Citation: Farah v. Aviva General Insurance, 2023 ONLAT 20-015434/AABS

Licence Appeal Tribunal File Number: 20-015434/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:

Marian Farah

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Murray Tkatch, Counsel Frank Grande, Counsel

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: By Written Submissions

OVERVIEW

1Marian Farah (“the Applicant”) was involved in an automobile accident on October 2, 2018, and sought benefits from Aviva General Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).

2The Respondent characterized the Applicant’s injuries as a predominantly minor injury and subjected her to the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit on medial and rehabilitation benefits. The Respondent denied the Applicant entitlement to certain benefits due to the fact that the goods and services sought by the Applicant fell outside the MIG. The Applicant also applied for non-earner benefits (“NEBs”), but the Respondent determined that the Applicant had not provided enough information to support her claim and denied entitlement to NEBs as well. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute for this hearing are as follows:

(i) Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit on medial and rehabilitation benefits?

(ii) Is the Applicant entitled to NEBs, at the rate of $185.00 per week for the period from November 2, 2018 to October 2, 2020?

(iii) Is the Applicant entitled to medical benefits proposed by Q Medical as follows;

(a) $2,254.92 for an impairment assessment plan dated January 30, 2020;

(b) $2,500.13 for a neurological assessment plan dated February 4, 2020;

(c) $2,401.25 for a chronic pain assessment plan dated February 4, 2020; and

(d) $2,029.49 for an assessment of attendant care needs plan dated July 2, 2020?

(iv) Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant is entitled to NEBs for the period from January 18 to April 30, 2019, plus interest pursuant to section 51 of the Schedule.

5The Applicant has not demonstrated that she is entitled to NEBs for any period after April 30, 2019.

6The Applicant is entitled to the assessment of attendant care needs plan dated July 2, 2020, in the amount of $2,029.49, plus interest pursuant to section 51 of the Schedule.

7Otherwise, I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule and that the remaining treatment and assessment plans in dispute are not reasonable and necessary as a result of the subject accident.

8No award is payable because the Respondent never unreasonably withheld or delayed the payment of benefits.

BACKGROUND

9The Applicant was the passenger of a vehicle that was struck by another vehicle while making a left turn in an urban intersection. It appears that the Applicant was assessed by emergency medical services at the scene of the accident and transported to a nearby hospital, however, the complete records from that hospital visit are not before me. A CT scan of the Applicant’s head was conducted, and the corresponding report is included in the clinical notes and records, (“CNRs”), of Dr. N. Ingber, family physician. The imaging showed a cyst on the left side of the Applicant’s head but no acute issues.

10The Applicant met with Dr. Ingber on October 15, 2018 with complaints of leg bruising and pain, as well as chest and shoulder pain, worse at night. She was prescribed pain medication, advised to use heat and ice, engage in stretching, and return to the clinic if symptoms worsened. The Applicant’s next visit to the clinic occurred about three and a half months later, on February 5, 2019. There the Applicant complained of ongoing neck and shoulder pain attributed to the subject accident. The Applicant demonstrated no range of motion limitations during assessment, but was referred to a pain clinic, told to continue with medications, and call back in a week for information on the pain clinic referral.

11A referral was faxed to the Humber Chronic Pain clinic on February 6, 2019. CNRs from that facility are not before me.

12On April 25, 2019, the Applicant complained to Dr. Ingber of vertigo and chronic back pain, which was improved with injections. The accident is not mentioned in the clinical records for that day and no changes were made to the Applicant’s treatment from her accident-related injuries reported in the earlier visits.

13On May 12, 2019, the Applicant went to her family physician and complained of chest pain since the accident. According to records, the pain occurs when the Applicant is leaning over, walking, or cleaning, and it improves by laying down or drinking water. The Applicant also complained of an increased heartrate. She was given topical treatment and stretching advice, referred for a stress test for her heart, and told to return to the clinic if symptoms worsened. The stress test was conducted on June 23, 2019 and produced unremarkable results.

14Her next visit to her family physician occurred on December 16, 2019. No accident-related complaints were noted. Another visit occurred on March 4, 2021, but no mention of the accident or accident-related complaints were made.

15The Applicant spoke with her family physician over the telephone on June 22, 2021 and complained of ongoing body pain during the night which she related to the accident. She advised that her pain starts in her low back and spreads up and down it, with occasional numbness all over her body. She also complained that it is hard for her to do things like laundry or cleaning because her back pain flares up during those activities and she has difficulty walking when her pain flares up. It was noted that the Applicant stopped her therapy prior to this visit due to the covid-19 pandemic. The physician diagnosed the Applicant with ongoing chronic pain post-accident and advised her to restart physiotherapy and gave her a prescription for pain medication. She was also given exercises to do at home and referred to the pain clinic again.

ANALYSIS

Non-Earner Benefit

16I find that the Applicant is entitled to NEBs for the period from January 18, 2019 to April 30, 2020.

17Specific to this dispute, pursuant to section 36(2) of the Schedule, an Applicant who seeks NEBs shall submit a completed disability certificate with their application. Pursuant to section 36(3), the Applicant is not entitled to NEBs for any period before the completed disability certificate is submitted.

18Section 36(4) of the Schedule provides that the Respondent shall, within 10 business days of receipt of the completed disability certificate, pay NEBs, give the Applicant a notice explaining the medical and any other reasons why it does not believe the Applicant is entitled to NEBs and advise of the requirement of an insurer’s examination (“IE”), if it requires one, or request additional information pursuant to section 33 of the Schedule.

19Pursuant to section 36(6) of the Schedule, if the Respondent fails to comply with section 36(4), it is liable to pay NEBs for the period starting on the day it received the application and completed disability certificate and ending on the day the Respondent gives a compliant notice.

20The Applicant submits that she is entitled to NEBs until April 30, 2019 because that is when the Respondent provided a compliant denial of the benefit. She submits that, following the submission of her disability certificate, the Respondent never requested additional information pursuant to section 33 of the Schedule, thus entitling her to payment of the benefit until it was properly denied by way of the explanation of benefits letter dated April 30, 2019.

21The Respondent submits that its IE notice is compliant with section 44(5)(a) of the Schedule and that the Applicant has failed to meet her evidentiary burden to demonstrate that she is entitled to NEBs.

22Section 36(4) reads as follows:

(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33 (1) or (2). O. Reg. 34/10, s. 36 (4).

23A plain reading of the section, particularly the use of the word “or” following section 36(4)(b), leads me to conclude that the Respondent has a choice of two options following receipt of a completed disability certificate: 1) employ section 36(4)(a) and pay the benefit and, if needed, employ section 36(4)(b) and request an IE pursuant to section 44 of the Schedule; or, 2) employ section 36(4)(c) and not pay the benefit and request additional information pursuant to section 33 of the Schedule. I infer from the Applicant’s submissions highlighting the Respondent’s failure to request additional information pursuant to section 33 of the Schedule, that she shares my interpretation of section 36(4)(b).

24I find that the Respondent’s letter dated November 6, 2018 does not constitute a request for information pursuant to section 33 of the Schedule. The letter was sent in response to the Applicant’s application for accident benefits. The letter states the following regarding NEBs:

“I require more information from you to help me determine if you are eligible for this benefit. I require the following:

• consent forms for you to complete and sign. These forms will allow me to obtain the following information: three years pre-accident clinical notes and records from your family doctor and post-accident hospital records including ambulance report.

• A completed Disability Certificate (OCF-3) by your treating practitioner

You will be contacted or receive the information from me shortly to arrange the next steps.”

25The November 6, 2018 letter does not include reference to section 33 of the Schedule, nor does it include any consequences for the Applicant if she failed to comply. In addition, section 36(2) of the Schedule includes no obligation for the Applicant to provide consent forms in order to initiate her claim for NEBs.

26The Applicant submitted a disability certificate on January 18, 2019, indicating that she qualified for NEBs. The Respondent replied on January 31, 2019.

27The January 31, 2019 letter from the Respondent is not compliant with section 44(5)(a) of the Schedule because it failed to provide sufficient medical and other reasons for the examination. Caselaw has provided that the Respondent’s medical and other reasons must be sufficient enough for an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. The medical reason provided in the January 31, 2019 letter is: “The disability period appears to be inconsistent with the diagnosis or mechanism of the injury.” This reason provides insufficient information to permit the Applicant to make an informed decision to accept or dispute the decision.

28Nevertheless, the Applicant attended the IEs and the corresponding reports were issued and delivered to her on April 30, 2019. The letter directs the reader to the IE reports and states that the “assessors concluded you do not suffer a complete inability to carry on a normal life.” While best practices provides that the reasons in the report be reiterated in the cover letter, I find that the Respondent has satisfied its obligations by directing the Applicant to two medical reports which clearly address her entitlement to NEBs.

29Section 36(3) of the Schedule provides that the Applicant is not entitled to NEBs for any period prior to when the completed disability certificate is submitted.

30Therefore, the Applicant is entitled to NEBs for the period from January 18, 2019, when the disability certificate was submitted, until April 30, 2019, when a proper denial was provided.

31As I understand, the Applicant has received no payments for NEBs to-date. If this is true, it follows that interest is payable on the unpaid NEBs as they related to the period from January 18 to April 30, 2019, pursuant to section 51 of the Schedule.

The Period After April 30, 2019

32I find that the Applicant has not met her burden to demonstrate that she suffers a complete inability to carry on a normal life for the period from May 1, 2019 onward. As a result, I find that she is not entitled to NEBs for that period.

33Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

34The Applicant submits that she meets the test for NEBs. She directs me to the Activities of Daily Living report by occupational therapist J. Duong, dated October 17, 2020 and submits that the conclusions in the report are based on her activities as a whole. She submits that the report confirms that she is unable to consistently engage in her activities of housekeeping, meal preparation, self-care, caregiving, leisure, and social activities. She highlights that she has persistent pain in the neck, back, shoulders, left shin, and ongoing headaches and dizziness.

35I find that the Applicant’s evidence does not sufficiently demonstrate that her accident-related injuries continuously prevent her from substantially engaging in all the activities she engaged in before the accident. The disability certificate completed by Dr. R. Hook, chiropractor, dated December 13, 2018 (but submitted January 18, 2019) notes that the Applicant suffers from headaches, low back pain, sprain and strain of her shoulder joint, whiplash associated disorder with complaint of neck pain with neurological signs, cervicalgia, and sprain and strain of the thoracic spine. Dr. Hook endorsed that the Applicant suffers from a complete inability to carry on a normal life, has a substantial inability to engage in her pre-accident caregiving duties, and has a substantial inability to perform her housekeeping and home maintenance duties. The anticipated duration of disability is 9-12 weeks from December 13, 2018, or until around March 7, 2019. Therefore, the disability certificate pre-dates the period of claim by nearly two months and holds no weight when contemplating whether the Applicant suffers a complete inability to carry on a normal life.

36The Activities of Daily Living report by occupational therapist Duong, dated October 17, 2020 does not demonstrate that the Applicant suffers from a complete inability to carry on a normal life. The assessor noted that the Applicant is able to complete most aspects of her self-care tasks with pacing and/or modified techniques. Toenail care appears to be the only consistent self-care issue for the Applicant however, her teenaged sons assist her with this task. The assessor noted that the Applicant has returned to housekeeping tasks such as light cooking and cleaning. On examination, the Applicant’s range of motion (“ROM”) throughout her body was generally within functional limits. The exception being that her lumbar spine ranges were all mildly restricted to about ¾ of normal ROM. I reiterate that the test for NEBs is a complete inability to carry on a normal life, not a failure to engage in activities at the same level as prior to the accident, as suggested in occupational therapist Duong’s report.

37The Applicant’s deficits, as noted in the Activities of Daily Living Report, do not constitute a complete inability to carry on a normal life. The deficits noted are an inability to complete complex meals that require great preparation and prolonged standing, and an inability to perform “deep cleaning” chores such as vacuuming, mopping, and garbage removal. The Applicant reported that her sons and other family and friends assist her with these tasks. The Applicant continues to walk her sons to school and assists them with homework, albeit at a less frequent rate than prior to the accident. As noted earlier, the Applicant must demonstrate that she is unable to substantially engage in her pre-accident activities. Here, she reports difficulties with the complex aspects of her activities only. The Applicant also reported a reduction in her leisure activities, but notes this is also related to the onset of the covid-19 pandemic. The changes that the Applicant has experienced following the accident do not constitute a complete inability to carry on a normal life.

38I prefer the IE reports, which concluded that the Applicant does not suffer from a complete inability to carry on a normal life.

39The IE report by Dr. M. Martin, orthopaedic surgeon, dated April 4, 2019, concluded that the Applicant does not suffer a complete inability to carry on a normal life. The report highlights that the Applicant manages her own personal care and light household activities. She goes for walks and is able to grocery shop and attend religious services. On examination, Dr. Martin observed pain complaints during ROM testing, but noted inconsistencies in the Applicant’s ROM during informal testing. Dr. Martin found no clinical indication to impose any specific restrictions on the Applicant.

40The IE report by R. Findlay, occupational therapist, dated April 4, 2019, concluded that the Applicant does not suffer a complete inability to carry on a normal life. Occupational therapist Findlay examined the Applicant and noted that she exhibited decreased ROM in her neck on formal testing, but demonstrated better range during informal testing. The assessor reported that the Applicant manages her own personal care, is capable of light household activities, and is mobile in the community. Occupational therapist Findlay suspected that any limitations experienced by the Applicant relate to pain and not any specific accident-related musculoskeletal impairment.

41The IE report by Dr. M. Fung, general physician, dated December 14, 2020, does not support a finding that the Applicant suffers from a complete inability to carry on a normal life. Dr. Fung assessed the Applicant and found no neurological issues but self-limited ROM in the neck. Dr. Fung concluded that there were no objective clinical findings to support any substantive accident-related musculoskeletal, neurologic, or osseous impairments. Dr. Fung concluded that the Applicant sustained a minor injury

42The IE report by Dr. V. John, neurologist, dated December 14, 2020, found that that Applicant sustained uncomplicated soft-tissue injuries. Dr. John assessed the Applicant, noted her reports of headaches, neck and back pain, and an inability to complete her heavy household chores. However, Dr. John found no evidence of neuropathy, radiculopathy, myelopathy, or a concussion. Like Dr. Fung, Dr. John concluded that the Applicant sustained uncomplicated soft tissue injuries.

43Considering the Applicant’s functionality, exhibited in the objective assessments and her self-reports to assessors, I find that the Applicant has not demonstrated that she suffers a complete inability to carry on a normal life as a result of the accident.

Minor Injury Guideline (“MIG”)

44The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

45The Applicant submits that her injuries are not a minor injury because her chiropractor, Dr. D. Payan, indicated in the disputed treatment plans that her injuries are not a minor injury. She further submits that the recommendations by Dr. Payan and occupational therapist Duong for additional assessments indicate that her injuries are not a minor injury. The Respondent submits that the Applicant has not put forth any evidence that her injuries are not predominantly a minor injury. I agree with the Respondent.

46The evidence demonstrates that the Applicant sustained a minor injury as a result of the accident. The Applicant’s primary complaints are back and shoulder pain, which are sequalae of predominantly sprain and strain injuries that fall squarely within the minor injury definition, as supported by the reports of Dr. Fung and Dr. John. Seeking funding for additional assessments outside of the MIG does not upset the fact that the Applicant sustained a minor injury.

47However, the Respondent may not rely on the MIG as a means to deny benefits if the Applicant can demonstrate that the Respondent failed to comply with the notice provisions in the Schedule.

The Respondent failed to comply with section 38 of the Schedule

48Section 38(8) of the Schedule provides that the Respondent must reply to a treatment and assessment plan within 10-busines days of receipt of that plan and provide all the medical and other reasons why it refuses to pay the benefit. Section 38(9) of the Schedule provides that the Respondent must also advise the Applicant if it believes that the MIG applies.

49Pursuant to section 38(11)1 of the Schedule, the Respondents failure to comply with section 38(8) and 38(9), preclude it from taking the position that the Applicant sustained an impairment to which the MIG applies, and it must pay for all goods and services incurred during the period starting on the 10th business day and ending on the day a compliant notice is provided.

50The Applicant submitted three treatment and assessment plans within a few days, all for goods and services proffered outside of the MIG. On January 30, 2020 she submitted a plan for an impairment assessment and on February 4, 2020, she submitted plans for neurological and chronic pain assessments.

51The Respondent replied on February 11, 2020 to deny funding for the treatment and assessment plans and advise that it will schedule IEs. The medical and other reasons provided in the letter are: “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.” The letter then goes on to advise the Applicant that IEs will be scheduled to determine whether the plans are reasonable and necessary.

52The Applicant later submitted a treatment and assessment plan dated July 2, 2020, seeking funding for an in-home assessment and completion of a Form 1. The Respondent replied on July 13, 2020, and provided the same medical reason as noted in the February 11, 2020 letter.

53The Applicant submits that the Respondent failed to comply with the notice requirements in section 38 of the Schedule and is precluded from using the MIG or the associated funding limit to deny treatment and assessment plans. She further states that the Respondent’s IE notices are not compliant with section 44 of the Schedule, which she submits further disentitles it from denying benefits based on the MIG.

54The Respondent contends that the Applicant sustained a minor injury and that she has failed to provide any compelling evidence that she suffers from a pre-accident impairment that would preclude her recovery if subject to the MIG and the $3,500.00 funding limit on treatment. It submits that it complied with the timelines outlined in section 38 of the Schedule and that, in the event that it was not compliant with section 38, the Respondent submits that the Applicant has failed to meet her onus to demonstrate that the benefits are reasonable and necessary or incurred.

55I agree with the Applicant and find that the Respondent failed to comply with the notice provisions in section 38(9) of the Schedule because it never advised the Applicant that it believes she sustained a minor injury for which the MIG applies.

56The February 11, 2019 letter does not advise the Applicant that the Respondent believes she sustained a minor injury to which the MIG applies. Instead, the letter discusses whether a health practitioner has provided compelling evidence of a non-minor injury. This is unsatisfactory.

57The Respondent’s failure to comply with section 38(9) of the Schedule activates the consequences outlined in section 38(11) whereby the Applicant is entitled to the goods and services incurred starting on the 11th business day following receipt of the treatment and assessment plan and ending on the day the Respondent gives a compliant notice. However, there is no evidence before me to demonstrate that the Respondent provided a compliant notice thereafter.

58The Respondent wrote to the Applicant again on February 24, 2020 and advised that it received the three treatment plans but would not be able to pay for them because it concluded that the Applicant’s injuries are treatable within the MIG. This response is insufficient because it employs the MIG as a means to deny the Applicant’s entitlement to the treatment and assessment plans. As noted earlier, the Respondent’s failure to advise the Applicant that it believes that the MIG applies is consequential and activates section 38(11), which prohibits the use of the MIG as a means to deny benefits.

59To-date, I am unable to find a letter from the Respondent that provides a valid denial of the medical and rehabilitation benefits claimed. Therefore, any goods and services proposed in the disputed treatment and assessment plans that are incurred to-date, are payable by the Respondent.

60I find that the July 13, 2019 treatment and assessment plan proposing an in-home and attendant care assessment was incurred during the period of non-compliance and is payable, once properly invoiced. I am able to confirm that the Applicant incurred this assessment during the period of non-compliance because it was conducted on October 2, 2020 and issued October 17, 2020.

Reasonable and Necessary

61Having found that the Respondent failed to comply with section 38 of the Schedule, but the Applicant never incurred goods and services, I must now assess whether the remaining treatment and assessment plans are reasonable and necessary. The onus is on the Applicant to demonstrate that there is a likelihood that she suffers from the ailment that the proposed assessments seek to examine.

62The Applicant claims entitlement to the impairment assessment, chronic pain assessment, and neurology assessment because, according to her, her injuries are not a minor injury and because the assessments are recommended by Dr. Payan and occupational therapist Duong in the activities of daily living report, dated October 17, 2020.

63I find that the Applicant has failed to meet her onus to demonstrate that the remaining treatment and assessment plans are reasonable and necessary as a result of the accident.

64The Applicant provided insufficient evidence to support her claims. The Activities of Daily Living report by occupational therapist Duong is the only medical evidence provided by the Applicant and it does not address why an impairment assessment, chronic pain assessment, or a neurology assessment is reasonable and necessary as a result of the subject accident. Instead, it discusses the Applicant’s need for attendant care services, without any corroborating evidence to support the findings. Likewise, none of Dr. Payan’s CNRs were provided for this hearing. As a result, I am unable to determine the basis for recommending the three assessments.

65On the other hand, the IE reports discussed above found that the Applicant is independent with her activities of daily living, able to complete her light housekeeping tasks, able to help her sons with homework, and participate in the community. The IEs found that the Applicant sustained uncomplicated soft tissue injuries with no neurological issues.

66I find the IE reports more persuasive than the recommendations of Dr. Payan, and occupational therapist Duong and conclude that the activities of daily living, neurology, and chronic pain assessments are not reasonable and necessary as a result of the subject accident.

AWARD

67The Applicant may be entitled to an award if she can demonstrate that the Respondent unreasonably withheld or delayed the payment of benefits. Unreasonable behaviour can bee seen as behaviour that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

68I find that the Respondent failed to comply with the response provisions in section 38 of the Schedule however, such behaviour does not rise to the level to warrant an award.

69The Respondent is not held to a standard of perfection. Here, it complied with the time provisions in section 38 of the Schedule but provided medical and other reasons that fell short of what was required. I have no reason to believe that the Respondent’s failure to clearly refer to the MIG was intentionally done to mislead the Applicant, rather than just a mistake by the adjuster. There is no evidence before me that indicates the Applicant brought the issue to the Respondent’s attention for it to remedy. Thus, I see no behaviour to warrant an award.

CONCLUSION

70The Applicant is entitled to NEBs for the period from January 18 to April 30, 2019, plus interest pursuant to section 51 of the Schedule.

71The Applicant has not demonstrated that she is entitled to NEBs for any period after April 30, 2019.

72The Applicant is entitled to the assessment of attendant care needs plan dated July 2, 2020, in the amount of $2,029.49, plus interest pursuant to section 51 of the Schedule.

73Otherwise, I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule and that the remaining treatment and assessment plans in dispute are not reasonable and necessary as a result of the subject accident.

74No award is payable because the Respondent never unreasonably withheld or delayed the payment of benefits.