Licence Appeal Tribunal File Number: 19-012422/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:
Norberto De Sousa
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Lyndra Griffith
APPEARANCES:
For the Applicant:
Ryan A. Sullivan, Counsel
For the Respondent:
Emily M. Hill, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Norberto De Sousa, was involved in an automobile accident on July 16, 2017. His vehicle was involved in a multivehicle collision. Mr. De Sousa was stopped on a highway to turn left into a private driveway when his vehicle was rear-ended. His vehicle was then pushed into the oncoming lane and collided with another vehicle. Mr. De Sousa sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Mr. De Sousa was denied certain benefits by the respondent, Aviva General Insurance Company of Canada (“Aviva”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2Aviva denied Mr. De Sousa’s claims because it took the position that the disputed treatment plans are not reasonable and necessary.
ISSUES
3The issues I am asked to determine are:
I. Is Mr. De Sousa entitled to a non-earner benefit in the amount of $185.00 per week from June 24, 2018 to July 17, 2019?
II. Is Mr. De Sousa entitled to an examination expense in the amount of $2,999.34 for an occupational therapy assessment recommended in a treatment plan submitted on December 1, 2017 and denied by the respondent on January 26, 2018?
III. Is Mr. De Sousa entitled to an examination expense in the amount of $750.00 for a trauma assessment recommended in a treatment plan submitted to and denied by the respondent on July 13, 2018?
IV. Is Mr. De Sousa entitled to interest on overdue payment of benefits?
V. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Result
4Based on the evidence before me, I find that Mr. De Sousa is entitled to the $750.00 for a trauma assessment. I do not find him to be entitled to the other benefits in dispute.
5As a result, Mr. De Sousa is entitled to interest for the treatment plan that was found to be reasonable and necessary pursuant to s. 51 of the Schedule.
6Mr. De Sousa is not entitled to an award under s. 10 of O. Reg. 664.
BACKGROUND
7Following the accident, the police and the ambulance arrived at the scene and Mr. De Sousa was taken to the hospital by ambulance. He was discharged the next day following the admission. He started attending physiotherapy treatment shortly after the accident.
8Mr. DeSousa has a significant past medical history involving his both shoulders and lower back. He appears to have a significant pathology noted in his both rotator cuff. He was suffering from osteoarthritis involving his back and feet. He has complained of radiating pain in his lower extremity related to his back problems as well as history of intermittent headaches and bilateral hand numbness prior to the accident.
9Mr. DeSousa had a workplace accident on May 7, 2010 when he injured his right shoulder. Mr. DeSousa was experiencing pain in his right shoulder prior to the May 7, 2010 accident, however, his workplace accident injuries rendered him unable to perform his job duties. He has continued to experience pain in his right shoulder since then. He has been receiving Workplace Safety and Insurance Board (WSIB) benefits for his injury.
10At the time of the subject accident, Mr. De Sousa was suffering from Major Depressive Disorder (severe) with suicidal ideation, was deemed disabled by WSIB and the Social Security Tribunal. He was also undergoing counselling and taking antidepressants.
11Mr. DeSousa reported being involved in a previous motor vehicle accident in 2016 and sustained injuries to his neck and back. It was noted that he was still recovering from his injuries when the subject accident occurred.
12Mr. DeSousa reported that he was taking the following medication prior to the accident: Tylenol No. 3, Pantoprazole 40 mg, Celecoxib 200 mg and Amitriptyline 25 mg at nighttime
LAW AND ANALYSIS
Mr. De Sousa’s entitlement to a non-earner benefit from June 24, 2018 to July 17, 2019.
13I find on the evidence that Mr. De Sousa is not entitled to a non-earner benefit (NEB).
14The test for entitlement to a NEB is set out in section 12 (1) of the Schedule. The applicant must prove that he suffers from a complete inability to carry on a normal life within 104 weeks of the accident. Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
15The parties both submitted the case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which outlines several principles for the determination of entitlement to a NEB. These principles include:
i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.
ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.
iv. The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
v. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.
vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.
16Based on these principles, Mr. De Sousa must present a thorough analysis and comparison of activities he could do before and after the accident.
Applicant’s position
17Mr. De Sousa submits that he is entitled to a NEB of $185.00 per week, from the date the benefits were terminated on June 24, 2018 to July 17, 2019. This period covers the period from the cut-off of the benefits to the end of the 104-week period post-accident, which would total $8,325.00.
18Mr. De Sousa submits that he qualifies for the NEB, as he does not qualify for the income-replacement benefit and suffered a complete inability to carry on a normal life as a result of the accident. Mr. De Sousa submits that he was engaged in many activities before the accident which he is no longer able to, which qualifies him for the NEB.
19Mr. De Sousa submits that despite suffering from pre-existing physical limitations prior to the subject accident, the exacerbation and addition of several new and serious injuries draw a clear difference between his life before and after the subject accident.
20Mr. De Sousa submits that the opinion of his treating psychologist should be given more weight when considering the accident’s impact on his ability to carry on a normal life. He noted that Dr. Parkinson, and others at his clinic, have been treating him for his psychological injuries since the subject accident and have spent hours with him discussing the impact it has had on his life.
21Mr. De Sousa submits that the fact that he can live on his own, drive, and interact with others when required, does not indicate that he substantially engages in all of his pre-accident activities, within the meaning of SABS. This simply indicates that he is able to go through the motions of living as necessary. He further submits that his return to pre-accident activities such as driving, living independently, and engaging with others when required is exactly the type of “going through the motions” that the test for NEB in Heath states does not exempt one from receiving the NEB. He was able to return to these types of things following the accident, but only as necessary and without motivation or enjoyment.
22Mr. De Sousa’s submissions claim that Aviva failed to re-examine or re-assess him following the rebuttal reports of Dr. Parkinson, which indicate that he does meet the test for NEBs.
Respondent’s position
23Aviva submits that Mr. De Sousa has failed to present any analysis and comparison of his pre-accident and post-accident activities. Aviva further submits that Mr. De Sousa failed to cite affidavit or corroborating evidence and has failed to establish the frequency, quality or importance of pre-accident activities.
24Mr. De Sousa underwent the following insurer’s examinations (IE): a Medical Physician Assessment Review with physician Dr. Kopyto dated June 6, 2018 and an In-Home Assessment with Himardri Kaul dated June 6, 2018. The purpose of the IEs was to assess Mr. De Sousa’s functioning with respect to NEBs. Both Dr. Kopyto and Himardri Kaul opined that Mr. De Sousa did not suffer from an impairment that continuously prevented him from engaging in substantially all of the activities he normally engaged in before the accident.
25On June 2, 2018, Aviva advised Mr. De Sousa that as the assessors concluded that he did not suffer a complete inability to carry on a normal life, Aviva will not consider further NEBs past June 24, 2018.
Analysis
26Upon review of the Trauma & Rehabilitation Medicine Services report dated July 5, 2018, it is unclear whether these practitioners are Mr. De Sousa’s treating psychologists. The cover letter to the report states, “This is a report on consultations by Dr. Catherine Krasnik and Dr. Suneel Upadhye and integration of their findings with those of Dr. Parkinson based on his earlier pre-assessment. Dr. Krasnik saw him on April 26, 2018. Dr. Upadhye saw him on June 19, 2018.” I was not presented with any clinical notes and records from these practitioners, only the report recommending that Mr. De Sousa undergo a variety of assessments.
27I agree with Aviva that Mr. De Sousa failed to present any analysis and comparison of his pre-accident and post-accident activities. There is also a lack of corroborating evidence and he failed to establish the frequency, quality or importance of his pre-accident activities. Mr. De Sousa submits the rebuttal reports of Dr. Parkinson indicates that he meets the test for NEB; however, I was unable to confirm this. There is no evidence that Dr. Parkinson or anyone on his team addressed the NEB test. Their evaluations appear to be limited to addressing Mr. De Sousa’s need for assessments. I find on the evidence that Mr. De Sousa is not entitled to a NEB, as he failed to establish that he sustained an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
Mr. De Sousa’s entitlement to $2,999.34 for an occupational therapy assessment
28I find on the evidence that Mr. De Sousa is not entitled to the treatment plan for an occupational therapy assessment, as it is not reasonable and necessary.
29In order for Mr. De Sousa to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to s. 14-16. Mr. De Sousa was assessed by Asma Malik, an occupational therapist with Ross Rehabilitation, and it was recommended in a Treatment Plan (OCF-18) dated December 1, 2017 that Mr. De Sousa undergo an Occupational Therapy Assessment.
30In a Treatment Report dated December 11, 2017, Asma Malik described that the purpose of this assessment was “to conduct an environmental assessment to determine functional and environmental barriers”. Asma Malik opined that Mr. De Sousa required these services as there are several barriers to his recovery including “the nature of his injuries, his age, pre-existing medical conditions, psychosocial issues, etc.” She further stated that he would require a multidisciplinary treatment approach to facilitate his rehabilitation. Asma Malik concluded that without the ability to assess these barriers, Mr. De Sousa will be precluded from a full recovery.
31Mr. De Sousa submits that the barriers he faces are serious and should be investigated.
32Aviva submits that Mr. De Sousa was assessed with respect to the reasonableness and necessity of the Occupational Therapy Assessment in June of 2018. Aviva submits that Mr. De Sousa was performing all of his pre-accident personal care, mobility and activities of daily living at the same level he was before the accident. Aviva further submits that the assessor opined that this OCF-18 was not reasonable and necessary.
33As stated above, an In-Home Assessment was completed by Himardri Kaul on June 6, 2018 to determine Mr. De Sousa’s entitlement to a NEB. Himardri Kaul noted in the In-Home Assessment that Mr. De Sousa was performing his personal care and mobility tasks at his pre-accident capacity. Himardri Kaul found that his ability to perform his household and home maintenance activities has not changed since the accident. Himardri Kaul concluded that “although Mr. DeSousa complains of increased pain and decreased mood since the accident, however, his daily routine and functional abilities appear to be the same as pre-accident”.
34Aviva stated that the reasonableness and necessity of this treatment plan was contemplated by the assessor of the In-Home Assessment. I was unable to confirm this as it appears that its purpose was to address Mr. De Sousa’s ongoing entitlement for NEB, specifically to determine whether he suffers a complete inability to carry on a normal life. This OCF-18 was considered as part of the documentation reviewed by the assessor, however, it does not appear that an actual opinion on this OCF-18 was provided.
35Based on the evidence before me, I am not persuaded that this treatment plan is reasonable and necessary. The In-Home Assessment conducted by Himardri Kaul concluded that the applicant’s daily routine and functional abilities appear to be the same as pre-accident and therefore I find that this treatment plan is not reasonable and necessary. Mr. De Sousa did not present additional evidence, other than this OCF-18 that this this treatment plan is reasonable and necessary.
Mr. De Sousa’s entitlement to a trauma assessment
36I find on the evidence that Mr. De Sousa’s is entitled to the treatment plan for a trauma assessment as it is reasonable and necessary.
37Mr. De Sousa was assessed by psychologist Dr. Parkinson resulting in an OCF-18 dated June 1, 2018 for a trauma specialist pre-screen assessment at a cost of $750.00. Dr. Parkinson opined in his report dated July 5, 2018 that Mr. De Sousa required the assessment in order to “obtain an applied behavioural analysis of his coping behaviours, as well as more data on cognitive factors that could be contributing to limited rehabilitation, and to obtain a psychosocial analysis”. Dr. Parkinson noted the following diagnoses: post-traumatic stress disorder (PTSD), chronic and major depressive disorder and possible somatoform disorder. Dr. Parkinson recommended a full neuropsychology assessment and a full rehabilitation psychology assessment.
38The OCF-18 noted that Mr. De Sousa completed only five years of education in the Azores and that he does not likely have the verbal abilities to complete tests of adjustment and judge severity against normative values.
39Mr. De Sousa underwent an IE Neuropsychological Assessment with clinical neuropsychologist Dr. Watson and the report was dated September 21, 2018. A Portuguese translator was present during the assessment. Dr. Watson noted concerns with the validity of Mr. De Sousa’s test results and concluded that it was not possible to confirm a diagnosis with a reasonable degree of neurocognitive/psychological probability due to the validity concerns.
40I have selected portions of Dr. Watson’s report that I found helpful:
Mr. De Sousa reported that he attended grade four. He does not know all the details of the accident. He reported that before the accident, he did not have any issues in terms of his ability to attend his activities of normal living, recreational tasks or relationships. He denied a pre-accident psychological history. He also stated that he has been diagnosed with soft tissue injuries, PTSD and pain. He has been told that he is disabled. Mr. De Sousa expressed the belief that he is currently impaired and disabled.
Mr. De Sousa stated that he is depressed and went on to express that he feels frustrated, overwhelmed, adding that he cries. He reported that he has a rapidly changing mood, and noted that he no longer enjoys life to the same degree that he did prior to the accident, nor does he obtain as much pleasure from the things that used to give him pleasure. He related that he experiences feelings of hopelessness, helplessness, and worthlessness, adding that he feels guilty and dependent. He denied having thoughts of self-harm.
He described that he experiences both flashbacks and nightmares, has a heightened startle response, and is more vigilant. In terms of vehicular travel, Mr. he stated that his ability to be a driver is affected by his pain, adding that he is not nervous when being a driver, but is nervous when traveling as a passenger.
Mr. De Sousa stated that he is troubled by concentration and memory issues and noted concerns with his short-term memory. When asked about his episodic memory, he advised that hints, reminders and repetition do not help. He noted that he has problems with his working and visual memory as he will frequently forget the whereabouts of objects around his home and will frequently walk into a room and forget why. He stated that he does not use notes as aids to his memory, adding that he cannot write. He went on to express that he finds it hard to remember events from the distant past. Mr. De Sousa indicated that he is okay to remember his medication, and upon inquiry into any safety issues due to his memory, he disclosed that he does not cook. In the matter of linguistic functioning, Mr. De Sousa stated that at times, he is easily lost during conversations, that he has tip of the tongue problems, adding that he substitutes words. He also shared that he has a harder time filtering. He went on to report that he repeats himself and asks others to repeat what they have said. Mr. De Sousa related that he has a harder time focusing and sustaining attention, adding that he is more distractible. Mr. De Sousa indicated that he has a harder time watching something without losing track and when asked about his ability to read, he shared that he was a poor reader before and now he cannot read. Mr. De Sousa indicated that he has reduced his use of electronic devices/screens.
Mr. De Sousa noted that his executive functioning has been adversely affected. He advised that his ability to multi-task, plan, organize, make decisions and problem solve have all been impacted, and described his ability to make decisions as currently being poor.
41After undergoing a variety of psychometric testing, Dr. Watson concluded that Mr. De Sousa’s results on measures of test engagement rated below anticipated levels. Dr. Watson noted that he was unable to rely on any scores falling in the impaired range, and that he was unable to rule out the impact of poor engagement, symptom exaggeration/amplification, feigning, or dissimulation.
42Dr. Watson explained that there are a number of reasons why someone may not provide reliable or credible answers such as: 1) the person does not understand English or the person is illiterate or does not have the reading level/comprehension level to be able to understand the questions; 2) The person cannot cognitively handle the tests; 3) due to the amount of pain, depression, anxiety and post-traumatic stress someone is currently experiencing; 4) “cry for help”; and 5) malingering/feigning.
43Dr. Watson opined that based on the answers provided by Mr. De Sousa on the administered measures, his responses must be regarded as a noncredible source of confirmatory information with respect to his current state, as his response set prevents a diagnosis from being substantiated, noting validity issues across multiple validity measures. Therefore, his results on the validity measures do not meet objective standards in this assessment. Dr. Watson opined that the failure to meet objective standards of validity cannot be adequately explained on the basis of brain injury, chronic pain or mood disorder.
44Dr. Watson concluded that due to the noted validity issues, a diagnosable neurocognitive/psychological accident related condition requiring neurocognitive/psychological treatment could not be said to be present with a reasonable degree of neurocognitive/psychological probability. As a result, Dr. Watson concluded that maximum medical improvement is assumed and the OCF-18s in dispute cannot be said to be reasonable and necessary.
45Aviva submits that Mr. De Sousa has failed to establish that this assessment is reasonable and necessary to address issues arising from the accident when his pre-accident psychological history was significant. Aviva further submits that Mr. De Sousa’s credibility with respect to psychological conditions is in question given his failure to disclose his significant pre-accident psychological problems to either his own assessors or to the Respondent’s.
46In response to Dr. Watson’s IE report, Dr. Parkinson, as well as clinical neuropsychologist Dr. William Fulton, general and forensic psychiatrist Dr. Catherine Krasnik and Physician Dr. Suneel Upadhye authored a responding report dated November 21, 2019 to address Dr. Watson’s conclusions. The report concluded that Mr. De Sousa does not have the English reading ability, nor the academic achievement that would allow the clinician to interpret the adjustment tests that Dr. Watson used. They opined that the validity checks imbedded in those scales cannot be used to discount Mr. De Sousa’s impairments or conclude that he is insufficiently motivated. It was noted that Dr. Watson did not perform a reading test on Mr. De Sousa but Mr. De Sousa’s English reading ability was tested by Dr. Parkinson’s team. On the Wide Range Achievement Test - 4, his English word reading was found to be at the 2nd month of Grade 2 and below the 1st percentile for age. His sentence comprehension is at a grade 1 level and below the 1st percentile for age. Spelling in English was at a kindergarten level. They state that these findings confirm that his command of English is insufficient for English language tests. They do not confirm that use of a translator removes the barrier. They cautioned that the use of a translator can help with assessments, but the limits of that assistance must be kept in mind. They suggested that although Dr. Watson had a translator, he did not have a strategy to cope with the academic achievement problem.
47Dr. Parkinson concludes that the data obtained by his group, and by Dr. Watson, provide evidence for cognitive impairments that are not accounted for by language or academic achievement and not accounted for by effort. Dr. Parkinson opined that the findings of both examinations are suggestive of injuries in the motor vehicle accident. Treatment has continued to be sought by Mr. De Sousa and treatment is warranted.
48In his reply submissions, Mr. De Sousa further submits that Dr. Watson’s lack of knowledge of his pre-accident psychological history does not indicate an intentional omission or misleading behaviour. But rather that he is suffering significant impairments and can struggle at times to be the best historian of his own treatment and history. He clarified that this is part of the nature of his particular impairments, and it does not mean that his current state is entirely pre-existing or that his pre-accident issues are a substantial part of his current issues. Mr. De Sousa submits that his psychological problems are related to the subject accident and that the extremely violent nature of this accident should make it self-evident that he experienced trauma. He submits that his prior psychological history does not preclude him from the need for services related to later traumatic events.
49None of the assessors appear to have reviewed Mr. De Sousa’s WSIB or Canadian Pension Plan records; however, they referenced some of Mr. De Sousa’s family doctor’s records. Mr. De Sousa did not present any of his family physician’s clinical notes and records in his submissions. Throughout the documentary evidence, there are several references to Mr. De Sousa’s family physician, Dr. Michael Pray.
50Dr. Watson noted in his IE report that a letter authored by Dr. Pray dated January 8, 2018 indicating that “as a result of the accident of July 16, 2017, [Mr. De Sousa] has experienced significant PTSD with nightmares and anxiety when recalling the accident details. He needs continued treatment of his physical injuries in the form of physiotherapy and also psychological assessment and treatment to help his PTSD. He continues to be totally disabled due to physical and psychological impairments.”
51Dr. Parkinson noted in the rebuttal report that, “We have a family physician who knows Mr. De Sousa's health status before and after the accident, and who sees significant changes leading him to state that there is a post-traumatic stress. disorder. Dr. Pray's referral letter reads, "Mr. Faria De Sousa suffered extensive soft tissue injuries in a rather dramatic MVA”.”
52Asam Malik noted in the occupational therapy plan report that, “Following the accident, Mr. De Sousa has been followed by his family physician, Dr. Michael Pray. As a result of the MVA, Dr. Pray has diagnosed Mr. De Sousa with significant phobias, avoidance, nightmares, and anxiety, in addition to physical injuries. A referral for psychology/psychotherapy was recommended. He also reported attending Active Body for physiotherapy treatment twice a week.”
53In determining whether an assessment is reasonable and necessary, it is important to note that the assessments are generally exploratory by nature. The purpose of an assessment is to determine whether or not a condition exists. Despite assessments being exploratory by nature, the applicant still bears the onus of establishing on a balance of probabilities, that an assessment is reasonable and necessary. In order to discharge this onus, the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition for which he seeks the assessment.
54Based on the medical evidence before me, I find that Mr. De Sousa has satisfied that onus. I am persuaded by Mr. De Sousa’s evidence that on a balance of probability, the treatment plan for a trauma assessment is reasonable and necessary. At the time of the accident, Mr. De Sousa was suffering from Major Depressive Disorder (severe) with suicidal ideation and was deemed disabled by WSIB and has since was deemed disabled as of as of November 2011 by the Social Security Tribunal. The WSIB records noted that there had been no significant response to treatment and his suicidal ideation was moderate with the risk of deterioration in the context of increased pain. Dr. Parkinson and his team recommended a trauma assessment to obtain an applied behavioural analysis of his coping behaviours, as well as more data on cognitive factors that could be contributing to limited rehabilitation, and to obtain a psychosocial analysis.
55I am not persuaded by Aviva’s evidence that a trauma assessment is not reasonable and necessary. I find Dr. Watson’s IE report to be problematic because he noted test validity concerns and indicated the test taker’s reading and comprehension levels are important factors, yet he did not satisfy himself that the Mr. De Sousa had the requisite levels to perform the tests. Dr. Parkinson and his team noted that Mr. De Sousa did not have appropriate level of education to complete some of the tests administered. For example, they noted that the Minnesota Multiphasic Personality Inventory requires a grade 8 reading level or higher and the Structured Inventory of Malingered Symptomatology requires a grade 5 reading level or higher. I find that Mr. De Sousa’s level of comprehension may be insufficient for English language tests as his reported level of education if grade 4.
56Finally, Mr. De Sousa’s family physician, Dr. Pray, noted that he experiences significant PTSD with nightmares and anxiety when recalling the accident details. Dr. Pray also noted that he needs a psychological assessment and treatment to help his PTSD. I agree with Mr. De Sousa that his prior psychological history does not preclude him from the need for services related to later traumatic events. The very fact that he was suffering from a Major Depressive Disorder (severe) with suicidal ideation at the time of the accident undoubtedly made him more vulnerable to additional or subsequent traumas. The subject accident has been described as “dramatic” and may very well have been traumatic for Mr. De Sousa. It is not unreasonable to conclude that a trauma assessment may be necessary in the circumstances. I find that Mr. De Sousa has presented objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment. Therefore, I find this OCF-18 to be reasonable and necessary.
Mr. De Sousa’s entitlement to an Award.
57Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. In this matter, Mr. De Sousa states that the Insurer unreasonably withheld the payment of the benefits in dispute by failing to properly consider the benefits in dispute.
58It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract a s. 10 award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
59I do not find that Aviva acted unreasonably towards Mr. De Sousa. It relied upon IE assessors’ reports and Aviva’s conduct does not warrant an award under s.10. Therefore Mr. De Sousa is not entitled to an award regarding the trauma assessment.
60Mr. De Sousa is not entitled to any other medical benefit in dispute and, therefore, the payment of those benefits was not unreasonably withheld or delayed.
61Therefore, I find that Mr. De Sousa is not entitled to an award under O. Reg. 664.
CONCLUSION
62For the reasons outlined above, I find that Mr. De Sousa has demonstrated that he is entitled to the $750.00 for a trauma assessment recommended by Dr. Parkinson. I do not find him entitled to the other benefits in dispute.
63Interest is payable for the treatment plan that was found to be reasonable and necessary pursuant to s. 51 of the Schedule.
Released: February 09, 2022
___________________________
Lyndra Griffith
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.