M.B. v. Travelers Insurance, 2018 CanLII 137803

Tribunal File Number: 17-003671/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:

M.B.

Applicant

and

Travelers Insurance

Respondent

DECISION

PANEL:

Rebecca Hines, Adjudicator

APPEARANCES:

For the Applicant:

Alexei Antonov

For the Respondent:

Erin Morgan

HEARD In-person and In Writing:

November 29 and 30, 2017 January 22, 2018

OVERVIEW

1The applicant was involved in an accident on January 8, 2016. She applied for accident benefits to Travelers Insurance (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010¹ (the “Schedule”). The respondent denied her claim and she applied for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefit Services (“the LAT”).

2Both parties submitted documentary evidence. The in-person component of the hearing took place over a day and a half. I heard evidence from the applicant and Dr. Shaul, psychologist, two insurer examiners Dr. Alborz Oshidairi, physiatrist and Dr. John Lee, psychologist as well as from Ms. Lauren Pyke, adjuster with the respondent. I received submissions in writing pertaining to the issue of the award after the conclusion of the in-person hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to payment for medical benefits for the following treatment plans recommended by Downsview Healthcare Clinic:

(a) $2,502.40 for physiotherapy, chiropractic treatment, massage and acupuncture denied by the respondent on February 18, 2016;

(b) $1 280.80 for physiotherapy, chiropractic treatment massage and acupuncture denied by the respondent on May 13, 2016; and

(c) $3,335.98 for psychological treatment denied by the respondent on June 28, 2016?

iii. Is the applicant entitled to payment for cost of examination expenses for the following recommended by Downsview Healthcare Clinic:

(a) $200.00 for a psychological pre-screen report submitted by invoice (“OCF-21”) on June 8, 2016;

(b) $2,000.00 for a psychological examination denied by the respondent on February 24, 2016;and

(c) $200.00 for preparation of a disability certificate (“OCF-3”) denied by the respondent on June 28, 2016?

iv. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

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

4For the reasons that follow, I find:

i. The applicant’s injuries fall within the MIG;

ii. The applicant is entitled to the following treatment plans for medical benefits up to the MIG limit of $3,500.00 recommended by Downsview Healthcare Clinic:

(a) $2,502.40 for physiotherapy, chiropractic treatment, massage and acupuncture denied by the respondent on February 18, 2016; and

(b) $1,280.80 for physiotherapy, chiropractic treatment, massage and acupuncture denied by the respondent on May 13, 2016.

iii. The applicant is not entitled to the following treatment plans for medical benefits and examination expenses recommended by Downsview Healthcare Clinic:

(a) $3,335.98 for psychological treatment denied by the respondent on June 28, 2016;

(b) $200.00 for a psychological pre-screen report submitted by invoice (“OCF-21”) on June 8, 2016;

(c) $2,000.00 for a psychological examination denied by the respondent on February 24, 2016;and

(d) $200.00 for preparation of a disability certificate (“OCF-3”) denied by the respondent on June 28, 2016.

iv. The applicant is not entitled to an award under Ontario Regulation 664, R.R.O.1990.

v. The applicant is not entitled to interest on overdue payment of benefits.

PROCEDURAL ISSUES

5At the outset of the hearing, I was asked to make a decision with respect to the following motions:

Adding Interest and an Award

i. The applicant requested to add interest and an award under Ontario Regulation 664, R.R.O. 1990 as issues in dispute. The applicant argued that interest was included on the initial application but not the order confirming the issues. The respondent objected to this request as the award was not checked off on the LAT application. Further, the respondent had served the applicant with the adjuster’s log notes on August 31, 2017, which gave the applicant ample time to provide notice of her intention to add the award issue. The respondent would be prejudiced as it had not prepared to address the issue in preparation for the hearing.

Applicant’s Supplemental Brief

ii. The applicant requested to file a supplemental brief on the date of the hearing. The respondent objected to this request on the basis of procedural fairness. The applicant argued that the respondent was not prejudiced by any of the documents contained in the brief, and that she had served the respondent with all of the documents in the brief in advance of the hearing so their contents were known to the respondent.

Lauren Pyke

iii. The respondent opposed the applicant calling Lauren Pyke as a witness, as Ms. Pyke was served with the summons the day before the hearing. Further, the applicant had not provided payment for her attendance at the hearing. The applicant argued that she had given Ms. Pyke notice by sending her a letter on October 30, 2017, advising that she would be summoned and confirming the hearing date. The Licence Appeal Tribunal’s Rules of Practice and Procedure do not indicate that payment for attendance must be made in advance of the hearing date.

Order of Witnesses

iv. The respondent requested that Dr. Alborz Oshidairi, physiatrist, testify first, based on his availability. The respondent had written to the applicant’s representative on November 21, 2017, making this request and the applicant did not oppose the request until the day before the hearing. The respondent argued that there was no prejudice to the applicant. Further, the respondent would be prejudiced if Dr. Oshidari was not allowed to give evidence as the respondent would incur costs. The applicant opposed this request on the basis that it is traditional for the applicant to provide their evidence first.

6I order as follows:

i. Interest and the award are added as issues. Interest was an issue on the initial application and I do not see any prejudice to the respondent. Regarding the award, it is not a benefit and there are no rules pertaining to when it can and cannot be raised as an issue.

ii. I allow the applicant’s supplemental brief to be filed as evidence, as the respondent had knowledge of the documents contained and I did not feel that the respondent adequately demonstrated how it would be prejudiced.

iii. I allow Lauren Pyke to attend the hearing to give evidence. I find that she was given adequate notice at the end of October that she would be summoned. Further, I agree with the applicant that there is nothing in the Rules that specify when payment for attendance is required.

iv. I allow Dr. Oshidairi to testify first. I feel the respondent gave enough notice of their witnesses’ availability for the applicant to respond in a timely manner. The prejudice to the respondent outweighs that of the applicant’s right to go first, as it will incur costs.

BACKGROUND

7On January 8, 2016, the applicant was a pedestrian crossing the street and was struck by a mini-van coming out of a plaza attempting to make a left hand turn. The applicant fell to the ground where she sustained injuries to her right thigh, shoulder and arm.

8Following the accident, the applicant missed three days of work in her job as a sales representative in a retail store.

9The applicant attended Downsview Health Clinic for physiotherapy, acupuncture, massage and chiropractic treatment approximately seventeen times between January 12 and October 18, 2016 for her accident related impairments.

10To date, the respondent has only paid $200.00 for the completion of an OCF-3 and has not approved any treatment plans.

11The applicant argues that her injuries are not minor as she suffers from pre-existing depression and anxiety which were exacerbated by the accident and prevented her from achieving maximum medical recovery within the MIG. She also maintains that she suffers from a psychological impairment as a direct result of the accident. The onus is on the applicant to prove that her injuries are not minor.

12Finally, she claims an award on the basis that the respondent unreasonably withheld the payment of benefits.

13The respondent agrees that the applicant suffered from pre-existing depression and anxiety, but argues that her condition remained the same post-accident. The respondent maintains that her pre-existing conditions were not exacerbated and do not prevent her from achieving maximum medical recovery within the MIG. Further, the respondent denies that the applicant suffered a psychological impairment as a direct result of the accident. Finally, the treatment plans in dispute are not reasonable or necessary, as they were not submitted to the respondent by way of an OCF-23 for treatment within the MIG.

ANALYSIS

(i) Do the applicant’s injuries fall within the MIG?

14Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

15Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit.

Physical Impairment

16The applicant’s physical injuries fall within the MIG for the following reasons:

17First, with the exception of the diagnosis of “brachial radiculitis”, which I will address later, the physical diagnosis listed on all disability certificates (“OCF-3s”) and treatment plans (“OCF-18s”) fall within the definition of a minor injury. The OCF-3 dated January 16, 2016 completed by Dr. Oleksandr Pivtoran, chiropractor with Downsview Health Clinic, listed the following accident related impairments: shoulder derangement right (internal); brachial radiculitis (right); hip and thigh contusion (right); shoulder sprain and strain of joints and ligaments (left); and behavioural symptoms and signs involving emotional state.

18Second, the applicant did not submit any imaging, x-rays, clinical notes and records (“CNRs”) or reports to support that she suffered a physical impairment that would remove her from the MIG. The CNRs of Dr. Zuzana Gross, the applicant’s family doctor, demonstrate that the applicant did not report her accident related impairments until May 3, 2016, four months post-accident.

19By contrast, the respondent submitted the report of Dr. Alborz Oshidairi, physiatrist, dated August 30, 2016. The purpose of this assessment was to determine whether the applicant’s injuries were minor and whether the two treatment plans for physiotherapy, chiropractic treatment, acupuncture and massage were reasonable and necessary.

20Dr. Oshidairi’s physical examination of the applicant was unremarkable. The applicant demonstrated full range of motion of the cervical spine and shoulders, and did not display any sign of pain or discomfort. Dr. Oshidairi diagnosed the applicant with sprain and strain with contusion of the shoulder which fits within the MIG. Dr. Oshidairi opined that treatment outside of the MIG would not be reasonable or necessary.

21Dr. Oshidairi testified that part 5 of the OCF-3 completed by Dr. Pivtoran listed “brachial radiculitis” as an accident related impairment, which is also commonly referred to as “radiculopathy”. In his opinion, such a diagnosis would remove an individual from the MIG. He confirmed that this would be something within his area of expertise to diagnose. However, he noted that clinics commonly list this impairment for the purpose of having their clients removed from the MIG so that they can receive more treatment.

22Dr. Oshidairi stated that in the applicant’s case, there were no symptoms or evidence leading him to make such a diagnosis. During his physical examination he checked the applicant’s muscles to see if there was any shrinkage and indicated that if radiculopathy was present, the applicant would have restricted range of motion of the arm because the muscle is weak. The applicant’s strength, reflexes and sensory were all normal. Dr. Oshidairi maintained that if someone was suffering from radiculopathy, there would be a sensory abnormality for six months to a year and that it would not have resolved seven months post-accident, the date of his examination.

23There was a difference of opinion regarding the length of the examination. Dr. Oshidairi claimed it lasted 35 minutes while the applicant maintained that it was only 5 minutes. Despite this difference of opinion, the onus is on the applicant to prove that her accident related impairments are not minor, and from a physical perspective she has not met her onus. The testimony of Dr. Pivtoran with respect to how he came to the diagnosis of brachial radiculitis may have been helpful in this regard.

24For the above-noted reasons, I find the physical impairments sustained by the applicant fall within the MIG.

(ii) Does the applicant’s pre-existing condition of depression and anxiety prevent her from achieving maximum medical recovery within the MIG?

Psychological Impairment:

25I do not find that the applicant’s pre-existing condition of depression and anxiety would prevent her from achieving maximum medical recovery within the MIG for the following reasons:

26The applicant’s pre-existing conditions of anxiety and depression were confirmed through the CNRs of Dr. Harold Grossman, her treating psychiatrist. The records demonstrate that since 2011, the applicant saw Dr. Grossman once a month with respect to longstanding depression and anxiety. The applicant indicated that her depression was caused by infertility, relationship issues and problems at work.

27The applicant testified that her psychological health was stable prior to the accident. However, post-accident, her anxiety and depression got worse. She indicated that the physical pain in her right shoulder and arm lingered for a long time. As a result, she was sadder, gained weight and was not in the mood to do anything. Furthermore, she was extra careful crossing the street.

28Unfortunately, the CNRs of Dr. Grossman were not legible. Only one entry dated January 14, 2016 refers to the accident. The entry states “mva bruises on right hand and shoulder.” The applicant testified that she saw Dr. Grossman at the same frequency post-accident. I did not find Dr. Grossman’s CNRs demonstrated that the applicant’s depression and anxiety were exacerbated by the subject accident or prevented her from achieving maximum medical recovery within the MIG.

Prescription Medication:

29The applicant asserts that an increase to the dosage of her antidepressants is proof that her psychological condition deteriorated post-accident. Prior to the accident, she took two 20 mg capsules of prozac a day. Following the accident, the applicant contends that her dosage increased up to four pills a day. The applicant submitted the prescription summary of 3M Drug Mart. A review of the summary reveals the same instructions and dosage pre and post-accident. It says “20 mg capsules” and the directions say “take 3 capsules by mouth once daily.” The applicant argued that the quantity of pills increased. While the prescription summary indicates that the quantity of pills increased on a few occasions, Dr. Grossman’s directions with respect to dosage remained the same.

30The applicant was questioned about this during cross-examination. Her response was inconsistent, as she indicated that the printout was not reflective of what she was taking. The respondent highlighted references in Dr. Grossman’s CNRs which referenced the same prescription pre and post-accident. I found credibility issues with respect to the applicant’s testimony regarding the increase in prescription medication, as she divulged that from November 2016 to present she has been living in Israel. The applicant indicated that her mother would pick up her prescriptions from the pharmacy in Canada. However, there was no explanation with respect to how she received her prescriptions while living in Israel. For these reasons, I have given the prescription summary less weight.

Evidence of Dr. Shaul and Dr. Lee:

31I found the IE report and testimony of Dr. Lee more persuasive than that of Dr.Shaul, the applicant’s assessor.

32The applicant submitted three reports authored by Dr. Shaul, psychologist, and Helen Illios, psychotherapist; A pre-screening psychological assessment dated January 29, 2016, a psychological assessment dated April 28, 2016 and a medical legal paper review dated August 4, 2017. Dr. Shaul also testified in person at the hearing. Dr. Shaul’s report dated April 28, 2016 diagnosed the applicant with Adjustment Disorder with Anxiety and Major Depressive Disorder with Specific Phobia (pedestrian anxiety). Dr. Shaul concluded that this diagnosis is in part as a result of the accident.

33Dr. Shaul stated that although the applicant suffered from pre-existing depression and anxiety, she was able to manage her activities of daily living. Post-accident, her depression had worsened, as she faced the additional stress of pain and physical limitations, which exacerbated her psychological condition. Dr. Shaul recommended 14 counselling sessions to treat anxiety, depression and pedestrian anxiety. In Dr. Shaul’s medical legal paper review, he states the applicant’s psychological condition prevent her from achieving maximum medical recovery within the MIG.

34Dr. Lee’s report found that the applicant’s pre-existing depression and anxiety were not exacerbated by the accident. Further, he found no accident related psychological impairment which would prevent her from achieving maximum medical recovery within the MIG.

35Both Dr. Shaul and Dr. Lee administered psychological tests and found the applicant’s presentation to be honest and valid.

36I did not find Dr. Shaul’s reports reliable. I found the following credibility issues and consequently, give his opinion less weight:

• Dr. Shaul never met with the applicant, did not review her test results or CNRs and was not fully aware of her medical history.

• The pre-screen psychological report came from a telephone interview conducted by Ms. Ilios, psychotherapist.

• There were many inconsistencies in Dr. Shaul’s reports, as well the records of Downsview Healthare Clinic. For example, the OCF-3 completed by Dr. Pivtoran in January 2016 noted that the applicant was suffering from sleep disturbance and driving anxiety. Two weeks later, the psychological pre-screen report by Ms. Illois recorded no sleep issues and no driving or pedestrian anxiety. Then, the psychological report dated April 28, 2016 diagnosed the applicant with pedestrian anxiety and stated there are no issues with sleep.

• Dr. Shaul’s medical legal report dated August 4, 2017 states the applicant cannot do the essential tasks of employment. However, she went back to work and her lost income was never an issue. Sleep disturbance and driver’s anxiety is again referenced. Dr. Shaul also makes a statement that the applicant’s psychological condition is deteriorating without having met with her or reviewing any new information other than the IE report of Dr. Lee. On the date of this report, the applicant had been living in Israel for almost a year.

• Dr. Shaul’s reports also contain conflicting opinions. In the 2016 report, he opines that the applicant’s pain caused stress and exacerbated her psychological condition. In his 2017 report he states that the applicant’s predominant injury was psychological, when almost all of the evidence points to pain in the right shoulder and arm as being the predominant injury.

37When it comes down to two competing medical opinions, consistency and credibility play a very important role. The applicant was a poor historian when recalling the assessments done by Dr. Shaul’s office. During cross-examination, she could not remember who conducted the psychological assessment, nor could she recall if the woman who did the three counselling sessions was the same person who conducted the psychological assessment.

38By contrast, Dr. Lee met with the applicant personally in conducting his psychological IE in August 2016. Dr. Lee confirmed he reviewed the documents provided, conducted the clinical interview himself and reviewed and analyzed the test results. The applicant reported to Dr. Lee that her primary issue was with respect to pain in her right shoulder and arm and that she has improved but feels like she has plateaued.

39When asked about the tests administered in Dr. Shaul’s assessment, Dr. Lee confirmed he would not discount the results and agreed they were credible. However, there is a difference of opinion in terms of whether the accident exacerbated the applicant’s pre-existing depression or anxiety or that she sustained a psychological impairment as a result of the accident.

40Dr. Lee’s IE report outlines that the applicant indicated to him that there was no disruption to her mood and she has been pretty much the same post-accident. She does feel down at times, but attributes her low mood to IVF and work. Further, her energy levels are characteristically low. When she thinks about the accident, she feels lucky that it was not worse, does not suffer from pedestrian anxiety and is independent with self-care with the exception of a cleaning lady who helps with heavier tasks.

41When the applicant was asked during cross-examination whether she recalled making these statements to Dr. Lee, she said “I don’t recall – maybe.” When asked if she told Dr. Lee that her fertility and work issues caused her low mood, she said “maybe I had.” Since I have found Dr. Shaul’s reports unreliable and the applicant did not give me any reason to doubt the contents of Dr. Lee’s report, I agree with the conclusion that there was no exacerbation of the applicant’s psychological condition. I further agree with Dr. Lee that there is no accident related psychological impairment that falls outside of the MIG.

42Other than Dr. Shaul’s reports, Dr. Grossman’s illegible CNRs and the applicant’s argument that her dosage of anti-depressants increased, I was not directed to any evidence that demonstrated her pre-existing depression and anxiety prevented her from achieving maximum medical recovery within the MIG. The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG.

43Therefore, I do not find that the applicant’s pre-existing medical conditions would prevent her from achieving maximum medical recovery within the MIG. Nor do I find that she suffered a psychological impairment as a direct result of the accident.

(iii) Are the treatment plans for physiotherapy, chiropractic treatment, massage and acupuncture reasonable and necessary?

44The respondent argues that the treatment plans are not reasonable and necessary because the request for treatment was not submitted on a Treatment Confirmation Form (“OCF-23”). In order for payment within the MIG to be made, an OCF-23 or an OCF-18 indicating “yes” to the MIG for supplementary treatment must be submitted. Further, the respondent also argues that there is nothing in the Schedule that obliges them to pay for an OCF-18, when an applicant can receive treatment under the MIG. However, I disagree.

45While I have determined that the applicant sustained a minor injury, the respondent has only paid $200.00, leaving $3,300.00 available to the applicant under the MIG. In my view, to deny all medical treatment on a technicality is not in line with the spirit of the Schedule which is consumer protection legislation. When the MIG limits have not been incurred, the appropriate test, in my opinion, is whether the treatment plans are reasonable or necessary. I find both treatment plans for physiotherapy, chiropractic treatment, massage and acupuncture reasonable and necessary up to the MIG limit for the following reasons:

46First, the applicant sustained injuries as a direct result of the accident and has incurred the cost for treatment. While her injuries were soft tissue in nature, the goals of the OCF-18s for physical treatment were appropriate. Part 8 of the first OCF-18 submitted to the respondent on January 12, 2016 reported that the applicant was having difficulty bending, lifting, and carrying, stooping and doing overhead activities. The objectives of the treatment plan were pain reduction, increase strength and increased range in motion (“ROM”) to manage her activities of daily living. It has been established that pain reduction is an acceptable goal for treatment.

47Second, the applicant reported to all assessors, including Dr. Oshidairi, that after attending Downsview Healthcare Clinic for treatment, she noticed improvement with respect to her symptoms. This improvement is further corroborated in the second OCF-18, dated April 29, 2016, submitted for physical treatment. The OCF-18 is identical to the first, with the exception of Part 9 (b) which states: “the applicant has demonstrated increased ROM, decreased pain, increased endurance and a general decrease in the frequency and severity of painful episodes. Overall improvement was estimated at 50%.” Since the treatment was helping, but the applicant was not yet back to her pre-accident health, I find the second treatment plan is reasonable up to the MIG limit.

48Third, while Dr. Oshidairi found the applicant’s physical impairments to be within the MIG, and determined that she had reached maximum medical recovery, I find he was missing information. Dr. Oshidairi opined treatment outside of the MIG is not reasonable. However, at the time of his assessment, Dr. Oshidairi was not aware that the two plans he was assessing were already partially incurred. During cross-examination, Dr. Oshidairi confirmed that if the $2,502.00 is the only treatment the applicant received, by law it would be appropriate.

49For the above-noted reasons, I find both treatment plans reasonable and necessary up to the MIG limits.

(iv) Entitlement to psychological assessment, psychological treatment, OCF-3 and OCF-21:

50Since I have determined that the applicant sustained a minor injury, I need not determine whether the psychological assessment, psychological treatment or OCF-3 or 21 is reasonable and necessary.

(v) Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

51Under Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664), in addition to awarding the benefits and interest to which an insured person is entitled, the Tribunal may award a lump sum of up to 50% of the amount to which the insured person is entitled to together with interest on all amounts then owing to the insured at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule, if it is determined that an insurer unreasonably withheld benefits.

52The applicant contends that the respondent acted unreasonably by withholding payments in relation to its denial of all four treatment plans and for improper categorization of the applicant’s injuries in the MIG. The applicant argues that the respondent’s conduct was unreasonable for the following reasons:

(a) It had insufficient regard for the applicant’s mental health by disregarding the three psychological reports of Dr. Shaul and CNRs of Dr. Grossman and maintaining its position that the applicant’s impairments were minor;

(b) It denied all treatment plans submitted by the applicant and refused to provide any funding within the MIG itself.

53The respondent argues it is under no obligation to approve treatment plans up to the MIG limits. The LAT has found that where an insurer partially approved a treatment plan to the MIG limits and the claimant was subsequently removed from the MIG, the remainder of the partially approved treatment was payable. Further, the treatment plans were not reasonable or necessary seven months after the accident. The respondent has not unreasonably withheld the benefit because the treatment plans were out of the MIG. The applicant was advised that she was able to submit an OCF-23. She chose not to receive benefits and treatment available to her under the MIG.

Maintaining its position on the MIG

54Since I have determined that the applicant sustained a minor injury, I do not find an award is warranted with respect to the respondent maintaining its position on the MIG.

55Part 4 of the MIG states that compelling evidence is to be provided by using the OCF-18 with attached medical documentation, if any, prepared by a health practitioner.

56In the present case no evidence was submitted to confirm that the applicant attached compelling medical documentation along with her OCF-18s supporting that her impairment was not minor. The only documents submitted were the OCF-18s themselves. The obligation to provide compelling medical evidence rests with the applicant.

57The applicant was significantly delayed in providing medical documentation to the respondent. For example, the CNRs from Dr. Gross, the applicant’s family doctor, were not submitted until May 13, 2016. Further, Dr. Shaul’s reports were not provided to the respondent until August 8, 2017 and the CNRs of Dr. Grossman were not given to the respondent until October 25, 2017, after the date of the LAT application.

58After receipt of these records the respondent scheduled an IE with Dr. Lee for November 8, 2017 to reassess the applicant. The applicant failed to attend because she was in Israel.

59In light of my decision on the MIG, I do not feel an award is warranted on the basis that the respondent placed the applicant in the MIG. In addition, I agree with the respondent that she was significantly delayed in providing records to the respondent.

Non Payment under the MIG

60From January 2016 to date, the respondent denied treatment on the basis that the applicant’s injuries were minor and she did not submit an OCF-23 for treatment within the MIG.

61The applicant did not submit any authority or case law with respect to her request for an award. The respondent submitted the case of Plowright and Wellington², in which the arbitrator defined unreasonable conduct as behaviour: “which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

62In the present case, I find the behaviour of both parties stubborn and inflexible, however, it is not worthy of an award. Since the date of the accident, the respondent has sent the applicant approximately five letters advising her that she could receive treatment in the MIG if she submitted an OCF-23. However, she chose not to. Submitting an OCF-23 would not have restricted her to treatment within the MIG if she could provide compelling medical evidence that her injuries were not minor. Similarly, the respondent was aware that the applicant incurred medical treatment and still decided not to issue any payment.

63I do not find an award is warranted, as the applicant did not cooperate in submitting the proper forms and did not provide any authority or case law to support her entitlement to an award.

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

64The applicant is not entitled to interest.

CONCLUSION

i. The applicant’s injuries fall within the MIG;

ii. The applicant is entitled to the following treatment plans for medical benefits, up to the MIG limit of $3,500.00 recommended by Downsview Healthcare Clinic:

a) $2,502.40 for physiotherapy, chiropractic treatment, massage and acupuncture denied by the respondent on February 18, 2016;

b) $1,280.80 for physiotherapy, chiropractic treatment, massage and acupuncture denied by the respondent on May 13, 2016.

iii. The applicant is not entitled to the following treatment plans for medical benefits and examination expenses, recommended by Downsview Healthcare Clinic:

a) $3,335.98 for psychological treatment, denied by the respondent on June 28, 2016;

b) $200.00 for a psychological pre-screen report, submitted by invoice (“OCF-21”) on June 8, 2016;

c) $2,000.00 for a psychological examination, denied by the respondent on February 24, 2016;

d) $200.00 for preparation of a disability certificate (“OCF-3”), denied by the respondent on June 28, 2016.

iv. The applicant is not entitled to an award under Ontario Regulation 664, R.R.O.1990.

v. The applicant is not entitled to interest on overdue payment of benefits.

Footnotes

1. 1O. Reg. 34/10.
2. 2Plowright and Wellington Insurance Co., (OIC A-003985, 29 October 1993)