Aisha Ali v. Aviva Insurance Company of Canada, 2021 CanLII 73542

Citation: Ali v. Aviva Insurance Company of Canada, 2021 ONLAT 19-013677/AABS

Release date: 07/14/2021

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:

Aisha Ali

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Rajiv Kapoor, Paralegal

For the Respondent: Kimberley Tye, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, Aisha Ali, was injured in an automobile accident on November 10, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva Insurance Company of Canada, the respondent.

2The respondent denied the applicant’s claims for physiotherapy, psychological treatment, a home exercise program, a chronic pain program and for several assessments. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on June 18, 2020 and the matter was scheduled for a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to $1,525.62 for chiropractic treatment and physiotherapy recommended by Liruma Rehabilitation Centre in a treatment plan (“OCF-18”) dated August 2, 2018?

(ii) Is the applicant entitled to $2,393.61 ($3,641.09 less $1,247.48 approved) for psychological treatment recommended by Novo Medical Services in an OCF-18 dated December 24, 2018?

(iii) Is the applicant entitled to $598.44 ($2,219.74 less $1,621.30 approved) for a driving reintegration assessment recommended by Novo Medical Services in an OCF-18 dated February 7, 2019?

(iv) Is the applicant entitled to $2,090.00 for a biopsychosocial assessment recommended by Novo Medical Services in an OCF-18 dated March 5, 2019?

(v) Is the applicant entitled to $1,218.47 for a home exercise program and exercise equipment recommended by Novo Medical Services in an OCF-18 dated June 19, 2019?

(vi) Is the applicant entitled to $34,645.90 for a multidisciplinary chronic pain program recommended by Novo Medical Services in an OCF-18 dated September 20, 2019?

(vii) Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5I find that:

(i) The applicant is entitled to the August 2, 2018 OCF-18 for chiropractic treatment and physiotherapy in the amount of $1,525.62 plus interest in accordance with s. 51 of the Schedule as a result of the respondent’s failure to comply with its obligations under s. 38(8) of the Schedule;

(ii) The applicant is entitled to payment of up to $788.90 of the December 24, 2018 OCF-18 for psychological treatment plus interest in accordance with s. 51 of the Schedule as a result of the respondent’s failure to comply with its obligations under s. 38(8) of the Schedule. The applicant, however, is not entitled to the unapproved portions of this treatment plan;

(iii) The applicant is not entitled to the unapproved portions of the February 7, 2019 OCF-18 for a driving reintegration assessment;

(iv) I do not have jurisdiction to determine the applicant’s entitlement to the March 5, 2019 OCF-18 for a biopsychosocial assessment, to the June 19, 2019 OCF-18 for a home exercise program and exercise equipment or to the September 20, 2019 OCF-18 for a multidisciplinary chronic pain program; and

(v) The applicant is not entitled to an award.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7The applicant bears the onus of proving entitlement to the proposed treatment by proving the disputed OCF-18s are reasonable and necessary on a balance of probabilities.²

8In this matter, however, the applicant submitted that the respondent failed to comply with its obligations under s. 38(8) of the Schedule regarding its notices that denied all the disputed treatment plans.

9Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan.

10The requirement for medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company³ in which the Executive Chair stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.⁴

11Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule. As such, the insurer is given an opportunity to “cure” a defective notice. Without such a cure, however, any goods, services, assessments and examinations set out in the treatment plan are payable as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.⁵

12For the reasons that follow, I find that the applicant is:

(i) entitled to the August 2, 2018 OCF-18 in the amount of $1,525.62 for chiropractic treatment and physiotherapy as a result of the respondent’s failure to comply with its obligations under s. 38(8) of the Schedule;

(ii) entitled to payment up to the amount of $788.90 of the December 24, 2018 OCF-18 for psychological treatment as a result of the respondent’s failure to comply with its obligations under s. 38(8) of the Schedule. The applicant, however, is not entitled to the unapproved portions of this treatment plan; and

(iii) not entitled to the unapproved portions of the February 7, 2019 OCF-18 for a driving reintegration assessment.

13I also find that the March 5, 2019 OCF-18 for a biopsychosocial assessment, to the June 19, 2019 OCF-18 for a home exercise program and exercise equipment or to the September 20, 2019 OCF-18 for a multidisciplinary chronic pain program were not submitted in accordance with s. 38(3) of the Schedule. Absent a treatment plan that is submitted in accordance with s. 38(3) and a subsequent denial of a benefit, there can be no dispute. Without a dispute, I have no jurisdiction to determine the applicant’s entitlement to these treatment plans.

Chiropractic Treatment and Physiotherapy

14The August 2, 2018 OCF-18 was completed by Dr. Afshin Markhali Maskan, chiropractor, and sought funding for 13 1-hour multidisciplinary rehabilitation treatment sessions consisting of chiropractic treatment and physiotherapy, and a reassessment to be completed by Avni Parma, physiotherapist.

15On August 31, 2018, the respondent provided notice to the applicant that it was unable to determine whether the recommendations in the August 2, 2018 OCF-18 were reasonable and necessary for the injuries that she sustained and that it was unable to pay for the proposed treatment. The respondent also advised that the applicant’s injuries were treatable within the Minor Injury Guideline (the “MIG”)⁶ and that the applicant was required to attend a general practitioner insurer’s examination (“IE”) with Dr. Hashmat Khan on September 27, 2018.

16On October 11, 2018, the respondent denied the proposed treatment by way of an explanation of benefits (“EOB”) to the applicant. The relevant portions of this correspondence stated:

Please review the enclosed insurer's examination completed by Viewpoint under section 44 of the Statutory Accident Benefits Schedule. The examination was completed by Dr. Hashmat Khan and dated October 10, 2018. The assessors reviewed the Treatment Plan (OCF-18) submitted by Liruma Rehabilitation Centre dated August 2, 2018 for physical treatment. They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.⁷

17I find that neither the August 31, 2018 nor the October 11, 2018 letter provided any specific details about the applicant’s condition that formed that basis of the respondent’s decision aside from simply mentioning the MIG in its August 31, 2018 correspondence. There are also no details in either letter of what the proposed treatment plan was for.

18Further, the “explanation” provided by the respondent in its October 11, 2018 EOB is effectively the conclusion of its consideration of the disputed treatment and provides no explanation why the respondent concluded that the treatment plan was not reasonable and necessary. Moreover, simply attaching an insurer’s examination (“IE”) report to an EOB letter with a bare statement that the OCF-18 was not reasonable and necessary is not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue and certainly does not serve the Schedule’s consumer protection goal.

19Therefore, I find that the respondent’s August 31, 2018 and October 11, 2018 correspondences fall short of its obligations under s. 38(8) of the Schedule. As a result, the consequences set out in s. 38(11) are triggered and the treatment plan for chiropractic treatment and physiotherapy is payable starting on the 11th business day after the day that the respondent received the OCF-18 as the respondent no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

Psychological Treatment

20The December 24, 2018 OCF-18 was completed by Dr. Romeo Vitelli, psychologist, and sought funding for 12 sessions of psychotherapy, 1-hour of communication with others, 1 session of treatment planning, 3 sessions for the completion of a progress report and completion of the OCF-18. Dr. Vitelli is the only service provider listed in Part 11 “Health Care Provider” portion of the treatment plan but in the “additional comments” portion, the OCF-18 noted a possible 14 psychotherapists that could provide treatment to the applicant. The goals of the treatment plan were pain reduction, a return to pre-accident level of psychological functioning and a return to activities of normal living. The estimated duration of the treatment plan was 12 weeks.

21The respondent first denied this treatment plan by way of correspondence dated January 15, 2019. The respondent noted that the applicant had sustained minor injures as a result of the accident and that it had approved the maximum $3,500.00 available for medical and rehabilitation benefits under the MIG. The respondent noted that it had not received any objective compelling medical documentation to support the proposed treatment or assessments beyond the MIG benefit limit. The respondent also provided notice in this correspondence of the applicant’s required attendance at a s. 44 examination.

22On January 16, 2019, the respondent sent a second denial to the applicant which stated, “we’re unable to determine whether the recommendations on your OCF-18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.”⁸ A further notice was provided regarding the applicant’s required attendance at a s. 44 examination.

23I find that both the January 15, 2019 and the January 16, 2019 EOBs fell short of the respondent’s obligations under s. 38(8) of the Schedule. Neither correspondence provided any details about the applicant’s injuries and the January 16, 2019 EOB was a mere boilerplate statement that contained no details to allow the applicant an opportunity to make an informed decision to either accept or dispute the decision at issue.

24The respondent, however, sent a third correspondence to the applicant on January 30, 2019 which partially approved the disputed OCF-18 in the amount of $1,247.48. The respondent advised that based upon Dr. Hani Sahyoun’s January 24, 2019 Psychiatry IE Paper Review Report,⁹ the treatment plan was partially approved as the respondent determined it was reasonable and necessary as it related to the applicant’s two DSM-V diagnoses provided that the focus of the treatment, particularly the cognitive behavioural therapy and psychotherapy, was to tackle the applicant’s anxiety and fear around driving and her adjustment disorder. The EOB also advised that:

(i) Psychotherapists would be paid an hourly rate of $58.19; (ii) The respondent required: (a) Confirmation of which practitioner would be completing the proposed psychotherapy including the person’s applicable college registration information; and (b) Details of how the psychotherapy was provided (i.e. in person or by phone or video); and (iii) The respondent would not pay for: (a) Client related supervision services as there was insufficient medical information indicating that client related supervision services were reasonable and necessary. The respondent requested additional information as to why client related supervision services were reasonable and necessary; (b) Any goods/services relating to planning, preparation and/or brokerage as these services should be included in the $200.00 maximum fee allowable for an OCF-18 completion; and (c) Any fee for a progress report because if any additional treatment is required, the completion of a future OCF-18 would provide progress information. Also, if additional information is required at the time, the respondent will make a request for it.

25I find that the respondent’s January 30, 2019 correspondence “cured” its previous defective notices. The respondent referenced the applicant’s conditions that formed the basis of its decision, it set out information that it did not have but required and was clear on what proposed goods and services, and at what rate, it was partially approving the treatment plan for. I find that the respondent’s January 30, 2019 EOB complied with the principles set out in T.F. v. Peel and that it was sufficiently clear enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

26Therefore, I find that the applicant is entitled to the goods and services set out in the OCF-18 for the period from the 11th business day after the respondent received the OCF-18 until January 30, 2019 even if services were not incurred during this period as, in my opinion, this is not required by s. 38(11)2.

27The applicant’s submission that the OCF-18 was submitted to the respondent on December 24, 2018 was uncontradicted and the estimated length of the treatment plan was stated as 12 weeks. As a result, the applicant is entitled to payment up to the amount of $788.90 for the proposed psychological treatment described in the OCF-18 that relates to the period of the respondent’s non-compliance with s. 38(8), which was 13 business days ($3,641.09 divided by 12 weeks divided by five business days per week times 13 total business days), upon submission of an invoice for services rendered. This interpretation is also consistent with s. 38(15) of the Schedule which only obliges an insurer to pay for goods and services it is required to pay for under s. 38 upon receiving an invoice for them.

28As I have found that the respondent complied with its obligations under s. 38(8) of the Schedule as of January 30, 2019, I now need to determine if the unapproved portions of the December 24, 2018 OCF-18 are reasonable and necessary. For the reasons that follow, I find that the applicant has failed to prove on a balance of probabilities that the difference in the hourly rate payable to a psychotherapist and the denied portions of the OCF-18 for communication with others, treatment planning and completion of a progress report were reasonable and necessary. Therefore, the applicant is not entitled to the unapproved portion of the December 24, 2018 OCF-18.

Hourly Rate Payable - Psychotherapists

29The Financial Services Commission of Ontario’s Professional Services Guideline¹⁰ sets the maximum hourly rate payable for treatment providers. The respondent approved an hourly rate for a psychotherapist under this treatment plan of $58.19 which is consistent with the hourly rate payable under the Guideline for unregulated providers, such as counsellors and psychometrists.

30While I agree with the applicant that other Tribunal decisions have determined the appropriate hourly rate for a psychotherapist was $149.61,¹¹ these decisions are distinguishable on the facts because there was evidence before the Tribunal in those two matters about the details of the services the psychotherapist was providing and who was providing the psychotherapy services. In this matter, none of this information is before me despite the respondent’s request for it. The applicant also failed to provide any clarification in her submissions as to who the actual treatment provider would be aside from initially maintaining that it would be Dr. Vitelli. While Dr. Vitelli was listed as the proposed treatment provider under Part 11 of the OCF-18, 14 potential service providers were set out in the additional comments portion of the treatment plan. Therefore, I find that it was not conclusive from the treatment plan that the services set out in the OCF-18 would be provided by Dr. Vitelli.

31Additionally, while the applicant relied upon Dr. Sahyoun’s statement in his January 24, 2019 Report that the disputed treatment plan “for the amount of $3641.09 is reasonable and necessary,”¹² it is not clear from Dr. Sahyoun’s report if it was readily apparent that the proposed services were going to be provided by a psychotherapist as opposed to a psychologist.

32On the evidence, I find that the applicant has failed to prove on a balance of probabilities that it is reasonable and necessary that the unnamed psychotherapist should be paid at a rate of $149.61 per hour as opposed to the approved rate of $58.19 per hour. Therefore, she is not entitled to this unapproved portion of the December 24, 2018 OCF-18.

Other Unapproved Portions of the Treatment Plan

33The applicant provided no submissions on the reasonableness and necessity of the denied portions of the treatment plan regarding communication with others, treatment planning and completion of a progress report. The OCF-18 also fails to provide any rationale for these services. Therefore, I find that the applicant has not met her onus of proving that these unapproved portions of the December 24, 2018 are reasonable and necessary and, as a result, she is not entitled to payment for them.

Driving Reintegration Assessment

34The February 7, 2019 OCF-18 was completed by Dr. Ilya Gladshteyn, psychologist, and sought finding for a driver re-integration assessment that consisted of the following components:

(i) a review of file material to determine the applicant’s ability to drive completed by Dr. Gladshteyn ($299.22 Flat fee); (ii) consultation by Dr. Gladshteyn with referral source to determine the applicant’s psychosocial status ($149.61 Flat fee); (iii) an initial screening/clinical diagnostic interview to be completed by Dr. Gladshteyn ($149.61 Flat fee); (iv) a comprehensive in-vehicle assessment and driving evaluation by Oleg Kaganovich, provider type listed as “other” ($299.22 Flat fee); (v) 1-hour Travel time for Oleg Kaganovich at the hourly rate of $149.61 ($149.61); (vi) Documentation/testing/scoring to be completed by Dr. Gladshteyn ($299.22 Flat fee); (vii) Report preparation to be completed by Dr. Gladshteyn which would include recommendations ($673.25 Flat fee); and (viii) Completion of the OCF-18 ($200.00).

35The goal of the treatment plan was to return the applicant to activities of normal living. The additional comments portion of the OCF-18 noted that the applicant presented with a symptom pattern that was consistent with a specific phobia and referred to Dr. Vitelli’s December 20, 2018 Psychological Evaluation Report.¹³ The treatment plan stated that following Dr. Vitelli’s assessment, the applicant “was recommended to participate in a treatment program that attempted to reduce the level of anxiety, fear and avoidance” via systematic desensitization, guided imagery, relaxation training and other techniques. The OCF-18 stated that the assessment was to address the applicant’s anxiety to make detailed recommendations regarding her treatment.

36On February 21, 2019, the respondent provided an EOB to the applicant which stated that it approved up to $1,621.30 of the proposed treatment plan. The respondent advised that:

(i) It would fund a driving reintegration assessment based on the actual completion times of each component of the assessment rather than a flat fee approval; (ii) Services provided by a psychologist would be paid an hourly rate of $149.61; (iii) Services provided by any unregulated provider would be paid an hourly rate of $58.19; (iv) Client related supervision services would be paid separately, based on the amount of time spent and complexity of the service; (v) It would require a completed detailed breakdown of all components of the assessment, the exact date(s), start and completion times of each component of the assessment and confirmation of which practitioner completed each component of the assessment; and (vi) It was not agreeable to pay for travel/transportation expenses or any expenses related to planning, preparation and/or brokerage fees as they were to be included in the $200.00 maximum fee allowable for the completion of the OCF-18.

37I find that the respondent’s February 21, 2019 EOB complied with its obligations under s. 38(8) of the Schedule. The only portions of the treatment plan that were unapproved were the review of file material, Dr. Gladshteyn’s consultation with referral source to determine the applicant’s psychosocial status and the proposed travel time for Oleg Kaganovich. I find that the reasons why the respondent was not prepared to pay these expenses were clearly set out in its February 21, 2019 EOB and, as a result, I do not agree with the applicant’s submissions that the respondent failed to provide a breakdown to the applicant of the approved payable amount of this treatment plan leaving her “in the dark.” In sum, I find that the respondent’s February 21, 2019 EOB was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue in accordance with the principles set out in T.F. v. Peel. Therefore, s. 38(11) is not triggered and I must now determine if the unapproved portions of the treatment plan are reasonable and necessary.

38Despite the partial approval, the applicant underwent the driving reintegration evaluation assessment on May 15, 2019. The assessment was completed by Ms. Kaya Quinsey, registered psychotherapist, under the supervision of Dr. Gladshteyn. The resulting May 25, 2019 Driving Reintegration Evaluation Report¹⁴ stated that the purpose of the assessment was to determine the nature of, and the extent to which the applicant was suffering from a driver and/or passenger phobia as a result of the accident and to determine her suitability for participating in the driving reintegration program.¹⁵ The applicant was diagnosed with a specific phobia, situation (driver and passenger-related), and a recommendation was made for the applicant’s participation in a driving reintegration program that included, among other things, 12 in-vehicle sessions along with 12 sessions of accompanied psychological therapy.¹⁶

39The applicant made no submissions at first instance about the reasonableness and necessity of the unapproved portions of the proposed driving reintegration assessment. In reply, she submitted that the assessment was aimed at helping treat the applicant’s psychological symptoms.

40I find that the applicant has failed to prove on a balance of probabilities that the unapproved portions of this treatment plan are reasonable and necessary. There is no information in the report regarding any communication with other persons as part of the assessment, there is no information regarding any travel time for the completion of the assessment and there is also no information why additional funding beyond the amount approved for the assessment was required to review the only two listed documents as part of the assessment. Moreover, it is unclear to me why the assessment as a whole was reasonable and necessary given that Dr. Vitelli had already diagnosed the applicant with a specific phobia: situational type: vehicular and opined that driver desensitization may be of assistance to the applicant in his December 20, 2018 Report.¹⁷ Therefore, I find that the driving reintegration evaluation assessment was a duplication of services especially in light of the stated purpose of the assessment of determining the nature of, and the extent to which the applicant was suffering from a driver and/or passenger phobia and to determine her suitability for participating in the driving reintegration program. In my opinion, these determinations had already been made by Dr. Vitelli.

41Therefore, I find that the applicant is not entitled to the unapproved portions of the February 7, 2019 OCF-18 for a driving reintegration assessment.

Biopsychosocial Assessment, Home Exercise Program and Exercise Equipment and Multidisciplinary Chronic Pain Program

42The following three treatment plans recommended by Novo Medical Services are in dispute between the parties:

(i) A March 5, 2019 OCF-18 in the amount of $2,090.00 for a biopsychosocial assessment; (ii) A June 19, 2019 OCF-18 in the amount of $1,218.47 for a home exercise program and exercise equipment; and (iii) A September 20, 2019 OCF-18 in the amount of $34,645.90 for a multidisciplinary chronic pain program.

43The applicant’s position is that the respondent failed to comply with its obligations under s. 38(8) of the Schedule regarding its denial notices for the above-listed treatment plans. The respondent’s position, however, is that its responses to these treatment plans are moot because the treatment plans were not submitted in accordance with the Schedule. Specifically, the respondent requested additional information from the applicant upon receipt of these treatment plans which included the basis upon which the health care provider was certifying the reasonableness and necessity of the treatment plans and a signed copy of the OCF-18s. In its hearing submissions, the respondent maintained that it never waived these requirements under the Schedule.

44Under s. 38 of the Schedule, to claim payment for a medical benefit or for an assessment, an insured person must submit an OCF-18 that must meets certain requirements. Section 38(3) of the Schedule provides:

A treatment and assessment plan must, (b) be completed and signed by a regulated health professional; and (c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation […] (my emphasis added).

45It is only after receiving a treatment plan that complies with s. 38(3) that an insurer is required to consider it and either pay the requested amount or deny the proposed treatment.

46The applicant did not respond to the issue of compliance with s. 38(3) of the Schedule that was raised by the respondent in its reply submissions. The applicant, however, did include a copy of the signed OCF-18s in both her initial and reply hearing submissions briefs.¹⁸ No information was provided, however, if or when the signed versions of the March 5, 2019, June 19, 2019 and September 20, 2019 treatment plans were submitted to the respondent. Therefore, I am unable to determine a date when the OCF-18s were submitted in accordance with s. 38(3) of the Schedule thus triggering the respondent’s requirement to respond under s. 38(8). Further, without a denial, there exists no “dispute” as defined in s. 280 of the Insurance Act.¹⁹ Section 280(1) and (2) of the Insurance Act only empower the Tribunal to resolve disputes over accident benefits as follows:

280(1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. (2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).

47The language of the provision is clear. The Tribunal has jurisdiction over dispute resolution. Absent a treatment plan that is submitted in accordance with s. 38(3) and a subsequent denial of a benefit, there can be no dispute. Without a dispute, I have no jurisdiction to determine the applicant’s entitlement to the March 5, 2019, June 19, 2019 and September 20, 2019 treatment plans.

Award

48Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

49It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

50I find that the applicant has not met her burden of proving on a balance of probabilities that she is entitled to an award in this matter. The only benefits that I have found that the applicant is entitled to is as a result of the respondent’s failure to comply with its obligations under s. 38(8) of the Schedule. My finding that the respondent failed to comply with its obligations under s. 38(8) of the Schedule does not in and of itself amount to an unreasonable withholding or delay of payment of benefits.

51No other evidence is before me that supports a finding that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I find that the applicant is not entitled to an award under O. Reg. 664.

Interest

52The applicant is entitled to interest in accordance with s. 51 of the Schedule for the August 2, 2018 OCF-18 for chiropractic treatment and physiotherapy and for $788.90 of the December 24, 2018 OCF-18 for psychological treatment.

CONCLUSION

53For the reasons outlined above, I find that:

(i) The applicant is entitled to the August 2, 2018 OCF-18 in the amount of $1,525.62 plus interest in accordance with s. 51 of the Schedule for chiropractic treatment and physiotherapy; (ii) The applicant is entitled to payment up to the amount of $788.90 of the December 24, 2018 OCF-18 for psychological treatment plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the unapproved portions of this treatment plan; (iii) The applicant is not entitled to the unapproved portions of the February 7, 2019 OCF-18 for a driving reintegration assessment; (iv) I do not have jurisdiction to determine the applicant’s entitlement March 5, 2019 OCF-18 for a biopsychosocial assessment, the June 19, 2019 OCF-18 for a home exercise program and exercise equipment or to the September 20, 2019 OCF-18 for a multidisciplinary chronic pain program; and (v) The applicant is not entitled to an award under O. Reg. 664.

Date of Issue: July 14, 2021

_______________________

Lindsay Lake, Adjudicator

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
3. 32018 CanLII 39373 (ON LAT Reconsideration Decision) (“T.F. v. Peel”).
4. 4Ibid. at para. 19.
5. 5See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)(reconsideration) at paras. 50-52, 59 and 64.
6. 6Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
7. 7Applicant Hearing Brief, tab 5(1).
8. 8Applicant Hearing Brief, tab 5(3).
9. 9Applicant Hearing Brief, tab 4(2).
10. 10September 2014, Superintendent’s Guideline No. 03/14 (the “Guideline”).
11. 11A.S. vs. Aviva Insurance Company, 20202 CanLII 12787 (ON LAT) and J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT Reconsideration Decision).
12. 12Supra note 9 at page 3.
13. 13Applicant Hearing Brief, tab 3(1).
14. 14Applicant Hearing Brief, tab 3(2).
15. 15Ibid. at page 1.
16. 16Ibid. at page 5.
17. 17Supra note 13 at pages 12 and 13.
18. 18Applicant Hearing Brief, tabs 6(1), (2) and (6) and Applicant Reply Submissions Brief, tabs 1, 5 and 6.
19. 19R.S.O. 1990, c. I.8.