$2,000.00	$2,000.00	$0.00
Psychiatric assessment for criterion 7	$3,250.00	$2,000.00	$1,250.00
Psychiatric assessment for criterion 8	$3,250.00	$0.00	$3,250.00
OT Situational assessment	$2,000.00	$2,000.00	$0.00
OT Community assessment	$2,000.00	$2,000.00	$0.00
Catastrophic impairment analysis and summary	$2,000.00	$2,000.00	$0.00
Tax	$2,197.00	$1,352.00	$845.00
Total	$19,097.00	$11,752.00	$7,345.00

38The Applicant claims that the clinical coordinator assessment and review is reasonable and necessary because her medical record is over 10,000 pages, that previously more time was found to be reasonably required to complete a treatment plan for her, and that it is not a duplication of efforts.

39She claims entitlement to the criterion 8 assessment because that assessment was essential in finding that she met the threshold for a catastrophic impairment, making it reasonable and necessary. To her, each psychiatric assessment serves a distinct purpose and is necessary to address catastrophic impairment and complex injuries.

40The Respondent submits that the Applicant has not brought forward evidence to establish why the disputed amount was reasonable and necessary, and that it is not required to pay more than $2,000.00 plus HST for any one assessment or examination.

41I find that the Applicant has not demonstrated that the clinical coordinator assessment and review is a service that is separate from the catastrophic impairment analysis and summary. To me, the catastrophic impairment analysis and summary includes coordinating the assessors, reviewing the records and reports, and rendering a conclusion on the catastrophic impairment determination. The Applicant has tendered no caselaw to support her claim and I have found nothing in the Schedule that suggests to me that an insured is entitled to an increased rate, or a second assessment fee, because the medical record is extensive, as suggested by the Applicant. Moreover, the Applicant's catastrophic impairment report confirms that no additional assessment was conducted by the clinical coordinator to warrant an additional fee. The approved catastrophic impairment analysis and summary includes an assessment of the reports conducted by the other assessors, which culminates in a summary report with a determination on the Applicant's overall impairments.

42I agree with the Respondent that the Applicant is not entitled to the additional fees charged in relation to the psychiatric assessment and report. The Applicant has not demonstrated that two separate assessments are required to address criterion 7 and 8. The Applicant has led no evidence or caselaw to support her claim that she is entitled to the maximum rate for each criterion. Moreover, the evidence demonstrates that the assessor required only one assessment to opine on both criterion 7 and 8. The catastrophic impairment report notes that both criteria were considered during the single psychiatric assessment conducted. This is reasonable considering the significant overlap between the two assessments in terms of conducting a clinical interview and administering the psychiatric scales to obtain an impairment rating, which is used for the catastrophic impairment analysis and summary, for which the Respondent approved in full to the maximum rate.

43The Applicant has not met her onus to demonstrate that a fee of $3,250.00 for the psychiatric assessment is reasonable and necessary as a result of the accident. As outlined above, the Schedule provides that the Respondent is not liable to pay more than $2,000.00 for any one assessment and for preparing a report in connection with her. Thus, I find that she is not entitled to the unapproved balance in relation to the psychiatric component of the catastrophic assessment.

44Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that the unapproved balance of the catastrophic impairment assessment fees are reasonable and necessary as a result of the accident.

$777.54 for a massage therapy plan, dated February 28, 2024

45I find that the Applicant has met her onus to demonstrate that the massage therapy plan is reasonable and necessary as a result of the accident.

46The massage therapy plan proposes 20 half-hour sessions, plus administrative fees. The Applicant submits that the plan is reasonable and necessary because massage therapy is helpful in managing her accident-related chronic pain because it provides her with temporary pain relief. The Respondent did not address this plan directly in its closing submissions but maintains that the Applicant has not met her onus to demonstrate that the plan is reasonable and necessary as a result of the accident. The initial denial provided by the Respondent relied on the IE report of Dr. I. Mohammad, physician, who concluded that the plan was for physiotherapy and that further facility-based intervention would not provide any significant overall improvement of her pain symptoms.

47I find that massage therapy plan is reasonable and necessary because it provides the Applicant with temporary pain relief. The Applicant testified that massage therapy helped her navigate her chronic pain and consistently reported that it provided her with pain relief. I acknowledge that massage therapy may not provide the Applicant with any significant overall improvement in her pain symptoms. However, the temporary pain relief that massage therapy provides the Applicant is sufficient to render the plan reasonable and necessary.

$4,289.85 and $2,009.57 for OT plans, dated December 12, 2023

48I find that the Applicant has not met her onus to demonstrate that the plan in the amount of $4,289.85 is reasonable and necessary as a result of the accident. With respect to the plan in the amount of $2,009.57, I find that the Applicant has demonstrated that it is reasonable and necessary as a result of the accident.

49The plan in the amount of $4,289.85 seeks funding for ten 1.5-hour sessions, travel time for the service provider, and fees for completing the claim form, documentation, and planning. The plan in the amount of $2,009.57 seeks funding for one year of snow removal services, a cervical pillow, 1.5 hours for ordering and arranging the goods and services, and form and cost adjustment fees.

50The Applicant submits that the Respondent improperly relied on an IE report by Dr. Mohammad to deny the OT plans. She submits that the evidence of her ongoing complaints and the fact that she has not exhausted her funding limits indicate that the plans are reasonable and necessary. The Respondent made no submissions specific to these treatment plans. Instead, it submits that the Applicant has failed to demonstrate that the plans are reasonable and necessary as a result of the accident.

51The documents demonstrate that the Respondent denied funding for the plans based primarily on the paper review IE report of OT N. Lee, dated June 5, 2024, and OT Lee's IE report, dated December 6, 2023. In the latter report, OT Lee concluded that the Applicant exhibited reduced sitting, walking, and standing tolerance, an inability to squat, and reduced reaching for repetitive, sustained or heavy demands. Despite this, OT Lee concluded that the plans were not reasonable and necessary due to the time passed since the accident, the amount of treatment the Applicant has received to-date, and Dr. Mohammad's determination in the April 11, 2024 report. Dr. Mohammad concluded that the Applicant's current presentation was likely her pre-accident baseline, and that ongoing therapy was unlikely to provide any significant overall improvement of her pain symptoms to-date.

52I find that the plan in the amount of $2,009.57 is reasonable and necessary to increase safety for the Applicant and reduce her pain and manage her pain symptoms. I place weight on the progress report by OT M. Yun, dated November 22, 2023, and specifically on the note regarding the Applicant's snow removal. The report states that the Applicant used to have a neighbour clear her driveway in the winter, but that neighbour has since moved and no longer does it for her. OT Yun recommended snow removal services to ensure that the surface area is safe for the Applicant to get to her vehicle to attend various medical appointments, or to take her garbage and recycling bins to the curb. The importance of a safe surface is demonstrable for the Applicant, who experienced a fall in February 2021, after the subject accident, which significantly exacerbated her pain symptoms and prompter her to call for an ambulance. I accept that the Applicant has impaired ability to maintain a safe driveway and walkway in the winter and find that it would be unreasonable to expect the Applicant clear the area herself in light of her ongoing physical impairments. With respect to the cervical pillow, I find that it is a reasonable expense in light of the Applicant's ongoing neck and back pain and interrupted sleep as a result of those pains.

53I find that the Applicant has not demonstrated on a balance of probabilities that the plan for OT intervention in the amount of $4,289.85 is reasonable and necessary as a result of the accident. The Applicant has not directed me to evidence to support ongoing OT intervention. As of the date of the plan, the Applicant had engaged in numerous OT sessions, but has not led evidence to indicate the benefit she receives from the sessions. As a result, I am unable to determine whether the proposed services are reasonable and necessary as a result of the accident. Accordingly, I find that the Applicant is not entitled to this plan.

$2,164.76 for a physiotherapy plan, dated June 26, 2024

54I find that the Applicant has demonstrated that the physiotherapy plan, dated June 26, 2024, is reasonable and necessary as a result of the accident.

55The physiotherapy plan seeks funding for 20 sessions and $169.76 in form fees. The goal of the plan is to discharge the Applicant with a home exercise program. The Applicant submits that the plan is reasonable and necessary due to her ongoing pain complaints. Like with the other plans, the Respondent made no submissions specific to this treatment plan, but submits that the Applicant failed to meet her onus to demonstrate that the plan is reasonable and necessary as are result of the accident.

56I place great weight on the Applicant's testimony when considering whether the physiotherapy plan is reasonable and necessary. In her testimony, the Applicant praised the work of her physiotherapist. She testified that her physiotherapist would conduct multidisciplinary treatments, such as acupuncture, cupping, and massage therapy. She credited him with helping her navigate through her recovery. To me, this evidence confirms the efficacy of the Applicant's physiotherapy treatment as recommended in this plan and supports a finding that it is beneficial for her.

57I find that the Applicant has lingering neck and back pain which was exacerbated by the accident, and that it is reasonable and necessary to transition her from facility-based treatment to an at home exercised program. The Applicant continues to complain about accident-related neck and back pain and finds relief through the treatment received by her physiotherapist. Given the time passed since the accident, it is reasonable and necessary to transition her to a home-based self-directed exercise program. It is also likely that the Applicant will see a psychological benefit by being empowered to take greater responsibility of her recovery by transitioning to a home-based exercise program. Accordingly, I find this plan reasonable and necessary as a result of the accident.

Interest

58Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the massage therapy plan in the amount of $777.54, dated February 28, 2024, the OT plan in the amount of $2,009.57, dated December 12, 2023, and the physiotherapy plan in the amount of $2,164.76, dated June 26, 2024, it follows that the Applicant is also entitled to interest on the overdue payment of these plans, in accordance with section 51 of the Schedule.

Award

59I find that an award is not payable.

60The Applicant sought an award of an undetermined amount under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

61The Applicant submits that an award is payable by the Respondent to deter the behaviour it exhibited during the adjusting of her claim. Specifically, she is critical of the Respondent for failing to find her catastrophically impaired based on her reports, and instead scheduled IEs to address her claim. She submits that the IEs caused an 8-month delay and were excessively long, demanding, rife with errors, and were abruptly cancelled on occasion without explanation. She submits that the Respondent limited her access to treatment by erroneously concluding that she had exhausted her non-catastrophic funding limit for medical benefits. Lastly, the Applicant submits that the Respondent failed to produce the adjuster of her claim, or another adjuster, for the hearing.

62In response, the Respondent submits that no benefits were unreasonably withheld or delayed, thus no award is payable.

63I find that no benefits were unreasonably withheld or delayed as a result of the Respondent's adjusting of the Applicant's claim. This is because nothing in the Applicant's submissions can be clearly tied to the unreasonable withholding or delayed payment of benefits. The Respondent's decision to obtain IE reports on the Applicant's impairment status is permitted by section 44 of the Schedule, and there is no indication that the IE process was abused during the course of the Applicant's claim. Likewise, the Applicant has not identified the benefits, if any, that were withheld due to the Respondent incorrectly determining that the Applicant had met her non-catastrophic funding limit for medical and rehabilitation benefits.

64Accordingly, I find that the Applicant has not demonstrated that an award is warranted in the circumstances.

Costs

65I find that the Applicant is entitled to costs in the amount of $500.00 due to the Respondent's refusal to produce an adjuster as a witness at the hearing.

66The Applicant sought costs in the amount of $1,000.00 in relation to the Respondent's conduct during the hearing. The Applicant submits that the Respondent failed to produce an adjuster for the hearing (despite being encouraged to do so by me during the proceeding), provided a copy of her file 9 days late, served the adjuster's log notes 4 months late, served the surveillance evidence 3 days prior to the hearing, and has yet to provide a statement of the benefits paid to-date.

67The Respondent highlights that the adjuster on the Applicant's claim was off on medical leave at the time of the hearing and thus, unable to attend. It submits that no other adjuster worked the Applicant's file for the period relevant to the claim for an award, suggesting that there was no adjuster to call. It submits that its brief was served on November 3, 2025, via link, and that the Applicant never advised of any issue accessing the documents until the start of the hearing, and that the emails including its documents are an attempt to remedy the situation. On surveillance, the Respondent submits that the evidence was served initially on July 24, 2025, and then the unedited video on November 21, 2025, the day after it received it. Lastly, with respect to the log notes, it submits that the Applicant never requested clarification on the redacted notes and never raised the issue any other time during the hearing, suggesting that it had little impact on the overall justice of the case. and that it's relationship with the Applicant is one of mutual good faith and submits that the Applicant mischaracterized issues related to productions.

68Rule 19 of the Licence Appeal Tribunal Rules, 2023 sets out the criteria for awarding costs. Costs may be payable when a party in a proceeding acts unreasonably, frivolously, vexatiously, or in bad faith. The amount of costs should not exceed more than $1,000.00 for each full day of attendance at a motion, case conference, or hearing. When considering costs, the Tribunal shall consider all relevant factors, including: the seriousness of the misconduct; whether the conduct was in breach of a Tribunal direction or order; whether the behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process; the prejudice to the other part; and the potential impact an order for costs would have on individuals accessing the Tribunal.

69To me, it has been clear from the outset of the Applicant's application to the Tribunal that her intention is to claim entitlement to an award due to unreasonable withholding or delay of benefits by the Respondent. Her intention to claim entitlement to an award is also reflected in the case conference report and order. The case conference report and order also confirms that the claims adjuster, an employee of the Respondent, is a witness for the Applicant. The Applicant issued a summons for the claims adjuster and served it upon the Respondent, which indicates a clear intention to test the evidence of the claims adjuster at the hearing.

70However, I find that the Applicant has not identified the prejudice to her as a result of the Respondent's alleged behaviour, other than to say she is prejudiced by it. For example, the Applicant received a copy of her file about 9 days later than ordered, but well before the hearing and with sufficient time to review it and prepare for the hearing. Additionally, I note that the Applicant never led any evidence where she raised the issue of productions with the Respondent prior to the hearing, leaving the Respondent with the impression that the method of delivery was sufficient. Similarly with the surveillance documents - the Applicant has not demonstrated any prejudice from the late service of the unedited video. In any event, the issue regarding the surveillance video is moot as I find it has had no impact on my ability to issue this decision.

71The attendance of the claims adjuster was addressed at the outset of the hearing. There, the Respondent advised that the claims adjuster was off work on medical leave and would be unable to attend at the hearing. I acknowledged that I would not compel the attendance of the claims adjuster considering her medical leave, but I encouraged the Respondent to produce another adjuster to speak to the information in the log notes.

72The Respondent did not produce an adjuster for the hearing.

73I find that the Respondent's failure to produce an adjuster to speak to the evidence in the log notes, and instead filing a motion to quash the summons, warrants an award for costs. This is because the Respondent's behaviour is unreasonable and interfered with the Tribunal's ability to conduct an efficient process. To me, the Respondent has acted unreasonably, vexatiously, or in bad faith because it attempted to quash the summons instead of producing a different adjuster to speak to the evidence in the log notes. I see virtually no prejudice to the Respondent for producing an adjuster to answer questions regarding the log notes, even if no other adjuster was involved in the file during the relevant period. The testimony of an adjuster would support a fulsome record and permit me to render a reasoned decision on the issue for the parties. By failing to produce the adjuster, or a different adjuster, the Respondent has interfered with the Tribunal's ability to conduct an efficient hearing as it prolonged the start of the hearing. Further, by failing to produce an adjuster, the Respondent has prolonged the time it took for me to review the adjuster's log notes, because I did not have the benefit of an explanation of the records through the testimony of a representative of the Respondent. While I have not identified any information that would upset my finding that the Applicant did not sustain a catastrophic impairment, it would be a more efficient process with the benefit of that testimony.

74Rule 19.6 provides that the amount of costs shall not exceed $1,000.00 for each full day of attendance at the hearing. While the applicant seeks $1,000.00 in costs, I elect to award costs totalling $500.00. To me, an award of costs in the amount of $500.00 is sufficient to reprimand the Respondent for failing to produce an adjuster but, it is proportional to the impact the unreasonable behaviour had on the outcome of the hearing.

CONCLUSION AND ORDER

75The Applicant has not met her onus to demonstrate on a balance of probabilities that she sustained a catastrophic impairment as a result of the accident.

76The following plans are reasonable and necessary, and the Applicant is entitled to incur them, if not done so already, and the Responded is liable to pay for them once properly invoiced:

I. The OT plan in the amount of $2,009.57, dated December 12, 2023;

II. The massage therapy plan in the amount of $777.54, dated February 28, 2024; and

III. The physiotherapy plan in the amount of $2,164.76, dated June 26, 2024.

77The Applicant is entitled to interest on the plans listed above, pursuant to section 51 of the Schedule.

78The following plans are not reasonable and necessary, and the Respondent is not liable to pay for them:

I. The OT plan in the amount of $4,289.85, dated December 12, 2023; and

II. The unapproved balance of the catastrophic impairment assessment plans, dated December 21, 2023

79The Applicant is entitled to costs in the amount of $500.00.

80No award is payable.