Truong v. Certas Direct Insurance Company, 2026 CanLII 8156

Citation: Truong v. Certas Direct Insurance Company, 2026 ONLAT 24-007345/AABS

Licence Appeal Tribunal File Number: 24-007345/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:

Thi Truong

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Maciek Piekosz, Counsel

For the Respondent: Greg Abogado, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Thi Truong, the applicant, was involved in an automobile accident on March 29, 2022, 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 Direct 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:

i. Is the applicant entitled to an attendant care benefit (“ACB”) in the amount of $1,338.45 per month from April 15, 2024, to date and ongoing?

ii. Is the applicant entitled to $21,357.00 for catastrophic impairment assessments, proposed by OMEGA Medical Assessments in a treatment plan/OCF-18 (“plan”) dated March 19, 2024?

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?

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

3In her written submissions, the applicant withdrew the issue listed in the Case Conference Report and Order dated October 15, 2024 (“CCRO”) as an OCF-6 dated April 5, 2023, in the amount of $2,514.34 for prescription eyewear, which is also a preliminary issue raised by the respondent because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule. Since the applicant has withdrawn this issue, I have removed this item and the preliminary issue from the issues in dispute.

RESULT

4The applicant is not entitled to an ACB in the amount of $1,338.45 per month from April 15, 2024, to date and ongoing.

5The applicant is not entitled to the disputed treatment plan for catastrophic assessments.

6The applicant is not entitled to interest or an award.

ANALYSIS

The applicant has not demonstrated that ACB are reasonable and necessary

7I find that the applicant is not entitled to ACB as she has not demonstrated that attendant care is reasonable and necessary for her accident-related injuries.

8The applicant claims that she is entitled to ACB of $1,338.45 per month from April 18, 2024 to date and ongoing.

9Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an Assessment of Attendant Care Needs (“Form-1”).

10The applicant submits that she requires assistance with meal preparation, bathroom and bedroom tasks because of her vision and poor balance. The applicant relies on the s. 25 attendant care needs assessment and report dated May 1, 2023, prepared by Amy McWhirter, occupational therapist. However, she does not explain the reason that attendant care at the recommended rate is reasonable and necessary for the applicant’s accident-related injuries.

11The applicant argues that she requires attendant care due to her post concussion symptoms. In her submissions, the applicant points to a s. 25 attendant care needs assessment and report dated May 5, 2022, by Kaitlyn Olson, occupational therapist (“OT”), and a consultation report dated March 17, 2023, by Dr. Susan Buxton, optometrist, which suggest that the applicant sustained a concussion. Dr. Buxton prescribed tinted bifocal eyeglasses with no follow up.

12The respondent relies on the s. 44 OT report dated September 20, 2023, by Matt Sutherland, and an IE report dated September 20, 2023, by Dr. Shariff Dessouki, physiatrist. In his report, Matt Sutherland observed the applicant has functional balance to walk independently, prepare meals, and complete bathroom and bedroom tasks. The assessor noted no cognitive barriers, and the applicant reported that there is no change in her ability to prepare meals. In addition, Dr. Dessouki indicates that the applicant has no functional limitations.

13I find that I am not persuaded by the medical evidence that the applicant requires attendant care at a rate of $1,338.45 per month for her accident-related injuries. Although the evidence suggest that the applicant requires the use of tinted, bi-focal eyeglasses, there is no evidence that she has visual disturbance such that requires attendant care, and Matt Sutherland observed the applicant with functional balance.

14I find on a balance of probabilities that the applicant is not entitled to ACB for the period claimed, because updated medical evidence indicates that she has returned to her pre-accident personal care activities.

15To receive payment for the disputed treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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 the overall costs of achieving them are reasonable.

16The cost of examinations to determine whether the applicant has a catastrophic impairment is addressed under section 25 of the Schedule. Pursuant to s. 25(1)(5), the insurer must pay for reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. Section 25(5)(a) states that the insurer shall not pay more than $2,000.00 plus applicable taxes for any one assessment or examination and for preparing any report connected to it.

17To determine entitlement, the applicant must prove on a balance of probabilities that each constituent element that makes up the multidisciplinary catastrophic (“CAT”) determination assessment is reasonable and necessary.

18The onus is on the applicant to prove on a balance of probabilities that each of the examinations and additional amounts for comprehensive file reviews within the treatment plan are reasonable and necessary, and if so, whether the fee is reasonable.

19The applicant submits that she sustained ongoing physical and psychological injuries as a result of the accident. The applicant submits that she suffers from residual pain, cognitive deficits, emotional dysregulation and functional limitations.

20The applicant refers to a s. 25 physiotherapist report dated June 24, 2022, by Kiran Chouhan, physiotherapist, in which the applicant reported her symptoms as ongoing pain in her neck, back, and trunk, together with dizziness, headaches, vision changes and cognition problems.

21The applicant submits that the disputed treatment plan is reasonable and necessary and relies on the opinion of Dr. Lisa Becker, physician, as set out in the comments section of the treatment plan and in Dr. Becker’s additional comments dated July 31, 2024. The applicant argues that based on her ongoing impairments, it is reasonably possible that she sustained a catastrophic impairment as a result of the accident and that a multidisciplinary evaluation is reasonably necessary.

22The respondent submits that the disputed treatment plan is not reasonable and necessary and that the proposed multidisciplinary assessments are not supported by the applicant’s medical evidence. Specifically, the respondent argues no evidence has been provided to support the need for an orthopaedic assessment or a neurological assessment. The respondent submits that although the applicant sustained a fractured nose and left ankle, on or about June 20, 2022, she was ambulating without aids and she was discharged from the care of Dr. Krishan Rajaratnam, orthopaedic surgeon. The respondent further submits that the hospital records do not indicate that the applicant sustained a loss of consciousness or closed head injury, nor was she referred to a neurologist.

23The respondent further submits there is not evidence in support of the proposed psychiatric and occupational therapy assessments. The respondent relies on the IE reports dated September 20, 2023, by Dr. Shariff Dessouki, physiatrist and OT Sutherland, in which the assessors found no objective evidence to explain the applicant’s reported pain symptoms, or evidence of functional limitations. In addition, the respondent relies on the IE report dated November 28, 2023, by Dr. Peter Cobrin, psychologist, in which the applicant did not report any psychological symptoms related to the accident.

The disputed treatment plan dated March 19, 2024 for catastrophic assessments in the amount of $21,357.00

24I find that the applicant has not established, on a balance of probabilities, that the treatment plan dated March 19, 2024 for multidisciplinary catastrophic assessments in the amount of $21,357.00 is reasonable and necessary.

25The plan proposes the following assessments, fees, and services for a catastrophic impairment determination:

1. Clinical coordinator assessment and file review by Dr. Lisa Becker, general practitioner - $2,000.00;
2. Orthopaedic assessment by Dr. Tajedin Getahun, orthopaedic surgeon - $2,000.00;
3. Neurological assessment by Dr. Aaron Izenberg, neurologist - $2,000.00;
4. Psychiatry assessment under Criterion 7 by Dr. Shazad Shahmalak - $3,250.00;
5. Psychiatry assessment under Criterion 8 by Dr. Shahmalak - $3,250.00;
6. Occupational therapy activities of daily living and community assessment by Melissa Paniccia - $2,000.00;
7. Occupational therapy situational assessment by Melissa Paniccia - $2,000.00;
8. Catastrophic impairment summary, analysis, and overall ratings under each applicable criteria by Dr. Becker - $2,000.00;
9. Completion of an application for determination of catastrophic impairment (OCF-19) for by Dr. Becker - $200.00; and
10. Completion of a treatment and assessment plan (OCF-18) for by Dr. Becker - $200.00.

26I am not persuaded by the applicant’s submissions and evidence that the treatment plan is reasonable and necessary. The applicant primarily relies on the treatment plan which was completed by Dr. Becker. Although Dr. Becker indicated that she reviewed the file provided, it is unclear what medical records, if any, were reviewed in determining that a catastrophic impairment assessment was reasonably required. In my view, relying on the treatment plan on its own is insufficient.

27I further find that the applicant does not direct or point me to medical evidence in support of how it is reasonably possible that she sustained a catastrophic impairment as a result of the accident and that a multidisciplinary evaluation is reasonably necessary. I disagree with the applicant and the opinion of Dr. Becker in her report dated July 31, 2024, that because the applicant does not have OHIP coverage, the catastrophic assessments are reasonable and necessary. I find that Dr. Becker does not explain how it is reasonably possible that the applicant has sustained a catastrophic impairment as a result of the accident.

28I find that the applicant has not provided evidence to support that she reasonably sustained a catastrophic injury. Although the applicant did sustain orthopaedic injuries, she was discharged from the care of Dr. Rajaratnam with functional mobility and no follow up. In addition, the applicant has not provided evidence that she sustained a neurological injury or a psychological impairment as a result of the accident. Although, she was prescribed bi-focal eyeglasses after the accident, there is evidence that she returned to her pre-accident functional abilities of daily living.

29I find that there is insufficient evidence to support that the disputed treatment plan, including its overall costs, is reasonable and necessary. The applicant provided no evidence to support the cost of the comprehensive file review or how it differs from the file review by Dr. Becker in preparing the disputed treatment plan or OCF-19. The applicant also provided no evidence to support the cost of two psychiatry assessments, totaling $6,500.00, which exceeds the amount for any one assessment or examination and for preparing reports pursuant to s. 25(5)(a) of the Schedule. In addition, the applicant provided no evidence to support the cost of two occupational therapy assessments, and she does not explain why the combined cost of the occupational therapy assessments in the amount of $4,000.00 is reasonable and necessary.

30I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the disputed treatment plan.

The applicant is not entitled to interest or an award

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

32Under s. 10 of Reg. 664, 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. Since no benefits have been unreasonably withheld or delayed, an award is not payable.

ORDER

33The application is dismissed, and I find that the applicant is not entitled to the following:

i. An ACB in the amount of $1,338.45 per month from April 15, 2024, to date and ongoing; ii. The disputed treatment plan for catastrophic assessments; iii. Interest, or an award.