Citation: Halstead v. The Co-operators, 2022 ONLAT 20-002592/AABS

Licence Appeal Tribunal File Number: 20-002592/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:

Matthew Halstead

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Murad Huseynov, Paralegal

For the Respondent:

Patrick Baker, Counsel

HEARD:

By way of written submissions

1The applicant was involved in an automobile accident on March 5, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) after his claims for benefits were denied by the respondent.

2The applicant was a driver of a vehicle that was struck by another vehicle. The airbags deployed but he did not lose consciousness. The applicant attended Etobicoke General Hospital on the same day. At the triage, he presented with: right lateral neck pain, left shoulder pain, and left hip pain. A diagnosis of a soft tissue injury was made.² On March 5, 2018, the x-ray of the spine revealed advanced multilevel degenerative changes primarily involving the facet joints and the disc spaces. An x-ray of the lumbar spine was also conducted which revealed mild degenerative spondylopathy.³ Following this accident, the applicant could not return to work until September 10, 2018.

3The respondent submits that the applicant sustained soft tissue injuries as a result of the accident, which consist of neck pain, back pain, and shoulder pain. It is the respondent’s position that all these impairments fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”).⁴ The applicant disagrees and states that he has pre-existing injuries, chronic pain and a psychological impairment that remove him from the MIG.

4If the applicant’s position is correct, then I must address if the psychological treatment, physiotherapy treatment, and psychological assessment are reasonable and necessary pursuant to the Schedule.

5If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to interest.

ISSUES

6The following are the issues to be determined, as per the Case Conference Order dated August 17, 2020:

Are the applicant’s injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
Is the applicant entitled to $3,144.98 for psychological treatment recommended by Islington Village Health in a treatment plan (“OCF-18”), submitted on August 8, 2018?
Is the applicant entitled to physiotherapy treatment recommended by Islington Village Health as follows:

i. $3,144.98 in an OCF-18 submitted on May 23, 2018?

ii. $2,153.72 in an OCF-18 submitted on July 4, 2018?

iii. $1,967.85 in an OCF-18 submitted on August 8, 2018?

Is the applicant entitled to the following assessments recommended by Islington Village Health:

i. $2,144.93 for a psychological assessment in an OCF-18 submitted on April 18, 2018?

ii. $2,294.25 for an attendant care assessment in an OCF-18 submitted on May 1, 2018?

Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

7Despite the applicant advising that the OCF-18 in the amount of $3,144.98 is for physiotherapy services, my review of same revealed that it is actually for psychological services. This OCF-18 is also dated May 22, 2018, and not May 23, 2018. As such, for the purposes of this hearing, this OCF-18 is found to be for psychological services and not physiotherapy treatment.

RESULT

8I find that the applicant’s injuries fall outside of the MIG due to his chronic pain syndrome.

9I find that the applicant is entitled to the following OCF-18s:

a. OCF-18 for physiotherapy treatment in the amount of $2,153.72, submitted on July 4, 2018; and

b. OCF-18 for physiotherapy treatment in the amount of $1,967.85, submitted on August 8, 2018.

10I find that the applicant is partially entitled to an OCF-18 for an attendant care assessment for a maximum amount of $2,000.00, submitted on May 1, 2018, including any interest on any overdue payment of benefits.

11I find that the applicant is not entitled to the following OCF-18s:

a. OCF-18 for psychological treatment in the amount of $3,144.98, submitted on August 8, 2018;

b. OCF-18 for psychological services in the amount of $3,144.98, submitted on May 23, 2018; and

c. OCF-18 for a psychological assessment in the amount of $2,144.93, submitted on April 18, 2018.

12I find that the applicant is entitled to interest on any overdue payment of benefits for the following OCF-18s:

a. OCF-18 for physiotherapy treatment in the amount of $2,153.72, submitted on July 4, 2018; and

b. OCF-18 for physiotherapy treatment in the amount of $1,967.85, submitted on August 8, 2018.

13I find that the applicant is not entitled to an award pursuant to Regulation 664.

ANALYSIS

The MIG

14The applicant’s submissions indicate that he has a pre-existing condition, has chronic pain and that he suffers from psychological impairments as a result of the accident. It is on this basis that he argues that his impairments fall outside of the MIG.

15I find that the applicant is removed from the MIG as a result of his chronic pain syndrome. As I have found that he is removed from the MIG, I do not need to address whether or not he had any pre-existing medical condition or psychological impairments as a result of the accident that would remove him from the MIG.

16The MIG establishes a framework available to injured persons who sustain a minor injury 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.”

17Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. An applicant may be entitled to treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant’s evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁵ The onus is also on the applicant to demonstrate that his injuries fall outside of the MIG.

Chronic Pain

18I find that the applicant has established on a balance of probabilities he suffers from chronic pain syndrome and therefore is removed from the MIG.

19The applicant submits he should be removed from the MIG because he has developed a chronic pain condition. The applicant relies upon the authority of T.S. v. Aviva General Insurance Canada,⁶ in which the Executive Chair held that the definition of minor injury in s.3(1) of the Schedule does not encompass an impairment such as chronic pain.⁷ In that decision, the Tribunal described chronic pain as “…ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well-being.”⁸

20The respondent relies on 17-007825/AABS v. Aviva Insurance Canada,⁹ wherein the Tribunal adopted the six criteria described in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”).¹⁰ According to the AMA Guides, at least three of the following criteria must be met for a diagnosis of chronic pain syndrome:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse, or family;

c. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contacts;

e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear- avoidance, depression, or non-organic illness behaviors.

21It is the respondent’s position that the applicant has failed to establish that he meets any of the criteria listed above.

22The applicant had an opportunity to contest the AMA Guides criteria in reply, but he chose not to do so. I find that both the authorities relied upon by the applicant and respondent can be read harmoniously and both are persuasive in determining whether the applicant sustained chronic pain.¹¹ I note that in T.S. v. Aviva, the Tribunal’s description of chronic pain included adverse effects on an individual’s wellbeing and the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting the applicant’s functional capacity.¹²

23I agree with the applicant that he has developed a chronic pain syndrome as a result of the reasons outlined below. I further acknowledge that the applicant’s submissions did not engage with any of the six criteria listed in the AMA Guides. However, following my review of the evidence provided by the applicant, I am satisfied on a balance of probabilities that he suffers from chronic pain syndrome following the accident.

24The respondent submits that the applicant’s first visit following the accident was on March 16, 2018. My review of the records indicate this is inaccurate. On March 7, 2018, the applicant met with his family physician, Dr. J. Poon for: neck pain, left hip pain, and right eye/eyelid pain. Dr. Poon clearly noted that the applicant had been involved in the accident. Moreover, Dr. Poon noted that the applicant was walking more slowly than normal using his cane. As such, Dr. Poon prescribed Baclofen, recommended physio and gave a note for the applicant to be off work for a week.¹³

25The records of Dr. Poon indicate that the applicant sought medical attention for ongoing pain stemming from his physical injuries following the accident from 2018 to 2020. On March 16, 2018, the applicant met with Dr. Poon for worsening back pain. It was noted that this back pain was worst while walking. Dr. Poon further observed he had a stiff neck, and that Baclofen provided some relief along with Percocet. Dr. Poon recommended that he continue physiotherapy.¹⁴ On April 4, 2018, the applicant met with Dr. Poon for: back pain, hip pain, left shoulder pain, and left neck pain. Despite the respondent’s submission that Arthrotec was not prescribed as a result of the accident, Dr. Poon noted that the applicant’s post-accident pain was slightly better with this medication. As a result, Dr. Poon renewed the prescription for Arthrotec and recommended physiotherapy.¹⁵ On May 4, 2018, the applicant complained of left back pain, left hip pain, and that his left shoulder and neck were gradually improving but he still had a limited range of motion in his shoulder.¹⁶

26On May 8, 2018, an ultrasound of the left shoulder revealed: partial thickness, probable chronic partial thickness tear of the supraspinatus tendon at its insertion. The applicant also underwent an x-ray of his left shoulder on the same day which revealed mild degenerative spurring. For both diagnostic imaging, a history of pain post trauma and decreased range of motion was noted.¹⁷ On May 8, 2018, diagnostic imaging of the lumbar spine revealed minor degenerative change. On May 8, 2018, diagnostic imaging of the pelvis and both hips revealed mild degenerative spurring.¹⁸ On May 15, 2018, Dr. Poon noted that the applicant still had left shoulder and low back pain and that his gait continued to be slow. The applicant advised of a pre-existing left rotator cuff full thickness tear in 2011.¹⁹ However, Dr. Poon opined that the applicant had persistent post MVA left shoulder pain due to a rotator cuff tear.²⁰ As such, Dr. Poon continued to recommend therapy.²¹

27The applicant experiences ongoing functional limitations due to pain. On August 1, 2018, Dr. Poon continued to note functional limitations with the applicant as he was slow when rising from the chair and getting up on the exam chair.²² On September 24, 2018, the applicant reported to Dr. Poon that he had significant left shoulder pain and back pain which was aggravated by walking. The applicant advised that he had returned to work because it did not require much walking. Dr. Poon diagnosed the applicant with post-MVA left rotator cuff tear and low back strain and he completed an EI certificate for the applicant.²³ On November 2, 2019, the applicant complained about back pain that had been ongoing for 4 months and that radiated to his hip. He advised that this may be related to this accident as he did have left posterior hip pain at the time of the accident. Dr. Poon queried whether the left back and hip pain was musculoskeletal in nature or related to this accident. Also, Dr. Poon discussed a referral to a pain clinic.²⁴ On February 1, 2020, Dr. Poon noted decreased left shoulder internal rotation due to a rotator cuff tear.²⁵

28On October 8, 2020, Dr. Poon completed a report as requested by the applicant’s lawyers. Immediately after the accident the applicant noted; neck pain, posterior left hip pain, and right eye/orbit pain. Dr. Poon noted that the applicant on September 28, 2020, advised him his left shoulder and low back pain had worsened in the past 2 months without any obvious acute event. The applicant further advised that he could not abduct his left shoulder past 90 degrees or walk 100 meters without resting due to back pain.²⁶ This is consistent with what he told Dr. Poon on September 24, 2018. Dr. Poon opined that the applicant was impaired with any work-related tasks that required: lifting, pushing, pulling or repetitive motion of his back.²⁷ Due to the applicant’s slowed gait and reduced range of motion in his lumbar spine and left shoulder, Dr. Poon concluded that the applicant was impaired from performing various housekeeping and recreational tasks. Dr. Poon further recommended that physiotherapy should resume for an indefinite period of time. I place significant weight on the report of Dr. Poon as he is the applicant’s treating practitioner so he would have more intimate knowledge about the applicant’s condition and functional limitations from this accident. Furthermore, the clinical notes and records of Dr. Poon and his report demonstrate that the applicant has continuously complained of left shoulder pain and back pain. Moreover, there has been several notations made with respect to reduced range of motion with the left shoulder.

29The applicant further relies on the chronic pain report by Dr. D. Rozen, dated October 15, 2020. Dr. Rozen diagnosed the applicant with: chronic lumbar myofascial pain; aggravation of pre-existing lumbar degenerative disc disease, aggravation of pre-existing left shoulder osteoarthritis and chronic partial tear of the left supraspinatus tendon. Dr. Rozen also diagnosed him with chronic pain syndrome.²⁸ The applicant further advised that his pain decreased his ability to engage in previously enjoyable activities, resulted in loss of social engagement and he had difficulty to perform housekeeping and employment duties.²⁹ This is consistent with Dr. Poon’s records wherein the applicant advised he had returned to work but only because it did not require much walking. Dr. Poon had also opined that the applicant was unable to complete his housekeeping tasks following the accident. He advised that he could no longer perform; sweeping, mopping, laundry, bathroom cleaning, and kitchen cleaning without pain.³⁰ The applicant also advised that with respect to his personal care, he had to be more careful when dressing or performing activities that required bending or reaching.³¹ In particular, he noted that putting on shirts, brushing his hair, and putting on pants were difficult. With respect to his employment, the applicant advised that sitting for long periods of time caused back pain and as a result, he had to get up to do stretches and take more frequent breaks.³² Dr. Rozen also referred to the AMA Guides and concluded that the applicant met all the criteria listed.³³ Upon review of the evidence, I find that the applicant has met three out of the six criteria for the following reasons:

i. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain:

a. Dr. Poon’s records show that the applicant could not perform any tasks with; lifting, pushing, pulling or repetitive motion of his back. As such, it was reasonable that he advised Dr. Rozen that following this accident he was unable to perform any: sweeping, mopping, laundry, bathroom cleaning and kitchen cleaning because this resulted in pain. Dr. Poon’s records also show that the applicant has decreased range of motion in his left shoulder following the accident and that he had limitations with walking as a result of back pain. As such, I find that the reduced range of motion in his left shoulder and back pain made him unable to do prolonged walking and various housekeeping tasks due to pain.

ii. Withdrawal from social milieu, including work, recreation, or other social contacts:

a. The applicant following this accident was unable to return to work until September 10, 2018. I acknowledge that the applicant returned to work, however he advised Dr. Poon that this was only because it did not require much walking. Moreover, he advised Dr. Rozen that he was having back pain in the workplace due to prolonged sitting and required prolonged breaks. The applicant further advised that he could do limited housekeeping tasks following this accident. Moreover, Dr. Poon concluded that the applicant was impaired from completing various pre-accident recreational tasks. I find that the applicant did withdraw from his work following the accident and that he withdrew from most of his housekeeping tasks. As such, I am satisfied that he has met this criterion on a balance of probabilities.

iii. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs:

a. It is clear from Dr. Poon’s records and Dr. Rozen’s report that the applicant has difficulty performing various recreational and housekeeping tasks despite the time elapsed since the accident. Dr. Poon indicated in October of 2020, which is beyond the normal 3–6 month recovery period for soft tissue injuries, that the applicant was unable to complete various housekeeping or recreational tasks that required: lifting, pushing, pulling or repetitive motion of his back. As such, I find that on a balance of probabilities, the applicant has satisfied this criterion.

30I prefer Dr. Rozen’s report over Dr. B. Karabatsos’ report dated October 11, 2018. The applicant advised Dr. Karabatsos that he had back pain, neck pain and left shoulder pain during the assessment. This is consistent with what he told Dr. Poon.³⁴ The applicant further advised that his back pain was worst with activities which is also consistent with Dr. Poon’s records.³⁵ Dr. Karabatsos opined that the applicant had some issues with his left rotator cuff but this was chronic in nature and unrelated to the accident.³⁶ I prefer Dr. Rozen’s report because it is harmonious with Dr. Poon’s opinion. On May 15, 2018, Dr. Poon opined that the applicant had persistent post MVA left shoulder pain due to a rotator cuff tear. Also, the diagnostic imaging conducted following the accident noted post-trauma post-MVA. I acknowledge that the applicant had a pre-existing left shoulder full thickness tear in 2011, however the records indicate to me that following this accident he sustained a partial rotator cuff tear in his left shoulder. I also prefer the report of Dr. Rozen as Dr. Karabatsos concluded that the only current impairment for the applicant was in his left shoulder, which is contradictory to the records of Dr. Poon. I also prefer the report of Dr. Rozen as he engaged in the AMA Guides, meanwhile Dr. Karabatsos’ report was silent with respect to these factors. For all these reasons, I placed more weight on the report of Dr. Rozen than Dr. Karabatsos.

31I disagree with the respondent’s submission that the applicant’s injuries resolved in the fall of 2018. Dr. Poon’s record of November 2, 2019, and his report of October 8, 2020, indicate otherwise. In his report of October 2020, Dr. Poon opined that the applicant was impaired with various housekeeping and recreational tasks following the accident and he recommended physiotherapy for an indefinite period of time for the applicant.³⁹ If the applicant was recovered as the respondent suggests in 2018, then Dr. Poon would not otherwise have reached this conclusion in October 2020, 2 years later.

32I agree with the respondent that the applicant’s right shoulder issues did not arise as a result of this accident. However, this does not detract from my finding that he suffers from a chronic pain syndrome as a result of the accident. There is no evidence to support the applicant’s submission that the right shoulder was aggravated due to overuse related compensation for his left shoulder. On April 27, 2019, the x-ray of the right shoulder demonstrated: osteoarthritis, acromioclavicular joint, and a questionable old flake fracture of the interior rim of the glenoid margin.³⁷ The applicant has failed to establish on a balance of probabilities that his right shoulder impairments are due to the accident. The applicant’s first complaint of right shoulder pain was on April 27, 2019, when he stated that it started 2 weeks prior.³⁸ As such, I find that any ongoing issues the applicant may have with respect to the right shoulder is not accident-related. I also agree with the respondent that the applicant’s complaints of numbness in the right arm and finger are not related to the accident.

33I agree with the respondent that a partial tear will not remove the applicant from the MIG. However, I find on a balance of probabilities, the applicant has established that he suffers from chronic pain syndrome in his left shoulder and back as a result of the accident. As such, I find that the applicant is removed from the MIG on this basis.

34As I have found the applicant to be out of the MIG, it is unnecessary to conduct an analysis of whether the Applicant sustained a psychological injury as a result of the accident or has a pre-existing health condition that would preclude his recovery if subject to the MIG. Thus, he is no longer subject to the $3,500.00 MIG funding limits and I must now consider whether the OCF-18s for physiotherapy treatment are reasonable and necessary.

OCF-18s for Physiotherapy Treatment

35I find the following OCF-18s for physiotherapy treatment to be reasonable and necessary:

a. OCF-18 for physiotherapy treatment in the amount of $2,153.72; and

b. OCF-18 for physiotherapy treatment in the amount of $1,967.85.

36Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

37The applicant bears the evidentiary onus to demonstrate that each OCF-18 in dispute is reasonable and necessary.

38The applicant submits the OCF-18s for physiotherapy are reasonable and necessary: to reduce his pain; assist with his return to pre-accident function; to maintain his current level of functioning, and to assist with reintegration into the labour market.

39The respondent’s submissions failed to address whether any of these OCF-18s were reasonable or necessary as they believed his injuries fell within the MIG.

40Dr. Poon’s clinical notes and records include several entries where he recommended physiotherapy for accident-related impairments. Moreover, on October 8, 2020, Dr. Poon recommended physiotherapy treatment for an indefinite period of time for the applicant.³⁹ Since the applicant is no longer in the MIG and is still suffering from physical impairments stemming from the accident, I find it reasonable that he continues treatment to improve his condition.

41As such, I am satisfied that the applicant has discharged his evidentiary onus and has demonstrated that these OCF-18s are reasonable and necessary.

OCF-18s for $3,144.98 for Psychological Treatment and Services and a Psychological Assessment

42I find that the applicant has failed to demonstrate on a balance of probabilities that these OCF-18s are reasonable and necessary.

43The applicant refers me to s. 16(1) of the Schedule, however I note that neither a psychological assessment nor psychological treatment/services are listed as a rehabilitation benefit under this section. As such, I find that s.16(1) of the Schedule is not applicable to psychological treatment/services or an assessment as per s.16(3).

44The goals of the OCF-18 for psychological services, dated May 22, 2018, were pain reduction; reduced psychological symptoms; improved emotional status; optimize coping with pain; to return to activities of normal living, and to return to pre-accident level of psychological functioning.⁴⁰

45The goals of the OCF-18 for psychological treatment, dated July 30, 2018, were pain reduction; reduced psychological symptoms; improved emotional status; optimize coping with pain; to return to activities of normal living; and to return to pre-accident level of psychological functioning.⁴¹

46The goals of the OCF-18 for a psychological assessment were pain reduction; reduced psychological symptoms; improved emotional status; optimize coping with pain; to return to activities of normal living; and to return to pre-accident level of psychological functioning.⁴²

47I find the psychological assessment report of Dr. M. Flax and Ms. A. Golden to be unpersuasive. I acknowledge that Dr. Flax and Ms. Golden, in a s.25 psychological assessment report, dated May 21, 2018, diagnosed the applicant with psychological impairments as a result of the accident.⁴³ I also acknowledge the applicant underwent some psychological treatment. However, I find this report unpersuasive because there are no corroborating records that support Dr. Flax and Ms. Golden’s conclusion. For example, the applicant did not once complain about any psychological impairments to Dr. Poon. Moreover, Dr. Poon’s report of October 8, 2020, clearly noted that the applicant did not endorse any psychological symptoms or injuries.⁴⁴ I further note that Dr. Flax and Ms. Golden failed to review any evidence in preparation for their report, and as such I am not persuaded by their report. Moreover, the applicant advised s.44 assessor, Dr. West, in a psychological assessment that he did not require or desire to participate in any mental health counselling.⁴⁵

48As such, I find that the applicant has failed to establish that these OCF-18s are reasonable and necessary.

OCF-18 for $2,294.25 for an Attendant Care Assessment

49I find that the applicant is partially entitled to an OCF-18 for a maximum amount of $2,000.00 for an attendant care assessment for the reasons outlined below.

50Section 25(1) and (4) of the Schedule set a low bar for the test for an attendant care assessment. These sections state that the insurer shall pay for the reasonable fees charged by an occupational therapist or a registered nurse for preparing an attendant care needs assessment to prepare a Form 1. I find that the applicant has met this low bar. The OCF-18 was submitted for an occupational therapist to conduct an assessment to complete a Form 1.⁴⁶ I find that the costs of this attendant care assessment are reasonable. Also, I find the applicant is entitled to this OCF-18 for the reasons outlined below.

51The applicant submits that he has developed problems with his personal care because of pain. He advised Dr. Rozen of his physical limitations with respect to cleaning the kitchen and doing the laundry. He also advised that putting on his shirts, brushing his hair and putting on pants were difficult. I acknowledge that Dr. Poon’s report of October 8, 2020, did not support that the applicant has difficulty performing his personal care tasks.⁴⁷ I also acknowledge that Dr. Poon recommended an occupational therapist assessment for the applicant’s housekeeping tasks and not his personal care tasks. However, s.25 has a low bar with respect to entitlement and the applicant does have functional limitations with various housekeeping, workplace, and recreational tasks.

52The applicant submits that he is entitled to an award pursuant to Regulation 664, as such I will consider this next.

The applicant is not entitled to an award under Regulation 664

53I find that the applicant is not entitled to an award. Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may also award a lump sum of up to 50 percent of the amount in which the person was entitled.

54The applicant claimed entitlement to an award of 50 percent because, according to him, the insurer unreasonably withheld or delayed his access to benefits when it failed to conduct an insurer’s examination (“IE”) following his diagnosis of chronic pain.

55Although, I have found the OCF-18s for physiotherapy to be reasonable and necessary, I do not find that the insurer’s conduct in denying these treatment plans rose to a manner which was: excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I acknowledge that the respondent has an ongoing obligation to assess the claim, however I would like to point out that insurers are not required to seek an IE for every piece of new evidence.

56As such, I find that the applicant is not entitled to an award pursuant to Regulation 664.

Interest

57Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As such, I find the applicant is entitled to interest on any overdue payment of benefits for the following OCF-18s:

a. OCF-18 for physiotherapy treatment in the amount of $2,153.72;

b. OCF-18 for physiotherapy treatment in the amount of $1,967.85; and

c. OCF-18 for an attendant care assessment for a maximum amount of $2,000.00.

58The applicant is not entitled to interest on the remaining OCF-18s.

ORDER

59For the reasons set out above, I find that:

The applicant has sustained injuries that are not predominately minor as defined pursuant to the Schedule;
The applicant is not entitled to the following OCF-18s:

i. OCF-18 for psychological treatment in the amount of $3,144.98, submitted on August 8, 2018;

ii. OCF-18 for psychological services in the amount of $3,144.98, submitted on May 23, 2018; and

iii. OCF-18 for a psychological assessment in the amount of $2,144.93, submitted on April 18, 2018.

The applicant is entitled to the following OCF-18s and interest on any overdue payment of benefits:

i. OCF-18 for physiotherapy treatment in the amount of $2,153.72, submitted on July 4, 2018;

ii. OCF-18 for physiotherapy treatment in the amount of $1,967.85, submitted on August 8, 2018; and

iii. OCF-18 for an attendant care assessment for a maximum amount of $2,000.00, submitted on May 1, 2018.

The applicant is not entitled to an award pursuant to Regulation 664.

Released: June 8, 2022