Date: 2017-10-18

Tribunal File Number: 17-000665/AABS

Case Name: 17-000665 v Motor Vehicle Accident Claims Fund (MVACF)

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:

Applicant

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR: Robert Markovits

APPEARANCES:

For the Applicant: David Carranza, counsel

For the Respondent: Motor Vehicle Accident Claims Fund (MVACF), Respondent Daniel Fenwick, counsel

HEARD IN WRITING: May 23, 2017

REASONS FOR DECISION AND ORDER

1This is an Application by the applicant to the Licence Appeal Tribunal (the “Tribunal”) with respect to the resolution of disputes of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

OVERVIEW

2The applicant was injured in a motor vehicle accident on March 2, 2014 and applied for accident benefits to the Motor Vehicle Accident Claims Fund (MVACF) (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied claims for medical benefits and assessments on the basis that it found that the applicant had reached maximum medical recovery and the treatment plans were not reasonable or necessary.

3The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on April 5, 2017, and the matter proceeded to this written hearing.

ISSUES IN DISPUTE

4The applicant is seeking chiropractic treatment and psychological services as well as an orthopaedic, driver re-integration and chronic pain assessment.

5The specific issues in dispute are:

i. Are the applicant’s injuries considered minor injuries as described in the Schedule and subject to the coverage limits of the Minor Injury Guideline (the “MIG”)?¹

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,606.80 for chiropractic services, recommended by Prime Health Care Inc., in a treatment plan submitted April 17, 2015?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,405.10 for chiropractic services, recommended by Prime Health Care Inc. in a treatment plan submitted August 24, 2015?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,285.10 for chiropractic services, recommended by Prime Health Care Inc., in a treatment plan submitted December 9, 2015?

v. Is the applicant entitled to receive a medical benefit in the amount of $1,328.61 for chiropractic services, recommended by Prime Health Care Inc. in a treatment plan submitted March 16, 2016?²

vi. Is the applicant entitled to receive a medical benefit in the amount of $1,328.61 for chiropractic services, recommended by Prime Health Care Inc. in a treatment plan submitted April 27, 2016?

vii. Is the applicant entitled to receive a medical benefit in the amount of $1,328.61 for chiropractic services, recommended by Prime Health Care Inc. in a treatment plan submitted June 15, 2016?

viii. Is the applicant entitled to receive a medical benefit in the amount of $2,887.14 for psychological services, recommended by Prime Health Care Inc. in a treatment plan submitted July 15, 2016?

ix. Is the applicant entitled to receive a medical benefit in the amount of $1,285.10 for chiropractic services, recommended by Prime Health Care Inc. in a treatment plan submitted September 7, 2016?

x. Is the applicant entitled to receive a medical benefit in the amount of $1,981.70 for a driving re-integration assessment, recommended by Prime Health Care Inc. in a treatment plan submitted June 3, 2015?

xi. Is the applicant entitled to receive a medical benefit in the amount of $2,556.03 for a chronic pain assessment, recommended by Excel Medical Diagnostics in a treatment plan submitted September 23, 2015?

xii. Is the applicant entitled to receive a medical benefit in the amount of $1,994.72 for an orthopaedic assessment, recommended by Dr. Frederic Langer in a treatment plan submitted November 26, 2015?

xiii. Is the applicant entitled to interest for the overdue payment of benefit?

xiv. Is the applicant or respondent entitled to recover their legal costs?

RESULT

MIG Determination

6Based on the totality of the evidence before me, I find:

i. The applicant’s injuries are not minor injuries and the accident benefits he is entitled to are not limited to the monetary cap of the Minor Injury Guideline.

Partially Entitled Benefits

7Based on the totality of the evidence before me, I find:

i. The applicant is entitled to a partial payment for a treatment plan for chiropractic services, recommended by Prime Health Care Inc., in a treatment plan submitted April 17, 2015.

Entitled Benefits

8Based on the totality of evidence before me, I find:

i. The applicant is entitled to payments for treatment plans including both chiropractic and physiotherapy treatments submitted August 24, 2015, December 9, 2015, March 16, 2016, April 27, 2016, June 15, 2016 and, September 7, 2016.

ii. The applicant is entitled to payments for an orthopedic assessment submitted November 26, 2015.

iii. The applicant is entitled to interest on all incurred payments.

Not Entitled

9Based on the totality of evidence before me, I find:

i. The applicant is not entitled to payment for psychological services above the approved amount July 15, 2016.

ii. The applicant is not entitled to payments for a driving re-integration assessment submitted June 3, 2015.

iii. The applicant is not entitled to payments for a chronic pain assessment submitted September 23, 2016.

Recovery of Legal Costs

10The applicant and respondent are not entitled to recover their legal costs for this hearing.

Minor Injury Guideline

11The dispute over the applicant’s entitlement to various types of treatment centres on the nature and extent of the applicant’s injuries. Although it was not specified as an issue, the implied issue is whether the applicant is only eligible for amounts of benefits that are subject to the Minor Injury Guideline (MIG) limitations. Both parties have made extensive submissions on the nature of the applicant’s injuries sustained as a result of the accident. Based on these submissions, I have sufficient information to determine whether the applicant’s injuries are predominantly minor and treatment of them falls within the MIG. The applicant submits that his injuries are extensive and that he is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to section 18(3) of the Schedule. The respondent takes the position that his injuries are predominantly minor and that section 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The persuasiveness of the applicant’s evidence to support his position is what will determine the resolution of this matter.

Position of the Applicant

12The applicant contends that the amount of the cost of the benefits he is seeking should not be restricted by the limitations specified in the MIG. He gives three reasons why.

13First, the respondent failed to respond to the applicant regarding the denied treatment and assessment plans in dispute in accordance with section 38(8), (9), (10) and (11). Insurers have 10 business days to respond to treatment and assessment plans by virtue of section 38(8). As a result of the Insurer’s denial beyond the legislated 10 business days, the consequences of section 38(11) applied. Section 38 (9) and (10) stipulate that if the respondent believes that the impairments can be treated within the MIG, it must be indicated in the notice and the notice may indicate that the insurer requires the applicant to attend an examination by a health care professional examiner of the insurer’s choice.

14A number of treatment plans submitted were denied without being assessed properly. In addition, the insurer based its determination on an insurer’s examination (IE) report conducted to assess a treatment plan not raised as an issue in dispute in this application. The respondent did not reply to the treatment plan in accordance with section 38(8), which states that the insurance company shall respond to a treatment and assessment plan within 10 business days. Because the respondent failed to comply with section 38(8) of the Schedule they are barred from asserting that the applicant has an impairment to which the MIG applies and are liable to pay for all treatment plans in dispute. Finally, contrary to section 38(8), the respondent did not issue the mandatory Explanation of Benefits to explain why it denied these plans if it found that the treatment plans were not reasonable or necessary.

15Secondly, according to his doctors’ reports, the applicant is suffering from Chronic Pain as a result of the accident. This diagnosis removes limitations for treatment as prescribed by the MIG.

16Lastly, the applicant contends that as a result of the accident, he is suffering from psychological impairments and so the insurance company is liable to cover cost of his treatment plans even though they may be above the MIG limitations.

Position of the Respondent

17The respondent asserts that all applications for treatment plans had been properly responded to and it provided treatment as deemed appropriate based on medical advice. Moreover, the applicant’s medical evidence corroborates that the applicant suffers from only soft tissue injuries. In addition, the denied treatment plans were not reasonable or necessary.

Analysis

18The first question that must be answered is whether the impairments sustained are minor injuries subject to treatment within the MIG. If they are within the MIG, then all the other issues in dispute need not be dealt with.

19The Minor Injury Guideline establishes a framework for the treatment of minor injuries. The definition of a minor injury is one that involves a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. These terms are collectively referred as “soft tissue injuries”.

20An insurer, pursuant to section 14 of the Schedule, is liable to pay an insured person’s medical and rehabilitation benefits if the insured person has sustained impairment as a result of an accident, and the benefits are reasonable and necessary expenses that have been incurred by or on behalf of the insured person as a result of the accident.

21Section 18(1) of the Schedule provides a maximum limit of $3,500.00 for any one accident for medical and/or rehabilitation benefits for persons who have sustained a predominantly minor injury. As a result, the MIG will apply where an insured’s accident-related injuries are predominantly minor.

Impairments out of the MIG

22The respondent submits that the applicant’s injuries are minor injuries and are governed by the MIG. The applicant argues that that he has suffered psychological impairments as a result of the MVA. These psychological impairments can entitle him to receive benefits above the MIG cap.

23I find that the applicant has established that his injuries fall outside of the MIG because his psychological impairments are not within the definition of ‘minor injury’ for the following reason.

24The MIG only covers ‘minor injuries’, as defined in section 3(1) of the Schedule, and the definition does not include psychological impairments.

25The October 15, 2014 report by Dr. Andrew Shaul, indicated that the applicant was suffering from psychological impairments directly as a result of the MVA. According to Dr. Shaul, the applicant is suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in a vehicle).³ The applicant attended an insurer’s independent psychology assessment with Dr. Alan Chan at the respondent’s request. Dr. Chan corroborated the finding of Dr. Shaul. Dr. Chan opines that the applicant has Adjustment Disorder with Mixed Anxiety and Depressed Mood, Recurrent – with Panic Attacks (partly due to the index accident).⁴

26The Court in Scarlett v. Belair Insurance Co. [2015] ONSC 3635 (“Scarlett”) at paragraph 24 held that an applicant bears the burden of proof to establish that his or her accident-related injuries are not predominantly minor, and as such, fall outside of the MIG. If an applicant’s injuries fall outside of the MIG, the $3,500.00 limit on the medical benefits does not apply.

27Having considered the evidence before me, I accept both Dr. Shaul’s and Dr. Chan’s reports in establishing that the applicant’s psychological impairments are not a ‘minor injury’ and, as such, the treatment of the applicant’s injuries is not restricted by the MIG.

28Having found that the applicant’s injuries exceed the constraints of the MIG, there is no need for me to analyze any other reason the applicant puts forth to argue why he should not be limited to benefits with in the MIG. I must now apply the reasonable and necessity test and determine if the respondent is liable to pay for the treatments in question.

Partially Entitled Benefits

Issue (i) $1,606.80 Chiropractic Treatment submitted April 17, 2015

29The respondent contends that this benefit was properly denied because there was insufficient information to process the application.⁵ The applicant submits that the benefit was improperly denied because it did not comply with section 38(8).

s. 38(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

30The applicant advances two reasons why the denial is contrary to section 38(8). First, the denial letter was dated May 26, 2015 which was on the 11^th business day after the treatment plan was submitted (May 11, 2015) for their consideration. Secondly, the respondent failed to provide the medical reasons and all other reasons why the insured considered the proposed goods and services were not reasonable and necessary.

31I am not convinced of the applicant’s argument. In calculating the number of business days, the applicant failed to account for the Victoria Day statutory holiday that occurred on May 18, 2015. Therefore, the denial complied with the 10-business day requirement.

32The denial letter and Explanation of Benefits (EOB) form of May 26, 2015 only states:

We are unable to respond to the above treatment and assessment plan at this time. Your application to the Motor Vehicle Accident Claims Fund (MVACF) is still incomplete. We not not [sic] have a full police report on file confirming your involvement in the motor vehicle accident.⁶

33Part VIII of the Schedule prescribes the procedures for claiming benefits and the responsibilities of the insured and insurer. The Schedule provides that if an application is incomplete, no benefit is payable before the applicant provides the missing information.⁷ Section 34 of the Schedule, however, provides that a person’s failure to comply with a time limit set out in Part VIII does not disentitle the person to a benefit if the person has a reasonable explanation.

34The respondent’s EOB states that the application is incomplete because the applicant did not provide the respondent with the Police Report as required by the OCF-1 Form.

35Section 10 of the Application for Benefits Form (OCF-1) provides that for applications to MVACF, the application will not be considered complete until the applicant provides the three additional forms:

• NOTICE OF COLLECTION OF PERSONAL INFORMATION FORM;
• Form 3 – Section 6 MVACF Application for Statutory Accident Benefits; and,
• Motor Vehicle Accident Police Report.

36The Schedule, however, provides that an insurer can only consider an application that is missing information to be incomplete if the insurer, after a reasonable review of the incomplete application, is unable to determine without the missing information whether a benefit is payable.⁸

37I did not receive any submissions from the respondent on why the police report was required to determine the applicant’s entitlement to the medical benefits claimed. I find that missing the police report did not prevent the respondent from determining if the benefit is payable or why it would require the report before making a determination if the benefit is payable.

38Turning now to the respondent’s denial of the medical benefit – the solitary reason for the denial of the benefit does not satisfy the requirements of section 38(8). That paragraph of the Schedule specifies that “medical reasons and all other reasons” must be given for the denial and so I find that the insurer has not met the onus of properly notifying the applicant and is not in compliance with section 38(8).

39If the insurance company is not in compliance with section 38(8) mandatory consequences are initiated under section 38(11).

38(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:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. 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).

40The applicant asserts that the respondent is liable for the cost of the treatment plan until it corrects the deficiency.

41There is evidence before me that indicates that the respondent corrected the defective notice. Based on this evidence, the respondent received the plan on or before May 11, 2015 and provided its reasons on June 17, 2015, ⁹ well outside the ten-day deadline. The defective notice came three weeks late.

42The respondent’s breach of the ten-day deadline for responding to the treatment plan triggers the mandatory payment provisions under subsection 38(11)(2). In order to be payable, the treatment plan must “relate to the period” starting 11 business days after the respondent received the plan and ending at three weeks later when the respondent made a proper denial.

43The OCF-18 in question indicated a six-week course of treatment. In my view and absent evidence to the contrary, the chiropractic and massage therapies described in the OCF-18 could have been used for treatment at any time during that period. As a result, I conclude that three out of the six weeks of the proposed treatment relate to the requisite timeframe or period described in the treatment plan. Given that the respondent’s denial was out of time and that the requested benefit relates to the requisite timeframe, I conclude that the insurer is liable to pay $803.40 for the benefit.

Entitled Benefits

Issue (ii) $1,405.10 Chiropractic Services Submitted August 24, 2015

Issue (iii) $1,285.10 Physiotherapy/Massage Submitted December 9, 2015

Issue (iv) $1,328.61 Physiotherapy/Massage Submitted March 16, 2016

Issue (v) $1,328.61 Physiotherapy/Massage Submitted April 27, 2016

Issue (viii) $1,285.10 Chiropractic Services Submitted September 7, 2016

44The applicant submitted a number of Treatment and Assessment plans, for physiotherapy, massage and chiropractic therapy which were denied by the respondent in letters dated September 9, 2015, December 30, 2015, April 1, 2016, May 12, 2016 and September 8, 2016.¹⁰ The insurer contends that the applicant is in non-compliance with section 44.

45An insurer may require an insured person to be examined by a regulated health care professional. Section 44 of the Schedule describes why an examination by an insurer is required, how an examination request must be formulated and the obligation of an injured person to attend the examinations.

46The respondent argues that treatment was denied because the claimant failed to attend a section 44 examination scheduled for July 10 and July 14, 2015. Denial of this benefit is in compliance with section 38 (8), (9) and (10). Until the applicant fulfils their obligation to attend an IE under section 44 (9)(2)(iii), payment for medical benefits would not be considered. If the insured person fails or refuses to comply with subsection 44(9), the insurer may refuse to pay specified benefits relating to the period after the insured person failed to comply with subsection 44(9) and before the insured person complies with that subsection.¹¹

47The applicant maintains that the notices to attend IEs were deficient, and so released the applicant from his obligation to attend those examinations. The applicant argues the treatment plan in the amount of $1,405.10 was improperly denied on September 9, 2015. According to the applicant, the IE scheduled for July 2015 was for treatment plans that had been resolved through arbitration at the Financial Services Commission of Ontario (FSCO). The letter of September 9, 2015 did not constitute proper denial of the benefit. The applicant further argues that absent a proper notification to attend an IE, there was no notification to attend an examination.

48Although it was not specifically or clearly stated, the logical conclusion to the applicant’s argument is, if he was not properly notified to attend an examination, then he was under no obligation to attend. If he did not attend an examination, it would be impossible for the insurer to give notice to the applicant that it was not going to pay for the benefits described in the treatment plan with medical reasons and all the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary and so the notice is defective. The applicant used the imperfect notification to excuse himself from complying.

49This is contrary to section 38(10) which stipulates that if the insurer has not agreed to pay for medical benefits in dispute or believes that the MIG applies, the notice of 38(8) may notify the applicant that the insurer is requiring the applicant to undergo a section 44 examination. The respondent has failed to deny this treatment plan in accordance with section 38 (8), (9) and (10) of the Schedule.

50For the same reasons, the applicant maintains that the following medical benefits claimed were also not denied in compliance with the Schedule:

• $1,285.10 denied on December 30, 2015;
• $1,328.61 denied on March 16, 2016;
• $1,328.61 denied on April 27, 2016; and,
• $1,285.10 denied on September 22, 2015.

51The respondent's position is that the notices were proper and all the requirements and regulations of the Schedule were met.

52The applicant did not produce or provide me with copies of the purported deficient notices and there is no independent evidence of the deficiencies of said notices. I can only make a determination based on evidence that has been presented to me.

53The onus is on the applicant to make his case. Since the applicant has not provided me with a letter proving that the notice of a section 44 examination was defective, I find, on a balance of probabilities, that the notices were not deficient. Therefore, I have no reason to deny that the respondent has properly notified the applicant and has complied with the Schedule.

54Even if I were to agree with the applicant that he technically did not receive proper notification to attend the insurer’s examination that does not mean the applicant is automatically entitled to the medical benefit. If the applicant refuses to attend a section 44(9) examination, the insurer can refuse to pay the specified benefits until the applicant complies.¹² If the applicant complies, the respondent still may deny the benefit because, in their opinion, it is not reasonable or necessary.

55There was no evidence adduced that the notifications for the July 2015 examinations were defective. However, the applicant did attend an IE on June 22, 2016, the implication being that the notice was properly made. The respondent submitted an insurer’s orthopaedic examination by Dr. Ramunas Saplys, dated July 20, 2016.¹³ Dr. Saplys was asked to examine the applicant and evaluate eight treatment plans, five of which are issues (ii), (iii), (iv), (v) and (viii) listed above. Dr. Saplys believes the treatment plans in question are not reasonable and necessary because the applicant suffered soft tissue injuries as a result of the accident that fall under the parameters of the Minor Injury Guideline $3,500.00 cap.¹⁴

56Since I found the reasons for removing the applicant from the MIG limitations, I must decide if the treatment plans are reasonable and necessary. I find that these treatment plans are reasonable and necessary for the following reasons.

57Each of the treatment plans describe a variety of modalities to help achieve maximal medical recovery. These modalities include chiropractic treatments, passive massage, physiotherapy, functional exercises and acupuncture. Each of the treatment plans also outline goals for the therapy. There were physical goals and lifestyle goals articulated. These physical goals include: reduction of pain, increase of strength, increase in range of motion, and restoration of spine flexibility. The objective of the treatment plans also seek to achieve a return to activities of normal living, a return to pre MVA work activities, and return to modified work activities. There were tangible methods describing how progress would be evaluated.

58Just as important, the treatment plans acknowledged what barriers to recovery might be and how to overcome them. The treatment plans suggested graduated rehabilitation program to facilitate restoration of functions and prevent re-injury. The treatment plans make mentions two previous MVAs; one in 2007 and another one in 2011. The applicant received physical rehabilitation for both MVAs. The applicant also had surgery in February 2015 on his right hip for reasons that had nothing to do with the indexed MVA. He attended physiotherapy for his hip surgery until June 2015.

59I note that Dr. Saplys reached his conclusions based on reviewing the applicant’s medical history and physical examination/interview. The combined examination/interview lasted for 30 minutes.¹⁵ Dr. Saplys makes note of the applicant suffering from post-traumatic fibromyalgia as a result of the previous MVAs.

60In contrast, in Dr. Saplys’ report I am aware of the comprehensive clinical notes and records (CNR) submitted by the applicant, particularly those prepared by the clinic that recommended the treatment plans that are in dispute. Beginning in 2015, the applicant has been receiving treatment at Prime Health Care Inc. The treating health professional makes note of improvement in the applicant as a result of the physical therapies he took. The CNR indicates a decrease in pain and increase in range of motion. There seems to be a slow but consistent improvement beginning in 2015 and extending well into 2016.¹⁶

61I find the opinion of Dr. Saplys less persuasive than that of the health care professional that prepared the CNR and the treatment plans. Dr. Saplys’ opinion is based on a paper review of the applicant medical history and a 30-minute examination/interview, as opposed to physical observation of the health care professional that has treated the applicant for years.

62Based on the evidence and analysis above, I find the following treatment plans to be reasonable and necessary.

Amount

Date Submitted

$1,405.10

Chiropractic Services

August 24, 2015

$1,285.10

Physiotherapy/Massage

December 9, 2015

$1,328.61

Physiotherapy/Massage

March 16, 2016

$1,328.61

Physiotherapy/Massage

April 27, 2016

$1,285.10

Chiropractic Services

September 7, 2016

Issue (vi) $1,328.61 Physiotherapy/Massage Submitted June 15, 2016

63The respondent denied this treatment plan based on the opinion of Dr. Saplys described above. MCAVF explained in the EOB that the treatment plan was not reasonable or necessary. For the same reasons as above, I find that the treatment plan is reasonable and necessary.

Issue (vii) $2,887.14 Psychological Services Submitted July 15, 2016

64The insurer’s psychological examination by Dr. Chan confirmed that the applicant suffered from psychological impairments as a result of the MVA. The dispute is about the quantum of psychological treatment that the respondent is liable for.

65Dr. Chan is of the opinion that 12 sessions at one hour each and a psychotherapy progress report should not exceed $1,989.42. A treatment plan in the amount of $2,887.14 was prepared by the applicant’s psychologist, Dr. Shaul. The treatment plan submitted includes 12 sessions at 1.5 hours each, as well as a psychotherapy progress report. The respondent approved the amount calculated by Dr. Chan. The amount in dispute is $897.72 – the difference between the amount submitted and the amount approved.

66There is no question between the two reports that the applicant required and would benefit from psychotherapy. The applicant has not directed me to any reason or evidence the insurance company would be liable for the additional $897.72. I find, therefore, that the applicant is entitled to the approved benefit in the amount of $1,989.42.

Issue (xi) $1,994.72 Orthopedic Assessment Submitted November 26, 2015

67The applicant claims that an orthopedic assessment plan prepared by Dr. Langer brought no expected response by the insurer in accordance with section 38 (8) (10) and (11) of the Schedule. The invoice was submitted to and denied by HCAI but a formal letter of denial was not received by the applicant or his counsel.

68The respondent argues that the OCF-18 in question was not properly submitted despite a request by the insurer to provide documentation. Since the applicant has not responded to this issue, the respondent cannot respond to the issue.

69I have before me, the HACI printout of the date the assessment plan was submitted and the date of denial¹⁷. I find it disingenuous of the insurer to claim that the assessment plan was not properly submitted and so no action could be taken when both Drs. Chan and Gelman, the insurer’s examiners, referred to the assessment plan in their reports. The burden of proof shifts to the insurer in that the respondent asked for further documentation. It is the respondent who asserts they requested proper documentation, however, they have not provided me with proof of that request. As I mentioned, I have the log indicating that the invoice was submitted, and denied.

70I find, on a balance of probabilities, that the respondent failed to provide proper notice in accordance with section 38(8) (10) and (11). I find, therefore, that the applicant is entitled to the costs of the orthopaedic assessment.

Issue (xii) Entitlement to Interest

71I find that the applicant is entitled to interest on any overdue payments in accordance with section 51 of the Schedule.

Benefits Not Entitled

Issue (ix) $1,981.70 Driving Re-Integration Assessment Submitted June 3, 2015

72I find that this benefit is not reasonable and necessary. Dr. Chan notes that the applicant was not complaining of significant anxiety associated with associated with driving. Dr. Chan notes the applicant continues to drive on a continuous basis. The applicant has indicated in various interviews with his psychologist and other healthcare practitioners that he is driving.

Issue (x) $2,556.05 Chronic Pain Assessment Submitted September 23, 2016

73I find that this assessment is not reasonable and necessary for the following reason. In reviewing the applicant’s medical history, Dr. Saplys noted that in a 2008 letter by Dr. Lee, internist/rheumatologist, the applicant was most likely experiencing posttraumatic fibromyalgia from a previous MVA. Another consultation report of October 27, 2015 prepared by Dr. Florica, noted that the applicant presented with chronic back pain. And finally, the orthopedic report prepared by Dr. Langer in November 2015, notes that the indexed MVA resulted in exacerbation of the chronic mechanical neck and lumbar pain the applicant was enduring. These three physicians were specialists engaged by the applicant. All three opined that the claimant was suffering from chronic pain.

74The OCF-18 submitted does not indicate what would be the purpose of another or new assessment given the previous assessment of the applicant noted above. It makes mention of goals of treatment plans rather than the purpose of a new assessment or why a new assessment would be necessary. There was no new evidence produced by the applicant to indicate that he needed a further chronic pain assessment. Based on a review of the evidence before me, I find that the recommended chronic pain assessment, in the amount of $2,556.05 not to be reasonable or necessary.

Cost Recovery: Rule 19.1 of the Licence Appeal Tribunal Rules

75The applicant contends that he incurred unnecessary legal expenses as a result of the insurer’s unreasonable denial of accident benefits, and therefore, he is entitled to legal costs.

76The respondent’s position is that the applicant has incorrectly and frivolously subjected the insurer to this process, although the applicant knew or ought to have known that the benefits sought were properly denied.

77According to Rule 19.1, costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith.

78This test is a high bar to meet. A disagreement of whether the benefits should be paid or not does not amount to unreasonable, frivolous, vexatious or bad faith conduct. The purpose of this process is to make determinations about disagreements. Cost awards under Rule 19 are not to compensate parties for suffering an inconvenience or for the costs of their involvement in a proceeding.

79For the reasons outlined above, I find that the parties have not provided sufficient evidence to satisfy Rule 19.1 and the claim for costs is dismissed.

CONCLUSION

80For the reasons outlined above, I find the applicant is entitled to the treatment plans dated:

• August 24, 2015
• December 9, 2015
• March 16, 2016
• April 27, 2016
• June 15, 2016
• September 7, 2016
• November 6, 2015

81The applicant is entitled to a partial payment for a treatment plan dated April 17, 2015. The applicant is entitled to any applicable interest on incurred treatment plans.

82The applicant is not entitled to any of the other issues in dispute.

Footnotes

1. 1This was not specifically listed as an item in dispute. However, it is clearly set out in submissions by both parties and discussed below.
2. 2The submitted dates for items (iii) and (iv) in the Order differ from dates the applicant and respondent used in their application and response. I have used the dates in the original application.
3. 3Applicant’s Submissions, Tab 6: Psychological Report, Dr. Andrew Shaul. October 15, 2014.
4. 4Respondent’s Submissions Tab 9: Psychological In-Person Examination, Dr. Alan Chan. September 12, 2016.
5. 5Respondent’s Submission, Tab 2.
6. 6Respondent’s Submission, Tab 2, Letter and EOB dated May 26, 2015.
7. 7s. 32(8) O. Reg. 34/10.
8. 8s. 32(7)(a) O. Reg.34/10.
9. 9Applicant’s Submissions, Tab 12 and Tab 14.
10. 10Respondent’s Submissions, Tabs 3, 4 and 5.
11. 11O. Reg. 34/10, s. 37 (7).
12. 12O. Reg. 34/10, s. 37 (7)(b).
13. 13Respondent’s Submission, Tab 6, Orthopaedic In-Person Examination, Dr. Ramunas Saplys, July 20, 2016.
14. 14Ibid.
15. 15Ibid.
16. 16Applicant’s Submissions, Tab 39, pages 83-95.
17. 17Applicant Submission, Tab 20