Ullah v. Co-operators General Insurance Company, 2022 CanLII 35814

Licence Appeal Tribunal

Citation: Ullah v. Co-operators General Insurance Company, 2022 ONLAT 20-003923/AABS Licence Appeal Tribunal File Number: 20-003923/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:

Ghazala Ullah Applicant

and

Co-operators General Insurance Company Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Inna Zaremba, Paralegal For the Respondent: Susana A. Giugovaz, Dispute Resolution Specialist

HEARD: In Writing

BACKGROUND

1Ghazala Ullah, ("the Applicant"), was involved in an automobile accident on October 13, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by Co-operators General Insurance Company, ("the Respondent"), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

2The issues to be decided in the hearing are:

1. Are the Applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline ("the MIG") and the $3,500.00 funding limit on medical benefits?
2. Is the Applicant entitled to chiropractic treatment in the amount of $2,077.40, less $1,095.98 approved, recommended by Dun Dix Healthcare in a treatment plan (OCF-18) dated February 7, 2019?
3. Is the Applicant entitled to chiropractic treatment in the amount of $1,874.36, recommended by Dun Dix Healthcare in a treatment plan (OCF-18) dated July 15, 2019?
4. Is the Applicant entitled to psychological services in the amount of $1,997.40, recommended by Alliance Diagnostics and Treatment in a treatment plan (OCF-18) dated May 2, 2019?
5. Is the Applicant entitled to a chronic pain assessment in the amount of $1,998.80, recommended by Alliance Diagnostics in a treatment plan dated January 17, 2020?
6. Is the Applicant entitled to income replacement benefit ("IRBs") of $400.00 per week from October 13, 2018 to date and ongoing?
7. Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant sustained injuries which fall outside of the MIG. As a result, she is not subject to the $3,500.00 funding limit on treatment.

4The chronic pain assessment plan is not reasonable and necessary. The Applicant is not entitled to the goods and services proposed in this treatment plan. The remaining treatment and assessment plans are reasonable and necessary.

5The Applicant is entitled to IRBs at the weekly rate of $400.00 for the periods from June 6 to June 13, 2019, and from September 29, 2019 to Jan 18, 2020.

6Interest is payable on any overdue payment of benefits.

7No award is payable.

OVERVIEW

8The Applicant was the driver of a car that was struck on the rear passenger-side by a police vehicle while she was changing lanes on a 400 series highway. No ambulance arrived at the scene of the accident and the Applicant drove her vehicle home afterwards.

9She met with her family physician, Dr. T. Lodhen, on November 6, 2018, about three weeks following the accident. She reported that she experienced mild neck and back pain following the accident, but it had worsened in the past week. Dr. Lodhen examined the Applicant and found that her neck, trapezial ridge, midline back, and lumbar area were tender on palpation, and she had full range of motion ("ROM"), but with some neck pain on flexion. She was diagnosed with whiplash and a low back sprain/strain. Dr. Lodhen advised the Applicant to use heat and stretching, gave her samples of muscle relaxants, and prescribed physiotherapy and massage therapy. The Applicant started physiotherapy and massage therapy treatment a few days following this visit.

10The Applicant's medical history is relevant to this hearing. Her medical records document ongoing complaints of back pain that pre-date the accident. It appears that her back pain started in 2009, when she was involved in another motor vehicle accident.

11The Respondent requested the accident benefit file from the 2009 accident however, the Applicant failed to produce it, despite agreeing to do so, if it exists. The Respondent asks that I dismiss this application on account of the Applicant's failure to produce or demonstrate best efforts to produce her accident benefit file from the 2009 accident. It submits that it has been prejudiced because the Applicant withheld relevant information that is required to properly adjust the Applicant's claim.

12While I recognize that the Applicant was involved in a 2009 accident and made a claim for benefits relating to that accident, I am not persuaded that the file is required in order to adjust the Applicant's current claim. The Respondent's dismissal request is denied, as the relief sought is disproportional to the minimal prejudice suffered due to the failure to produce the 2009 accident benefit file.

13In any event, medical records demonstrate that the Applicant was disabled and receiving IRBs from the 2009 accident as late as November 11, 2013. The Applicant stopped seeing Dr. Lodhen for a period of approximately 5 years following that visit and started seeing a different physician, Dr. T. H. Adenwala.

14The Applicant resumed care under Dr. Lodhen on June 11, 2018 and was reintroduced to the practice. Clinical notes and records, ("CNRs"), from that visit note that the Applicant has chronic back pain and takes Tylenol 3 on an as-needed basis.

15However, despite her medical history, the Applicant mostly denied the prior accident and injury to assessors and to the Respondent. This caused some difficulty when trying to determine the causality of her injuries from the subject accident. Though, I am convinced that the Applicant was functional at the time of this accident, as demonstrated by her return to work on a full-time basis. Further, given the duration since the prior accident, I find that it's reasonable to conclude that the Applicant had reached her maximal recovery from the injuries sustained in the 2009 accident, by the time she was involved in the 2018 accident. Dr. Lodhen's CNRs attribute her ongoing pain to the 2018 accident. I will address the Applicant's accident-related injuries and impairment in greater detail later in this decision.

16According to the Applicant's submissions for this hearing, she had pre-existing back pain that prevented her from recovering from her neck and back strains, which developed into chronic pain. She also claims to have sustained an adjustment disorder with mixed anxiety and depressed mood as a result of the accident. She submits that her injuries fall outside the MIG and disable her from completing her essential tasks as an esthetician.

17The Respondent submits that the Applicant sustained a minor injury and that she has not provided compelling evidence to the contrary. It further submits that the Applicant has not provided evidence to prove that she is disabled from completing her essential tasks as an esthetician and has not properly disclosed her post-accident income.

MINOR INJURY GUIDELINE ("MIG")

18I find that the Applicant sustained injuries which are not included in the minor injury definition. She should not be subject to the MIG and the $3,500.00 funding limit on treatment for the following reasons.

19The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.

20Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant's heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

21If an insurer deems an Applicant's injuries to be minor in nature, the Applicant bears the onus to establish that the MIG, and the related funding limit, should not apply.

22The Applicant suffered from pre-existing back pain and psychological issues prior to the accident. The Applicant had intermittent back pain from a prior accident which she managed with prescription medicine on an as-needed basis. While I am not persuaded that the Applicant's pre-existing back pain independently precluded her from reaching maximal recovery, I find that it likely had an impact on her ability to recover.

23The Applicant has a history of depression and sought counselling for it (though she denied it to assessors and the Respondent). Dr. Adenwala recorded symptoms of depression due to relationship issues during visits on August 22, 2016, November 3, 2016, March 12, 2018. The last visit resulted in a referral to a mental health program, but the Applicant did not qualify for it and was advised to seek another option for counselling.

24It appears the Applicant's psychological symptoms carried on following the accident and that her psychological symptoms are exacerbated by pain. On May 13, 2019 and March 19, 2021, the Applicant complained to Dr. Lodhen that her mood gets worse as her pain increases. These complaints were in addition to complaints of general depression throughout Dr. Lodhen's CNRs. The December 20, 2019 psychological assessment report of Dr. M-R. Sadeghi, psychologist, concluded that the Applicant suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as Post-Traumatic Stress Disorder, Vehicular Phobia, and Somatic Symptom Disorder. The conclusion was based on a clinical interview and psychometric testing.

25In addition to the exacerbation of her pre-existing back pain and psychological issues, the Applicant experienced ongoing pain following the accident. Her pain was severe enough to warrant a consultation with Dr. S. Azimzadeh, chronic pain specialist, on December 4, 2020, following Dr. Lodhen's referral. During that consultation, the Applicant complained of low back, knee, neck, and shoulder pain, stemming from the 2018 accident. Dr. Azimzadeh diagnosed the Applicant with myofascial pain, mechanical low back pain, and degenerative disc disease. Dr. Azimzadeh offered the Applicant the option of nerve block treatment, pharmacological options like Baclofen, Naproxen and Celebrex, and recommended she focus on core muscle strengthening exercise, physiotherapy, chiropractic treatment, massage therapy, and weight loss.

26Considering the constellation of injuries, with attention to the exacerbation of her psychological symptoms, I find that the Applicant sustained injuries which fall outside the minor injury definition. As a result, she is not subject to the MIG of the $3,500.00 funding limit on treatment.

27Before proceeding with my analysis on the other benefits in dispute, I acknowledge the Respondent's concern that the Applicant went on vacation in 2019 for about 6 weeks. I find that this does nothing to affect the findings highlighted above. To put it simply, vacationing does not disentitle the Applicant from claiming accident benefits. Likewise, vacationing does not undo the injuries she sustained as a result of the subject accident.

$2,077.40 for a chiropractic treatment plan dated February 7, 2019, and $1,874.36 for a chiropractic treatment plan dated July 15, 2019

28I find that these treatment plans are reasonable and necessary. The goals of these plans include reducing the Applicant's pain and returning her to her pre-accident work activities. The Respondent's sole reason for denying these treatment plans is because it believed that the Applicant was subject to the MIG and no further funding was available pursuant to the MIG. However, I have found that the Applicant is not subject to the MIG. Having been found to sustain injuries that fall outside the MIG, it follows that she would be entitled to treatment that was denied solely based on the MIG funding limit.

29Dr. Lodhen's CNRs demonstrate that the Applicant had ongoing pain complaints contemporaneous with these two treatment plans. In addition, the Applicant was making efforts to mitigate her losses by attempting to return to work. Continued treatment is reasonable and necessary in light of the Applicant's ongoing complaints and in order to help facilitate a return to work.

$1,997.40 for a psychological assessment plan dated May 2, 2019

30I find that this assessment plan is reasonable and necessary. The Applicant reported symptoms of psychological injury during an assessment pre-screening process, on April 25, 2019. She reported to the psychotherapist that the feels lazy, avoids socializing, has become increasingly angry and frustrated, and is more irritable when her pain is present. She also reported driving avoidance and worries about how her injuries will affect her post-accident employment. A fulsome psychological assessment was conducted by Dr. M-R. Sadeghi, psychologist, and a report was issued dated December 20, 2019. Dr. Sadeghi interviewed the Applicant and conducted psychometric testing and determined that the Applicant sustained an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Post-Traumatic Stress Disorder, and Somatic Symptom Disorder. Dr. Sadeghi recommended that the Applicant engage in various cognitive therapies for at least 16 weeks, in addition to an ongoing active exercise program with physiotherapy, massage therapy, and acupuncture.

31The information in Dr. Lodhen's CNRs also demonstrate that the Applicant exhibited symptoms of a psychological injury. On May 17, 2019 the Applicant reported to Dr. Lodhen that her pain was affecting her mood and relationships. On September 20, 2019, Dr. Lodhen prescribed medication for depression and anxiety and referred the Applicant to a mental health program in November 2019.

32I am not persuaded by the psychological assessment report of Dr. G. Dancyger, dated August 27, 2019 and the addendum report dated February 6, 2020. Those reports concluded that the Applicant sustained no psychological impairment. Dr. Dancyger noted that the Applicant did not appear to be anxious or depressed, despite her reports, and determined that the psychometric test results cannot be interpreted and suggests that they are indicative of symptom magnification. It appears that Dr. Dancyger's conclusion is primarily based on the psychometric testing results and the Applicant failing to report that she previously received psychological treatment. Dr. Dancyger continued to focus on validity scores in the addendum report and was critical of Dr. Sadeghi for failing to focus on issues of reliability in the Applicant's self-reports. To me, the factors highlighted by Dr. Dancyger fail to outweigh the information in the Applicant's medical records, which include the use of prescription medication for depression and anxiety and referrals for psychological treatment.

$1,988.80 for a chronic pain assessment plan dated December 23, 2019?

33I find that the chronic pain assessment plan is not reasonable and necessary. The Applicant's medical record shows that she has ongoing pain complaints, stemming from the accident however, the pain reported does not rise to the level to warrant a chronic pain assessment.

34I am satisfied the Applicant's pain does not interfere with her functionality. The physiatry assessment report by Dr. R. Zabieliauskas, dated August 27, 2019, revealed that the Applicant had full range of motion throughout, with some neck pain on rotation and some low back pain on flexion and extension. The December 4, 2020 consultation report by Dr. S. Azimzadeh at the Orangeville Pain Care Clinics also noted that the Applicant continued to have full or nearly full range of motion throughout. There is nothing documented in Dr. Lodhen's CNRs that leads me to conclude that the Applicant's pain otherwise impairs her functionality.

35In fact, Dr. Lodhen's CNRs include no pain complaints during the period from January 13 to August 6, 2020. While the CNRs include pain complaints after August 2020, there is nothing that indicates that the Applicant is impaired by ongoing pain. From Dr. Lodhen's CNRs, I conclude that the Applicant reasonably manages her pain with prescription medication and active therapy.

36Lastly, the Applicant returned to work as an esthetician by July 9, 2020. I recognize that working does not automatically render the chronic pain assessment not reasonable and necessary. However, the functionality that is required for the Applicant to work as an esthetician indicates that her low back pain does not impair her to the level that would warrant a chronic pain assessment.

37The Applicant contends that this treatment and assessment plan was replied to improperly by the Respondent. She submits that the Respondent sought further opinions from Dr. Dancyger and Dr. Zabieliauskas through addendum reports, but it provided notice only for a review by Dr. Dancyger. To the Applicant, this is misleading and controversial, and fails to comply with sections 38 and 44 of the Schedule. The Respondent did not address these submissions directly.

38I have reviewed the evidence and submissions and conclude that the response dated January 17, 2020 is compliant with section 38 and that the Applicant is not statutorily entitled to the treatment and assessment plan as submitted. To me, the January 17, 2020 response is a proper denial of benefits. The letter clearly and unequivocally denies payment, states that it is based on a belief that the MIG applies, and the letter also referred to several medical documents to support the determination.

39I find that the Applicant's position conflates sections 38 and 44 of the Schedule. Section 38 entitles the Applicant to payment for any goods and services incurred during the period of non-compliance. However, as noted above, I find that the response is compliant with section 38 of the Schedule.

40My interpretation of section 44 of the Schedule is that the Applicant is not obliged to attend an IE when the notice for it is improper. The Applicant provided no case law to support any contrary position and directs me to no legislation where she would be entitled to a benefit as a result of an improper notice of IE.

Income Replacement Benefits ("IRBs")

41The Applicant may be entitled to weekly IRB payments if she is unable to perform the essential tasks of her employment as a result of an accident-related impairment.

42The Applicant submits that she suffers a substantial inability to perform the essential tasks of her employment as a medical esthetician due to ongoing neck and back pain, as well as headaches and mood issues. Her employment duties include providing facial and body treatments, massages, manicures/pedicures, body wraps, waxing, and cleaning treatment rooms.

43The Respondent submits that the Applicant has not provided evidence that she meets the test for IRBs and has failed to provide evidence of her post-accident income.

44I find that, for the periods from June 6 to June 13, 2019, and from September 29, 2019 to Jan 18, 2020, the Applicant has met her burden to prove that she is unable to complete her essential work tasks as an esthetician as a result of an accident-related impairment.

45The evidence illustrates that the Applicant returned to work almost immediately following the accident. The Applicant works at a spa, which operates seasonally. Her seasonal employment at that spa ended on Saturday, October 13, 2018, the day of the accident. Employment Insurance records confirm that she started working at another clinic on Monday, October 22, 2018, a little more than a week following the accident. She continued working until January 9, 2019, when she was dismissed during the probationary period due to not having the right skillset. I acknowledge that the Applicant submits that her employment after October 22, 2018 was part-time, but there is no evidence that shows it is as a result of the accident.

46The Applicant submitted a disability certificate dated November 8, 2018. Pursuant to section 36(3) of the Schedule, the Applicant is not entitled to IRBs before a completed disability certificate is submitted. Further, there is no medical evidence before me that shows the Applicant was disabled from working during the period from October 13 to October 22, 2018.

47The Applicant claims that her new employment, starting October 22, 2018, was part-time and submits that she was unable to provide esthetician services for the "period of time required by her position." Yet, she provides no information as to what "period of time" she is required to work in her position as an esthetician.

48To me, the Applicant's family physician does not support her position. Dr. Lodhen gave a note to the Applicant dated December 7, 2018, that stated that the Applicant is unable to work full-time hours but may work modified hours. To me, this implies that the Applicant can complete her essential tasks of employment, albeit not at full-time hours. There is nothing in the note, or in Dr. Lodhen's CNRs, that indicates that the Applicant is unable to provide services for the duration required by her employment. The only modification is that her employment is not full-time.

49The Applicant went on vacation about a month following her termination. The trip started around February 24, 2019, and ended around April 8, 2019. It included travel to three different continents. The Applicant submits that it is a fact that vacation can provide physical and psychological benefits and that the Applicant was provided supports and accommodations by family and friends during her travels. However, she directs to me to no evidence to support this submission.

50Following her return, the Applicant visited Dr. Lodhen again. On May 17, 2019, she complained of relationship issues that were exacerbated by her mood changes. During that visit she reported that her mood changes were due to pain and requested a referral to a psychologist. The Applicant continued to complain of neck and back pain to Dr. Lodhen during visits on June 14, August 30, September 20, October 28, and November 25, 2019. Her pain complaints continued in 2020, during visits on January 13, August 6, September 18, October 13, and November 24.

51Notwithstanding the Applicant's pain complaints later in the year, there is no compelling evidence to support a substantial inability to work during the period from January 9, 2019, when her job was terminated, to June 6, 2019, when a new disability certificate was made. As a result, she is not entitled to IRBs from January 9, 2019 to June 6, 2019.

52As previously indicated, the disability certificate dated November 8, 2018 anticipated that the Applicant's disability would last 9-12 weeks. Nine weeks from November 8, 2018 is January 10, 2019. The Applicant met with Dr. Lodhen on February 14, 2019, primarily with complaints of jaw pain and was referred to physiotherapy and massage therapy. There is no indication in the notes from that visit that the Applicant was unable to work due to the accident, nor that she was impaired by pain and unable to work as a result of ongoing pain. Likewise, the notes from visits with Dr. Lodhen on May 17, June 14, June 22, August 1, and August 20, 2019 make no mention of an inability to work. Dr. Lodhen made no recommendation to refrain from working until drafting a note for same on September 20, 2019.

53The Applicant submitted a second disability certificate on June 6, 2019, completed by her chiropractor, Dr. Khan. The disability certificate noted that the Applicant was substantially unable to perform the essential tasks of her employment due to headaches and sprain/strain injuries. The estimated duration of her disability was 9-12 weeks. Dr. Lodhen's CNRs show that, around the same time on June 14, 2019, the Applicant complained of a flare up of back pain. Dr. Lodhen then referred the Applicant for lumbar spine and pelvis x-rays, which showed mostly degenerative changes.

54Though it restarted on June 6, 2019, I find that the Applicant's entitlement to IRB payments paused when she returned to seasonal work on a full time and full duties basis, on June 23, 2019. She continued working until September 29, 2019. Her Record of Employment shows that she was terminated due to the season ending. However, Dr. Lodhen's records include a September 20, 2019 note directing her to refrain from work. Another note, dated November 25, 2019, also finds that the Applicant is unable to work, due to her ongoing neck and back pain as well as headaches. Based on these notes from Dr. Lodhen, I find that the Applicant's IRB claim continued once she stopped working, on September 29, 2019.

55Dr. Lodhen's recommendation to refrain from work is consistent with the Applicant's Employment Insurance records. Those records show that the Applicant received sickness benefits from approximately September 29, 2019, through to January 18, 2020.

56The Applicant's claim for IRBs following January 18, 2020 is not supported by her medical evidence. Dr. Lodhen's CNRs show no visits between January 2020 and August 6, 2020, and the disability certificates provided earlier did not anticipate any disability beyond August 2019. In addition, Dr. Lodhen made no recommendation to refrain from working in 2020, which is unlike 2019, when doctor's notes were provided to the Applicant, recommending she refrain from work. The January 18, 2020 cessation of the Applicant's Employment Insurance sickness benefits, briefly noted earlier, is consistent with the information in Dr. Lodhen's CNRs. This too suggests that the Applicant was capable of completing the essential tasks of her employment at that time.

57The Respondent contends that the Applicant provided services as an esthetician privately during the period she claims IRBs, indicating that the Applicant is capable of completing the essential tasks of her employment. The Applicant submits that she was assisting her daughter in her business endeavours by advertising the services on her social media platforms but was never providing the services herself. To me, it is unclear whether the Applicant was providing the services she advertised for on her social media platforms. An advertisement for services is not evidence that the services were provided by the person advertising them, as it is possible that the business was referred out to someone else.

58The Applicant found part-time employment with a new employer and started on July 9, 2020. She continued that work until September 5, 2020. The Record of Employment from that employer indicates that the Applicant quit her position. The Applicant submits that she quit her employment due to continuous pain, but the medical records fail to support this claim. Again, unlike her time off work in 2019, there is no recommendation or notation from her healthcare providers that says the Applicant's pain prevents her from completing the essential tasks of her employment at this time.

59While the Applicant's pain complaints continued into the fall of 2020, I find insufficient evidence to conclude that she is unable to complete the essential tasks of her employment at that time. Dr. Lodhen consistently addressed the Applicant's ability to work in the CNRs, often by way of a note excusing work. Here, there is no note for the period or thereafter. I recognize that the Applicant is not required to produce a doctor's note to be entitled to IRBs however, the absence of one (in light of the prior notes) holds considerable weight. Similarly, no disability certificate was provided to account for this period. I conclude from the totality of the evidence that the Applicant is substantially able to complete the essential work tasks as an esthetician for any period following January 18, 2020.

60Considering the above, I find the Applicant is entitled to IRBs for the periods from June 6 to June 13, 2019, and from September 29, 2019 to Jan 18, 2020.

IRB QUANTUM

61The Applicant calculates her IRB quantum on the basis of her last 4 weeks of income. According to the documents provided, the Applicant's pre-accident income entitles her to an IRB payment of $400.00 per week, less any deductions.

62I agree with the Applicant and confirm that section 4(1)(a)(i) of the Schedule precludes the deduction of Employment Insurance benefits. Thus, the respondent is not entitled to any deductions for Employment Insurance benefits paid.

63The Respondent is entitled to deductions for post-accident earnings. From the evidence, I find that there are no deductions to be made. The evidence shows that the Applicant did not work during the periods she is entitled to IRBs. According to Spence v. Aviva Insurance Company of Canada¹, the sickness benefits that the Applicant received from employment insurance are not deductible from her IRB payments. Thus, the Applicant is entitled to IRBs at the weekly rate of $400.00 during her periods of entitlement.

INTEREST

64Interest is payable on overdue payments, pursuant to section 51 of the Schedule.

AWARD

65The Applicant claims entitlement to an award for an unspecified amount on the basis that the Respondent unreasonably withheld or delayed payments for most of the benefits in dispute. The Respondent submits that the Applicant's claim has been adjusted in accordance with the Schedule.

66Pursuant to section 10 of O. Reg. 664, the Applicant may be entitled to an award if the Respondent unreasonably withheld or delayed payment of a benefit.

67I find that no award is payable as no benefits were unreasonably withheld or delayed.

68The Applicant has not met her burden to prove entitlement to an award. She has provided no submissions detailing how any benefits were delayed or withheld. It is settled law that insurers make mistakes and are not held to a standard of perfection. Here, the Applicant provides no details regarding the delayed or withheld payment of any benefits and makes no submissions on when payment of any of the benefits were due.

69In addition, the Applicant fails to appreciate her part in any delay. As noted above, the Applicant was not forthcoming with her self-reported health and accident history. The Applicant denied prior medical issues and failed to produce documents in a timely manner, such as Dr. Adenwala's CNRs. Her lack of disclosure was compounded by Dr. Dancyger's assessment reports, which essentially concluded that the Applicant was portraying herself in a negative fashion. Given the situation and evidence, I understand why the Respondent would accept the opinions of its assessors over the opinions of the Applicant. Thus, I fail to see how the Respondent's behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate of that it was the cause of any delayed or withheld benefit.

CONCLUSION

70The Applicant was involved in an accident and sustained soft-tissue and psychological injuries as a result. Her injuries fall outside the minor injury definition, resulting in her removal from the MIG and the $3,500.00 funding limit on treatment.

71The treatment and assessment plans in dispute are reasonable and necessary, but for the chronic pain assessment. The Applicant is entitled to incur the goods and services described in the reasonable and necessary treatment plans and the Respondent is liable to pay for same once properly invoiced. If the Applicant has incurred the goods and services listed in the reasonable and necessary treatment plans, she is entitled to payment for same once properly invoiced.

72The chronic pain assessment plan is not reasonable and necessary. The Applicant is not entitled to payment for any of the goods and services described in the treatment and assessment plan.

73The Applicant is entitled to IRBs at the weekly rate of $400.00 for the periods from June 6 to June 13, 2019, and from September 29, 2019 to Jan 18, 2020.

74The Applicant is entitled to interest on any overdue payment of benefits, pursuant to section 51 of the Schedule.

75No award is payable.

Footnotes

1. 12021 CanLII 19494 (ON LAT)