Citation: Polidori vs. Motor Vehicle Accident Claims Fund, 2020 ONLAT 19-009160/AABS

Released Date: 10/07/2020

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:

Mario Polidori

Applicant

and

Motor Vehicle Accident Claims Fund

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Adam Birch, Counsel

For the Respondent:

Jennifer Chapman, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant ("M.P.") is a 70-year-old man who was injured in an automobile accident on December 3, 2015. A vehicle struck him while he was crossing at a pedestrian crosswalk. The vehicle failed to remain at the scene. M.P. was taken by ambulance to hospital where he was assessed and discharged.

2At the time of the accident, M.P. did not have a valid driver's license and was uninsured. M.P. recalled the license plate number of the vehicle that struck him and filed a tort action against the owner of the vehicle. The owner took no steps to respond to the claim and M.P. was unable to identify the owner's insurer.

3In accordance with the Motor Vehicle Accident Claims Act,¹ the Motor Vehicle Accident Claims Fund ("MVACF") was designated to defend the tort action and act as insurer for M.P.'s pending accident benefits claim.

4Approximately three years after the accident, in November 2017, M.P. filed an application for accident benefits from MVACF pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').² MVACF later identified the insurer for the owner of the vehicle that struck M.P. and in January 2019 put it on notice of a priority dispute.

5In May 2019, M.P. claimed a medical benefit which MVACF denied. M.P. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.

ISSUES TO BE DECIDED

6I am to decide the following issues:

i. Is the applicant entitled to receive a medical benefit in the amount of $1,950.00 for an in-home occupational therapy assessment, recommended by DMA Rehability in a treatment plan submitted May 6, 2019 and denied May 21, 2019?

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

iii. Is the applicant entitled to an award under Ontario Regulation 664 ("O. Reg. 664")³ because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

7M.P. is entitled to $1,950.00 for an in-home occupational therapy assessment plus interest calculated in accordance with s. 51 of the Schedule.

8M.P. is entitled to an award under O. Reg. 664 amounting to 40% of the benefits to which he is entitled because MVACF unreasonably withheld the payment of benefits.

ANALYSIS

The disputed assessment is reasonable and necessary as a result of the accident

9For the following reasons, I am satisfied on a balance of probabilities that the assessment M.P. claimed is reasonable and necessary as a result of the accident.

The facts

10M.P. had shoulder and back injuries prior to the accident. An ultrasound report dated May 4, 2015 confirmed a completely retracted right supraspinatus (rotator cuff) tear. According to the clinical notes of M.P.'s family physician, Dr. Seth Aborhey, M.P.'s condition was well-managed with anti-inflammatory and analgesic medications, and M.P. was able to perform manual work around the home.⁴

11In October of 2015, two months before the accident, Dr. Aborhey noted that M.P.'s rotator cuff tear was stable. A referral to a pain specialist was pending.⁵

12The vehicle that collided with M.P. struck his right shoulder and hip. M.P. landed on the road on the right side of his body. He had resultant hip, back, neck and shoulder pain which worsened in the subsequent days.

13Dr. Aborhey completed a Disability Certificate (OCF-3) on M.P.'s behalf on December 18, 2018, identifying M.P.'s accident-related injuries as exacerbations of pre-existing back and neck pain and noting M.P.'s pre-existing rotator cuff injury.⁶

14On May 6, 2019, Jennifer Rouffer, Occupational Therapist, completed a Treatment and Assessment Plan (OCF-18) on M.P.'s behalf recommending an in-home occupational therapy assessment. The plan identified M.P.'s difficulties with sleep, household tasks, and self-care. It proposed to evaluate M.P.'s physical and functional abilities and tolerances and to provide recommendations for possible assistive devices and treatment.⁷

15In an Explanation of Benefits (EOB) dated May 10, 2019, MVACF denied the proposed assessment, noting that it required a medical opinion on whether the requested assessment was reasonable and necessary as a result of the accident.⁸

16Under cover of May 21, 2019, MVACF sent a formal Notice of Examination for a s. 44 Insurer's Examination (IE) with Occupational Therapist Serene Abraham, citing the following reasons for its request:

i. M.P.'s medical records showed that he had been taking pain medication for right shoulder and lower back pain prior to the accident;

ii. Diagnostic imaging showed M.P. had degenerative changes to his spine which appeared to pre-date the accident;

iii. Dr. Aborhey noted in January 2016 that M.P.'s chronic back pain was a "relatively long-standing issue;" and

iv. In almost three and a half years since the accident, M.P. had made no requests for treatment or assistance.⁹

17Ms. Abraham conducted her assessment at M.P.'s residence on June 18, 2019. She issued her report on July 2, 2019.¹⁰

18During the IE assessment, M.P. reported to Ms. Abraham that prior to the accident, he was independent in self-care and housekeeping tasks; he stayed active with gardening; and he socialized and engaged in leisure activities.¹¹

19M.P. described his post-accident symptoms and limitations to Ms. Abraham as follows:

i. he had fallen two weeks prior to the assessment when opening the door to let a housekeeper in;

ii. sometimes due to pain, he could not walk;

iii. coughing caused him back pain;

iv. he rated his pain as 10/10;

v. he takes medication to manage pain; and

vi. due to pain he had difficulty lifting with his right hand.¹²

20Ms. Abraham's examination of M.P. demonstrated limited ranges of motion in his right shoulder and lumbar area, as well as limited flexion in his right hip and right knee.¹³

21Ms. Abraham documented several limitations faced by M.P. as a result of his post-accident pain, including self-care tasks (shampooing his hair, fingernail and toenail care, bathtub transfers and showering); housekeeping (meal preparation, washing dishes, making the bed, dusting, sweeping, mopping, vacuuming, bathroom cleaning, laundry, window cleaning, garbage removal, lawn care, snow removal); and certain leisure and social activities. M.P. reported that he relied on the assistance of a housekeeper, a neighbour, and a friend to assist with many activities of daily living.¹⁴

22Ms. Abraham's observations during the assessment confirmed many of M.P.'s self-reports as to his pain-related functional limitations in the home. These findings aside, Ms. Abraham concluded,

Due to the time lapse, it is unknown if [M.P.'s] limitations are accident related. As such this therapist requires additional information such as an Independent Medical Examination to determine the diagnosis or injuries sustained as a result of the accident. Therefore, this therapist is unable to conclude if the Treatment and Assessment Plan (OCF-18) [...] is considered to be reasonable and necessary as a result of accident related injuries.¹⁵

23Ms. Abraham offered no opinion as to possible assistive devices to aid M.P. with his functional limitations and she made no treatment recommendations.

24Ms. Abraham's conclusions were a direct response to the questions MVACF had posed to her. MVACF asked Ms. Abraham to consider the reasonableness and necessity of the proposed assessment, it specifically directed her to:

"Please take into consideration any previous treatments/assessments already provided/received. Please take into consideration the date of the accident and the date of this treatment."¹⁶

25It also asked her to comment on the reasonableness of the costs associated with the proposed assessment, to which she responded, "N/A".

26On July 23, 2019, 21 days after Ms. Abraham issued her report, MVACF sent a copy to M.P. and gave formal notice that it would be seeking a second IE with an orthopaedic surgeon based on Ms. Abraham's conclusions.¹⁷

27In a letter to MVACF on July 26, 2019, M.P.'s counsel objected to the request for an orthopaedic assessment. In the letter, he expressed concern with the questions MVACF had posed to Ms. Abraham, which in his view had hampered her ability to give unbiased treatment recommendations. He also cited his concern that orthopaedic surgeons have no specialized training in chronic pain conditions or limitations and often conclude that treatment is unnecessary due to the lack of objective injury.¹⁸

28MVACF responded on July 30, 2019 by offering to change the IE assessor from an orthopaedic surgeon to a physiatrist, but it maintained its refusal to fund the proposed assessment without a follow-up IE.¹⁹

29Days later, M.P. applied to the Tribunal.

30M.P. did not attend the requested orthopaedic surgery IE. M.P. submits that at no time did MVACF send formal notice of a request for a physiatry IE, and MVACF has presented no evidence that it did.

The positions of the parties

31MVACF submits that the proposed assessment is not reasonable and necessary as a result of the accident because:

i. M.P. may be in the Minor Injury Guideline (MIG). There is not enough medical evidence to determine if he is, but if he is, the proposed assessment is not payable under the Schedule;

ii. M.P.'s pain and impairments are caused by his pre-existing injuries which he failed to properly treat before the accident. These injuries would cause him pain had the accident not occurred;

iii. The author indicated in the Treatment and Assessment Plan (OCF-18) it was "unknown" to her whether M.P. had any pre-accident conditions that could affect his response to treatment, meaning M.P. must not have given her a fulsome report concerning his pre-existing injuries;

iv. M.P. has not provided evidence that he meets the test for the medical benefit. He has provided no evidence that his impairments are a result of the accident;

v. M.P. denied suffering from pre-existing injuries to Ms. Abraham; and

vi. M.P. claims he was asymptomatic at the time of the accident, but the medical records show he was seeking treatment at the time.

32M.P. submits that the proposed assessment is reasonable and necessary. He submits that the MIG issue is not properly in dispute. At no time did MVACF raise the argument that M.P.'s specific accident-related injuries were predominantly minor, and the issue is not listed in the Tribunal's case conference order.

33Further, M.P. submits, his pre-existing injuries would exempt him from the MIG pursuant to section 18(2) of the Schedule. He submits that those pre-existing injuries were treated and stable prior to the accident, and that the accident aggravated them.

34M.P. submits that Ms. Rouffer was unaware of his pre-accident medical history when she completed the OCF-18 because at that time she had not conducted a full review of his medical records. She would have done so in the course of the full assessment, had it been approved. This fact, M.P. submits, does not render the plan not reasonable and necessary.

35M.P. submits that the note in Ms. Abraham's report that he had denied his pre-existing injuries was an in error that could have been due to his imperfect command of the English language. He submits that Ms. Abraham could have confirmed the existence of his pre-accident injuries in her review of the medical records afforded to her.

36M.P. submits that there is substantial medical evidence to support the reasonableness and necessity of the proposed assessment. He relies on the extensive clinical notes and records of Dr. Aborhey, who treated his pre- and post-accident injuries and documented the progression of his pain symptoms before and after the event. The notes of Dr. Aborhey, dated as follows, provide specific evidence of the necessity of the proposed assessment:

i. Four days after the accident, Dr. Aborhey assessed M.P.'s injuries and prescribed him Voltaren, Baclofen, and Percocet for pain management;²⁰

ii. Approximately one month post-accident, M.P. visited Dr. Aborhey with worsening pain complaints. Dr. Aborhey diagnosed him with chronic back pain, prescribed Robaxacet, and recommended activity modification;²¹

iii. M.P. returned just over two weeks later, on January 19, 2016, to report pain in the lumbar and cervical spine and no improvement with medication to his pain, swelling and tenderness. Dr. Aborhey noted minimal improvement in M.P.'s shoulder pain since a previous assessment and ordered imaging studies;²²

iv. On February 2, 2016, Dr. Aborhey noted severe lumbar and cervical back pain radiating to both lower extremities and associated paresthesia with no improvement in symptoms. He recommended an MRI and activity modification;²³

v. On February 22, 2016, M.P. visited Dr. Aborhey again with reports of back pain. Dr. Aborhey noted tenderness in the lumbar spine and decreased range of motion;²⁴

vi. On June 9, 2016, M.P. visited Dr. Aborhey again for an examination to assess chronic conditions including back pain;²⁵

vii. On July 5, 2016, again M.P. complained of back pain to Dr. Aborhey, who noted that M.P.'s condition was stable.

viii. On August 25, 2016, M.P. sought another assessment for back pain. Dr. Aborhey noted tenderness in the lumbar spine and a decrease in range of motion; and

ix. M.P.'s chronic back pain, though "stable" appeared again in the notes of Dr. Aborhey on November 18, 2016.

37The above entries demonstrate that for almost a full year after the accident, M.P. was actively seeking and receiving treatment for symptoms of severe and chronic pain related to his pre-existing injuries that, based on the trajectory of his symptoms, were clearly aggravated by the accident. Although Dr. Aborhey noted M.P.'s pain symptoms had begun to stabilize eight to 12 months after the accident, the evidence shows that his functional limitations persisted for much longer.

M.P. has established the reasonableness and necessity of the plan

38I have carefully reviewed the medical evidence before me. I am satisfied on a balance of probabilities that the disputed assessment is reasonable and necessary as a result of M.P.'s accident-related injuries.

39Whether M.P.'s injuries fall within the definition of a "minor injury" subject to treatment within the MIG is not an issue properly in dispute. M.P. submits that MVACF has never asserted the position that his injuries fall within the MIG and has never stated that it was denying benefits on that basis. While the evidence before me suggests that the MIG would likely not apply pursuant to s. 18(2) of the Schedule, I have not been asked to consider whether the disputed assessment is payable on the grounds that M.P.'s injuries fall within the MIG.

40In my view, the evidence clearly establishes that M.P. suffered exacerbations of his pre-existing injuries as a result of the accident. He actively sought treatment before and after the accident to mitigate his injuries. Prior to the accident, his injuries were stable and well-managed with medication. After the accident, his symptoms worsened, and it took almost a year of frequent visits to his treating practitioner for those symptoms to plateau. His functioning remained restricted.

41I interpret Dr. Aborhey's notations that M.P.'s condition had stabilized to mean that M.P.'s symptoms did not continue to worsen at the rate they had over the preceding eight to 12 months. M.P. continued to require treatment to manage his symptoms. I am persuaded, on a balance of probabilities, that M.P.'s diminished physical functioning documented by Ms. Rouffer and Ms. Abraham are as a direct result of his accident-related exacerbations.

42I reject the argument advanced by MVACF that the proposed assessment is not reasonable and necessary because M.P. had not made any claim for assistance in nearly the 3.5 years since the event. MVACF knew the circumstances surrounding the delay. M.P. had no insurer to seek benefits from until MVACF took over his claim.

43It is unfair to penalize M.P. for delays that were beyond his control. MVACF's submissions suggest that a genuine claim cannot arise 3.5 years after an accident when no other claims have been made. However, the record provides a straightforward and convincing explanation for this delay.

44I accept M.P.'s submissions as to why Ms. Abraham noted M.P. had denied his pre-existing injuries to her. M.P. is vulnerable by virtue of his advanced age and because English is not his first language. What may have been lost in translation between M.P. and Ms. Abraham could have been reconciled with reference to the medical records afforded to her.

45M.P. has met his onus of establishing that the proposed assessment is reasonable and necessary as a result of the accident. The assessment is necessary to investigate treatment interventions and assistive devices that may aid M.P. in coping with his documented pain and functional impairments. He is entitled to payment for the benefit.

M.P.'s application should not be dismissed because he failed to attend an IE

46When viewing the evidence before me on a balance of probabilities, I am not satisfied that MVACF requested IEs in relation to the disputed assessment only as often as was reasonably necessary. M.P. is not barred from proceeding before the Tribunal under s. 55 of the Schedule.

47Section 55 of the Schedule provides that an insured person shall not commence a proceeding before this Tribunal if he has failed to comply with a notice of an examination under s. 44.

48Section 44 permits an insurer to require that an insured person be examined for the purposes of determining if the insured person is or continues to be entitled to a benefit, but not more often than is reasonably necessary [emphasis added].²⁶

49MVACF raises no preliminary issue but submits that M.P. failed to attend the second s. 44 IE it requested and that his application should accordingly be dismissed. M.P. submits that he refused to attend the IE in question because MVACF had requested examinations more often than was reasonably necessary.

50I must deal with MVACF's submission.

51MVACF refers me to two Financial Services Commission of Ontario (FSCO) decisions interpreting the meaning of "reasonably necessary" in s. 44 of the Schedule: Al-Shimasawi v. Wawanesa Mutual Insurance Co.²⁷ and Subramaniam v. Wawanesa Mutual Insurance Co.²⁸

52This Tribunal has followed the approach adopted in Al-Shimasawi to determining whether an insurer's request conforms to s. 44. In line with this jurisprudence, an adjudicator is to consider the following factors in deciding whether an insurer's request for an IE was proper:

i. The timing of the insurer's request;

ii. The possible prejudice to both parties;

iii. The number and nature of previous examinations;

iv. The nature of examinations being requested;

v. Whether there are any new issues being raised that require evaluation; and

vi. Whether there is a reasonable nexus between the examination being requested and the applicant's injuries.

53The insurer bears the onus of establishing that its requests conform with s. 44 of the Schedule.

54I have considered the six factors outlined above in relation to the facts of this case. The facts before me differ from the cases upon which MVACF relies. In Al-Shimasawi, where there was no evidence of prejudice to the applicant, the insurer's request was found to be reasonable. In Subramaniam, the insurer's request was found to be reasonably necessary due to a change in the applicant's medical condition that introduced a new issue into the dispute.

55I must consider whether the requested IE was reasonably necessary in view of all of the circumstances. This case turns on the absence of new issues and information, the nature of the previous IE, and the nature of the requested IE.

56Here, there was no new medical information to prompt the need for subsequent IEs. There were no new issues raised. The prejudice MVACF asserts it suffered as a result of M.P.'s non-attendance was primarily a consequence of its own errors and missteps in adjusting the claim. It had already had an opportunity to schedule an IE in relation to the disputed assessment. It could have sought a medical assessment concurrent to the occupational therapy IE or paper review of the available medical documentation as less-intrusive alternatives to an additional in-person assessment.

57M.P. faced a denial of a benefit based on a narrowly-constructed occupational therapy IE, one that MVACF ought to have anticipated would not yield the medical opinion it said it required.

58The Schedule grants insurers the ability to request examinations by the health professionals of their choice to facilitate their ongoing duty to assess the condition of insured persons and evaluate new information as it becomes available.

59However, s. 44 imposes limitations on an insurer's ability to request examinations, which are inherently intrusive.

60I find that the question MVACF posed to Ms. Abraham necessitated further reports. Ms. Abraham was not asked to opine on matters within her scope of practice such as treatment recommendations appropriate to M.P.'s circumstances. Instead, MVACF specifically directed her to consider the passage of time and the absence of any claims for treatment since the accident in giving her opinion on the reasonableness and necessity of the proposed assessment.

61Ms. Abraham was asked to opine on matters of causation properly the subject of medical or legal inquiry. It is unsurprising that she would defer to a qualified medical expert to properly address the concerns MVACF highlighted. MVACF should have anticipated this when it arranged the first IE. The need for subsequent IEs was of MVACF's making.

M.P. is entitled to an award

62Section 10 of O.Reg. 664 permits the Tribunal to award a lump sum of up to 50 per cent of an amount which a person is entitled to at the time of the award if it finds that an insurer has unreasonably withheld or delayed payments.

63This Tribunal has adopted the definition of unreasonable behaviour articulated in the FSCO case of Plowright and Wellington.²⁹ Behaviour by an insurer that is "excessive, imprudent, stubborn, inflexible, unyielding or immoderate" will justify an award.

64Insurers must not be held to a standard of perfection. A simple mistake or an incorrect decision does not justify an award. M.P. directs me to this Tribunal's decision in S.M. v Unica Insurance Inc., which articulated the standard that an "egregious, patently obvious error in adjusting" will warrant an award.³⁰

65MVACF submits that it properly adjusted M.P.'s claim. The IEs it requested were, it submits, reasonably required to determine entitlement to benefits, given the passage of time and M.P.'s medical history.

66M.P. submits that by ordering two unreasonable IEs after the first inherently flawed one, MVACF created barriers to his timely access to benefits under the policy. He submits that MVACF knew the reason for the time lapse between the accident and his claim. At the time the OCF-18 was submitted, MVACF had commenced a priority dispute with another insurer. M.P. submits MVACF denied his claim to delay payment and shift the burden for it to the other insurer.

67I find that MVACF knew as early as August 21, 2018, when M.P.'s counsel advised it of the need to act as insurer for M.P.'s pending accident benefits application, why he had yet to initiate it. M.P. was an uninsured pedestrian injured in a hit-and-run. Given MVACF's statutory mandate, one would expect it to be familiar with the hurdles associated with claiming accident benefits in M.P.'s circumstances.

68While Ms. Abraham was qualified to conduct an in-home assessment, MVACF ought to have known that the medical opinion it stated it required in the May 10, 2019 EOB was not within an occupational therapist's scope of practice. Advising M.P. that an IE was required to render a medical opinion, then arranging for an occupational therapist to conduct the IE and directing her to consider factors outside her expertise, are patently obvious errors in adjusting the file.

69MVACF knew, but did not disclose to Ms. Abraham, that the reason for the delay in filing an accident benefits application was that M.P. was unable to identify the insurer of the driver in the hit-and-run. Instead, MVACF included prompts in its questions to Ms. Abraham that were suggestive of an answer, lacked the relevant context, and in my assessment, influenced the outcome.

70MVACF failed to deliver Ms. Abraham's report to M.P. within the 10 business days required under s. 38(13) and only did so after prompting from M.P.'s counsel. Based on the evidence before me, I find it also failed to give M.P. notice of the goods and services it agreed to pay for or refused to pay for and the medical or other reasons for its decision as required under s. 38(14). These were, perhaps, simply other mere mistakes in adjusting the file.

71Requesting an IE with an orthopaedic surgeon, then reversing course and offering to change the discipline of its next assessor but failing to ever give formal notice of the promised IE could, too, be viewed as a mere adjusting errors.

72However, MVACF's decision to maintain its denial of the proposed assessment in the face of obvious errors on its part was inconsistent with its duty of utmost good faith to a vulnerable insured person.

73MVACF's conduct in response to M.P.'s claim is suggestive of a file imprudently handled, and of an insurer's unyielding behaviour when confronted with its mistakes.

74A July 30, 2019 entry in the adjuster's log notes illustrates the unyielding nature of MVACF's position:

"[...] we will not pay for the In-Home Assessment without an IE determination the situation is that the mva is 3.5 years past so it is questionable what the clmt requires due to mva injuries the OT is not qualified to make a diagnosis we will allow that perhaps it might be more appropriate for the further IE to be done by a physiatrist we will change that if the clmt legal rep does not allow the clmt to attend the physiatry IE then we will note him in non-compliance the legal rep's comments that we have [...] not paid any benefits to the clmt does not reflect wrongdoing or bad faith on our part given that the AB claim was not even reported until 3 years post-mva and that delay seriously puts into question what benefits he would be entitled to.³¹

75M.P. suggests a much more egregious motive for MVACF's conduct than I am prepared to find on the evidence before me. If I were satisfied that MVACF had intentionally withheld payment of benefits to shift the burden of payment to another insurer, I would order a maximum award. M.P. has not presented conclusive evidence of this.

76In determining the quantum of the award, I do not hold MVACF to a standard of perfection. However, M.P. was approaching age 70 when he claimed this benefit. He had a significant pre-accident medical history. English is not his first language. In these respects, he was vulnerable and the adjusting of his file demanded care. I consider MVACF's failure in this regard to be an aggravating factor.

77In determining the quantum of the award, I must consider what is rational and proportional considering the following factors as set out in 17-006757:

i. the blameworthiness of the insurer's conduct;

ii. the vulnerability of the insured person;

iii. the harm or potential harm directed at the insured person;

iv. the need for deterrence;

v. the advantage wrongfully gained by the insurer from the misconduct; and

vi. any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.³²

78MVACF's conduct was blameworthy in that it created unreasonable barriers to a benefit supported by objective medical evidence. M.P. is a vulnerable claimant and his file was deserving of care. He has gone without access to treatment for his accident-related injuries for almost 17 months since submitting the disputed plan. The circumstances of his delayed claim ought to have prompted MVACF to act with expediency, given M.P.'s vulnerabilities and functional limitations. Instead, MVACF fixated on that delay as grounds for maintaining its denial of the $1,950.00 benefit.

79Insurers should be deterred from requesting s. 44 IEs more often than is reasonably necessary and should be held to the obligations imposed by s.38 of the Schedule.

80Based on these factors, I consider an award in the amount of 40% to be appropriate in the circumstances, being 40% of $1,950.00 plus interest calculated in accordance with the Schedule. A 40% award is proportionate in view of the blameworthiness of MVACF's conduct, the vulnerability of the applicant and the need for deterrence. It also falls within reasonable range of awards recently ordered by this Tribunal.

81I leave the calculation of the exact amount payable to the parties. If the parties disagree as to the calculation of the amount, either party may schedule a case conference with me within 30 days of the release of this decision.

ORDER

82M.P. is entitled to payment in the amount of $1,950.00 for the in-home occupational therapy assessment plus interest calculated in accordance with s. 51 of the Schedule.

83M.P. is entitled to an award of 40% of the above amount plus interest according to s. 10 of O. Reg 664.

Footnotes

1. 1R.S.O. 1990, c. M.41.
2. 2O. Reg. 34/10.
3. 3R.R.O. 1990, Regulation 664.
4. 4Applicant's Reply Submissions, Tab A: Clinical notes and records of Dr. Aborhey at p. 26 (clinical note dated May 6, 2015) ["Dr. Aborhey Clinical Notes"].
5. 5Dr. Aborhey Clinical Notes at p. 28 (dated October 14, 2015).
6. 6Applicant's Submissions, Tab G: Email and Disability Certificate from Dr. Aborhey.
7. 7Applicant's Submissions, Tab H: Treatment Plan dated May 6, 2019.
8. 8Applicant's Submissions, Tab I: Explanation of Benefits dated May 10, 2019.
9. 9Applicant's Submissions, Tab J: Notice of Examination dated May 21, 2019.
10. 10Respondent's Brief, Tab 3: IE OT Report of Serena Abraham, dated July 2, 2019 ["IE OT Report"].
11. 11IE OT Report at p. 9.
12. 12IE OT Report at pp. 19-20.
13. 13IE OT Report at p. 10.
14. 14IE OT Report at pp. 19-20.
15. 15IE OT Report at p. 21.
16. 16IE OT Report at p. 21.
17. 17Respondent's Brief, Tab 16: Correspondence dated July 23, 2019.
18. 18Respondent's Brief, Tab: Correspondence dated July 27, 2019.
19. 19Applicant's Brief, Tab O: Letter from adjuster dated July 30, 2019.
20. 20Dr. Aborhey Clinical Notes at p. 136 (dated December 7, 2015).
21. 21Dr. Aborhey Clinical Notes at p. 137 (dated January 4, 2016).
22. 22Dr. Aborhey Clinical Notes at p. 138 (dated January 19, 2016).
23. 23Dr. Aborhey Clinical Notes at p. 138 (dated February 2, 2016).
24. 24Dr. Aborhey Clinical Notes at p. 139 (dated February 22, 2016).
25. 25Dr. Aborhey Clinical Notes at p. 140 (dated June 9, 2016).
26. 26Schedule, s. 44.
27. 272007 CarswellOnt 3473, FSCO A05-002737 ["Al-Shimasawi"].
28. 282016 CarswellOnt 20657, FSCO A14-008987.
29. 29Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) page 17.
30. 302020 CanLII 61460 (ON LAT). ("S.M.")
31. 31Respondent's Document Brief, Tab 19: Log notes July 23, 2019 to July 30, 2019.
32. 3217-006757 v. Aviva Canada at paras. 44-45.