Ludmila Moravcikova v. Aviva Insurance Company of Canada, 2023 CanLII 40089

20-014589/AABS

Licence Appeal Tribunal File Number: 20-014589/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:

Ludmila Moravcikova

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Adrian P Lomaga, Counsel

For the Respondent:

Jonathan Wong, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Ludmila Moravcikova, the applicant, was involved in an automobile accident on May 22, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was a passenger in a car that was rear-ended as the driver slowed to enter a construction zone. She suffers from chronic pain and psychological disorders due to the accident.

3At issue is whether the applicant is entitled to a non-earner benefit (“NEB”), benefits for occupational therapy and physiotherapy, the costs of psychological, occupational therapy, and chronic pain assessments, interest, and an award under s. 10 of Regulation 664.

4The respondent initially took the position that the applicant sustained minor injuries within the meaning of s. 3 of the Schedule and was therefore limited to $3,500 in medical and rehabilitation benefits. On December 30, 2020, it agreed that the applicant had sustained a non-minor injury based on an independent assessment concluding that she suffered from psychological disorders. Under s. 18(3) of the Schedule, she is therefore entitled to up to $65,000 in medical and rehabilitation benefits.

ISSUES

5The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 1, 2020 to May 22, 2022?

2. Is the applicant entitled to the following medical benefits:

i. $2,521.67 for occupational therapy services, proposed by FunctionAbility in a treatment plan/OCF-18 (“plan”) dated November 18, 2020; and

ii. $4,205.00 for physiotherapy services, proposed by The Rehab Centre in a plan dated March 22, 2021?

3. Is the applicant entitled to the following costs of assessments:

i. $1,995.66 for an occupational therapy assessment, proposed by FunctionAbility in a plan dated June 25, 2020;

ii. $2,200.00 for a psychological assessment, proposed by Dr. R. Harris in a plan dated September 23, 2020; and

iii. $2,200.00 for a chronic pain assessment, proposed by East York Physio in a plan dated September 29, 2021?

4. Is the applicant entitled to an award under s. 10 of Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The applicant is not entitled to an NEB.

7The applicant is partly entitled to the benefits in dispute with interest.

8The applicant is not entitled to an award under s. 10 of Regulation 664.

9The applicant is not entitled to costs.

THE APPLICANT IS NOT ENTITLED A NON-EARNER BENEFIT

10Section 12(1)1 of the Schedule provides that the applicant is entitled to an NEB if, due to an impairment sustained as a result of the accident, she suffers a complete inability to carry on a normal life within 104 weeks after the accident and does not qualify for an income replacement benefit. Section 3(7) provides that the impairment must continuously prevent the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident. The Court of Appeal set out principles governing the application of the test in Heath v Economical Mutual Insurance Company, 2009 ONCA 391 at para 50. The principles relevant to this case are as follows:

-- Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant's activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

-- In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre- accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

-- It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted".

-- The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity.

-- In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

[Citations omitted]

11At the time of the accident, the applicant was a homemaker with children aged six and 11. Her pre-accident activities were centred around those responsibilities.

12The applicant relies on assessments conducted by Dr. R. Harris, a psychologist, Ms. E. Spencer, an occupational therapist, and Dr. P. Williams, a chronic pain physician. They documented the following changes in activities of daily living:

1. She is no longer able to cook traditional Slovakian food and bake fresh bread because repetitive actions such as stirring and kneading are painful. She is limited to heating up frozen food and preparing simple meals such as pre-made macaroni and cheese;

2. She has a reduced inability to lift or move heavy objects, which impairs her ability to perform errands and household tasks. For example, she needs someone to carry heavy items when she goes shopping and cannot move furniture when she vacuums. She has taught her children to tidy their own rooms, prepare their own breakfasts and lunches, and assist in household tasks such as carrying laundry;

3. She has difficulty doing her hair and reaching all areas of her back when showering due to pain and limited range of motion in her right upper extremity;

4. She used to go for long walks and enjoyed spending time outside, but now does so less often because sunshine can trigger intense headaches, walking aggravates her shoulder pain, and she feels anxiety about leaving her apartment;

5. She experiences driving anxiety. She estimated that she drives 80% less than before the accident and reported that she takes medication when she must drive; and

6. Due to symptoms of her mental illnesses such as moodiness and anger, she lost her romantic relationship and fights with her family. She has lost any interest in sex.

13The respondent relies on independent assessments conducted by Dr. J. Auguste, an orthopaedic surgeon, Dr. L. Koepfler, a psychologist, and Mr. R. Kassam, an occupational therapist. They identified changes in the applicant’s lifestyle similar to those documented by her assessors, but opined that she did not suffer from a complete inability to carry on a normal life.

14I find that the limitations identified by the applicant do not meet the test for an NEB. I accept that there are certain activities that her injuries prevent her from doing, and her capacity to perform others has been limited. I also accept that her inability to cook traditional Slovakian food and baking is entitled to additional weight because she particularly valued them as cultural and recreational activities. However, it cannot be said that her impairments prevent her from engaging in substantially all of her ordinary pre-accident activities. The evidence shows that she continues to engage in many of these activities despite the limitations imposed by her injuries. She shops for groceries although she needs help carrying heavy items. She cleans her apartment although she cannot move heavy furniture when she vacuums. She is independent in her self-care although she has difficulty with certain tasks such as doing her hair. She cooks simple meals although not the more elaborate dishes that she would like. She takes care of her children although she has delegated them responsibilities at an earlier age than she might have done otherwise. She goes for walks although she feels anxious, she avoids bright sunlight, and uses her purse to secure her shoulder. She drives although she avoids it where possible and takes medication for anxiety. She has maintained relationships with family and friends although she is more emotionally volatile and withdrawn. While these limitations are not trivial, they do not meet the stringent test for a complete inability to carry on a normal life.

THE APPLICANT IS PARTLY ENTITLED TO THE MEDICAL BENEFITS IN DISPUTE

15The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, including the costs of assessments prepared in connection with those benefits. The onus is on the applicant to prove that the proposed services are reasonable and necessary.

Occupational Therapy Assessment

16The applicant is entitled to the cost of Ms. Spencer’s occupational therapy assessment.

17The applicant requested $1,995.66 for an in-home occupational therapy assessment in a treatment plan dated June 25, 2020. In an Explanation of Benefits dated October 15, 2020, the respondent denied funding on the grounds that the applicant sustained minor injuries and advised that it would schedule independent assessments.

18The applicant proceeded to obtain the assessment from Ms. Spencer on November 10 and 16, 2020. The goals of the assessment were to determine the applicant’s attendant care needs, assess her function in performing activities of daily living, recommend occupational therapy services and equipment to enable her to return to such activities, and recommend any other services that may assist in her recovery.

19In an Explanation of Benefits dated December 30, 2020, the respondent maintained its decision to deny the occupational therapy assessment. It stated that an attendant care needs assessment was not reasonable and necessary because the independent assessors determined that the applicant had no limitations that required assistance for personal care. It did not comment directly on the occupational therapy component of the assessment. However, it denied the occupational therapy services proposed in the November 18, 2020 treatment because, in its view, Dr. Koepfler’s report confirmed that the applicant had no limitations that required assistance, and therefore no treatment was required to assist her in returning to her activities of daily living.

20The applicant argues that the assessment was reasonable and necessary given the limitations that her pain and psychological distress place on her ability to perform activities of daily living.

21The respondent submits that the independent assessments demonstrate an occupational therapy assessment was not reasonable and necessary. It argues that:

1. Dr. Auguste opined that there is no compelling clinical evidence of any accident-related impairments that would prevent her from performing her usual activities of daily living;

2. Dr. Koepfler opined that an assessment was not reasonable or necessary to the extent it was submitted for psychological or cognitive reasons; and

3. Mr. Kassam opined that the applicant demonstrated sufficient abilities to perform all daily living tasks associated with daily living activities and his assessment did not identify significant objective limitations that would identify her as being substantially unable to perform the essential tasks of her pre-accident day to day activities using activity modification, pacing, and energy conservation strategies.

22The respondent also submits that the treatment plan exceeds the maximum rate of $99.75 per hour for occupational therapy services under the Professional Services Guideline, Superintendent’s Guideline No. 03/14, and that personal protective equipment (“PPE”) is categorized as an operating expense under the Schedule and specifically excluded from reimbursement.

23I find that the occupational therapy assessment was reasonable and necessary.

24The most instructive evidence on this issue is the occupational therapists’ assessments. They made similar findings about the applicant’s functional limitations, but Mr. Kassam opined that she remains “substantially” able to perform her pre-accident activities of daily living. Even if that is true, it does not obviate the need for an occupational therapy assessment because the applicant had functional limitations worth investigating. Mr. Kassam documented that she reported being limited to making simple meals, light cleaning, and light grocery shopping, and that she went for fewer walks and used her purse to support and stabilize her right shoulder. He found that she was not fully independent in performing activities such as bathroom cleaning, bed making, sweeping, mopping, and vacuum cleaning, and that she needed help from her family. Furthermore, Mr. Kassam could only offer an opinion on the applicant’s substantive ability to perform activities of daily living after having conducted his assessment.

25Dr. Auguste’s assessment does not establish that an occupational therapy assessment was unreasonable and unnecessary. She opined that from her perspective as an orthopaedic surgeon, the applicant had no substantive musculoligamentous, osseous, or neurologic impairments due to the accident. This is a red herring. The applicant suffers from chronic pain due to soft tissue injuries, namely whiplash associated disorder and sprains and sprains of her neck and right shoulder. Dr. Auguste diagnosed her with those injuries, but did not regard them as substantive musculoligamentous, osseous, or neurologic impairments. What matters is not the formal categorization of the applicant’s injuries, but the fact that they impair her ability to perform activities of daily living.

26The applicant referred me to Pisani v McDaniel, 2022 ONSC 224, in which Dr. Auguste gave expert evidence for a tort claim. Dr. Auguste opined that the applicant’s injuries—including whiplash associated disorder and sprains and strains of the neck and shoulder—were not impairments from an orthopaedic perspective. On cross-examination, she conceded that her assessment was from an orthopaedic perspective only and that she was unaware of any chronic pain diagnosis. The Court found that her assessment provided little insight into the plaintiff’s complaints aside from excluding orthopaedic issues as their root. I find that the same is true of her assessment in this case.

27Dr. Koepfler’s assessment also does not establish that an occupational therapy assessment was unreasonable and unnecessary. Dr. Koepfler commented that an assessment would be duplicative of a psychological assessment—which she opined was reasonable and necessary—to the extent that it examined psychological or cognitive issues. Ms. Spencer’s assessment largely focused on physical limitations caused by pain and does not duplicate Dr. Harris’s or Dr. Koepfler’s assessments.

28The cost of the proposed services is calculated properly in accordance with the Professional Services Guideline. I assume that the respondent takes issue with the unit cost of $149.63 for item 2 of part 12 of the treatment plan. Because this unit is for 1.5 hours of services, the hourly cost is $99.75.

29I find that the cost of PPE was reasonable and necessary. This cost was $4.04 per day for a total of $8.08. Section 18(5) of the Schedule provides that the applicant is entitled to “all fees and expenses” for conducting assessments in connection with medical, rehabilitation, or, where applicable, attendant care benefits, subject to exceptions that do not apply here. The respondent did not direct me to a provision of the Schedule or any other authority for the proposition that PPE is not reimbursable. Ms. Spencer conducted an in-home assessment during the second wave of the COVID-19 pandemic. It is entirely appropriate that she would have PPE to prevent the spread of the disease and to protect herself, the applicant, and the applicant’s children.

Occupational Therapy Services

30The applicant is entitled to the proposed occupational therapy services.

31The applicant requested $2,521.67 for occupational therapy services in a treatment plan dated November 18, 2020. The treatment plan proposed six in-home sessions of occupational therapy and associated expenses for travel, completing forms and documentation, planning, and PPE. The goals of the therapy are to assist the applicant in establishing a routine of meaningful activities, provide education, equipment, and strategy suggestions to manage her symptoms, progress her return to pre-accident activities of daily living, and assist her with her mental health issues.

32In an Explanation of Benefits dated December 9, 2020, the respondent denied funding on the grounds that the applicant sustained minor injuries. The respondent maintained the denial an Explanation of Benefits dated December 30, 2020. It stated that because Dr. Koepfler’s report confirmed that the applicant had no limitations that required assistance, she did not require treatment to assist her in returning to her activities of daily living.

33The applicant submits that the six sessions of occupational therapy are reasonable and necessary because Ms. Spencer, the author of the treatment plan, recommended them in her assessment report.

34The respondent relies on the opinions of the independent assessors. It argues that Dr. Auguste opined that the applicant did not require any further facility-based treatment, Dr. Koepfler opined that the proposed treatment was not reasonable and necessary, and that the more active applicant is, the better off she will be, and Mr. Kassam opined that she had sufficient abilities to perform all her activities of daily living. The respondent also argues that PPE is not reimbursable.

35I find that the six sessions of occupational therapy are reasonable and necessary. As noted above, Ms. Spencer and Mr. Kassam both identified limitations on the applicant’s ability to perform activities of daily living. Assuming that she is substantially able to perform these activities, as Mr. Kassam opined, it does not follow that occupational therapy would serve no purpose. For example, Mr. Kassam concluded that the applicant would be fully independent in performing certain activities using activity modification, pacing, and energy conservation techniques. It stands to reason that occupational therapy would be useful to identify the appropriate techniques and teach them to the applicant. Occupational therapy could also reduce the applicant’s reliance on her family and help her resume activities such as cooking Slovakian food and baking.

36Dr. Auguste’s assessment does not establish that the proposed occupational therapy services are unreasonable and unnecessary. As noted above, her opinion is circumscribed by her expertise as an orthopaedic surgeon and does not account for functional limitations caused by the applicant’s chronic pain and psychological disorders. Her comment that the applicant did not require any further facility-based treatment does not apply to the proposed in-home occupational therapy services, which are not treatment for orthopaedic injuries.

37Dr. Koepfler’s assessment also does not establish that the proposed occupational therapy services are unreasonable and unnecessary. Contrary to the respondent’s submission, Dr. Koepfler was not asked to give an opinion on these services. Her comment that being active will benefit the applicant does not obviate the need for occupational therapy. To the contrary, it implies that the applicant would benefit from treatment to help her resume her pre-accident activities of daily living.

38As discussed above, I find that the cost of PPE is reasonable and necessary to protect the treatment provider and the applicant.

Psychological Assessment

39The applicant is entitled to the full cost of Dr. Harris’s psychological assessment less the amount already paid.

40The applicant requested $2,200.00 for the assessment in a treatment plan dated September 23, 2020. In an Explanation of Benefits dated September 24, 2020, the respondent denied funding on the grounds that the applicant sustained minor injuries and advised that it would commission an independent assessment. The applicant proceeded to obtain the assessment from Dr. Harris on November 25, 2020.

41Dr. Koepflur conducted the independent assessment in December 2020. She diagnosed the applicant with two psychological disorders set out in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (“DSM-V”): somatic symptom disorder with predominant pain, and adjustment disorder with mixed anxiety and depressed mood. She opined that Dr. Harris’s psychological assessment was reasonable and necessary, but that it need not have taken more than eight hours given the extent of the testing he conducted and the fact that he did not conduct a file documentation review. She noted that because a flat fee was proposed in the treatment plan, she could not give an opinion on the specific components of the assessment.

42In an Explanation of Benefits dated December 30, 2020, the respondent advised that it would pay $1,396.88 for the assessment, including 8 hours of services at the $149.61 maximum rate for psychologists in the Professional Services Guideline and $200 for completion of the treatment plan.

43On May 25, 2021, the applicant provided a breakdown of Dr. Harris’s assessment, including three hours for a clinical interview, two hours for testing, 3.5 hours for test scoring and interpretation, four hours for report writing, and one hour for a feedback interview with the applicant. The total cost of the assessment was $2,219.74.

44At issue is whether the unapproved amount of the treatment plan is reasonable and necessary. The applicant argues that this is apparent from the breakdown of Dr. Harris’s services, and that Dr. Koepfler’s opinion should not be accepted because she was not asked to review this breakdown. The respondent relies on Dr. Koepfler’s comments in her report. It argues that Dr. Harris’s breakdown is inadmissible because it was not served before the October 29, 2021 production deadline. In reply, the applicant advised that she provided the breakdown to the respondent in an email dated May 25, 2021 and attached a copy of the email to her submissions. I find that the applicant provided the breakdown before the production deadline and admit it into evidence.

45I find that the full cost of the psychological assessment is reasonable and necessary. Dr. Harris did not charge for reviewing documentation. Given that he administered five diagnostic tests, it was appropriate that he took two hours (24 minutes per test) to administer the tests, and 3.5 hours (42 minutes per test) to score and interpret the results. The other items of the assessment and the time taken to complete them are also appropriate.

46I find that the applicant is entitled to $2,219.74 for the cost of the assessment less the $1,396.88 paid, for a total of $822.86.

Chronic Pain Assessment

47The applicant is entitled to the cost of Dr. Williams’s chronic pain assessment.

48The applicant requested $2,200.00 for the assessment in a treatment plan dated September 29, 2021. In an Explanation of Benefits dated November 26, 2021, the respondent denied funding based on Dr. Auguste’s opinion that the applicant had no musculoligamentous, osseous, or neurological impairments. The applicant proceeded to obtain the assessment from Dr. Williams, whose report is dated November 28, 2021.

49The applicant argues that Dr. Koepfler’s assessment demonstrates that a chronic pain assessment was reasonable and necessary. Dr. Koepfler concluded that the applicant suffers from chronic pain and somatic symptom disorder with predominant pain, which Dr. Harris defined as unrealistic preoccupation with pain symptoms and a decrease in activity to avoid pain.

50The respondent relies on Dr. Auguste’s assessment. It notes that the applicant suffered from back and shoulder pain before the accident. It argues further that the applicant had only minimal complaints after the expected healing timeline for soft tissue injuries because there is only one mention of such complaints in her medical records after October 2020.

51I find that the chronic pain assessment is reasonable and necessary for the following reasons:

1. As the applicant suffers from chronic pain and somatic symptom disorder with predominant pain, a chronic pain assessment to investigate those conditions and recommend treatment was reasonable and necessary;

2. I agree that it is evident from Dr. Koepfler’s assessment alone that the applicant suffers from chronic pain, although I should note that I found Dr. Williams’s report to be thorough and persuasive. The respondent does not explain why Dr. Koepfler’s findings should not be accepted, and relies on her opinion on other issues;

3. Again, Dr. Auguste’s finding that the applicant had no musculoligamentous, osseous, or neurological impairments is beside the point given that other injuries are the cause of her chronic pain;

4. Although the applicant did have pre-existing pain to some extent, she suffers from much more intense pain due to the accident. This pain clearly had not resolved by October 2020. Dr. Koepfler concluded in December 2020 that the applicant suffered from chronic pain due to the accident, which she defined as pain that continues beyond the normal healing period;

5. The medical records referenced by the respondent are presumably the clinical notes of Mr. P. Lo, the applicant’s psychotherapist, which run from June 18 to October 1, 2021. (As noted above, the deadline for productions was October 29, 2021). Mr. Lo documented that the applicant continued to experience considerable pain; and

6. The absence of additional medical records does not imply that the applicant’s injuries must have healed. This inference would be inconsistent with Mr. Lo’s clinical notes and both parties’ assessments.

Physiotherapy

52The applicant is partly entitled to the proposed physiotherapy services.

53The applicant requested $4,205.00 for physiotherapy in a treatment plan dated March 22, 2021. The proposed services include 20 sessions of physical rehabilitation, 10 sessions of acupuncture, and five sessions of shockwave therapy. The treatment plan also proposes goods including a personal massager, cervical pillow, pain relief ointment, and an SI belt.

54In an Explanation of Benefits dated April 1, 2021, the respondent denied funding on the grounds that the applicant had pre-existing chronic pain and that Dr. Auguste found she had no ongoing impairments from the accident. The respondent advised that it would commission Dr. Auguste to conduct a paper review of the applicant’s updated records. Dr. Auguste concluded that the proposed services were not reasonable and necessary because the applicant suffered from no musculoligamentous, osseous, or neurologic impairments due to the accident. In an Explanation of Benefits dated April 12, 2021, the respondent maintained the denial based on Dr. Auguste’s opinion.

55The applicant argues that physiotherapy is reasonable and necessary because it was recommended by her family doctor, multiple emergency room doctors, Ms. Spencer, and Dr. Williams, and because she had incurred $3,595.25 in treatment as of March 2022.

56The respondent argues that the applicant’s family doctor and the emergency room doctors’ recommendations do not establish that physiotherapy is reasonable and necessary because those recommendations were made shortly after the accident, the applicant proceeded to obtain physiotherapy, and Dr. Auguste subsequently determined that no further treatment was required because the applicant had reached maximum medical improvement with respect to musculoligamentous, osseous, or neurologic impairments causally linked to the accident. It argues further that the applicant did not produce any additional documents in support of her claim for treatment as it requested in the April 1, 2021 Explanation of Benefits.

57In reply, the applicant advised that she sent Dr. Williams’s report to the respondent in an email dated December 3, 2021 and attached a copy of the email to her submissions.

58I find that the applicant is entitled to benefits for physical rehabilitation, acupuncture, and a cervical pillow for the following reasons:

1. Dr. Williams recommended that the applicant continue whatever physical therapy and acupuncture she finds useful to treat her chronic pain;

2. Ms. Spencer recommended a supportive pillow to help the applicant sleep without being woken by pain;

3. By the time of Ms. Spencer’s assessment in November 2020, the applicant’s injuries were no longer acute and she had already obtained the treatment described by the respondent. Dr. Williams’s assessment was in November 2021, roughly 18 months after the accident; and

4. Again, I do not accept Dr. Auguste’s opinion because the applicant’s chronic pain is not caused by musculoligamentous, osseous, or neurologic impairments as she defines them.

59The applicant has not established that the shockwave therapy, personal massager, pain relief ointment, and SI belt are reasonable and necessary. Dr. Williams and Ms. Spencer did not recommend these goods and services in their reports, and the applicant has not directed me to any other supporting evidence. Consequently, she has not met her burden of proof with respect to these items.

60The applicant is entitled to $3,045.00 for physical rehabilitation and acupuncture services, a cervical pillow, and the cost of completing the treatment plan.

THE APPLICANT IS NOT ENTITLED TO AN AWARD

61Section 10 of Regulation 664 states that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award if the respondent unreasonably withheld or delayed payments. Unreasonable behaviour can be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate: Malitskiy v Unica Insurance Inc., 2021 ONSC 4603 (Div Ct) at para 46.

62The applicant seeks an award with respect to the unapproved amount of the psychological assessment, the occupational therapy assessment, and the occupational therapy services. She argues that because the respondent initially denied these benefits on the grounds that she sustained minor injuries, it acted in bad faith by maintaining the denials after Dr. Koepflur’s report established that she sustained non-minor injuries.

63The respondent did not address the claim for an award except to state that the fact that it subsequently approved funding for psychological treatment shows it continued to adjust the applicant’s file in good faith.

64I find that the respondent did not maintain the denials in bad faith. In the December 30, 2020 Explanation of Benefits, it agreed that she sustained non-minor injuries and reconsidered her entitlement to the benefits in question. It maintained the denials based on the independent assessments, and not on the grounds that the applicant sustained minor injuries. I have found that it erred in doing so, but these errors on their own do not constitute excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour meriting an award.

THE APPLICANT IS ENTITLED TO INTEREST ON OVERDUE PAYMENTS

65The applicant is entitled to interest pursuant to s. 51 of the Schedule.

THE APPLICANT IS NOT ENTITLED TO COSTS

66The applicant requests $3,390.00 in costs for preparing her reply submissions. She argues that the respondent engaged in three instances of unreasonable, vexatious, and bad faith conduct:

1. It maintained the denials after receiving the independent assessment reports as discussed above;

2. It misled the Tribunal in submitting that the applicant had not provided it with the breakdown of Dr. Harris’s assessment before the deadline for productions, and that she did not provide any further information as requested in the April 1, 2021 Explanation of Benefits. Responding to these allegations forced the applicant to review her correspondence with the respondent; and

3. It baselessly argued that the occupational therapy and chronic pain assessments were clinic-driven claims to extract funds from it.

67The applicant submits that because it took her three days to prepare reply submissions, she is entitled to costs of $1,000.00 per day plus $390.00 in HST.

68Rule 19.1 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.

69I find that the applicant is not entitled to costs for the following reasons:

1. As discussed above, I do not accept the applicant’s argument regarding the respondent’s decisions to maintain the denials. In any event, this argument relates to decisions made in adjusting the applicant’s accident benefits and not the respondent’s conduct in this proceeding. As such, it goes to the claim for an award rather than costs;

2. The respondent’s statements regarding Dr. Harris’s breakdown and Dr. Williams’s report were inaccurate, but the applicant had the opportunity to correct these inaccuracies in her reply submissions. Availing herself of that opportunity does not automatically entitle her to costs. Attempting to mislead the Tribunal is a serious claim that requires proof beyond the fact that the respondent made inaccurate statements. I see no reason to infer that the respondent’s failure to mention the emails was deliberate rather than an inadvertent oversight; and

3. The respondent overreached in claiming that the assessments were clinic-driven claims to extract funds from it. However, the Tribunal must not rush to punish parties for forcefully arguing their cases. The respondent made these comments in passing for rhetorical effect, and did not make a concerted effort to impugn the treatment providers’ credibility as part of its theory of the case. As such, these comments do not meet the high threshold for an award of costs.

ORDER

70The applicant is not entitled to an NEB.

71The applicant is entitled to the following benefits with interest:

1. $1,995.66 for the occupational therapy assessment;

2. $2,521.67 for occupational therapy services;

3. $822.86 for the psychological assessment;

4. $2,200.00 for the chronic pain assessment; and

5. $3,045.00 for physiotherapy services and a cervical pillow.

72The applicant is not entitled to an award under s. 10 of Regulation 664.

73The applicant is not entitled to costs.