Licence Appeal Tribunal File Number: 20-004983/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:
Nicolette McNeil
Applicant
and
Intact Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Nicolette McNeil, Applicant
Howard Blitstein, Counsel
For the Respondent:
Intact Insurance Company
Shima Heidari, Counsel
Angel Ju, Counsel
Court Reporter:
Dayne Snell (Oct 4 and 5, 2021)
Sheila Finlay (Oct 6, 2021)
HEARD: by Videoconference:
October 4 to 6, 2021
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in an automobile accident on March 5, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the “Schedule”).1 The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
Preliminary Issues
Quantum of the Income Replacement Benefit (IRB)
2At the hearing, the applicant had a different calculation for the quantum of the IRB. This had not been previously addressed and nor did the applicant provide any evidence to substantiate this amount. Upon further discussions, the applicant agreed that the amount of the quantum would remain $95.15 per week from July 10, 2020 to March 5, 2021.
Chiropractic treatment in the amount of $3,068.05 denied on January 3, 2020.
3The applicant withdrew the treatment plan at the hearing.
Award
4At the hearing, the applicant sought to add an award as an issue in dispute. Initially the respondent objected to the addition of the award. However, upon further discussions, the respondent consented. Whether the applicant is entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits has been added as an issue in dispute before this Tribunal.
Cost of examination in the amount of $2,200.00 denied on July 4, 2020.
5This issue was reworded to “Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an attendant care benefit (Form 1) assessment, recommended by Okell Rehab in a treatment plan (OCF18) denied on July 4, 2019?
Issues in dispute
6I have been asked to decide the following issues:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (MIG)?
b. Is the applicant entitled to an income replacement benefit of $ 95.15 per week from July 10, 2020 to March 5, 2021?
c. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an attendant care benefit (Form 1) assessment, recommended by Okell Rehab in a treatment plan (OCF18) denied on July 4, 2019?
d. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
e. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
Issue I: The Minor Injury Guideline
7Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.”2
8Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
9The onus is on the applicant to show that her injuries fall outside of the MIG.3
RESULT
10I find that the applicant met her onus and should be removed from the MIG.
Psychological impairment
11The applicant claims that she sustained a psychological injury as a result of the accident. The applicant is relying on the clinical notes and records (“CNRs”) and testimony of Dr. Ramraj, family physician. The respondent submitted that the applicant has not produced any compelling evidence to show that she has sustained an injury that would fall outside of the MIG.
12The applicant has met her onus to prove, on a balance of probabilities, that the MIG and the related funding limit should not apply.
13The CNRs of Dr. Ramraj do not document any psychological complaints prior to the subject accident. The CNRs dated October 28, 2019 note that the applicant suffers from post MVA depression. There were multiple referrals made to Lakeridge Health which reference depression. On November 6, 2019, the applicant was given the Mental Health Psychiatry Adult Referral Form. Although the date is not listed, it appears that it was received by Lakeridge Health on November 6, 2019. This form notes depression. Dr. Ramraj filled out “6 months of low mood/energy, decreased motivation”.
14On August 20, 2020, Dr. Ramraj met with the applicant. She noted that the applicant “has been speaking with a social worker. A referral Dr. Ojlegbe. Will do ref-will check nadc”. Dr. Ramraj filled out the Lakeridge Health Outpatient Mental Health Referral. Reason for the referral is listed as “Depression/Anxiety post MVA”.
15On September 17, 2020, Dr. Ramraj completed the Lakeridge Health Mental Health Psychiatry Adult Referral Form. Dr. Ramraj referred the applicant for a psychiatry assessment. In response to the question “why is this patient seeking mental health services”, she filled out “depression”. The clinical features were marked as pronounced and/or resistant depression and inability to cope with life stressors.
16At the hearing, Dr. Ramraj testified that “I still think she is depressed and there are a lot of psychosocial stressors like not working, not being able to provide for family.” She opined that the applicant needs more physiotherapy and psychotherapy.
17The respondent has failed to objectively refute the applicant’s medical evidence. The respondent never exercised its right to medically assess the applicant pursuant to section 44 of the Schedule. As a result, the respondent produced no evidence refuting the applicant’s claims.
18The respondent is right to be critical of Dr. Ramraj’s opinion. The patient health questionnaire (PHQ) was not tallied up and nor was it dated. During her testimony, Dr. Ramraj could not confirm when the PHQ was completed. Moreover, she could not confirm what led to the discussion about the post MVA depression note. Furthermore, the disability certificate does not mention any psychological conditions.
19However, as a family physician, Dr. Ramraj is able to diagnose psychological conditions. She is familiar with the applicant’s history and conditions. Considering that entitlement to medical and rehabilitation benefits is adjudicated on a balance of probabilities, and the fact that there is a total lack of evidence to the contrary, I find Dr. Ramraj’s diagnosis of depression is with merit, is uncontested and I accept it in the absence of any dissenting opinion.
20Psychological injuries are excluded from the MIG and the $3,500.00 funding limit. Considering Dr. Ramraj’s diagnosis of depression, I find the applicant suffered injuries which are outside the definition of a minor injury and thus, not subject to the $3,500.00 funding limit on treatment.
Issue ii: Income Replacement Benefit
21Entitlement to IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)1i provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(2)(b) provides that the benefit is only payable after the first 104 weeks from the date of the accident if the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
22The applicant submitted that she is entitled to the IRB and should be paid up to (or until) March 5th, 2021.
23The respondent argued that the applicant failed to provide any objective medical evidence to rebut the findings of Dr. Ikonomakis, chiropractor, Dr. Mula, family physician, and Dr. Covens, gynecologist, which all showed that she is functionally capable of resuming her job.
24The applicant bears the onus of establishing on a balance of probabilities that she is entitled to the IRB as claimed.
Test for causation
25The leading case on causation is set out in the Divisional Court’s decision in Sabadash v. State Farm (“Sabadash”).4 This decision establishes that the test for determining causation in accident benefit cases is the “but for” test. The applicant must prove that “but for” the accident, she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim for an IRB.
26Sabadash supports that an accident need not be the sole cause but rather a “necessary cause” of an individual’s impairment.
27The respondent argued that causation was an issue in this case and that the “but for” test was not met. While I agree with the respondent that the accident did not cause the applicant’s heavy menstrual bleeding (menorrhagia), I find that the accident did cause the applicant’s psychological impairments as per Dr. Ramraj’s opinion.
28Therefore, I find that causation has been established in this case. However, as the parties spent a significant portion of the hearing addressing the applicant’s gynecological issues, I will first address why I do not find that causation was established with respect to her gynecological issues. I will then address whether the applicant suffers a substantial inability to complete the essential tasks of her employment as a result of any accident related impairment.
RESULT
29I find that the applicant is not entitled to the IRB.
Gynecological issues
30I find that the applicant’s gynecological issues were not caused by the subject accident and nor did they result in a substantial inability to complete the essential tasks of her employment.
31The applicant submitted that her vaginal bleeding started within days of the accident. There was profuse bleeding and it occurred before her normal period. This resulted in rapid blood loss and a decline in hemoglobin levels.
32The applicant testified that a few days after her first appointment post-MVA, she started feeling numbness in her head and that her neck was feeling stiff and sore. She was experiencing bleeding. She testified that “I had finished my period the week before and I went to the doctor.” She went for x-rays and blood tests. She got a call from Dr. Ramraj’s secretary and was told to go to the emergency room because her hemoglobin was 50. Her bleeding was uncontrollable, and she received a blood transfusion. She was given medication to stop the bleeding. She was admitted to Sunnybrook Hospital on April 5, 2019 because she was bleeding so profusely. She underwent a hysterectomy on May 9, 2019. Dr. Ramraj testified that the applicant had menorrhagia prior to the accident.
33On March 11, 2019, the applicant met with Dr. Ramraj. She stated that:
I think she was having some numbness, opted to do x-rays. And because she had not seen me since 2016, I ordered blood work. It was just an opportunistic event to do the blood work. I think she was also maybe complaining of some numbness, tingling. And usually I do not -- why I say this is, I usually don't do things like potassium, but because she was probably complaining of that, I added potassium to that request.
34Dr. Ramraj received the blood work results and found that it was a critical result. The applicant’s hemoglobin was really low. She stated:
So, for someone of this age group, female, usually, you know, hemoglobin can be between anything between 120 to 150. Definitely this is a really low haemoglobin for somebody. So, the worry here is, you know, whether she is having some internal loss, you know, from a motor vehicle accident that she had, or whether she's bleeding from somewhere else. 50, I don't recall seeing anybody with a hemoglobin of 50, and so that was worrisome for me.
35When asked whether she was worried that it was from the subject accident, she stated, “Yes I would be worried that there would be some bleeding from some trauma.” Dr. Ramraj testified that the applicant was diagnosed with fibroids based on her records.
36In the disability certificate (OCF-3), Dr. Ramraj noted the following: Injuries to the neck, whiplash, injury to shoulder and menorrhagia. During the examination in chief, she testified that:
One of the things she [the applicant] was worried about was whether there was actual trauma to the pelvic organ. And while I think we didn't find any specific injury to the pelvic organ, I did -- I more than likely would have mentioned to Nicolette that, you know, that -- because she did say that she was worried about the bleeding and that it was related to her accident. I did say to her that, you know, sometimes it -- in my practice, I found that, yeah, that sometimes with acute stress, you can have prolonged bleeding.
37When asked about what she wrote in the disability certificate during the cross-examination, Dr. Ramraj stated “I said menorrhagia complicated by anemia, that's one of the reasons she was not able to go to work, because she was having heavy bleeding. And I believed because of the anemia she was feeling unwell. And I did say this, however, not unheard of, that menorrhagia could be precipitated by acute stressors.”
38When asked whether the accident caused any damage to the applicant’s pelvic organs, Dr. Ramraj responded “So I do not have any information on that. The ultrasound -- as I said before, I think if that was the case, an ultrasound would have shown that. She had a gynaecological assessment, that would have been brought up too.” When asked “so to the best of your knowledge, there was no damage to the pelvic organ”, Dr. Ramraj responded “that I know of”. She also confirmed that there was no internal bleeding from the organs. She stated that she didn’t know whether menorrhagia or anemia could be directly caused by the accident.
39Dr. Covens, gynecologist, testified that the applicant indicated that her periods prior to the subject accident were regular every month. The periods were seven days in length and the first two days were heavy. She also told him that she didn’t have anemia prior to the subject accident. However, he testified that there were a lot of documents regarding the menorrhagia as well as a hemoglobin from 2016, which is 5 years earlier, that indicated a level of 103, which is anemic.
40Dr. Covens testified that it was significant that the applicant did not report anything about vaginal bleeding, fainting, or feeling lightheaded at the March 6 and 11, 2019 visits with Dr. Ramraj. When asked about this, he stated:
So, you know, if her hemoglobin was, for example, 100, as it was in 2016, the fall in half in a short period of time -- and by short period of time, I mean days, a week or so -- people would be profoundly unwell. They would feel lightheaded, they would faint. They would have trouble getting up and standing. But if it happened slowly in a chronic nature, your body adapts to it. So, you know, just that history alone would indicate this is more chronic. The other thing is her blood indices, or the parameters performed around that blood draw on March the 11th indicated a very small mean corpuscular volume, which usually indicates an iron deficiency anemia. She did have her serum iron performed, which was quite low. So, all of those would be compatible with a longstanding iron deficiency anemia.
41With respect to the ultrasound that was completed when the applicant was admitted to the ER, Dr. Covens testified that the ultrasound demonstrated uterine fibroids and normal physiological amount of fluid in the pelvis. He opined that this ruled out a ruptured organ like a ruptured liver/spleen/uterus, where there would be blood in the abdomen. If that were the case, it would have been demonstrated in an ultrasound. He testified that uterine fibroids would evolve over months to years. They can grow quicker in pregnant or premenopausal women. He stated, “But they're not something that would develop, you know, in the course of a couple of days or 3 weeks. In terms of the pathology, he found that she had fibroids. Moreover, her uterus was enlarged. It was 8 to 9 times of the average weight.
42Dr. Covens was of the view that the issues related to the applicant’s vaginal bleeding, her menorrhagia and hysterectomy were all related to her fibroids, and that there would be no correlation with her motor vehicle accident impacting these conditions.
43When asked whether stress could precipitate the bleeding as noted by Dr. Ramraj, Dr. Covens stated that “sure it could precipitate it. But, as I say, to get to a hemoglobin of 50, there is no way, unless this woman was exsanguinating, that that would explain such a profound anemia. So, yes, it could cause some irregular periods, some irregular bleeding, but to not to that sort of extent”.
44In terms of pre-existing conditions, Dr. Covens believed the applicant had fibroids before the accident, which caused the menorrhagia. He stated, “It may have gotten worse over time but would not have changed as a result of the accident.” From a gynecological perspective, he did not find any reason why she could not resume her pre-accident employment as she had recuperated from her surgery.
45Based on the evidence before me, I am not satisfied that the applicant’s menorrhagia and uterine fibroids were caused by the accident. I prefer Dr. Covens testimony and evidence because he has expertise in this area. He reviewed the medical records and assessed the applicant. His explanation was based on medical science and was more persuasive than Dr. Ramraj’s testimony. The applicant did not provide any evidence to refute Dr. Coven’s opinion.
Musculoskeletal Pain (MSK)
46The applicant is relying on Dr Ramraj’s CNRs. On March 28, 2019, Dr. Ramraj met with the applicant. She diagnosed her with “MSK due to MVA”. She suggested massage therapy. She ordered an MRI. She testified that the MRI was ordered to ensure that there were no fractures. She confirmed that there were no fractures and that there were degenerative changes. When asked whether there were complaints with respect to degenerative changes before the MVA, Dr. Ramraj stated “no”.
47On April 25, 2019, Dr. Ramraj checked the applicant’s range of motion and found that her active range of motion was less than 90 degrees. She testified that:
Usually that's due to pain. So on examination, passive would -- like, if she has normal range of motion, it would be that there is nothing -- no broken bones or anything impinging the range of motion, but patient may have been in pain, that's why the active was decreased.
48She referred her for physiotherapy. She testified that “because there was evolving pain down the shoulder, it was getting worse.”
49Dr. Ramraj also referred the applicant to Dr. Mayank Jha, rheumatologist. She testified that she had referred the applicant because she was having persistent pain and wanted to make sure that she had an examination to determine why the applicant was having the pain. She testified that “I don’t think he came to a conclusion that it was rheumatological.”
50On February 21, 2021, the applicant met with Dr. Ramraj for a virtual appointment. When asked if she was able to work as an UberEATS driver at that point, Dr. Ramraj stated, “All my impression I take from the patient. The applicant told me that she can’t do things she did before. Can’t sit, lift, prolonged driving.” When asked if she was capable of working in that position at that time, Dr. Ramraj stated, “She has said that she is unable to work.”
51On May 12, 2021, Dr. Ramraj had a phone appointment with the applicant. The applicant informed her that she was having the same amount of pain. Dr. Ramraj testified that she went over referrals for chronic pain management. The applicant did not want anything at the time. The applicant discussed what she cannot do. Dr. Ramraj stated:
We continued to discuss well, just taking care of a few things, discussed what she can -- what she cannot do. And we did discuss that she needs to come in at some point in time because, obviously, she has not been seen since we went into lockdown. And at this point my impression is that there had been no improvement in her general condition.
52I am not persuaded by the applicant’s position that she has suffered a substantial inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Dr. Ramraj is relying on the applicant’s self-reporting for the most part. Although she did attempt to help her patient by referring her for chronic pain management, the applicant did not want any assistance. The report from Dr. Jha did not find any rheumatological issues. There is a lack of objective evidence that supports that she is unable to work as an UberEATS driver.
53I prefer the respondent’s evidence. Dr. David Mula completed a musculoskeletal assessment on January 31, 2020. He found that the applicant presented with signs and symptoms consistent with diagnoses of myofascial strain of the cervical spine, lumbosacral myofascial strain, and tension headaches. The claimant also reports bilateral hip pain as a result of the motor vehicle accident, but she was non-tender to palpation at either hip on examination today. The prognosis was noted as fair.
54In his report, Dr. Mula stated that:
Based on the medical and occupational information available to me, the insured does not suffer a “substantial inability” to perform the essential tasks of her pre-accident employment as an Uber Eats driver as a direct result of injuries sustained in the subject motor vehicle accident. Based on the medical and occupational information available to me, the claimant’s motor vehicle accident related musculoskeletal impairment would not be expected to result in occupational disability at this point in time.
55Dr. Mula opined that from a musculoskeletal perspective, the claimant should be able to resume performing her pre-accident work tasks at the present time [January 2020] as from a musculoskeletal perspective, the current objective findings would not be expected to result in occupational disability.
56On February 19, 2020, Dr. Ikonomakis completed a functional abilities evaluation. He conducted a series of tests to determine the applicant’s functional abilities. He did not find any observable functional limitations throughout his examination. He concluded the following:
Based on her performance during this evaluation, Ms. McNeil demonstrated the following functional demands: Constant: Sitting, standing, walking, forward reaching bilaterally, handling bilaterally, and fingering bilaterally. Frequent: Stooping, crouching, and overhead reaching bilaterally. Occasional: Balance.
57With respect to weighted tasks, the applicant’s demonstrated abilities ranged within the light (high lift), medium (low lift and carry), and heavy (push and pull) levels. Dr. Ikonomakis noted that the applicant demonstrated a reliable effort.
58Based on the evidence, I find that the applicant has not met her onus for entitlement to the IRB on the basis of the MSK. I prefer Dr. Mula’s and Dr. Ikonomakis’ reports and testimony. Both experts reviewed the applicant’s medical documents, conducted thorough examinations and testing of the applicant and documented their findings. Their conclusions were consistent with one another. In contrast, the applicant did not submit any medical evidence or expert opinion to support her position and refute their findings. Therefore, I do not find that the applicant suffered a substantial inability to perform the essential tasks of that employment as a result of her musculoskeletal issues.
Psychological impairments
59I find that the applicant did not suffer a substantial inability to perform the essential tasks of her employment as a result of any accident-related psychological impairment.
60At the hearing, the applicant testified that she is still anxious and fearful. She does not drive long distances. She drives to the grocery store. When asked about whether she could go back to being an UberEATS driver, she stated that she couldn’t because she would be on the road all day. It is not comfortable, and she has no joy in driving.
61The evidentiary records show that the applicant was not consistent with her medical treatment in relation to her psychological issues. While the applicant did see a social worker, it is documented that she refused further treatment. The nurse progress note dated June 9, 2020 states “Pt declined ongoing psychiatry and one-time phone consultation and would prefer counselling services.” It is further stated that “pt. is aware that she will be removed from psychiatrist waitlist and chart is to be closed.” Moreover, on September 30, 2020, the social worker that the applicant was seeing reached out to her regarding mindfulness sessions. The applicant did not return her call. On October 7, 2020, the applicant’s file was closed.
62In my view, if the applicant’s psychological conditions were impacting her to the degree that she could not work, then why did she not seek further treatment? During the hearing, the applicant denied declining treatment. I’m not persuaded by her testimony in this regard.
63The applicant declined to take medication. When asked about anti-depressant medication, the applicant stated, “They tried but I didn’t want to take them because I don’t like the feeling that the medication gives me. Dr. Ramraj suggested it and also suggested marijuana. I have allergies and I don’t want to experiment with anything.” The applicant did not provide any information regarding her allergies to anti-depressant medication. I am not persuaded by this explanation because one would think that an individual would seek medical attention/treatment if the impairments were impacting one’s ability to work.
64Other than Dr. Ramraj’s opinion that the applicant is still depressed, there is nothing in the records that supports that she is unable to perform the essential tasks of her employment as a result of her accident-related psychological impairments. For example, there is no report or assessment from a psychiatrist or psychologist that supports this.
65On a balance of probabilities, I am not persuaded that she cannot work due to her psychological impairments.
Issue iii: An attendant care benefit (Form 1) assessment in the amount of $2,200.00, recommended by Okell Rehab in a treatment plan (OCF18) denied on July 4, 2019?
66The applicant submitted that the adjuster verbally approved the assessment and shortly thereafter, retracted the approval. The applicant drew my attention to a note found in the CNRs of the CBI Health Group dated May 9, 2019, which states:
Called AB to discuss file. OT reported client’s significant changes to function that seems to have stemmed since the accident. Likely will need an in-home ax for equipment following the surgery. AB provided verbal approval to complete a Form 1 if needed to determine any equipment needs etc., AB requested clinic check in with AB after client’s next visit. OT to call client next week for F/U after surgery.
67The respondent submitted that there is no basis to the applicant's allegation that the adjuster provided verbal approval to do a Form 1. The respondent is of the view that this was a misunderstanding between the clinic and the adjuster. Moreover, the occupational therapist didn’t visit the applicant until June 4, 2019, which is approximately a month after this conversation took place. The respondent submitted that by then, the misunderstanding between the clinic and the adjuster with respect to the submission of the OCF-18 for a Form 1 had been resolved. The respondent drew my attention to the CBI Health Group note (Exhibit B) dated May 17, 2019, which states, "Provided approval to submit an OCF-18 for a Form 1 and informed that an IE will be needed to take place."
68Moreover, the respondent submitted if the Tribunal accepted that the hysterectomy is unrelated to this accident, then the issue regarding the assessment will be moot. The purpose of the home visit, the focus of the OT report and the recommendation were all surrounding the hysterectomy. The respondent submits that the OCF-18 proposing a Form 1 assessment was not reasonable or necessary.
69Neither party summoned the adjuster or a representative from CBI Health Group to address the alleged misunderstanding. Aside from their submissions and the CNRs from CBI Health Group, I do not have anything that explains what exactly was discussed between the clinic and adjuster in order to make a determination on this point.
70I have determined that the applicant’s gynecological issues were not caused by the accident. The report completed by Alexa Yegendorf, occupational therapist, on June 5, 2019 states the following:
Ms. McNeil has been unable to function since her surgery due to her severe pain, impaired mobility and significant fear of movement. She is not engaging in any activities due to her fear of movement. This is not a functional way of living. 24-hour basic supervisory care is recommended at this time as the client would not be able to sufficiently exit her home in case of an emergency.
71It is clear from this report that the recommendation was in relation to the applicant’s hysterectomy. As I have found that the applicant’s gynecological conditions were not caused by the accident, the respondent should not be responsible for a treatment plan that is not related to the accident.
72The applicant submitted that this treatment plan was reasonable and necessary at the time and should have been funded. The applicant has not tendered any evidence to support this assertion.
73It was submitted that the applicant should not be on the hook for this treatment plan. No evidence was tendered to show that it was in fact incurred. Moreover, it is alleged by the respondent that the OCF-18 was submitted after the assessment was conducted. I do not have any evidence that refutes this argument. In any event, this is a moot point as I have determined that the gynecological issues were not caused by the accident.
74Therefore, I find that the applicant is not entitled to this treatment plan.
Issue IV: Award under Regulation 664
75Section 10 of Regulation 664, R.R.O. 1990 states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which the an insured person is entitled, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award with interest.
76The test for a special award is whether the insurer gave reasonable consideration to all the information then available to it in assessing a claim. An insurer will not face a special award just because an adjudicator finds that the insurer got it wrong.
77The applicant submitted that the respondent received information from a psychological standpoint that the applicant did not belong in the MIG. They did not properly assess her or have her undergo any psychological evaluations even though there were psychological complaints present in the records. It was submitted that:
They chose, from the applicant's perspective, to turn away from the psychological side of the case because it didn't fit with the existing decision and existing narrative that she belonged in the Minor Injury Guideline. They made that decision at the beginning and they were very reluctant to change that position.
78The applicant submitted that the respondent has an obligation to continue to adjust their file with receipt of medical records and that it is frustrating that despite having all of the information in relation to the psychological issues, there has not been any reconsideration in terms of the MIG decision.
79The Respondent submitted that there is no evidence that payments were unreasonably withheld or delayed. There is no evidence that the Respondent's conduct was unyielding or immoderate. The Respondent's decision to keep Ms. McNeil in the MIG was based on medical evidence and opinions sought from experts. The decision was not arbitrary, and no special award is payable.
80In evaluating the evidence with respect to a claim for a special award, there needs to be persuasive evidence that the insurer was unreasonable in withholding or delaying payment for requested benefits. The only evidence that the applicant relies upon is the fact that the respondent did not remove the applicant from the MIG as a result of the psychological complaints and nor did they schedule a section 44 insurer examination. The applicant did not direct me to any evidence or specific references that shows that the respondent unreasonably withheld benefits. Nor did the applicant summon the adjuster as a witness. What I have before me are merely submissions. Submissions are not evidence.
81For all these reasons, I conclude that an award would not be appropriate in this case.
Issue V: Interest
82Having determined that no benefits are payable, I do not need to consider if interest is payable.
ORDER
83For the reasons outlined above, I find:
i. The applicant should be removed from the Minor Injury Guideline.
ii. The applicant is not entitled to the IRB.
iii. The applicant is not entitled to the treatment plan in the amount of $2,200.00 for an attendant care benefit (Form 1) assessment, recommended by Okell Rehab in a treatment plan (OCF-18) denied on July 4, 2019?
iv. The applicant is not entitled to an award under s. 10 of Regulation 664.
v. The applicant is not entitled to any interest.
Released: January 13, 2022
Tavlin Kaur
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Ibid
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
- Sabadash v. State Farm et al. 2019 ONSC 1121 at para. 39.