[FT] v. The Co-Operators Insurance Company, 2022 CanLII 2807

Citation: [FT] v. The Co-Operators Insurance Company, 2022 ONLAT 19-001291/AABS

Licence Appeal Tribunal File Number: 19-001291/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:

[FT]

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: [FT], Applicant Lisa Bishop, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: Via Written Submissions

BACKGROUND

1The applicant was involved in a motor vehicle accident on February 5, 2018. The applicant sought medical and rehabilitation benefits along with income replacement benefits (IRBs) from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September, 2010¹ (the "Schedule").

2The respondent denied the medical and rehabilitation benefits on the basis that the applicant's injuries are minor as defined in the Schedule and thus are subject to the monetary limits under the minor injury guidelines (MIG) and the applicant had exhausted the MIG limits.

3The applicant is also seeking IRBs in the amount of $800.00 per week from February 13, 2018 to March 17, 2020. The respondent paid IRBs at the rate of $59.00 per week from February 13, 2018 to March 17, 2020. The applicant and respondent do not dispute the entitlement to IRBs for the above noted time period. The applicant disputes the weekly quantum of the IRBs.

ISSUES TO BE DECIDED

4The issues to be decided in this hearing are

a. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

b. If the applicant did not sustain predominantly minor injuries:

i. Is the applicant entitled to a medical benefit in the amount of $283.80 ($1,560.80 less $1,277.00 approved) for physiotherapy services recommended by HealthPro Wellness as set out in a treatment and assessment plan (OCF-18) dated May 3, 2018?

c. Is the applicant entitled to an income replacement benefit of $800.00 per week from February 13, 2018 to March 17, 2020?

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

e. Is the applicant entitled to an award under O.Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

RESULT

5For the reasons noted below, the applicant's injuries are not predominantly minor injuries and do not fall within the MIG.

6The applicant is not entitled to the balance of OCF-18 as he has not shown that it is reasonable and necessary.

7The applicant as well has not shown that the quantum of his IRBs is $800.00 per week for the period of February 13, 2018 to March 17, 2020. No further IRBs are owing to the applicant.

8As there are no further benefits owing to the applicant there is no interest payable. Further as there are no withheld or delayed payment of benefits there the applicant is not entitled to an award under O. Reg. 664.

ANALYSIS

Minor Injury, MIG and Treatment Plan

9The MIG establishes a treatment framework available to injured persons who sustain one or more minor injuries as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The terms, "strain," "sprain," "subluxation," and "whiplash associated disorder" are defined in the Schedule.

10Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. As per the submissions of the parties, the applicant has exhausted the $3,500.00 available for medical and rehabilitation benefits.

11Section 18(2), however, allows for treatment outside the MIG if the applicant has a pre-existing medical condition, documented by a health practitioner before the accident and that will prevent him from achieving maximum recovery from the minor injury. Specifically, section 18(2) states:

Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.

12Psychological impairments as a result of the accident are not part of the definition of "minor injury" under the Schedule and are not subject to the monetary limit of the MIG.

13The applicant submits that he has pre-existing medical conditions that will prevent him from achieving maximal recovery from the minor injury if he is subject to the monetary limit of the MIG. The applicant also submits he has psychological injuries as a result of the accident and psychological injuries are not a minor injuries as defined in the Schedule, thus he is not subject to the MIG.

14The onus is on the applicant to show on a balance of probabilities that his injuries do not fit within the monetary limits of the MIG.

Does the Applicant have a pre-existing medical condition and does that pre-existing medical condition prevent maximal recovery from his accident related minor injuries?

15As per section 18(2), the applicant may escape the MIG if he has compelling evidence from his health practitioner that he has pre-existing medical conditions and that the limits in the MIG will prevent him from achieving maximal recovery from the minor injury if the applicant is subject to the MIG limits.

16The onus is on the applicant to show that his injuries are not minor as defined under the Schedule and therefore he is not subject to the monetary limits under the MIG.

17The applicant submits that prior to the accident he had pain in his neck and shoulder along with dizziness. This was reported to the family doctor, Dr. Setteh about four days before the accident on February 1, 2018. On February 3, 2018 the family doctor confirmed that the applicant had "muscle spasm" and prescribed Flexeril.

18The applicant was involved in a motor vehicle accident on February 5, 2018.

19The applicant submits that the complaints and the diagnosis of muscle spasm noted on February 1, 2018 and February 3, 2018 are a pre-existing physical condition and that the confines of the MIG will prevent maximal medical recovery.

20The applicant however has not provided compelling evidence that this neck pain that only occurred four days before the accident is pre-existing condition rather than muscle spasm. More is required than just two notations in two days for the neck spasm to be considered a medical condition.

21In order to escape the monetary limit of the MIG the applicant must show compelling evidence that he has a pre-existing medical condition that was documented by a health practitioner before the accident and that the monetary limit of the MIG will prevent him from achieving maximal recovery from his the minor injuries . The only evidence the applicant points to is the OCF-23 of the chiropractor who stated that the applicant should not be in the MIG., however it is provided without any information as to why the chiropractor believes this and what she is relying upon for this opinion.

22As discussed above the applicant has not provided compelling evidence of a pre-existing medical condition. Two notation of a muscle spasms in a matter of three days (but nothing before those three days) is not enough.

23The applicant also submits that he had pre-existing psychological issues. He points to one notation in the OHIP summary of November 12, 2015 with an OHIP code description of "psychosomatic disturbances." The applicant points to the post-accident note of April 16, 2018 that notes history of "GAD" (which I take to mean generalized anxiety disorder).

24One notation in the OHIP summary of somatic disturbances three years prior to the accident is not compelling evidence that the applicant had a pre-existing medical condition. One notation of psychosomatic disturbances is also not compelling as it is provided in the OHIP summary and thus the only information that is provided is the code are the two words "psychosomatic disturbances".

25Therefore, the applicant has not met his onus to show compelling medical evidence that he had pre-existing medical conditions that were documented by a medical practitioner.

Did the applicant sustain psychological injuries as a result of the accident?

26The applicant submits that as a result of the accident he sustained psychological injuries as a result of the accident.

27Based on the evidence I find that on a balance of probabilities that the applicant sustained psychological injuries in the accident. The evidence does not show that the applicant had psychological issues or impairments leading up to the date of the accident. However, following the accident from the first visit with the family doctor on April 18, 2018 the applicant continued to complain of issues with sleep, insomnia, anxiousness, sexual dysfunction, decreased energy etc. As noted in the evidence the applicant was referred to a psychiatrist by his treating doctor in January of 2019.

28The evidence shows that on April 18, 2018 is the first time the applicant sees his family doctor following the accident. The applicant on this day reports to his family doctor that he has decreased sexual function, insomnia and sleep. The doctor makes a notation of GAD.

29At the next visit with the family doctor, on July 31, 2018 the family doctor notes that the applicant is fatigued, makes notations of dysfunction (noted as "dysf") and there is a notation of GAD.

30The next time the applicant sees his family doctor is on or about September 25, 2018 wherein her reports anxious, generalized fatigue, decreased sleep, decreased energy.

31The following note of November 27, 2018 by the family doctor again notes decreased energy, decreased mood, stress, GAD and panic.

32On January 29, 2019, the family doctor makes a referral to the psychiatrist due to sudden anxiety or depression with increased thinking and decrease sleep and sexual dysfunction.

33The respondent submits that the above noted psychological issues are not accident related.

34I find based on the evidence above that the applicant has met his onus to show that he sustained psychological injuries as a result of the accident.

35I am persuaded by the fact that at each visit the applicant tells his family doctor about his accident related physical injuries and/or pains and tells his family doctor candidly about his emotional issues. In the absence of evidence to the contrary I find on a balance of probabilities that the psychological issues are as a result of the accident as they are only reported post-accident and they are reported consistently and regularly by the applicant.

Disputed Treatment Plan

36As I find the applicant has psychological injuries as a result of the accident the applicant is not confined to the monetary limits of the MIG and thus I turn to whether the treatment plan in dispute is reasonable and payable.

37Section 14-16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of the accident. The onus is on the applicant to show on a balance that the treatment plan is reasonable and necessary and related to the accident.

38The treatment plan in dispute is not for physiotherapy but rather for chiropractic and massage therapy. The onus is on the applicant to show that the chiropractic and massage therapy treatment plan is reasonable and necessary.

39The applicant has not discharged his onus. The only evidence before me on the recommendations for chiropractic and massage therapy is the treatment plan. The family doctor does not recommend chiropractic or massage therapy but rather recommends physiotherapy (see note of November 27, 2018). Thus, without any further evidence the applicant thus, has not shown on a balance of probabilities that the balance of the treatment plan is reasonable and necessary.

Income Replacement Benefits

40The issue in dispute for the IRBs is the weekly quantum. The parties agree that the applicant was entitled to the IRBs from February 13, 2018 to March 17, 2020.

41The applicant has purchased optional IRBs therefore $800.00 is the weekly maximum of IRBs available to him under the Schedule. The parties agree that the calculation of IRBs is 70% of the applicant's pre-accident gross income plus 70% of the applicant's post-accident weekly self-employment losses that are related to the accident.

42The applicant bears the onus of proving on a balance of probabilities the weekly quantum of his income replacement benefit.

43The applicant relies solely on the reports of S&T Accounting (the S&T Report) along with the supporting documentation. The respondent relies on the accounting report of BDO for its position that $59.00 per week is the IRB amount.

44The respondent has pointed to the insufficiency and reliability of the S&T Report and documentation and submits that they do not accurately determine the weekly quantum of the IRBs.

45By way of background, the applicant was self-employed and a partner in a landscaping business. The partnership was split equally between him and his partner or colloquially speaking everything was 50/50. The landscaping business was formed as per the evidence in 2017 and the articles of incorporation are dated June 23, 2017. As per the T2 filing, done after the accident, the first fiscal year for the landscaping company is June 30, 2017 to June 30, 2018. The applicant submits that he also had a renovation business and he worked as a self-employed construction worker in that renovation business.

46Section 7(2) and 7(3) of the Schedule provide that IRBs are calculated as follows: 70% of the applicant's gross weekly pre-accident self- employment income plus 70% of the applicant's weekly loss from self-employment that he incurs as a result of the accident.

47The respondent submits that there is a further deduction to this calculation and submits that the applicant also had weekly post-accident income that should be deducted. The applicant submits that his post-accident self-employment income is zero.

48Section 4(5) and (6) provides that a person's pre-accident income is what is reported and assessed by the Canada Revenue Agency (CRA). The post-accident losses are calculated in the same manner as expenses and losses would be calculated by CRA under the Income Tax Act.

49The S&T Report indicates that the applicant could not work in the renovation business and thus had no revenue or losses. I note that there are no documents from or to the CRA that confirm pre-accident income or that confirm any income for the renovation business. Thus, as per section 4(5) and (6) of the Schedule this pre-accident income and/or loss cannot be factored into the IRB calculation.

50Pursuant to section 4(2)2 the applicant has designated the last 52 weeks as the period to be used to calculate his pre-accident gross income. The applicant may not use the landscaping business' last fiscal year before the accident because as per section 4(2)3 there was no fiscal year for the landscaping business that was completed on or before the day of the accident. Thus, the applicant is confined to the last 52 weeks before the accident for the calculation of his IRBs.

51The S&T Report says that what is filed with CRA is what determines the pre-accident income. Yet the S&T Report only includes the 2017 T1 Personal Tax Return. I appreciate that the fiscal year for the landscaping company had not been completed at the time of the calculation but the renovation company was in existence since 2016 and yet no fiscal 2016-2017 returns were provided.

52The calculations in the S&T Report are as of May 14, 2018 and the report is dated June 4, 2018. The accounting report only takes the landscaping business into account and presumably personal income (however it does not specifically specify this). It lists the applicant's self-employment revenue as $71,096.78 and the self-employment expenses as $29,461.17. Therefore the gross income is $41,635.61. It then lists the post-accident revenue of $4,500.00 and post- accident expenses as $10,968.55. Thus, there is a post-accident loss of $6,468.55. This loss is for the 13 weeks or from one week post-accident to the date of the calculation of May 14, 2018. There is no information as to how the expenses are related to the accident.

53With the above numbers it appears that the S&T Report indicates that the applicant's 70% gross pre-accident weekly income is $560.48 ($41,635.61 divided by 52 weeks x 70%) and 70% of the post-accident weekly losses is $348.31 ($6,468.55 divided by 13 weeks x 70%). The weekly calculated IRB is $908.79 and it is then capped at $800.00 per week as per the policy limits for IRBs available to the applicant.

54The applicant submits that this calculation should be accepted and provides the ongoing documentation and arguments. The respondent in rejecting this amount requested a number of documents to show the pre and post-accident revenue, and expenses. The applicant submits that some of the requests were unreasonable and not necessary. The respondent submits that by not providing some of the requested documents to the Tribunal that negative inferences should be drawn against the applicant.

55In terms of the pre-accident self-employment income the Schedule makes it clear that what is reported to the CRA is what the pre-accident self-employment income is based on.

56I also note that despite there being some ongoing documentation provided by the applicant to the respondent and the S&T accountant and despite there being a T2 filed for the landscaping corporation for the fiscal year ending June 22, 2018 (just over one month from the calculation date of the S&T Report) the applicant never provided a further calculation of the IRBs. Thus, I am left with two competing IRB reports with respect to quantum.

57The applicant relies solely on the S&T Report and submits that the calculated quantum for IRBs should be accepted by the Tribunal.

58When comparing the T2 for the 2017-2018 fiscal year (the 2017 T2) and the S&T Report there are questionable assumptions made in the S&T Report that are not in keeping with the documentary evidence. For example, the 2017 T2 reports revenue of the business of $103,500.00. 50% of that revenue totals $51,750.00. As per Schedule 2 of the S&T Report the 50% revenue for Feb 7, 2017 to May 14, 2018 totals $51,750.00 ($40,750.00 + $6,500.00 + $4,500.00). Which would mean that from the time of the calculation of May 14, 2018 to the end of the fiscal year of June 22, 2018 there was no further revenues that the applicant is claiming.

59The problem with the S&T Report however, is that as seen in Schedule 2 of the S&T Report, there is additional income to the applicant from the corporation which is gross partnership income paid in 2017 and in 2018 (the landscaping corporation began in 2017) before the accident in the amount of $37,996.56 ($19,996.82 plus $17,969.74). When looking at the T2 however there are no expenses for income, salaries, or employees. There are also no supporting documents for this gross partnership income nor is this explained in any way. There are also no documents to show that this was reported as income to the CRA pre-accident. Thus, this amount should not form part of the IRB calculation.

60What should have formed part of the applicant's IRB calculation was the income reported in his 2017 personal income tax return. The applicant reported his gross pre-tax income of $18,461.00 in his personal 2017 income tax return. This does not correspond to the "Gross Self-Employment income" in Schedule 2 above nor does it correspond to the "Gross Partnership Income" for 2017. This was not included in the S&T Report therefore making the calculation of the IRBs incorrect again.

61Given that the base amount of the applicant's pre-accident income is incorrect and not in keeping with section 4(5) of the Schedule I find that the S&T Report cannot be relied upon and therefore it is unpersuasive and I place little weight on the calculations therein for the base pre-accident income amount of the applicant.

62The applicant submits that as result of the accident the corporation sustained losses because it had to retain subcontractors as the applicant was unable to work and his partner, who was also involved in the accident, was also unable to work. Furthermore, the company also had expenses for the rental vehicles for the subcontractors. The respondent submits that this is not the case and that these expenses are unsubstantiated.

63As stated in section 4(4) of the Schedule what is calculated as losses from the business in which the person was self-employed pursuant to the Income Tax Act is the same as how losses from self-employment after an accident are to be calculated for the purposes of the Schedule.

64Further, section 4(4) (a) – (c) states that an expense that is not reasonable and necessary to prevent a loss of revenue is not considered a deductible expense; any salary expenses to replace the applicant's active participation in the business are not considered an expense unless they are reasonable in the circumstances and any non-salary expenses that are different in nature or greater than the non-salary expenses incurred before the accident are not considered in calculating the loss to the business unless those non-salary expenses are reasonable in the circumstances and necessary to reduce the losses resulting from the accident.

65Section 7(2)2 states that in calculating the applicant's weekly self-employment loss the weekly loss must be incurred as a result of the accident.

66The onus is on the applicant to show that the expenses are reasonable and necessary and incurred as a result of the accident. The applicant has not met this onus as the applicant has not provided evidence to show that these amounts were reasonable in the circumstances and necessary to prevent a loss and/or as a result of the accident.

67As per the 2017 T2 filing the corporation's revenue was $103,500.00 and its expenses were $136,164 which included subcontractor expenses of $79,228.00. I note that the company began in June of 2017 (as per the articles of incorporation and as per the information in the 2017 T2 filing) and the fiscal year ended on June 22, 2018. It also important to note that the S&T Report ends their calculations as of May 14, 2018. The S&T Report should closely approximate the information in the 2017 T2 by using the same year end and it does not.

68The subsequent S&T opinion report of January 10, 2018 from the applicant's expert accountant provides contradictory evidence that is not supported by the accompanying documents. The accountant states that the total amount of subcontractor expenses in the T2 that is allocated post-accident to the end of the 2017-2018 fiscal year (i.e. between February 6 to June 22, 2018) is $66,940.00. The amount of gross revenue that the accountant states for that same period of time is $9,000.00. The applicant provides no information as to why it was reasonable in the circumstances post-accident and necessary to incur $66,940.00 worth of subcontractor expenses to generate $9,000.00 worth of revenue and how it reduces the losses to the business and how it is related to the accident.

69Further, the invoices that the applicant posits are from the subcontractors do not show the $66,940.00 of subcontractor fees. The applicant submits invoices from SMC Fences from February 6, 2018 to June 22, 2018. These invoices do not add up to $66,940.00 but instead fall short of this amount.

70As well, the applicant has failed to prove on a balance of probabilities that the subcontractor payments were paid, who they were paid to and why they were paid. The applicant provides invoices from SMS Fences and submits that this is the amount paid to the subcontractors for work. However other than the applicant's submissions there is no further evidence to corroborate these invoices or how these invoices are reasonable and necessary. There are no corresponding bank records showing these amounts withdrawn and paid nor is there any information showing why the applicant had to incur this expense as result of the accident. There is no information from SMS or the applicant f that this expense was paid. There is no requirement in the Schedule that post-accident the respondent must only accept what is reported to CRA. This makes sense in that the applicant cannot take advantage of his post-accident position by reporting higher expenses in order to increase the business losses post-accident and thus increase the IRBs. The Schedule only states that the expenses must be applied as deductions as they would be under the Income Tax Act but also the expenses are subject to section 4(4) (a) – (c) of the Schedule.

71As per the Schedule, it must be accepted that the losses for the business pre-accident are as reported in the T2 and that the post-accident increase in losses/expenses must be reasonable and necessary to prevent further losses, and must also be incurred as a result of the accident. The applicant has failed to prove the amount of his post-accident losses and has failed to prove that the expenses, specifically the subcontractor fees, are proper deductions from the calculation of the post-accident losses.

72As the onus is on the applicant to show the quantum of his IRBs and as per the reasons above the applicant has not proved on a balance of probabilities the quantum of his IRBs. With respect to the applicant's pre-accident income, as noted above, the applicant has failed to properly calculate his pre-accident income. Thus, I cannot rely on the pre-accident base amount in the calculation of his IRBs. Further the applicant has not proven his post-accident losses and has not shown that the subcontractor expenses, which account for the majority of his post-accident losses related to the accident, are reasonable and necessary in the circumstances.

73The respondent retained BDO to calculate the IRBs. As per the report of BDO (the BDO Report) the weekly IRBs are $59.00. The respondent submits that the calculations in the BDO Report, take into account some subcontractor fees and attributes the majority of the subcontractor fees as a pre-accident expense. This I find to be a more probable reflection that the subcontractor expenses were incurred prior to the accident. The applicant is reporting to CRA in the 2017-2018 T2 that the corporation incurred $79,228.00 in subcontractor expenses. The S&T Report of the applicant makes no mention of any subcontractor fees post-accident. The respondent allocates $72,279.00 as pre-accident subcontractor expenses with a revenue of over $92,000.00. This position is more reasonable than the applicant's position that post-accident it incurred over $66,000 in subcontractor expenses to generate $9,000.00 in revenue.

74The BDO Report as well takes into account the revenue generated by the applicant that is outside his landscaping business. I note that $12,261.00 is allocated for the 52 weeks pre-accident from his other self-employment income. I find that given the applicant is reporting in his 2017 tax year an income of $18,461.00 that it is reasonable to assume that from February 7, 2017 to February 5, 2018 his other self-employment income is $12,261.00.

75With respect to the post-accident income, the applicant (and as well the respondent) is not confined to what is reported to CRA and a separate calculation may take place. However, the losses to the business must still be calculated based on the Income Tax Act. In the T2 for the post -accident period of June 23, 2018 to June 23, 2019 the subcontractor expenses are $18,008.00. The respondent in their calculation for a shorter time period, of February 6, 2018 to November 2, 2018 allocates a greater amount for the subcontractor expense that being $24,949.00.

76The respondent has taken into account the expense for subcontractors and has used this as part of the post-accident loss calculation. The applicant however in his income loss calculation uses a much higher and less precise amount for the subcontractor fees but the applicant has not proved on a balance of probabilities that the subcontractor fees that applicant is using in their calculations are reasonable and necessarily related to the accident. Therefore, I prefer the report and calculations of BDO and find that on a balance of probabilities the BDO Report accurately reflects the applicant's pre and post-accident income.

77The respondent in conducting their calculation has taken into account the documents provided by the applicant. As noted in the BDO Report it has relied on the 2017 T2, the 2017 T1, the 2018 T2 and has reconciled the information with the supporting documentation provided by the applicant and consisting of bank records and invoices. I agree with the respondent, that the applicant has not pointed to any areas where BDO has made assumptions that are not reasonable. BDO requested the post-accident bank records, post-accident invoices and receipts and T2s. The applicant provided these documents knowing that they would be used to calculate IRBs. The amounts in BDO Report more closely approximate what was reported in the 2017 T2. Further, the BDO Report takes into account the actual reported pre-accident personal income. The BDO Report as well uses the actual bank records and invoices to show post-accident income and expenses.

78The applicant submitted that the post-accident records were not necessary or reasonable and that the documents in support of the reporting to the CRA are all that is required under the Schedule. The applicant however does not note in his submissions that the Schedule provides pursuant to section 4(5) that the CRA records are used to calculate the pre-accident income or loss and that post-accident losses are calculated based on the Income Tax Act. The post-accident revenue is not confined to what is reported to CRA, although it is helpful, if truthful and accurate, in the calculation of post-accident income.

79The respondent has a concern that the applicant underreported his income and therefore the respondent overpaid the IRB. However, since repayment is not an issue in dispute, I do not make any findings with respect to an overpayment.

80Thus, based on the reasons above I find that the applicant has not met his onus to show that the quantum of the IRBs is $800 per week. Further, I find that the evidence supports the amount and conclusions in the BDO report and thus the weekly IRB is $59.00 per week.

Section 33 Non-Compliance, Award, Interest,

81The respondent raised issues with respect to the applicant not complying with a request for documents under section 33 and material misrepresentation. The respondent however is not seeking a remedy for the material misrepresentation and takes the position that no further IRBs are payable. I take this to mean that no benefits past the date of denial of March 17, 2020 are payable. The applicant as well takes the position for this hearing that the period in dispute is confined to February 13, 2018 to March 17, 2020 and for the purposes of this hearing the IRBs past March 17, 2020 are not being pursued (but may be pursued at a later time). . Also, the respondent takes the same position of no further IRBs being payable due to the applicant's non-compliance of section 33 requests. However as no IRBs are being paid past March 17, 2020 and there is no issue of the respondent suspending the IRBs prior to March 17, 2020 a finding with respect to the reasonableness of the section 33 requests for documents is not necessary as it would not affect the IRBs that are in dispute in this hearing (i.e. IRBs for February 13, 2018 to March 17, 2020).

Award and Interest

82The applicant submits that the respondent unreasonably withheld or delayed the payment of benefits and thus the applicant should be entitled to an award. As the applicant is not entitled to further IRBs or medical and rehabilitation benefits it cannot be said that there was a withholding or delaying of the benefits and therefore there is no award.

83With respect to interest, as no benefits are overdue and owing there is no interest payable.

84Based on the above there is no award.

85The applicant is entitled to the balance of the disputed treatment plan and interest therefore payable pursuant to s. 51 with respect to this treatment plan,

CONCLUSION AND ORDER

86The applicant's injuries are a not a "minor injury" as defined under the Schedule. However, the applicant has not shown that the treatment plan is reasonable and necessary and thus he is not entitled to the medical benefit. The applicant as well has not shown that he is entitled to a quantum of $800.00 per week for his IRBs.

87As no benefits were withheld, delayed, due or owing, there is no order either for an award under O.Regulation 664 or for interest.

Footnotes

1. 1O.Reg. 34/10, as amended