G.A. v. TTC Insurance Company Limited, 2022 CanLII 46848

Citation: G.A. v. TTC Insurance Company Limited, 2022 ONLAT 18-012071/AABS

Licence Appeal Tribunal File Number: 18-012071/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:

[G.A.]

Applicant

and

TTC Insurance Company Limited

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Rita Gratsias, Counsel

Kwaku Bona, Paralegal

For the Respondent:

Laura Qaqish, Counsel

HEARD In-Person and By Videoconference:

December 17 – 18, 2019; July 26 – 28, 2021; August 17, 2021; September 16 – 17, 2021; and December 1, 2021

BACKGROUND

1The applicant was injured while riding as a seated passenger on a TTC bus on May 31, 2016.

2To assist in her recovery, she applied for accident benefits payable under the Statutory Accident Benefits Schedule (the “Schedule”).¹ When the respondent denied some of these requests, the applicant filed an application with the Tribunal.

3The applicant is requesting:

(a) An income replacement benefit (“IRB”) in the amount of $361.96 per week (from January 9, 2017 to date and ongoing); and,

(b) $2,486.00 for a rheumatological assessment (recommended by Definitive Health in a treatment plan submitted on November 8, 2016).

4The applicant is also seeking an award and interest on any overdue payment of benefits, save for the period between May 17, 2021 and July 5, 2021.

5For the reasons to follow, I find the applicant is not entitled to any of the benefits in dispute, nor is she entitled to interest. She is not entitled to an award.

PROCEDURAL DISPUTES

6A number of procedural disputes arose between the parties throughout the hearing. Some of these issues were handled in separate orders (e.g., the addition of the award request in my order dated September 29, 2021), but there are a few issues I wanted to address as part of my overall decision.

7First, there were frequent objections raised about the inclusion of new documents. In particular, the applicant took issue with the interaction between an early order to restrict the inclusion of new records, and then subsequent orders admitting further documents from the respondent. For instance, midway through the applicant’s testimony, the respondent sought to put forward her OHIP summary for the purpose of cross-examination. Due to its high relevance, I allowed it into the hearing over the applicant’s objections. However, to remedy any prejudice facing the applicant, the hearing was adjourned for the rest of the day.

8Another issue arose when the applicant alleged that the respondent did not properly file an Acknowledgement of Expert’s Duty form prepared by its orthopaedic assessor, Dr. Reuven Lexier. When asked what prejudice faced the applicant from admitting this record, she stated that she was under no obligation to establish prejudice. Rather, this breach of procedural fairness was presumed to be prejudicial. I allowed Dr. Lexier’s form into the hearing record, as I was satisfied that any of the applicant’s concerns could be adequately addressed through cross-examination and closing submissions. Additionally, the highly relevant nature of Dr. Lexier’s evidence outweighed any prejudice facing the applicant through its addition at that juncture.

9An adjudicator is tasked with ensuring the parties are afforded a fair, proportional, and efficient hearing process at all stages of the proceeding. This obligation does not end once an order has been issued on a particular, procedural point. Rather, with an eye to ensuring consistency, the adjudicator must still always be alive to the concerns of fairness and efficiency. This ongoing duty informed my orders to allow highly relevant documents into the hearing record, and it also explains why allowances were made to ensure fairness to the applicant who was asked to consider these records as part of her submissions.

10Another point of contention involved the respondent’s decision not to question some of its experts through examination in-chief. According to the applicant, this decision deprived her of the ability to cross-examine these witnesses, as there was no basis upon which to question their opinions. I did not accept this objection. Not only is there no requirement for a party to examine a witness solely for the purpose of allowing their opinion to be challenged, but this argument also ignored efforts made at the case conference to streamline the hearing.

11According to paragraph 10 of the case conference order (released May 22, 2019), the parties consented to having the hearing “limited to the testimony of the applicant and cross-examination of the remaining witnesses”. It is a common practice at the Tribunal to have expert witnesses submit their reports in the place of in-chief testimony (as experts can still be cross-examined on the contents of these reports). This flexible approach reduces the need for repetitive, in-chief testimony, and it is clear that the parties accepted this more efficient hearing model during the case conference. Without a compelling reason to disrupt this arrangement, I allowed the respondent to proceed without examination in-chief.

INCOME REPLACEMENT BENEFIT

12Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. This test becomes more stringent after 104 weeks post-accident, as insured persons must then show a “complete inability” to perform any role that they are reasonably suited to perform by way of experience, training, and education.

13Following the accident, the respondent paid the applicant an IRB until January 9, 2017, a date that fell before the 104-week post-accident mark (i.e., May 29, 2018). She is now claiming an IRB from this stop date forward. The applicant has the onus of demonstrating her entitlement to this benefit on a balance of probabilities.

Parties’ Positions

14According to the applicant, her accident-related impairments left her unable to complete the essential tasks of her pre-accident employment as a factory labourer and office assistant. These roles were both physical in nature. Considering the accident caused a significant left shoulder injury, she has been unable to maintain similar jobs since. For instance, in March 2017, she tried to return to a physical role in a bakery, but was unsuccessful.

15What is more, though she had eventually planned to leave this post-accident job due to her accident-related impairments, this departure was hastened by a workplace accident in April 2017. Briefly, another employee pulled her left arm, and this sudden movement exacerbated the earlier shoulder injury from the motor vehicle accident. The applicant submitted that the effects of the accident on the TTC bus caused this otherwise minor, workplace incident to cause lasting issues, namely, impairments that have left her unable to perform any physical labour since April 2017.

16Finally, the applicant submitted that her medical evidence establishes her inability to work following the accident, most notably, the expert report from orthopaedic surgeon, Dr. Tajedin Getahun (report dated December 24, 2018). He diagnosed her with a left shoulder strain, and he concluded that the applicant is entitled to an IRB under both the pre- and post-104 week standards. Additionally, one of the applicant’s family physicians, Dr. Patrick Safieh, wrote a letter supporting her entitlement to a pre-104 week IRB (letter dated October 3, 2018).

17The respondent contested the applicant’s entitlement to an IRB for several reasons. First, though the applicant describes the May 31, 2016 accident as a significant collision, the respondent submitted video and documentary evidence to contest this description. Second, reports from its experts concluded that the applicant was not entitled to an IRB as of late 2016. Finally, the respondent noted that the workplace accident (and a subsequent slip-and-fall in July 2018) are both better explanations for the applicant’s purported inability to perform her pre-accident employment.

18In reply, the applicant challenged the respondent’s contention that a minor accident must result in a minor injury. Beyond the fact that the May 31, 2016 accident was, in fact, a serious crash, the Tribunal cannot rely solely on the intensity of an accident to determine the level of impairment. She also highlighted s. 11 of the Schedule² for the proposition that her return to work in March 2017 cannot be used to disentitle her from an IRB. Finally, the applicant submitted that—even if she does not meet the “substantial inability” test—the Tribunal must still consider whether she meets the post-104 week standard of “complete inability”.

Analysis

19To apply the pre-104 week, “substantial inability” standard for an IRB, an adjudicator must answer the following questions:

(a) What were the “essential tasks” of the applicant’s pre-accident employment?

(b) What impairments, if any, were caused by the motor vehicle accident?

(c) Did any of these accident-related impairments cause a “substantial inability” to perform the essential tasks of employment during the relevant period?

20I am not satisfied that the applicant has established—on a balance of probabilities—that the May 31, 2016 motor vehicle accident caused an impairment that substantially interfered with her ability to perform the essential tasks of her pre-accident employment. Rather, I find that the evidence strongly supports the position that—at the time of the workplace accident in April 2017—the applicant was able to perform the essential tasks of her pre-accident employment. By failing to establish that the subject accident caused her alleged “substantial inability” to perform these tasks, there is no entitlement to the IRB for the requested period.

Essential Tasks of Pre-Accident Employment

21In the period leading up to the motor vehicle accident, the applicant was employed in two roles: factory labourer and office assistant. According to her testimony, the factory work involved heavy physical tasks, such as lifting and packing. The office work involved less physically demanding tasks (e.g., answering the telephone), but there were still physical components, including moving boxes and cleaning.

22The applicant’s testimony is supported by the documents before me. For example, the respondent’s neurology assessor, Dr. Jamsheed Desai, found the applicant worked as a “General Labourer”, with duties involving “packing” and “packaging” (report dated November 24, 2016). Similarly, Dr. Lexier indicated that the applicant worked a total of 40 hours per week at two jobs, and “one job involved some line work with lifting requirements up to 20 pounds” (report dated December 21, 2016). Dr. Getahun also found the applicant worked in “labour type positions”, and an OCF-3 signed on October 14, 2016 listed the applicant’s pre-accident employment as “General Labor”.

23In support of the applicant’s testimony about her role as an office worker, the related OCF-2 stated she worked on a part-time basis performing tasks such as “filing papers” (signed June 15, 2016).

24Relying on the applicant’s testimony and these corroborating records, I am satisfied that the essential tasks of the applicant’s pre-accident employment were physical in nature, e.g., packing, lifting, and moving items of various weights over extended periods of time. Put another way, while there were some social, non-physical aspects to the office job (most notably, answering the telephone), I find the essential tasks of both jobs involved physical labour.

25Moving to the topics of accident-related impairments and their alleged effects on these essential tasks, I am not satisfied that the applicant has established that her injuries from the motor vehicle accident impacted her ability to perform physical labour following her last IRB payment in January 2017.

26The parties spent a significant amount of time arguing over the severity of the bus accident. Briefly, the applicant rated the severity of the accident as “10 out of 10”. The respondent relied on surveillance video taken from inside the bus (as well as incident reports produced by TTC staff) to dispute this account. To me, this argument is largely irrelevant, as the severity of the accident itself is not the key determination. Instead, my focus is on the resulting impairments and their impact.

27Therefore, when considering the medical evidence and timeline of events following the accident, I am not satisfied that the applicant has established that the impairments resulting from the bus accident caused a “substantial inability” to perform the essential tasks of her pre-accident employment. Though I accept that the accident caused some physical discomfort (e.g., headaches, ear pain, and shoulder pain), I find that—on a balance of probabilities—the applicant was able to perform these essential, physical tasks when she returned to work in March 2017. As such, the workplace accident in April 2017 eliminated any possible, causal chain between the bus accident and her current, alleged inability to work.

28To start, I find the timeline of events following the motor vehicle accident supports the proposition that the applicant could perform physical, employment tasks when she returned to work in March 2017. Key to this finding is the Workplace Safety and Insurance Board (“WSIB”) file that resulted from the claim she made for these benefits following the April 2017 workplace incident.

29According to the WSIB file, the applicant started working in a bakery in March 2017. This bakery position involved similar physical tasks to those from both her previous factory and office roles, e.g., lifting and packing. The position is also referred to in the file as a “General Labourer” position, and there is a reference to the role being “full time”.

30An insured person’s return to work in a similar position may not be sufficient, in and of itself, to determine if they have met the “substantial inability” standard. For instance, the applicant testified that she found it difficult to perform this new bakery role and was planning on leaving before the April 2017 workplace accident. The applicant also claimed that she required assistance from a fellow co-worker, especially when lifting heavy items at the bakery.

31There is some support for this submission in the records before me, as the applicant mentioned the motor vehicle accident to a WSIB agent in May 2017. This prior shoulder injury was then referenced by the WSIB agent who prepared the applicant’s Initial Case Assessment and Plan (dated June 23, 2017).

32In contrast, the entitlement decision from the WSIB (dated May 8, 2017) ruled out the effect of this previous shoulder injury on the injury resulting from the workplace accident:

The worker has reported a prior right [sic] shoulder injury from a non-occupational MVA in May16 and I have reviewed the entitlement on an aggravation basis. The worker has reported no ongoing treatment since Aug16 and reports she was able to perform her regular job duties without difficulty and the accident as reported would not be considered as minor and may cause a right [sic] shoulder strain / sprain in a worker without a pre-existing condition. In this case aggravation basis is not applied.³

These findings are not binding on my determination, because there is a different standard at play between these regimes. I am also empowered as an administrative decision-maker to reach my own findings of fact. However, I highlight this decision for two reasons.

33First, the applicant informed the WSIB that she was able “to perform her regular job duties without difficulty”. This statement is at odds with her testimony before this Tribunal. Beyond being an inconsistency in her evidence, this statement is corroborated by other records in her WSIB file that indicated there were no modified duties available after the workplace accident. If modified duties were available for a shoulder injury arising from the earlier bus accident (namely, the assistance of a fellow co-worker), why would there be no modified duties available for a later workplace injury affecting the same shoulder? These inconsistencies raise the possibility that the applicant was able to work at the bakery prior to the workplace accident with minimal assistance.

34Second, according to the WSIB’s understanding of the workplace accident, it was, in fact, a serious incident. In contrast to the description provided in the applicant’s testimony, the WSIB agent noted the other employee “forcefully” pulled the applicant’s arm, such that the applicant “sought medical attention” soon after. This latter point is confirmed in an emergency room record from a visit to Humber River Hospital on April 14, 2017, and it raises doubts about the applicant’s submission that—without the motor vehicle accident—the workplace accident would have been a largely trivial incident.

35Taken together, I find these records from the WSIB file raise serious questions about the applicant’s account of her employment capacity in and around the April 2017 workplace accident.

36There is then further questions about the applicant’s ability to work and the effects of the workplace accident raised in the clinical notes and records from her two family physicians, i.e., Drs. Katherine Kosar and Safieh. Following a few visits shortly after the bus accident (e.g., June 1 and June 15, 2016), references to the subject accident largely disappear from these records. Instead, the applicant’s complaints of back and shoulder pain become more frequent after the April 2017 workplace incident (e.g., from the September 20, 2017 visit: “shoulder pains and back pains still continues [sic] since April”).

37In fact, the workplace accident becomes a central focus of the applicant’s complaints about shoulder pain. For instance, in the record from her visit on June 29, 2017, the family physician noted a link between the workplace accident and her left shoulder pain:

left shoulder pain

goes to physio

pain in left shoulder april 14, 2017

chronic shoulder pain

There is no reference to the motor vehicle accident, and the physician specifically referenced the date of the workplace incident before noting “chronic shoulder pain”.

38Additionally, a note from January 13, 2018 establishes the centrality of the workplace accident to the applicant’s own understanding of her left shoulder pain:

left shoulder pain

secondary to accident last year

pulled arm when went to work but wsib won’t acknowledge pain since had mva

Beyond specifying that the left shoulder pain relates to an accident from “last year” (i.e., 2017, not 2016 when the bus accident took place), there is a concern about how WSIB will not accept the effects of the workplace accident on her left shoulder. This understanding of the source of her left shoulder pain is at odds with the applicant’s testimony before the Tribunal.

39Finally, adding to my findings from the WSIB file and the family physicians’ records, there are consistent findings from the respondent’s experts in the leadup to her return to work. As part of the respondent’s decision to stop paying the IRB in January 2017, the applicant participated in several examinations where the respondent’s assessors found largely normal results.

40For example, during his neurology assessment on November 24, 2016, Dr. Desai found “a paucity of objective neurologic findings”. Also, though the applicant presented with left hand carpal tunnel syndrome, Dr. Desai could not “reliably attribute [this condition]… to the subject accident”.

41More significant restrictions were noted during Dr. Lexier’s orthopaedic examination on December 8, 2016, e.g., compared to her right shoulder, the applicant presented with reduced flexion in her left shoulder and less strength in the rotator cuff. These findings—along with a review of the available medical records—allowed Dr. Lexier to diagnose the applicant with accident-related impairments. However, these injuries were soft tissue in nature: i.e., “a WAD I injury of the cervical spine, a contusion of the left shoulder and strain of the lumbosacral spine.” Then, when asked to comment on her prognosis, Dr. Lexier stated: “The prognosis for a full and complete recovery from soft tissue injuries incurred in the motor vehicle accident is excellent.” He also concluded that the applicant had “achieved maximum medical recovery (MMR) from soft tissue injuries incurred in the above-indexed accident.”

42A central aspect of the applicant’s submissions is the concerns she raised about these expert opinions. For instance, the applicant challenged Dr. Lexier’s report, because his prognosis is at odds with his finding that her “symptoms have lasted longer than one would normally anticipate for the magnitude of injuries.” According to the applicant, these comments are inconsistent. I do not agree.

43Dr. Lexier accepted the applicant suffered from accident-related impairments. Yet, while recognizing the longevity of these symptoms, I do not see how this observation contradicts his overall conclusion that she had an “excellent” prognosis. Instead, I find Dr. Lexier accepted the unexpected length of the symptomology, but still concluded that her injuries were well on their way to a full recovery. I have been provided with no compelling reason for why these two findings cannot co-exist.

44The applicant then took issue with the lack of information Dr. Desai appeared to have about the applicant’s pre-accident employment. She also claimed he had an insufficient medical record to review. However, considering I am mainly relying on this assessor’s observations about the applicant’s lack of neurological symptomology (as opposed to his conclusion about IRB entitlement), I do not put much weight on these submissions.

45The applicant also raised concerns about the functional abilities evaluations prepared by the physiotherapist, Jordan Duffy (report dated December 6, 2016; addendum dated December 12, 2019). Specifically, the applicant challenged Mr. Duffy’s conclusion that she did not exhibit a reasonable level of effort during his testing, and she took issue with his observations. However, even I accepted the applicant’s arguments about this assessor, I still find there is sufficient evidence (aside from his reports) to support my earlier findings.

46Taken together, I find the applicant has not established—on a balance of probabilities—that the subject accident caused a “substantial inability” to perform the essential tasks of her pre-accident employment. Rather, there is compelling evidence to support the position that the applicant was able to work in and around the time that her IRB payments stopped. Put another way, the evidence before me supports the position that her accident-related impairments had resolved prior to her return to work in March 2017, such that she was again able to perform her pre-accident, physical employment tasks.

Applicant’s Other Arguments

47Moving to the applicant’s other arguments, I do not place significant weight on her submission about s. 11 of the Schedule. Section 11 states that a return to work will not—in and of itself—deprive an insured person from receiving an IRB.

48The applicant asserted that this provision disallows the Tribunal from considering her return to work as part of its determination about her IRB. In addition to the wide discretion provided to the Tribunal to consider all relevant facts, I do not find this interpretation is supported by the language of s. 11. Focusing on the second half of the section, it is clear that insured persons still have to meet the entitlement standard for an IRB [emphasis added]:

… without affecting his or her entitlement to resume receiving any benefits to which he or she is entitled under this Part if, as a result of the accident, he or she is unable to continue the employment or self-employment.

In essence, I do not accept that this section disallows the Tribunal from considering attempted returns to work as part of the overall factual matrix involved in determining whether the IRB entitlement standards have been met.

49I also do not find the expert opinion of Dr. Getahun alters my conclusions. Though I found him to be a credible witness (e.g., he accepted when his opinion could be challenged during his testimony), his assessment took place years after the motor vehicle and over a year after the workplace accident. In fact, since the assessment took place on December 17, 2018, Dr. Getahun did not meet with the applicant until after the 104-week post-accident mark had passed. Therefore, even if I accepted his opinion to be an accurate account of the applicant’s physical condition, his underlying assessment took place well after the accident and the period of concern for my analysis above.

50I would also note that, despite his reference to the family physicians’ records in the “Review of Documentation” section of his report, Dr. Getahun could not identify the time periods for when these notes were provided. Aside from references to two OCF-3s from June 14 and October 14, 2016 (as well as the aforementioned letter from Dr. Safieh), his report simply stated that “Clinical notes and records” of Drs. Kosar and Safieh were “reviewed”. This lack of detail leaves me unable to confirm whether Dr. Getahun had a comprehensive understanding of the applicant’s condition during the important period in and around the applicant’s return to work. Taken together, his opinion does not change my findings about the applicant’s ability to work in March 2017.

51Similarly, I also do not find the letter from Dr. Safieh alters my findings. Though he had a more comprehensive understanding of her condition both pre- and post-accident (considering the long-standing patient-doctor relationship), there is little detail provided in this letter about why he believed the applicant “has and has had a substantial inability to perform any of her activities at work.” Instead, the letter simply states that he had “adequate information to provide my opinion”, with little detail to support this conclusion. Without a more fulsome explanation, I do not find this letter allows the applicant to establish her entitlement to an IRB on a balance of probabilities.

“Complete Inability” Standard

52As noted above, the applicant argued that—even if I found she did not meet the “substantial inability” standard—I should still conduct the “complete inability” analysis. I do not see how the applicant can establish entitlement under this higher standard when she does not meet the lower threshold of “substantial inability”. Regardless, I do not find she has established entitlement under this standard.

53As noted during the applicant’s testimony, her experience and education meant that she tended to take on jobs similar to her pre-accident employment, i.e., physical in nature. Additionally, when asked about any training or education she had received, the applicant testified that she completed a Personal Support Worker certificate. She held this highly physical role for several years.

54Considering this evidence, I am satisfied that the applicant is reasonably suited to perform employment of a physical nature. Therefore, since I am not satisfied that the applicant established that the subject accident substantially interfered with her ability to perform her physical, pre-accident employment, I am further satisfied that she has not established that this accident rendered her completely unable to perform physical employment.

55I would also note that the applicant suggested that, since the respondent’s experts did not comment on her post-104 week condition, Dr. Getahun’s conclusion about this standard must be accepted as uncontested. I do not agree with this line of reasoning. The respondent does not have the onus of demonstrating that the applicant is not entitled to an IRB. Instead, the applicant has this burden. Since the applicant did not meet her evidentiary onus, it does not matter whether the respondent’s experts specifically addressed the post-104 week standard.

MEDICAL BENEFIT AND THE MINOR INJURY GUIDELINE

56Entitlement to medical and rehabilitation benefits is determined by ss. 15 and 16 of the Schedule. Briefly, insured persons have the onus of establishing that the services, expenses, and goals listed on a treatment plan are reasonable and necessary as a result of impairments caused by the subject accident.

57Since the applicant is being held to the funding limit of the Minor Injury Guideline (the “MIG”), I will first consider whether she was established her removal from this treatment limit before then considering the disputed rheumatological assessment.

Minor Injury Guideline

58The main means of removal from the MIG is when insured persons demonstrate that they have sustained an accident-related impairment that is not “predominantly a minor injury”. A “minor injury” is defined in the Schedule at s. 3(1) as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Psychological impairments do not fall under this definition.

59It should be noted that almost all of the arguments made during the hearing involved the disputed IRB. However, the applicant did briefly support her removal from the MIG by highlighting the opinion of Dr. Getahun, who found she requires treatment outside of this funding limit. In contrast, the respondent argued that the applicant has reached maximum medical recovery. It also reiterated its claim that the subject accident was not as intense as the applicant claimed, and that all of her accident-related injuries fall within the definition of a “minor injury”.

60I do not find the applicant has met her onus for removal from the MIG, as I have not been presented with compelling evidence to support the existence of an accident-related impairment that falls outside the definition of a “minor injury”.

61Much of the parties’ submissions revolved around the applicant’s left shoulder injury. Yet, none of the assessors found injuries that fall outside of the definition of a “minor injury”. For example, Dr. Lexier diagnosed a “contusion of the left shoulder”, while Dr. Getahun diagnosed her with “Left shoulder strain” and a “possible rotator cuff tear”. If made out, this “possible” rotator cuff tear would not be a “minor injury”. However, I am not satisfied that this tear is supported by the diagnostic imaging. For instance, during a visit on June 29, 2017, Dr. Safieh noted that no evidence of rotator cuff pathology was found during an ultrasound of the applicant’s left shoulder. Therefore, though I recognize the applicant’s submission that every assessor found she suffered from an impairment, none of these injuries fall outside of a “minor injury”.

62An insured person can also rely on s. 18(2) of the Schedule, which provides a means for removal from the MIG based on a pre-existing injury. I have no compelling evidence to suggest that the applicant had a documented, pre-accident injury. In fact, the applicant testified that her pre-accident health was unremarkable, and the aforementioned letter from Dr. Safieh stated she had “no concurrent or pre-accident conditions”.

63Finally, there was a reference to “anxiety” as a symptom on the applicant’s OCF-3 signed on October 14, 2016. Once again, psychological impairments are not considered “minor”. However, aside from this reference, there is little other evidence suggesting the existence of a psychological impairment. In fact, in this OCF-3, “anxiety” is listed as the least significant of the applicant’s symptoms (behind low back pain, shoulder issues, and neck pain).

Rheumatological Assessment

64I will now turn to the disputed rheumatological assessment.

65Aside from the continuing application of the MIG, the treatment plan for this disputed assessment did not form part of the applicant’s hearing materials. Without this treatment plan, I have no means of knowing what services, expenses, and goals were recommended by the preparing practitioner. Without this information, I am unable to determine whether the proposed assessment is reasonable and necessary.

66I highlighted this missing document during closing submissions, but the applicant did not remedy this issue.

67The applicant’s failure to provide a copy of the treatment plan is fatal to her claim for the disputed rheumatological assessment.

ORDER

68The applicant has not demonstrated her entitlement to the disputed benefits on a balance of probabilities.

69She has also failed to demonstrate her removal from the MIG.

70With no benefits payable, there can be no award, nor can there be any interest.

Released: June 2, 2022

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