Hizbullah Kamavee v. RSA, 2017 CanLII 152681

Licence Appeal Tribunal File Number: 19-011975/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:

Hizbullah Kamavee

Applicant

and

RSA

Respondent

DECISION AND ORDER

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Michael Rotondo, Counsel

For the Respondent:

Symone Marlowe, Counsel

HEARD:

Via Written Submissions

BACKGROUND

1The applicant was involved in a motor vehicle accident on December 15, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September, 2010¹ (the “Schedule”). The respondent denied the benefits and the applicant applied to the Tribunal for resolution of the dispute.

ISSUES TO DE DECIDED

2The issues to be determined in this hearing are:

a. Is the applicant entitled to an income replacement benefit (IRBs) of $189.81 per week from December 22, 2016 to November 14, 2017?

b. Is the applicant entitled to $1,198.00 for chiropractic services, recommended by Dr. Mayeri in a treatment plan dated July 27, 2018?

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

RESULT

3The applicant is entitled to IRBs of $189.81 per week from January 13, 2017 until the date of proper notice of October 30, 2017 plus interest as per the Schedule. The applicant is not entitled to the costs of the treatment plan and consequently not entitled to interest on the treatment plan amounts.

ANALYSIS

Income Replacement Benefits

4At the time of the accident, the applicant was employed as a taxi driver. Following the accident, the applicant submitted his application for accident benefits and, on January 11, 2017, submitted his disability certificate, which indicated that, as a result of the injuries sustained in the accident, he was unable to perform his pre-accident employment, his activities of normal living and his caregiving duties.

5The applicant submits that the respondent initially accepted that the applicant met the test for IRBs as found in section 5 of the Schedule. Thereafter on October 30, 2017, following a series of insurer examinations (IEs), the respondent sent a letter stating that IRBs were denied as of November 14, 2017. However, the respondent did not pay the IRBs from December 22, 2016 (one week after the accident) to November 14, 2017.

6The applicant argues that prior to October 30, 2017, the respondent had never denied the IRBs, did not fulfill its obligations under section 36 of the Schedule to pay or properly notify the applicant of the denial or make requests pursuant to section 33, and thus had no basis to withhold the IRBs. The applicant also seeks a finding on the weekly quantum of the IRBs.

7The applicant makes no claim for entitlement to IRBs past November 14, 2017.

8The respondent agrees that the disability certificate that completes the application for IRBs was dated January 11, 2017. The respondent submits that they responded to the disability certificate on January 23, 2017. The respondent submits that the applicant did not meet the requirements for initial entitlement to IRBs, and he did not make an election pursuant to section 61 of the Schedule, which provides for the interplay of the Workplace Safety and Insurance Board (WSIB) benefits and IRBs. Further, the respondent takes the position that they were entitled to withhold payment because the applicant did not provide an OCF-10 (election of IRB, non-earner, or caregiver benefit), or provide documents requested pursuant to section 33 in timely fashion.

IRBs are Payable unless section 36(4) invoked

9At the time of the accident, the applicant was working as a taxi driver. Following the accident, the applicant submitted his application for accident benefits and on January 11, 2017, submitted his disability certificate, which indicated that as a result of the injuries sustained in the accident, he was unable to perform his pre-accident employment, his activities of normal living and his caregiving duties.

10Section 36 governs the application or claim for IRBs. Pursuant to section 36, an application for IRBs is complete when the applicant provides an OCF-1 and a completed disability certificate to the respondent.

11Section 36(3) states that an applicant who fails to submit a completed disability certificate is not entitled to the IRB for a period before the completed disability certificate is submitted.

12Section 36(4) of the Schedule states:

(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

13Section 36(6) states that if the insurer fails to comply with section 36(4) within the applicable time period, the insurer shall pay for the IRB for the period starting on the day the insurer receives the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in section 36(4)(b), the day the insurer gave the notice.

14Both parties agree that the application for accident benefits was sent on or around January 5, 2017 and that the disability certificate was sent on January 11, 2017.

15The applicant submits that the respondent responded to the completed disability certificate on October 30, 2017, and stated therein that the applicant’s IRBs are discontinued as of November 14, 2017. Prior to this, there was no “notice” of denial of IRBs that was compliant with the Schedule. Therefore, pursuant to section 36(6), the respondent must pay the IRBs until November 14, 2017.

16The respondent disagrees and takes the position they gave proper notice pursuant to section 36(4). Further the respondent submits that it was unable to pay the IRBs because the applicant needed to provide an election of benefits (OCF-10) and that the applicant did not comply with its request pursuant to section 33.

2For the reasons noted below, I find that the respondent did not provide notice pursuant to section 36(4) after receipt of a disability certificate until October 30, 2017.

17The applicant submitted the disability certificate on January 11, 2017. This completed the applicant’s application for IRBs pursuant to section 36(4). The adjuster’s log note of January 13, 2017 confirms that the disability certificate was received on January 13, 2017. Thereafter, as per s. 36(4) of the Schedule, the respondent’s options were to pay the IRB or send a notice in compliance with section 36(4) or send a request under section 33(1) or (2). The respondent did none of the above.

18The respondent submits that the letter of January 23, 2017 was a notice and a request in compliance with the Schedule. I respectfully disagree. The January 23, 2017 letter does not pay the benefit, nor does it make a request for documents pursuant to section 33, nor does it provide notice to the applicant that the respondent is not paying IRBs for medical or other reasons therein. The letter states that the applicant must make an election as he may be entitled to IRBs and non-earner benefits and then provides the applicant with the enclosed Election of Benefits (OCF-10) form indicating that it must be returned within 30 days.

19The respondent submits that it did not breach section 36(4) because they sent an Election of Benefits form pursuant to section 35 of the Schedule. I find this argument untenable. Section 35 states that after receipt of the application where the applicant may be entitled to two or more of the IRB, caregiver benefit or non-earner, then an election must be provided to the applicant within a specified time period. Section 35 does not allow for non-payment of the benefit because the election was not returned to the respondent within the specified time.

20The respondent also submits that it was bound by the terms of section 35; however, the respondent does not state what those terms are. The respondent had obligations under section 36(4) which was either to pay the specified benefit, give a notice denying the benefit (and/or requesting an IE), or a send a request under section 33(1) or (2).

21The respondent submits that it did not breach section 36(4) because the respondent made a request pursuant to section 33 for the Election of Benefits.

22Section 33(1) of the Schedule states:

An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

23The respondent first points me to the letters of February 16, 2017 as evidence of a section 33 request.

24I disagree that this letter fulfills the requirement of section 36(4) because there was no section 33 request that was tied to the IRB or a specified benefit as is required under section 36(4). The letter of February 16, 2017 requests the Election of Benefits along with an assignment of WSIB. This was not put as a section 33 request and the applicant was not told that the consequences under section 33(6) would be invoked by the respondent. However, the respondent does state in another section of this letter “as per Section 33 of the [Schedule], the following information is requested ” following which the respondent then requests the clinical notes and records and OHIP summary and tells the applicant directly that these notes are requested for the following purpose:

“required to ensure that any treatment or rehabilitation you are receiving, or will require, will meet the needs of your accident-related injuries. They will also assist in determining if your injuries fall within the Minor Injury Guideline.”

25The request for documents does not say anything about entitlement to IRBs, does not provide a time limit to comply with the request for the Election of Benefits, and, in fact, the request for Election of Benefits is separated from the section 33 request for the medical documents the respondent needs to ascertain the treatment and rehabilitation needs of the applicant. Therefore, I find that this is not a section 33 request tied to IRBs.

26The next purported section 33 request the respondent points me to is the letter of March 6, 2017. By the time of this letter of March 6, 2017, the applicant had provided three medical documents that were properly requested (i.e. pursuant to s.33) by the respondent in their letter of February 16, 2017. The only document not provided by March 6, 2017, was the OHIP summary which was provided on May 2, 2017.

27The letter of March 6, 2017 from the respondent requests the clinical notes and records, the decoded OHIP, the OCF-10 and an assignment for WSIB. The applicant is then informed that if the requested information is not received within 10 business days, the specified benefit will cease as per section 33 of the Schedule.

28This is the only letter that can be construed as notice that fulfills the requirement of section 36(4)(c). In other words, at this time the respondent has made a section 33 request with respect to the application for IRBs.

29Under section 33(6), if the applicant fails to comply with section 33(1) then the insurer is not liable to pay a benefit in respect of the period of non-compliance. Following this letter of March 6, 2017, the respondent at no time informs the applicant that it sees the applicant as non-compliant with the request, or that it is denying IRBs as a result of section 33. Section 33(8) states that if the applicant then subsequently complies, then the insurer has an obligation to resume payment of benefits (if a benefit was being paid) and shall pay all amounts that were withheld during the period of non-compliance if the applicant provides a reasonable explanation.

30The applicant provided the OCF-10, Assignment and decoded OHIP summary by May 4, 2017. During this time or shortly thereafter, the respondent never advised the applicant if it decided to withhold payments. As the purpose of the Schedule is consumer protection and as the respondent never informed that it deemed him in non-compliance nor asked the applicant for an explanation following the receipt of the documents, I find that the respondent did not rely on section 33 as the basis for non-payment of the IRBs.

31On May 18, 2017, the respondent did however send a letter indicating that it received a disability certificate dated September 8, 2016.The letter quoted section 36(4) and stated: “This letter serves as notice, in response to your application for a specified benefit, that the insurer requires you to be examined under Section 44 of the SABS. The benefit to be addressed is Income Replacement Benefit.” This letter also indicates that the disability certificate is dated September 8, 2016, which is an obvious error as it pre-dates the accident.

32Under section 36(4)(b) the respondent’s obligations were to provide the applicant “a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination,” [my emphasis]. The respondent only advised the applicant that it requires an examination and it does not provide reasons as to why it believes the applicant is not entitled to IRB. Therefore, I find that this letter of May 18, 2017, as well does not fulfill the obligations of the respondent under section 36(4).

33The last letter I am pointed to by the respondent is a second letter dated May 18, 2017. In this letter, the respondent seeks income documents from three years pre-accident in order to calculate the IRB amount. I note that the applicant is informed that he may be eligible for IRB. In other words, this is not a denial of the IRBs.

34As well, the second letter of May 18, 2017 does not inform the applicant that the pre-accident income documents are being requested pursuant to section 33, does not provide the applicant with notice of the consequences of his non-compliance, and does not indicate the deadline by which the insurer requires the information. Attached to this letter are 11 additional pages which are reproductions of certain sections of the Schedules including section 33. However, the reproductions of the section of the Schedule, including the reproduction of section 33 of the Schedule, is provided without any context, and is not helpful or meaningful to the applicant. Therefore, as the respondent has failed to notify the applicant that the pre-accident income documents are being requested pursuant to section 33, I find that this letter of May 18, 2017 is not a section 33 request.

35The last letter that speaks to the IRBs is the letter of October 30, 2017. Following the examination under section 44 (the IEs), the respondent wrote to the applicant on October 30, 2017, and advised him that as a result of the findings of the IEs that the applicant is no longer entitled to Income Replacement benefits…Your entitlement to Income Replacement benefits are discontinued as of 14 November 2017.

36The applicant submits this is the letter denying the IRB, and the letter that the applicant should be able to rely upon for the basis of the denial of IRBs that complies with section 36(4). Based on the above, I find that the letter of October 30, 2017 is the first letter that complies with section 36(4)(b), in that it denied the IRBs and provided the reasons for the denial.

37Pursuant to section 36(6), if the insurer fails to comply with section 36(4) within the applicable time period, then the insurer shall pay for the IRBs for the period starting on the day the insurer receives the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in section 36(4)(b), on the day that the insurer gives that notice.

38Therefore, as I have found that the completed disability certificate was provided on January 13, 2017 and the notice as described in section 36(4)(b) was provided on October 30, 2017, the applicant is entitled to IRBs starting as of January 13, 2017 until the date of proper notice of October 30, 2017.

39The respondent also submits that the applicant is not entitled to IRBs, as he has not met his onus to show he is substantially unable to perform his pre-accident employment.

40Entitlement to IRBs is based on section 5(1) of the Schedule; a substantial inability to perform the essential tasks of his pre-accident employment due to impairments as a result of an accident

41In the letter of October 30, 2017, the respondent states to the applicant: “This letter provides notice that the insurance company has determine that you are no longer entitled to Income Replacement Benefits…” [emphasis added]. This letter of October 30, 2017 then states: “Your entitlement to Income Replacement Benefits are discontinued as of 14 November 2017.” [emphasis added] I find it persuasive that while the respondent could have taken the position that the applicant was never entitled to IRBs from the time of the accident forward, it instead took the position that the applicant’s entitlement to IRB ceased as of November 14, 2017. The notice of the ceasing of entitlement to IRBs is the letter of October 30, 2017.

42I see no reason to interfere with the position of the respondent that as of October 30, 2017, the applicant was no longer entitled to IRBs, and prior to October 30, 2017, the applicant was entitled to IRBs. Therefore, I find that the applicant is entitled to IRBs from January 13, 2017 until the date of proper notice of October 30, 2017.

Does Section 61 of the Schedule limit the Applicant’s IRBs?

43The respondent submits that the applicant informed them that he was in the course of his employment during the accident. As such, the respondent submits that, pursuant to section 61(3) of the Schedule, no IRBs are payable until the applicant makes an election under section 30 of Workplace Safety and Insurance Act, 1997 (WSIA). The respondent submits that the election under WSIA was never made.

44The applicant addresses this issue in his reply submissions. He submits that prior to the hearing the respondent never took the position that IRBs were not payable because the applicant did not make an election. Further, the applicant submits that WSIB specifically indicated that there is no claim at WSIB and that this therefore means that there is a dispute between the respondent and WSIB, which would then invoke section 61(5) of the Schedule.

45Section 61(1) states:

61.(1) The insurer is not required to pay benefits described in this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997 or any other workers’ compensation law or plan.

46Section 61(1) is an exclusion clause – circumstances in which accident benefits (not just IRBs) are not payable. The onus of proof rests with the respondent to show that the applicant should be excluded from receiving accident benefits. In this circumstance, the respondent must show that the applicant was entitled to receive WSIB. Based on the facts, the respondent has not shown that the applicant is entitled to WSIB.

47On February 1, 2017, the respondent advises the applicant that, based on information from the applicant, he was in the course of his employment at the time of the accident. The respondent provides advice on the commencing of a legal action versus receiving WSIB, and that if the applicant elects to pursue a legal action, he can then obtain accident benefits. The applicant is advised that he or his employer must report the accident to WISB and “if an election applies, the WSIB will give you information about your election between receiving their benefits and bring an action”.

48The respondent has provided no evidence that the “election form” from WSIB was ever received by the Applicant, or that WSIB accepted the election. The evidence provided, however, is that WSIB has never accepted this WSIB claim. On March 8, 2017, WSIB sent a letter to the respondent (and not the applicant) and advised that there is no WSIB claim and WSIB will advise if a claim can be registered at a later date. This letter specifically stated to the respondent from the legal services representative at WSIB of the following: “I will advise you in writing should a WSIB claim be registered.” The respondent has not provided any evidence that the applicant is entitled to receive WSIB benefits as a result of the accident.

49Section 11(1) of WSIA states that WSIB applies to every worker who is employed by a Schedule 1 employer or a Schedule 2 employer. The respondent has not established that the applicant is employed by a Schedule 1 of Schedule 2 employer. Thus, the respondent cannot rely on the exclusion found in section 61 (1) of the Schedule.

Weekly Quantum of IRBs

50The applicant has provided a calculation of IRB benefits of $189.81 per week.

51The respondent submits that it never disputed the calculation because it was determined by the I.E. that the applicant did not meet the test of for IRBs and, therefore, there was no initial entitlement to IRBs.

52The onus is on the applicant to prove on a balance of probabilities his weekly quantum of IRBs. The applicant has done so.

53Section 4(2) 2. states that if a person is self-employed at any time during the four weeks prior to the accident then his gross annual income used to calculate IRBs is his gross employment income for the 52 weeks before the accident.

54The IRB calculation provided by the applicant is based on his 2016 income tax returns showing his reported income for 2016. Section 4(5) states that what is reported as the annual income under the Income Tax Act shall be the person’s income without reference to any income the person has failed to report. The calculation of the applicant’s weekly IRB is based solely on his reported gross income in his 2016 income tax return, i.e. 50 weeks pre-accident as opposed to 52 weeks. However, the weekly gross income is calculated using the 2016 annual gross income ($14,100.00) and then divided by 52 weeks, thereby claiming that the two weeks in 2015 has a zero income. Based on the annual gross income, the applicant’s gross weekly income is $271.15 and 70% of this gross weekly income is $189.91.

55The respondent’s submissions that there is no initial entitlement is unfounded because, as noted above, the respondent themselves accepted the entitlement to IRB until November 14, 2017. Further, the respondent submits that it needs more than the 2016 income tax return to calculate the IRB. I agree that the two weeks of income in 2015 is required as that would then represent 52 weeks pre-accident; however, the applicant takes the position that his relevant 2015 income for those two weeks is zero, the applicant’s quantum of IRB is based on an income tax returns of the 52 weeks prior to the accident, and there is no evidence to refute the amount reported in the income tax return, and there is no evidence or submission that the calculation of the weekly IRB is incorrect.

56Therefore, the weekly IRB quantum is $189.81 per week.

57The applicant submitted a treatment plan dated July 27, 2018 (the Plan) for ten sessions of chiropractic treatment. The goals of the Plan are identified as pain reduction, increase strength, increase range of motion, return to activities of normal living, return to pre-accident work activities and return to modified work activities. The costs of the Plan are $1,198.00

58The respondent denied this Plan and the applicant submits the respondent’s denial was not in compliance with s. 38(8) and 38(9) of the Schedule. Therefore, the applicant submits that the remedial provisions of section 38(11) are in effect, and the sum of $1,198.00 is payable.

59The respondent submits that the notices denying the Plan were not deficient and in compliance with the Schedule and jurisprudence. The respondent also submits that the Plan is not reasonable and necessary.

Section 38 of the Schedule

60If an insurer’s denial of the Plan does not comply with section 38 or 44 then the remedial provisions of section 38(11) apply.

61Section 38(11) states:

(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8). O. Reg. 34/10, s. 38 (11).

62The respondent sent three letters denying the goods, services and costs of the Plan and they are dated August 9, 2018, August 20, 2018 and September 25, 2018. The applicant submits that because none of the letters complied with the Schedule, the amount is payable. However, the applicant has not provided any evidence that he incurred the costs of the Plan and under section 38(11)2. the insurer is obligated to pay for the goods starting on the 11th business day after receipt of the Plan and ending on the day of proper notice.

63Based on the reasons and analysis below, I find that the last letter of September 25, 2018 notifying the applicant of the denial of the Plan complies with the Schedule, and is therefore proper notice. I also note that the respondent, in denying the Plan as of September 25, 2018, does not take the position that the applicant is in the Minor Injury Guideline (“MIG”).

64Under section 38(11) and using September 25, 2018 as the date of compliant notice, for the applicant to be successful in pursuing the remedy under Section 38(11)2. (i.e. the insurer paying for the goods and services), the applicant would have to show that he incurred all or a portion of the costs of the Plan prior to September 25, 2018. The applicant has not provided any evidence that he incurred the cost of the Plan beginning on the 11th business day following submission of the Plan to date, let alone prior to September 25, 2018. It is, therefore, unnecessary for me to decide if the earlier notices of denial of the Plan complied with the Schedule because the remedy under section 38(11) would still result in zero being payable for the Plan.

65Below are the reasons why I found the September 25, 2018 letter to comply with Schedule.

66The applicant submits that the letter of September 25, 2018 is non-compliant because the respondent failed to advise that it believed the MIG applied pursuant to section 38(9).

67Section 38(14) is applicable to the analysis as this section setouts out the obligations for the insurer once it receives a section 44 IE report.

68Sections 38(13) and (14) state:

(13) Within 10 business days after receiving the report of an examination conducted under section 44 for the purpose of the treatment and assessment plan, the insurer shall give a copy of the report to the insured person and to the regulated health professional who prepared the treatment and assessment plan. O. Reg. 34/10, s. 38 (13).

(14) Within 10 business days after receiving the report, the insurer shall,

(a) provide the insured person with a notice indicating the goods and services described in the treatment and assessment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the medical and any other reasons for the insurer’s decision; or

(b) if the insurer determines that the Minor Injury Guideline applies, advise the insured person that the Minor Injury Guideline applies to the insured person’s impairment and provide medical and any other reasons for the insurer’s determination. O. Reg. 34/10, s. 38 (14).

69The requirement for medical reasons was explained in the Tribunal’s reconsideration decision of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373, in which Executive Chair Lamoureux stated at para. 19:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

70I find that the September 25, 2018 notice complied with the Schedule as it specifically relayed to the applicant the medical reason for the denial of the Plan following the IE. The notice provided a clear and sufficient reason for the insurer not agreeing to pay for the goods and services. It provided the specific finding of Dr. Czok from the IE of August 31, 2018 that the respondent relied upon and quoted the reason from her report. The applicant made no submissions as to why the letter of September 25, 2018 was not sufficient enough for the applicant to make an informed decision to either accept or dispute the finding. Therefore, I find that the rationale provided by the respondent was not vague nor confusing and the notice complied with the Schedule.

71The applicant does argue that the respondent did not advise the applicant that he was in the MIG and thus the notice denying the Plan did not comply with the Schedule.

72A notice under section 38(14) requires the respondent to advise the applicant that the insurer determined the MIG applies. The letter of September 25, 2018 makes no mention of the MIG, makes no mention that the MIG was considered and does not even imply that the respondent is taking the position that the MIG applies to the applicant.

73The applicant submits that in the earlier letters denying the Plan the respondent took the position that his injuries fall within the MIG, but that the September 25, 2018 letter is silent with respect to the MIG.

74Under section 38(14) there is only a requirement that the respondent advises that the MIG applies. There is no requirement for the respondent to say that the MIG does not apply. Therefore, I do not agree with the applicant’s submissions that because the letter of September 25, 2018 does not speak to the MIG, that is in non-compliance with the Schedule. I find that the letter of September 25, 2018 denying the treatment plan is proper under the Schedule.

Is the Treatment Plan Reasonable and Necessary

75Section 15(1) of the Schedule states that an insurer shall pay for all reasonable and necessary medical and rehabilitation expenses incurred by or on behalf of an insured as a result of an accident. The applicant bears the onus to prove, on a balance of probabilities, that the specific benefits he claims are reasonable and necessary for his accident-related impairments. I find that the applicant has not met his onus.

76The applicant does not point to any medical evidence that is contemporaneous to the Plan. The applicant provided records of the hospital immediately following the accident, the clinical notes of the Dr. Satei from 2016 only, the health records of Dr. Khan, psychiatrist, and the psychological report of Dr. Young. None of these records speaks to the applicant’s ongoing accident-related physical injuries or impairments and none of these records are contemporaneous to the Plan or make recommendations for chiropractic treatment. Other than the Plan itself, there is no further evidence in support of the Plan.

77The applicant therefore has not met his onus to show on a balance that the Plan is reasonable and necessary.

78The applicant is therefore not entitled to the Plan and, as no benefits are owing with respect to this Plan, there is no entitlement to interest.

CONCLUSION AND ORDER

79The applicant is entitled to IRBs of $189.81 per week from January 13, 2017 until the date of proper notice of October 30, 2017 plus interest as per the Schedule. The applicant is not entitled to the costs of the treatment plan and consequently not entitled to interest on the treatment plan amounts.

Released: November 10, 2021

___________________

Monica Chakravarti

Adjudicator

Footnotes

O.Reg. 34/10, as amended