Citation: O’connor v. Aviva General Insurance Company, 2022 ONLAT 19-006131/AABS

Licence Appeal Tribunal File Number: 19-006131/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:

Ivylyn O'Connor

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Ivylyn O'Connor, Applicant

Francesco Vumbaca, Paralegal

For the Respondent:

Jennifer Walters, Claims Representative

Marcin Panasewicz, Counsel

Leanne Zabudsky, Counsel

Court Reporter:

Giles Tingey

HEARD: by Videoconference:

October 4 to 6, 2021

1The applicant was involved in an automobile accident on December 9, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant worked full-time as a cleaner for a cleaning company and part-time at a hotel as a housekeeper. She sustained soft-tissue injuries to her neck, shoulder, back, and right leg as a result of the accident. She returned to work as a housekeeper at the hotel after the accident but did not return to her work for the cleaning company. She claimed entitlement to income replacement benefits, physiotherapy, psychological treatment, shock wave therapy, a chronic pain program and the cost of various examinations.

3The respondent did not pay the applicant any income replacement benefits (“IRBs”) up to the date it denied those benefits. The applicant does not dispute that denial of IRBs but seeks entitlement to IRBs prior to the respondent’s denial. The respondent claimed her work at the hotel is the same as her work for the cleaning company and that she has had no loss of income since the accident. The respondent claimed that the applicant does not want the treatment or assessments in dispute as evidenced by her failure to use her collateral benefits to obtain the treatment in dispute.

4I find that the applicant is entitled to income replacement benefits up to January 19, 2018 but I make no order for payment of the benefit for the reasons that follow as I have no jurisdiction to do so. I also find that the applicant is entitled to chiropractic, massage therapy and acupuncture services and a portion of a chronic pain program. The applicant is not entitled to the cost of examinations claimed.

PROCEDURAL ISSUES

5The applicant filed a motion three business days before the hearing seeking to add issues and for the respondent to produce adjusters’ log notes. The respondent objected and submitted that the motion should not be heard because it was filed late. The applicant also sought to add an adjuster as a witness for the purpose of cross-examination. No motion was filed with respect to this request.

6I denied the applicant’s requests because the applicant did not comply with the case conference Order dated November 20, 2020, the LAT Rules¹ and for the following reasons.

A. Whether the Applicant’s Motion Should Be Heard

7The respondent submitted that the motion should not be heard because it was filed late – six days before the hearing rather than the ten days required under LAT Rule 15.2. I agreed. The applicant made no request to abridge the time for serving her motion. She submitted that her motion was served and filed late because previous counsel on the file left the firm. However, there was no evidence before me of that. The applicant’s counsel of record filed with the Tribunal has not changed and that counsel is still with the law firm.²

8The timelines of the Order and the LAT Rules are there to ensure that parties have a fair hearing and that no party is surprised by last minute evidence at the hearing.³ The applicant’s motion was dismissed because she failed to comply with the timelines in the Order and the timelines for filing her motion under the LAT Rules.

1. Motion for Production of Log Notes

9The applicant relied on LAT Rule 9.3 and submitted that she was entitled to bring a motion at any time prior to the hearing for the production of adjusters’ log notes. However, her submission does not take into account the deadline in the case conference Order for filing documents the applicant intended to rely on for the hearing was September 10, 2021. She did not file a motion to extend the deadline for filing documents if her motion for production of the adjusters’ notes was successful.

10This is not a case where the applicant was diligently trying to obtain production from the respondent without result. In fact, there have been three case conferences during which no order was sought by the applicant for the production of log notes. At the first case conference, the parties were ordered to advise each other of those documents they were not agreeable to producing that were requested by the other party. There was no evidence that the applicant ever sent such a letter. At the November 2020 case conference, the Tribunal ordered the applicant to produce documents. If the applicant thought the log notes were relevant and that she would be prejudiced by proceeding to the hearing without them, then she could have sought their production at that time.

11The applicant provided no cohesive reason or supporting evidence for the delay in bringing the motion. Normally the adjusters’ notes are prima facie relevant. However, in this case, given the late request, I have drawn an inference that they are an afterthought for the applicant, which rebuts the presumption of prima facie relevancy.

12I find the timing of the applicant’s request for adjusters’ log notes is prejudicial to the respondent as the respondent had no opportunity to file responding submissions. If the applicant was successful with her motion, the respondent would have been required to spend its time vetting the log notes for privilege and reserve information instead of preparing for the hearing.

13The respondent submitted that it would require an adjournment of the hearing to address the issue of log note production and witnesses. At that stage of the dispute resolution process, an adjournment of the hearing because of documents that could have been obtained within the timelines set out in the case conference Order and the LAT Rules was not an option as this hearing was previously adjourned twice. Accordingly, I dismissed the motion for production of log notes.

2. Motion to Add Issues

14The applicant submitted that she would be prejudiced if her motion was not heard because she would be forced to apply to the Tribunal separately to have her issues heard. I fail to see how filing a new application is prejudicial to the applicant. The respondent submits it would be prejudiced because it already filed its witness lists and brief of documents. I agree.

15The applicant relied on the G. K. vs. Aviva Insurance Canada⁴, 2020 ONLAT 18-009299/AABS in which the applicant was allowed to add issues of medical benefits to a written hearing without bringing a motion. In that case, the Tribunal determined there was marginal prejudice to the respondent because of the way the new issue was raised, but that the prejudice was cured because the respondent had an opportunity to respond to the issue and did so. In that case, the issue was raised in the applicant’s submissions. The respondent had almost two months in which to respond.

16In this case, the applicant brought her motion three business days before the hearing. The applicant submitted that three business days notice was well ahead of the hearing. I disagree. Well ahead of the hearing is prior to a deadline for serving and filing documents. The deadline for serving documents was June 10, 2021, for serving any further experts’ reports was August 31, 2021, and for filing documents briefs was September 10, 2021. One of the treatment plans in dispute that the applicant sought to add was denied on March 11, 2021. The other one was submitted on August 19, 2021 and was partially approved on September 10, 2021. This means the applicant knew that two of the treatment plans were live issues before the deadline for filing document briefs.

17One of the issues the applicant sought to add was a second chronic pain treatment plan. She sought to add it as an issue in the hearing at the last case conference on November 10, 2020. The respondent objected at that time on the basis it did not have enough information. A timeline was set out by Adjudicator Parish to address the information the respondent needed to either approve the treatment plan or deny it to avoid bringing a motion. I would have expected that if the applicant complied with the order to produce the information requested by the respondent and if the respondent did not respond by January 15, 2021 as ordered, that the applicant would have brought a motion in a timely manner given the procedure set out by Adjudicator Parish. The applicant provided no reason or evidence why he could not file his motion within the timelines set out in Adjudicator Parish’s order or within the LAT Rules.

18I find the applicant demonstrated a lack of urgency by failing to address the new issues in a timely manner. In my view, her lack of urgency is not consistent with an individual who believes they would be prejudiced if new issues were not added to the hearing.

19The applicant’s request for a motion hearing on the eve of the hearing without evidence of urgency or the reason for the late service is inappropriate and risks considerable delay in the litigation of a matter that has been open with the Tribunal since May of 2019. The timing of this motion request effectively precluded the respondent from filing responding submissions without causing delay to the hearing. The applicant’s motion was denied for these reasons.

B. Adding a Witness

20The applicant advised at the hearing that she intended to call an adjuster as a witness for cross-examination. No summons was served on the adjuster. The Tribunal’s Orders dated October 16, 2019 and November 20, 2020 state that the applicant intended to call an adjuster as her own witness. The November 20, 2020 Order required the parties to notify each other by September 10, 2021, which of its witnesses from those listed in the Orders were confirmed to attend the hearing. The applicant did not serve her list until September 16, 2021, at which time she did not confirm that the adjuster would be attending. Her legal representative advised that he decided he would not call her because he did not have the log notes. He had no cogent explanation for why he did not bring a motion prior to the September 10, 2021 deadline for the log notes.

21I find that there is a presumption of prejudice to a party when the other party fails to comply with the LAT Rules or the Tribunal’s orders. There was no evidence of any prejudice the applicant may suffer if she was unable to cross-examine the adjuster. Nor was I provided with any authority that allowed me to order an adjuster to make herself available for cross-examination in the absence of an agreement or a summons. Given that the applicant did not summons an adjuster and did not confirm she would be calling an adjuster to testify, there was no requirement for an adjuster to attend for cross-examination at the hearing.

C. Exclusion of a Report

22The applicant also sought to exclude the report of Dr. Oshidari, a physiatrist who conducted an insurer’s examination of the applicant under s.44 of the Schedule (“IE”). The applicant submitted that Dr. Oshidari’s report was not relevant because it was prepared more than two years post accident. I am satisfied that the report was served and filed in time as ordered. The timing of the report goes to weight. Accordingly, the applicant’s request that the report be excluded was dismissed.

ISSUES

23The issues I determined are as follows: ⁵

Is the applicant entitled to receive income replacement benefits in the amount of $400 weekly (less post accident income paid) for the period from December 16, 2017 to May 2018?⁶
Is the applicant entitled to receive physiotherapy services as follows:

a. in the amount of $2,581.08 recommended by Dr. Minnella of Toronto Healthcare Inc. in a treatment plan submitted January 5, 2018, and denied by the respondent on January 8, 2018?

b. in the amount of $1,465.10 from Toronto Healthcare Inc. recommended in a treatment plan submitted May 11, 2018, and denied by the respondent on May 15, 2018?

c. in the amount of $1,383.74 from Toronto Healthcare Inc. recommended in a treatment plan submitted June 29, 2018, and denied by the respondent on July 13, 2018?

d. in the amount of $1,186.45 from Toronto Healthcare Inc. recommended in a treatment plan submitted August 24, 2018, and denied by the respondent on September 5, 2018?

e. in the amount of $1,183.74 recommended by Dr. Kaira of Toronto Healthcare Inc. in a treatment plan dated October 23, 2018, and denied by the respondent on November 6, 2018?

Is the applicant entitled to psychological services as follows:

a. in the amount of $627.92 for a psychological CD ⁷from Toronto Healthcare Inc. recommended in a treatment plan dated December 7, 2018, and denied by the respondent on December 18, 2018?

Is the applicant entitled to $1,800 for shockwave therapy recommended by Dr. Kaira of Toronto Healthcare Inc. in a treatment plan submitted October 23, 2018, and denied by the respondent on November 14, 2018?
Is the applicant entitled to $14,606.56 for chronic pain treatment services by Toronto Healthcare Clinic Inc. recommended in a treatment plan submitted, May 13, 2019, and denied by the respondent on May 14, 2019?
Is the applicant entitled to receive the following cost of examination expenses:

a. in the amount of $2,000 for a chronic pain assessment at Toronto Healthcare Inc. recommended in a treatment plan submitted October 26, 2018, and denied by the respondent on November 6, 2018?

b. in the amount of $1,981.70 for a driving rehabilitation assessment at Toronto Healthcare Inc. recommended in a treatment plan submitted February 14, 2019, and denied by the respondent on February 26, 2019?⁸

c. in the amount of $200 for a psychological pre-screening assessment, at Toronto Healthcare Inc. recommended in a treatment plan submitted July 13, 2018, and denied July 13, 2018?

Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits to the applicant?
Is the applicant entitled to receive interest on any overdue payment of benefits?

ANALYSIS

A. IRBs

24The applicant claimed entitlement to IRBs in the amount of $400 per week less her post-accident income for the period from December 16, 2017 to May 2018. Under s.5(1) of the Schedule, the respondent is required to pay IRBs if, as a result of and within 104 weeks of the accident, the applicant suffered a substantial inability to perform the essential tasks of her employment as a cleaner or as a housekeeper. The applicant has the onus to prove on a balance of probabilities that she has a substantial inability to perform the essential tasks of her employment. However, in this case, the respondent accepted that the applicant is entitled to IRBs up to June 5, 2018⁹ or for the period of time following the accident until she returned to work. Therefore, the issues before me are when did the applicant return to work and how much of her post accident income is to be deducted from her IRBs.

25The applicant testified that her work at the hotel was making beds, vacuuming and cleaning bathrooms in the hotel rooms. Her work for the cleaning company was more demanding than the hotel because the cleaning company required more “deep” cleaning, which means it was more physical. The tasks she was required to do for both jobs were essentially the same, except for garbage removal, which required more physical effort for the cleaning company.

26I find that the applicant sustained a substantial inability to engage in the essential tasks of her pre-accident occupations as a cleaner and housekeeper. My determination is based on the applicant’s testimony, who I found was honest and credible, the clinical notes and records and the respondent’s acknowledgement that the applicant is entitled to IRBs up to the date of denial in June 2018.

27The applicant never returned to work for the cleaning company. She was fired from her job because the cleaning company had to replace her when she took time off work as a result of her accident injuries. The applicant testified that she returned to part-time work, two days per week, at the hotel on January 19, 2018. Her testimony corroborated what she told some of the medical assessors and treatment providers. She testified that if she had not been fired from the cleaning company, she would have been able to return to work for the cleaning company at the same time that she returned to work at the hotel.

28The applicant testified that she received help from her co-workers when she returned to work at the hotel, as she was still in a great deal of pain. After work, she would come home, shower and then go to bed. She started working full-time at the hotel in either April or May 2018.

29The respondent relied on the report of Dr. Paul Tepperman, a general practitioner who conducted an insurer’s examination under s.44 of the Schedule (“IE”) at the request of the respondent. He reported that the applicant advised him that she returned to part-time work at the hotel three weeks after the accident and to full-time work in January 2018.¹⁰

30The applicant submitted that little weight should be given to Dr. Tepperman’s opinion because he found the applicant was self-limiting and there was no other evidence that she was self-limiting. Dr. Tepperman did not believe her, contrary to every other assessor.

31An insured person does not satisfy her onus to prove her entitlement on a balance of probabilities by offering more expert opinions that favour her than the respondent. An expert’s opinion may carry less weight if it is a contrary or stand-alone opinion if there is no reasonable explanation for why. Some of the considerations that affect the weight to be given to an expert’s opinion are the thoroughness and accuracy of the assessment, and whether the assessor is biased.

32The applicant did not point to any inaccuracies or testimony from Dr. Tepperman that point to bias. Nor was Dr. Tepperman the only one who reported that the applicant retuned to full-time work in January 2018. Dr. Pravesh Jugnundan, another general practitioner who conducted an IE assessment of the applicant, reported on October 19, 2018 that the applicant started working full time for the hotel around January 2018. Dr. Jugnundan testified that his report was based on information the applicant provided him. This means that Dr. Tepperman’s evidence was not stand-alone evidence.

33The applicant submitted that I should give little weight to Dr. Jugnundan’s evidence because it was inconsistent with the overall evidence. The applicant submitted that Dr. Jugnundan was evasive and stubborn, that, despite his objective findings on examination of the applicant, he was hesitant to admit that rehabilitation was better than being on pain medication.

34I do not find that Dr. Jugnundan was evasive or stubborn. He answered the questions put to him in a straightforward and calm manner. He testified that he preferred active rehabilitation if over the counter pain medication did not solve a patient’s pain issues and that such medication over time could cause other health issues. For these reasons, I do not agree with the applicant’s submission that Dr. Dr. Jugnundan’s evidence be given little weight.

35The respondent relied on a letter to the applicant dated June 7, 2018 asking the applicant to submit her paystubs and an Employer’s Confirmation of Income (OCF-2) form to the respondent if she experienced a shortfall in income before she returned to work.¹¹ The respondent submitted that the applicant must not have suffered a shortfall in her income because it never received the applicant’s post-accident payroll stubs.

36The applicant testified that she never saw the letter. It was addressed to her correct address, was carbon copied to her legal representative, and a copy was included in her brief of documents. The respondent did not file any evidence that the letter was mailed or faxed to the applicant. However, given that a copy was in the applicant’s brief of documents, I find that her legal representative had a copy of the letter. However, this does not mean that I am able to draw the inference the respondent has asked me to. That is because the applicant provided some evidence that she tried to obtain the documents from the hotel.

37The applicant submitted that she made a number of requests to the hotel for her employment records and pay stubs. Copies of letters were produced, one of which states that fax confirmation sheets were attached. However, no fax confirmation sheets were attached. The hotel is part of a large, well-known chain and I find it difficult to understand why the hotel would ignore the applicant’s requests for her employment file unless the hotel did not receive the letters. Without those fax confirmation sheets, there was no evidence that the letters were actually faxed to the hotel.

38The applicant filed two letters from the respondent that she or her paralegal received dated April 3, 2018 and October 23, 2018.¹² The first letter asked for an employer’s confirmation of income form (OCF-2) from both employers no later than April 17, 2017. The letter advised the applicant that she was obligated to produce the forms and that no specified benefit was payable before she did so. The October 23, 2018 letter asked the applicant to confirm the date the applicant returned to work because she told Dr. Tepperman she only missed three weeks of work. The applicant did not respond to the letter. Nor did she produce her employment file from the hotel. She did, however, produce her collateral benefit file from Sunlife through her employment at the hotel. To qualify for benefits from Sunlife, the policy states the applicant was required to work a minimum of 20 hours per week for a qualifying period of 6 months.¹³ Her policy began on April 1, 2018. The applicant testified that she did not have to wait to qualify for collateral benefits from SunLife but did not explain why. This implies she was working more than 20 hours per week when she returned to work at the hotel.

39The respondent relies on the applicant’s tax returns for 2017 and 2018 as evidence that she returned to work full-time by January 19, 2018. The applicant earned $298.00 less in gross income in 2018 than she did in 2017. However, I do not find that the tax return supports the respondent’s submission. According to the applicant’s testimony, she did not return to work from December 9, 2017 to December 31, 2017. If so, she missed 3 weeks of work in 2017, which at an average of $638.06 per week, means her income for 2017 should have been $33,179.18 for 2017. Given that she only earned $30,967.00 in 2018, the applicant was shy by $2,212.18 for her 2018 earnings. According to the average weekly earnings in her OCF-2 from the cleaning company, she earned $435.70 per week. This means she was shy by five weeks of income.

40The respondent submitted that if the applicant could not produce the records to show what she earned, I must make a determination that she is not entitled to any IRBs for the period claimed. The applicant submitted that if she is determined to be entitled to IRBs, the quantum can be determined once her employment file from the hotel is produced. I agree with the applicant to a certain point for the following reasons.

41The applicant’s post accident income information is necessary to calculate the amount of IRB owed to the applicant. The insurer is entitled to deduct 70% of the applicant’s weekly gross employment income from her $400.00 per week IRB. ¹⁴ Without the applicant’s weekly post accident income information, the respondent is unable to calculate the IRB. Given Dr. Tepperman’s and Dr. Jugnundan’s reports that the applicant told them she returned to full-time work at the hotel in January 2018 and given her claim that she only worked part-time up until April or May 2018, the attendance records and payroll records up to the end of May 2018 are necessary to calculate her IRBs.

42The only provision in the Schedule that disentitles an insured person from receiving IRBs because of a failure to produce income information is s.33(6) if the insured has no reasonable excuse for the failure to produce the documents. Under s.36(5), if an insurer has responded to an application for a benefit by requesting information pursuant to s.33, the insurer is required to pay the IRBs that were withheld once the information requested is received if the insured person provides a reasonable explanation for the delay. Given that the applicant has not produced the information, there is no requirement at this time for the respondent to pay IRBs.

43It will not be enough for the applicant to produce income information that will allow the respondent to calculate the IRBs owed. She will also need to provide an explanation for the delay. She has implied that the explanation may be that the hotel ignored her letters of request. However, until such time as she produces her post-accident income information and the insurer refuses to accept her explanation for the delay, there is no issue. Since there is no issue, I have no jurisdiction to make a determination.

B. Physiotherapy

44The respondent is required to pay for all reasonable and necessary medical expenses incurred by or on behalf of the applicant as a result of the accident.¹⁵ The following treatment plans from Toronto Healthcare Clinic were filed and submitted to be the treatment plans for physiotherapy in issue. Notably, they were not for treatment by a physiotherapist, but were recommendations for acupuncture, chiropractic treatment and massage therapy as follows:

a. in the amount of $2,581.08 recommended by Dr. Minnella, chiropractor, dated December 15, 2017;

b. in the amount of $1,465.10 recommended by Dr. Minnella dated May 3, 2018;

c. in the amount of $1,383.74 recommended by Dr. Minnella dated June 28, 2018;

d. in the amount of $1,186.45 recommended by Dr. Minnella dated August 23, 2018; and

e. in the amount of $1,183.74 recommended by Dr. Saranjit Khaira, chiropractor, dated October 23, 2018.¹⁶

45A number of the treatment plans in issue were denied on the basis the applicant sustained minor injuries in the accident.¹⁷ The applicant was taken out of the Minor Injury Guideline after the application to the Tribunal was filed.¹⁸

46The applicant’s initial complaints on December 12, 2017 from the accident were neck and left shoulder pain. Three days later she was complaining of back pain as well. She denied having any pre-accident health issues to several assessors. ¹⁹ Her pre-accident clinical notes and records disclose that at times she had complaints of fatigue, hip pain and back pain with intermittent leg numbness. However, those were not constant complaints.²⁰

47Dr. Tepperman diagnosed the applicant in June 2018 with myofascial strain of her cervical, thoracic, and lumbar paraspinal musculature, post-traumatic headaches, and right knee contusion as a direct result of the motor vehicle accident of December 9, 2017.²¹ Dr. Loritz, another general practitioner who did an IE assessment of the applicant in June 2019, diagnosed the applicant with uncomplicated myofascial sprain/strain injuries of her cervical spine, left shoulder girdle, and axial spine as a consequence of her accident.²²

48The treatment plans’ goals were to reduce the applicant’s pain and increase her strength and mobility. An exception was the goal of the October 23, 2018 treatment plan, which did not include strengthening. The goal was to improve the applicant’s quality of life in addition to reducing pain and increasing her range of motion.

49The goal of pain reduction which increases range of motion and improves quality of life by allowing the applicant to work and resume her activities of daily living is a reasonable and necessary treatment goal. The evidence supports that the disputed treatment was achieving the treatment plans’ goals. Dr. Minnella’s treatment plan dated June 28, 2018 reported that the applicant’s hip pain had resolved. The applicant testified that the treatment helped reduce her pain and, when she stopped, her pain returned.

50The applicant testified that her pain limits her activities such as going for a walk, going out dancing, socialising and doing her housework. She was no longer able to go dancing after the accident. Her family physician, Dr. Raveendran Rueben, the applicant’s general practitioner, recommended physiotherapy for her left bicipital tendinitis.²³ The applicant reported to Dr. Ruben on August 9, 2018, that she was benefiting from regular physiotherapy to her shoulder and upper back, which enabled her work.²⁴

51A second ultrasound of the applicant’s left shoulder was taken on March 1, 2019 that disclosed mild left shoulder supraspinatus tendinosis.²⁵ Dr. Ruben noted on March 8, 2019, that the applicant’s pain continued. She worked part-time owing to disabling pain. Dr. Ruben’s opinion was that the ultrasound findings of tendinosis in the applicant’s left shoulder likely not related to the accident, but were work-related findings.²⁶ However, Dr. Loritz testified that the applicant’s tendinosis developed over time, either years or as little as six months. He testified that if there was no history of pre-accident shoulder complaints, the accident could have caused the applicant’s tendinosis. The applicant’s medical records show no history of pre-accident shoulder complaints. She complained of left shoulder pain following the accident²⁷ and an ultrasound taken of the left should on June 25, 2018 disclosed left bicipital tendinosis. However, an orthopaedic assistant, Kimberly Scott, thought that the applicant’s shoulder pain was not related to her tendinosis.²⁸ I find that because the applicant had no shoulder complaints before the accident, she would not have left shoulder pain complaints but for the accident.

52The respondent submitted that the applicant did not want treatment as evidenced by her failure to use her employee medical benefits. However, there was no evidence of this. In fact, Sunlife, the applicant’s collateral benefits carrier, issued a benefit statement that shows the applicant was using her benefits throughout April 2018 for chiropractic, massage therapy and acupuncture treatment.²⁹

53The applicant relied on Dr. Howard Jacob’s report dated April 1, 2019. Dr. Jacobs is a general practitioner with a focus in chronic pain. He diagnosed the applicant with chronic pain.³⁰ He reviewed the treatment plans in issue and opined that they were reasonable and necessary given the applicant’s condition. He did not provide any other reasons in his report for his opinion.

54The applicant relied on the report and testimony of Dr. Grigory Karmy. The applicant sought to have Dr. Karmy qualified as an expert in chronic pain. However, he is not listed by either the Royal College of Physicians and Surgeons or the College of Physicians and Surgeons of Ontario as a pain specialist. Accordingly, I found he was an expert general medical practitioner with a focus in chronic pain management. Dr. Karmy diagnosed the applicant with fibromyalgia caused by the accident, chronic post traumatic headache, chronic mechanical back pain,

55Although Dr. Karmy provided some useful testimony, I found he tended to exaggerate and, accordingly, he appeared biased in favour of the applicant. For example, he reported that the accident aggravated the applicant’s pre-existing chronic headaches. Prior to the accident, the applicant reported the occasional headache, which was noted by Dr. Karmy. However, Dr. Karmy described these occasional headaches as chronic headaches. On cross-examination he admitted that a chronic headache is not the same as occasional headaches. He rendered ten diagnoses that he reported were caused by the accident. However, he testified that some of those ten diagnoses were only possibilities. He did not provide any method for how I was to distinguish whether the accident caused a particular diagnosis on the balance of probabilities or whether it was just a possibility that the accident resulted in the diagnosis. Nor was there any distinction or direction in his report. Therefore, where his diagnoses differ from other medical diagnoses, I give no weight to Dr. Karmy’s opinion.

56One such diagnosis that I do not accept is that the applicant sustained a traumatic brain injury. Dr. Karmy provided no reason in his report for his diagnosis. He testified that the accident did not cause a traumatic brain injury but exacerbated an earlier concussion.³¹ Dr. Karmy relied on a consultation report dated July 8, 2016, by Dr. Veidlinger, neurologist, who indicated that a person with the same name as the applicant, but half her age sustained a head injury in 2016 with a loss of consciousness and a large cut over the left occiput. There was no mention in any of the clinical notes of the applicant receiving a head injury in 2016. Nor did the applicant testify to having a concussion in 2016. Dr. Karmy also testified that because the applicant reported being shocked from the accident, a TBI was a possibility. I find this is a gross exaggeration and the reason for such an exaggeration was to bolster the applicant’s case. This is bias and means that little weight can be given to Dr. Karmy’s evidence.

57Dr. Karmy testified that he did not know what advanced activation was, but he found the treatment plan recommending it was reasonable and necessary. He reported that the applicant’s pain complaints affected her ability to do her job. This is inconsistent with the applicant’s testimony that she could have done her job as a housecleaner by January 19, 2018. He did not know how often the applicant was able to engage in her social and recreational activities post-accident.

58The respondent submitted that because the applicant reported a 75% resolution of her injuries, that further treatment is not necessary. I disagree. I find that a 75% resolution shows that the treatment in issue was assisting the applicant and was, therefore, necessary.

59Dr. Karmy testified that as long as the applicant wants treatment and it helps her, it is reasonable. I agree with him only to the extent that pain control is a legitimate goal of treatment. The applicant testified that the physiotherapy treatment she received helped address the pain and allowed her to work. In this case, the evidence was overwhelming from both the applicant’s testimony and the treatment plans that the massage, acupuncture and chiropractic treatment helped the applicant continue working and provided her with pain relief. For these reasons, I find that the treatment recommended in the disputed treatment plans was reasonable and necessary.

60The applicant submitted that unless the respondent raised the issue of whether the fees charged are reasonable, I should not concern myself the hourly fees charged for the treatment plans in dispute. I do not agree. Part of the test for determining entitlement to the benefits claimed is the reasonableness of the treatment. This includes the issue of whether the quantum of the medical or rehabilitation benefit is reasonable. The issue before me is whether the treatment is reasonable and necessary. There is nothing in the case conference order limiting the issues to only the necessity of the treatment.

61Having said that, I find that the hourly fees listed in part 11 of the treatment plans are within the Professional Service Guidelines.³² For these reasons I find that the disputed acupuncture, massage therapy and chiropractic treatment are reasonable and necessary.

C. Shockwave Therapy

62The applicant claimed entitlement to $1,800.00 for shockwave therapy recommended by Dr. Saranjit Kaira, chiropractor of Toronto Healthcare Inc., in a treatment plan dated October 23, 2018. The goals of the treatment were to reduce pain, increase range of motion, restore mobility and improve quality of life.³³ As mentioned earlier, I find these goals were reasonable and necessary goals for the applicant.

63Dr. Kaira explained in his treatment plan that shockwave therapy accelerates the healing process in the body by stimulating metabolism and enhancing blood circulation to regenerate damaged tissue. Fascia and trigger point pain relief can be immediate with shockwave therapy. Strong energy pulses are applied to the affected area. These pulses occur for short periods of time, creating micro-cavitation bubbles that expand and burst. The force created by these bubbles penetrates tissue and stimulates cells in the body that are responsible for bone and connective tissue healing. The hourly fee he charged for administering the shockwave therapy was within the Professional Service Guidelines.

64Dr. Karmy could not advise what shock wave therapy is. However, he testified that it has been used for a number of years with good result. His testimony corroborates Dr. Kaira’s explanation. I accept Dr. Karmy’s testimony on the shockwave therapy because I heard no other testimony nor evidence to discount it.

65For these reasons, I find that the shockwave therapy treatment plan was reasonable and necessary to address the applicant’s accident injuries. Accordingly, the applicant is entitled to the shockwave therapy.

D. Chronic Pain Program

66The applicant is seeking entitlement to a chronic pain program at the Toronto Healthcare Clinic Inc. recommended in a treatment plan dated May 13, 2019 by Dr. Howard Jacobs, a general practitioner. He recommended that the applicant be involved in a multidisciplinary chronic pain program and that she receive paravertebral nerve blocks in the cervical and lumbar spine. He recommended physiotherapy after the injection therapy as an adjunct.³⁴

67The respondent relied on 17-008304 v Aviva Insurance Canada, 2018 CanLII 130868 (ON LAT) and submitted that the applicant’s entitlement to a chronic pain program turned on whether she has chronic pain syndrome. The respondent submitted that if the applicant just suffered from chronic pain, she is not entitled to the treatment sought. The respondent submitted that the insured in 17-008304 v Aviva Insurance Canada had disabling pain and was diagnosed with Persistent, Severe Somatic Symptom Disorder with Predominant Pain. The respondent submitted that was very different from the applicant who just has chronic pain.

68I find that the 17-008304 v Aviva Insurance Canada decision does not assist the respondent. There was no mention in that case that only where a diagnosis of chronic pain syndrome is made will a chronic pain program be reasonable and necessary for an insured person. The respondent’s submissions ignore the applicant’s testimony and the evidence that her social life has been reduced by her pain complaints and her activities of daily living have been affected. She no longer goes dancing and is unable to do her housekeeping chores in the same manner that she did pre-accident.

69The respondent relied on the testimony and the IE report of Dr. Loritz to deny entitlement to the chronic pain program.³⁵ Dr. Loritz testified that he does not accept that chronic pain is a condition, despite the consensus testimony of the other physicians that chronic pain is pain that lasts more than three months. Dr. Loritz testified that the applicant’s condition had plateaued and that she likely would not get back to her pre-accident status. He testified that there was nothing to indicate that she suffered from chronic pain and that the applicant could not have been suffering from chronic pain syndrome when he saw her. When asked why, he answered that he was not sure and testified that the applicant’s pain was from other factors.

70I give very little weight to Dr. Loritz’s opinion that the applicant’s ongoing pain complaints are caused by other factors for the following reasons. Dr. Loritz did not report on what those other factors were. He testified that the reason was because those other factors were not important. When asked if there was anything in the records to suggest that the applicant’s ongoing pain was not related to the accident, Dr. Loritz replied that he was not asked to do that assessment. His testimony makes no sense given that he was retained by the respondent to determine whether the applicant was within the MIG and whether a chronic pain program was reasonable and necessary. This required a determination of whether the applicant has chronic pain as a result of the accident that is of such an impact on her activities that she required a chronic pain program. Dr. Loritz ought to have foreseen that a dispute would arise between the applicant and the respondent once he reported that a chronic pain program was not necessary for treating the applicant’s pain complaints and that his reasons for his determination would be relevant to resolving that dispute. If the applicant has chronic pain that was not caused by or contributed to by the accident, an explanation by Dr. Loritz was required, especially when there is no post-accident incident recorded to account for the applicant’s pain complaints and no pre-accident complaints of pain other than intermittent hip and back pain. Further, Dr. Loritz reported that the applicant developed myofascial pain symptoms as a result of her soft tissue injuries from the accident. This is in keeping with his testimony that the applicant was reluctant to turn her head to the right due to pain, which Dr. Loritz testified could be a lingering issue from the accident. For all of these reasons I place little weight on Dr. Loritz’s testimony that the applicant does not have chronic pain as a result of the accident and find that his testimony does not assist the respondent.

71The evidence is overwhelming that, despite the progress that the applicant has made, she has chronic pain as a result of the accident that prevents her from engaging in her pre-accident social activities and affects how she performs her housekeeping duties. The treatment she received that was recommended in the chiropractic, massage therapy and acupuncture treatment plans provided her with pain relief, albeit temporary, and provided the applicant with a 75% improvement and, although she has plateaued, it allowed the applicant to continue working and to engage in some of her activities of daily living without having to consume as much medication.³⁶

72The respondent submitted that the evidence concerning limitations in the applicant’s activities due to pain is vague and the clinical notes and records show few complaints from the motor vehicle accident. I agree that the notes of the medical clinic the applicant attended on a regular basis before and after the accident do not show may accident-related complaints. However, the clinical notes from Toronto Health, the clinic where she received chiropractic treatment, show consistent complaints of back, shoulder and neck pain. I find that just because the applicant told her chiropractors but not her doctors of her ongoing pain complaints does not mean she did not have pain complaints. Further, the applicant’s evidence and testimony about her pain complaints was clear. I was provided with no reason to disbelieve the applicant. Accordingly, I do not agree with the respondent that the evidence of the extent of the applicant’s pain was vague.

73The applicant submitted that the chronic pain program is necessary as it is an alternative to medication. The applicant reported to Dr. Biswas that she takes pain killers and muscle relaxants sometimes when she is not able to tolerate the pain. Naproxen was prescribed on May 18, 2018 and again in July 2018 by Dr. Ruben.³⁷ By the time she saw Dr. Loritz in June 2019, the applicant had stopped treatment at Toronto Health Care for about two months and was using about 12 Advil per week to address her back and shoulder pain.

74Both Dr. Loritz and Dr. Jugnundan testified that the use of two Advil per day was appropriate. However, Dr. Loritz testified that prolonged use of Advil could have adverse effects on the kidney. He also testified that the downside to passive therapy is the risk of muscles becoming looser and of developing postural issues.

75Dr. Loritz testified that if the applicant had chronic pain syndrome, a chronic pain program that teaches a person to live with the pain is a good program. He testified that the treatment plan in issue did not fall anywhere near this category. The psychological component of the program included behavioural and cognitive-behavioural therapy, which Dr. Jacobs stated in his treatment plan, proves to be quite effective for patients willing to accept and adapt to the chronic pain. The applicant was receiving counselling from a psychotherapist. ³⁸The respondent has since approved psychological treatment by Dr. Andrew Shaul, psychologist. Dr. Jacob’s chronic pain program includes a multidisciplinary approach with Dr. Shaul rather than a psychotherapist. As Dr. Shaul has already been treating the applicant, I find that a shift to a multidisciplinary approach with cognitive behavioural psychological treatment by a psychologist rather than a psychotherapist is reasonable and necessary for the applicant to accept and adapt to her chronic pain.

76According to Dr. Loritz, the recommendation for Botox injections was reasonable, but the remainder of the treatment plan was a repackaging of treatment the applicant had already received. I find that one difference from the applicant’s past treatment is that the psychological treatment recommend by Dr. Jacobs is to be provided by a psychologist rather than a psychotherapist.

77Dr. Loritz testified that a reliance on passive treatment does not solve the problem and it is hard with a passive program to motivate a person to exercise. However, he reported that, in addition to passive therapy, the applicant also did treadmill, stretching, and ball/elastic resistance exercises at Toronto Healthcare Inc.. Those exercises are active therapy. The chronic pain treatment plan includes both passive and active treatment modalities. The active component of the chronic pain program is in keeping with Dr. Loritz’s suggestion and is, therefore, reasonably necessary. I have already found that passive therapy, other than shockwave therapy, is reasonable and necessary for the applicant’s pain control.

78Part of the chronic pain program involves shock wave therapy. Until the applicant completes the shock wave therapy recommended by Dr. Saranjit Kaira and, unless it assists her with her pain complaints and mobility, it is a duplication of services and, therefore, I am unable to find that it is reasonable or necessary. Otherwise, I find the other passive therapy, the active therapy, and the psychological treatment are all reasonable and necessary.

E. Psychotherapy CDs

79The applicant is seeking $627.92 for psychological CDs from Toronto Healthcare Inc. recommended by Dr. Andrew Shaul, psychologist, in a treatment plan dated December 7, 2018, and denied by the respondent on December 18, 2018. The respondent denied the cost of CDs because there was no explanation provided about their cost. The respondent submits, and I agree, that the onus is on the applicant to prove the cost of the CDs was reasonable.

80The respondent relies on 16-000940 v Certas Direct Insurance Company, 2016 CanLII 96161 (ON LAT), in which Certas’ psychological IE assessors determined the insured suffered a psychological impairment. The insured submitted that the IE reports proved that he had a psychological impairment in need of treatment. The Tribunal determined that the submission failed to demonstrate that the requested psychological services were reasonable and necessary for the applicant’s impairment. There was not enough to connect the dots between the applicant’s impairment and the appropriateness of the treatment. In that case, the insured was not very motivated to receive counseling and was coping satisfactorily with stressors. The insured’s psychologist attempted to address the reasonableness and necessity of the disputed treatment in his treatment plan and his report. However, those documents did not provide sufficient detail explaining why the specific treatment requested was reasonable and necessary for the insured’s specific impairment. It made clear that ‘treatment’ was necessary. The Adjudicator determined that more was required to discharge the applicant’s onus.

81In this case, the applicant testified that she did not have any psychological issues prior to the accident. Since the accident she is more emotional, has mood swings, cries at times, and has nightmares and panic attacks. She testified that she has a panic attack when she has to ride in a car. She was nervous riding in a car before the accident and, when she used to ride to work with her supervisor, she always sat in the back seat. Since the accident, she had a panic attack for which she ended up at the hospital.

82The respondent relied on the evidence of Dr. Arpita Biswas, a psychologist who conducted an IE assessment of the applicant on August 12, 2019. The respondent submitted that Dr. Biswas confirmed that the applicant’s vehicle phobia resolved. Dr. Biswas determined that, as a result of the accident, the applicant has symptoms of anxiety, depressed mood, occasional pain pre-occupation and some fear of being in a vehicle.³⁹ I am unable to find that that the applicant’s fear of being in a vehicle means that her vehicle phobia resolved.

83Dr. Shaul recommended the purchase of a series of four CDs comprised of relaxation and pain management exercises. A description of each CD was provided in Dr. Shaul’s treatment plan along with the goal each CD was meant to achieve and a description of the exercises.⁴⁰ Given the findings of Dr. Biswas and the other psychological assessors that the applicant has symptoms of anxiety Dr. Shaul’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia,⁴¹ and the diagnosis of chronic pain, I find that the CDs were necessary for instructing the applicant on exercises for reducing her anxiety and managing her pain.

84The actual cost for a set of four CDs that address pain management and relaxation was $400.00 or $100.00 each. The remaining fees set out in the treatment plan were $63.72 for a chiropractor to prepare the treatment plan at a rate of $112.81 per hour and $112.20 for Dr. Sahul to provide education and instruction at $149.61 per hour.

85The hourly fees are within the Professional Services Guideline. The time for preparing the treatment plan and for instructing the applicant about the CDs was reasonable. Because the exercises are available from the CDs, once the applicant has completed her psychological treatment, she does not have to go back to seeing a psychologist at $149.61 per hour for re-education and a refresher on anxiety and pain reduction techniques when refreshers on those techniques are due. She will be able to refer to the CDs, the cost of each which is less than Dr. Shaul’s hourly fee. There was no evidence that the cost of the CDs was unreasonable or that the CDs were available at a lesser cost. Therefore, for all of these reasons, I find that the CDs are reasonable and necessary for treating the applicant’s psychological impairments that were the result of the accident.

F. Cost of Examinations

86The respondent is required to pay for a health practitioner’s fees that are necessary for reviewing and approving a treatment plan if any one or more of the services recommended in the treatment plan are approved by the respondent, deemed payable under the Schedule or are determined by me to be payable. The onus is on the applicant to prove on a balance of probabilities that the assessment was necessary and that the fees charged were reasonable. The respondent is not required to pay for fees that exceed the maximum rates in the Professional Service Guidelines or that exceed $2,000.00.⁴²

Driver Rehabilitation Assessment

87The respondent approved a treatment plan recommending driver rehabilitation but did not approve a treatment plan for a driver rehabilitation assessment submitted on February 14, 2019 in the amount of $1,981.71 that was to be conducted at Toronto Healthcare Inc. Neither party filed any such treatment plan as an exhibit. However, the applicant’s brief contained a treatment plan prepared by Dr. Andrew Shaul dated January 25, 2019 recommending a driving rehabilitation assessment.

88The respondent relied on 16-000940 v Certas Direct Insurance Company, 2016 CanLII 96161 (ON LAT) at para.12 and submitted that an assessment is not reasonable when a diagnosis has already been made. The applicant submitted that it was necessary for the assessment to be done before the driver re-integration treatment plan could be prepared. In response to the respondent’s submission, she also submitted, without any supporting evidence, that a psychologist must do reassessments to determine a patient’s progress.

89I do not find that 16-000940 v Certas Direct Insurance Company stands for the determination submitted by the respondent. Having said that, if the driver reintegration assessment in issue is the one recommended by Dr. Shaul in his January 25, 2019 treatment plan, I find that it is a duplication of services and is neither reasonable nor necessary for the following reasons.

90The treatment plan contemplates that Dr. Shaul would conduct the assessment. However, by the time the disputed treatment plan was prepared, Dr. Shaul had already supervised an assessment from which he diagnosed the applicant with a Specific Phobia (travelling in and around a vehicle). A treatment plan for the driving reintegration program was able to be prepared without the disputed assessment being conducted. Further, Dr. Shaul did not set out how many hours were required to conduct the assessment. He indicated what his hourly fee was, but only provided a total cost of $1,981.70 for the assessment without a breakdown of the time it would take him to do the assessment. Accordingly, I have no way to determine the reasonableness of the cost. For these reasons, I find the applicant has failed to prove on a balance of probabilities that the driver reintegration assessment is reasonable or necessary and her claim for the assessment is dismissed.

Chronic Pain Assessment

91The only exhibit before me that dealt with a chronic pain assessment is a treatment plan dated September 21, 2018 prepared by Dr. Jacobs in the amount of $2,000.00. The purpose of the assessment was to evaluate the extent of the applicant’s injuries and provide a prognosis and recommendations for recovery. Given that the applicant continued to complain of pain in her neck, left shoulder and back more than eight months post accident, I find that a chronic pain assessment was necessary for determining whether she had chronic pain syndrome and to assess what treatment she required.

92Dr. Jacobs conducted the assessment on March 27, 2019. He provided no indication in his treatment plan or his report on the length of his assessment or his hourly fees. He reported that he was asked to review an extensive number of documents but did not provide a list. Accordingly, I am unable to determine whether the cost of the assessment was reasonable.

93Although I find a chronic pain assessment was required for the purpose of reviewing or preparing a treatment plan, I am unable to determine whether Dr. Jacob’s fees are reasonable. Without any information on the hourly fees charged or the time it took for Dr. Jacobs to conduct his assessment, the applicant has failed to prove on a balance of probabilities that the fees charged are reasonable. Accordingly the claim for a chronic pain assessment as recommended in Dr. Jacob’s September 21, 2018 treatment plan is dismissed.

Psychological Pre-Screening Report

94The applicant is seeking entitlement to $200.00 for a psychological pre-screening assessment at Toronto Healthcare Inc. recommended in a treatment plan submitted July 13, 2018 and denied July 13, 2018. No treatment plan for this amount was entered as an exhibit or referred to by any of the parties. A psychological pre-screen interview report dated January 25, 2018 by Dr. Andrew Shaul was filed as an exhibit. Dr. Shaul stated the purpose of the report was to ask the applicant some questions to determine whether a treatment plan applying for a psychological assessment was warranted.

95After the hearing, the parties were asked to submit the treatment plan recommending the pre-screening report. The applicant confirmed there was no treatment plan.

96Under s.38(2) of the Schedule an insurer is not required to pay for the cost of an examination unless a treatment plan is first submitted. ⁴³ As no treatment plan was ever submitted for the pre-screening report, the cost of the pre-screening report is not payable by the insurer. This claim is dismissed.

G. Regulation 664 Award

97Section 10 of Reg. 664 gives the Tribunal jurisdiction to make an award if an unreasonably withheld or delayed payments. If I find that the respondent did so, I may award a lump sum of up to 50 percent of the amount to which the applicant was entitled at the time of the award together with interest on all amounts then owing.

98It is well settled law that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award, the insurer’s conduct must be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.⁴⁴ The applicant submitted that this describes the respondent’s conduct because it failed to carefully consider all of the evidence and closed its mind to all the other medical evidence. The applicant submitted that I should apply the maximum 50% award because she has incurred over $18,000 in treatment and examination expenses out of her own pocket, which has caused her significant harm. She could not point me to any evidence of the significant harm but submitted I can draw an inference that she suffered such harm. I am unable to do so without any evidence that the applicant was experiencing something like stress or anxiety due to debts or finances or any other evidence of harm.

99The respondent submitted that it was never provided with the particulars of the applicant’s claim for an award and that to do so in her closing submissions is procedurally unfair. The respondent relied on 17-008304 v Aviva Insurance Canada, 2018 CanLII 130868 (ON LAT) in which the Tribunal refused to consider particulars regarding a Reg.664 award set out in the applicant’s reply submissions. The insured in that case did not provide particulars regarding the award in her initial submissions. The Tribunal determined that to provide particulars so late in the reply was not appropriate because the respondent had no opportunity to respond.

100The applicant submitted that the respondent never once requested written particulars. I do not see how there is any obligation on the respondent to ask for the particulars. The onus is on the applicant to prove that the respondent unreasonably withheld or delayed payments. Procedural fairness requires that if an insured person is claiming the award, she must advise the insurer of the particulars of the award in time for it to know the case it has to meet. It is not up to the respondent to request the particulars. Otherwise, the particulars would not be required to be provided on an application. An insured person cannot wait until the end of a hearing to provide particulars.

101In this case the applicant stated on her application that the adjusters’ log notes were required for the applicant to provide full particulars. Given my findings above on the applicant’s delay in filing a motion for the production of the adjusters’ log notes, I am unable to find that the applicant thought there was good reason for seeking an award. Otherwise, she would have moved in a timely fashion to obtain the adjusters’ log notes so that she could meet her obligation.

102I am persuaded by the reasoning in 17-008304 v Aviva Insurance Canada. The applicant’s request for an award is dismissed.

103Further, if the applicant had provided the particulars of her claim in a timely manner, I would have found that she was not entitled to an award. The respondent’s approval of the applicant’s claims for psychological treatment and a psychological assessment before the hearing is evidence that the respondent did turn its mind to the applicant’s medical evidence.

104I also find that this was a difficult case, especially with respect to the IRBs given the lack of information. The respondent would have had no way to know Dr. Loritz’s opinion on chronic pain unless it conducted as thorough a cross-examination of him as the applicant’s legal representative did. That is not something normally done in adjusting claims. While I find that the applicant proved her entitlement to some of the benefits sought on a balance of probabilities, she barely satisfied her onus. Accordingly, if the applicant had provided the particulars of the Reg. 664 award to the respondent and the Tribunal prior to the hearing that she presented in her closing submissions, I would have found there was no unreasonable delay.

H. Interest

105The applicant is entitled to interest on the payment of any overdue benefits in accordance with the Schedule. I find that the IRBs are not overdue because they are not payable until the respondent has the information that would allow it to calculate the amount of the applicant’s post-accident income. For these reasons, I make no order with respect to interest on the applicant’s IRBs.

CONCLUSION and order

106The applicant is entitled to IRBs up to June 2018 subject to a deduction for income earned in accordance with the Schedule. I make no order requiring payment of IRBs because the respondent has not been provided with the information necessary to calculate the IRB owed.

107The applicant is entitled to medical benefits for chiropractic, massage therapy and acupuncture services from Toronto Healthcare Inc. recommended in the following treatment plans:

a. in the amount of $2,581.08 recommended by Dr. Minnella. in a treatment plan dated December 15, 2017;

b. in the amount of $1,465.10 recommended by Dr. Minnella in a treatment plan submitted May 3, 2018;

c. in the amount of $1,383.74 recommended by Dr. Minnella in a treatment plan dated June 28, 2018;

d. in the amount of $1,186.45 from Toronto Healthcare Inc. recommended in a treatment plan dated August 23, 2018; and

e. in the amount of $1,183.74 recommended by Dr. Kaira. in a treatment plan dated October 23, 2018.

108The applicant is entitled to psychological CDs from Toronto Healthcare Inc. in the amount of $627.92 recommended By Dr. Shaul in a treatment plan dated December 7, 2018.

109The applicant is entitled to $1,800 for shockwave therapy recommended by Dr. Kaira of Toronto Healthcare Inc. in a treatment plan dated October 23, 2018.

110The applicant is entitled to $11,606.56 ($14,606.56 less $3,000.00 for shockwave therapy) for a chronic pain program from Toronto Healthcare Clinic Inc. recommended by Dr. Karmy in a treatment plan May 8, 2019.

111The applicant’s claims for the following cost of examination expenses are dismissed:

a. $1,981.71 for a driving rehabilitation assessment at Toronto Healthcare Inc. recommended in a treatment plan submitted February 14, 2018, and denied by the respondent on February 26, 2018;

b. $2,000 for a chronic pain assessment recommended by Dr. Jacobs in a treatment plan dated September 21, 2018; and

c. $200.00 for a psychological pre-screening assessment, at Toronto Healthcare Inc. recommended in a treatment plan submitted July 13, 2018 and denied July 13, 2018.

112The applicant’s claim for an award under Reg. 664 is dismissed.

113The applicant is entitled to receive interest on the overdue payment of benefits in accordance with the Schedule.

Released: July 4, 2022