20-011982/AABS

Licence Appeal Tribunal File Number: 20-011982/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:

Anita Arsenault

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Brad S Moscato, Counsel

Christine Sesek, Counsel

For the Respondent:

TD Insurance Staff Legal

Caoutham Vasan, Counsel,

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Anita Arsenault, the applicant, was involved in an automobile accident on June 17, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In addition to the subject accident, the applicant was also involved in automobile accidents on March 11, 2011, October 21, 2013 and December 16, 2014. The applicant had purchased optional accident benefits which entitled her to advanced benefits with coverage of $1,100,000 in medical and rehabilitation benefits and $1,072,000 in attendant care for this accident. She contends that all of the treatment plans and expense claims in dispute are reasonable and necessary to address her serious accident-related impairments. The respondent submits that to date, the applicant has received over $338,820.82 in medical and rehabilitation benefits and has sustained little to no benefit from the treatment. As such, the respondent contends that none of the treatment plans or expenses should be found to be reasonable and necessary.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,159.44 for dietician services, proposed by Amy Hayes in a treatment plan which was denied on December 10, 2019?

ii. Is the applicant entitled to $1,080.00 for medical services, proposed by Dr. Unarket in a treatment plan which was denied on February 11, 2020?

iii. Is the applicant entitled to $1,080.00 for physiotherapy services, proposed by Dr. Miller in a treatment plan which was denied on November 19, 2019?

iv. Is the applicant entitled to $6,843.80 for medical marijuana, submitted on a claim form which was denied on May 15, 2020?

v. Is the applicant entitled to $1,920.00 for occupational therapy services, proposed by Christopher White in a treatment plan which was denied on November 19, 2019?

vi. Is the applicant entitled to $8,642.18 for occupational therapy services, proposed by Christopher White in a treatment plan which was denied on February 20, 2020?

vii. Is the applicant entitled to $1,500.00 for chiropractic services, proposed by Dr. Miller in a treatment plan which was denied on January 28, 2020?

viii. Is the applicant entitled to $1,800.00 for acupuncture services, proposed by Dr. Miller in a treatment plan which was denied on January 8, 2020?

ix. Is the applicant entitled to $9,459.48 for goods and services (gym membership), proposed by Dr. Miller in a treatment plan which was denied on January 28, 2020?

x. Is the applicant entitled to $10,000.00 for a neuropsychological assessment, proposed by Dr. Seyone in a treatment plan which was denied on April 10, 2019?

xi. Is the applicant entitled to $1,696.10 for a psychological assessment, proposed by Susanne Sprokay in a treatment plan which was denied on February 13, 2020?

xii. Is the applicant entitled to $2,200.00 for neurocognitive testing/assessment, proposed by Susanne Sprokay in a treatment plan which was denied on February 28, 2020?

xiii. Is the applicant entitled to $1,431.04 for supplements, submitted on a claim form which was denied on January 10, 2021?

xiv. Is the applicant entitled to $1,869.92 for prescriptions, submitted on a claim form which was denied on May 14, 2020?

xv. Is the applicant entitled to $1,615.71 for prescriptions and psychological treatment, submitted on a claim form which was denied on October 5, 2020?

xvi. Is the applicant entitled to $3,198.58 for expenses, submitted on a claim form which was denied on October 26, 2020?

xvii. Is the applicant entitled to $600.00 for meditation services and treatment, proposed by Dr. Treyvaud in a treatment plan which was denied on March 11, 2021?

xviii. Is the applicant entitled to $120.00 for expenses relating to osteopathic treatment, submitted on a claim form which was denied on May 20, 2021?

xix. Is the applicant entitled to $432.56 for Pilates expenses, submitted on a claim form which was denied on May 14, 2020?

xx. Is the applicant entitled to $1,858.62 for massage therapy, proposed by Dr. Miller in a treatment plan which was denied on May 20, 2021?

xxi. Is the applicant entitled to $1,126.41 for massage therapy, proposed by Dr. Miller in a treatment plan which was denied on June 25, 2021?

xxii. Is the applicant entitled to $517.33 for physiotherapy and massage services, proposed by Dr. Demelo in a treatment plan which was denied on June 25, 2021?

xxiii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find that:

1. The applicant is entitled to the following treatment plans and expenses, plus interest in accordance s. 51 of the Schedule:

i. OCF-18 for $1,858.62 for massage therapy denied on May 20, 2021;

ii. OCF-18 for $1,126.41 for massage therapy denied on June 25, 2021;

iii. OCF-6 for $9,459.48 for gym membership, Pilates classes and mindfulness course; and

iv. OCF-6 for $6,843.80 for medical marijuana.

2. The applicant is not entitled to the remaining treatment plans or expenses in dispute.

3. The respondent is not liable to pay an award under Regulation 664.

ANALYSIS

Medical and Rehabilitation Benefits

5Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

6The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

• OCF-18 for $1,080.00 for physiotherapy services, denied on November 19, 2019;

• OCF-18 for $1,500.00 for chiropractic services, denied on January 28, 2020;

• OCF-18 for $1,800.00 for acupuncture services, denied on January 8, 2020;

• OCF-6 for $120.00 for osteopathic treatment, denied on May 20, 2021;

• OCF-18 for $1,858.62 for massage therapy, denied on May 20, 2021;

• OCF-18 for $1,126.41 for massage therapy, denied on June 25, 2021;

• OCF-18 for $517.33 for physiotherapy services, denied on June 25, 2021

• OCF-18 for $1,920.00 for osteopathic treatment, denied on November 19, 2019;

7I find that the applicant has established that two of the OCF-18s for massage therapy denied May 20, 2021 and June 25, 2021 are reasonable and necessary. She has not met her onus to prove that the remainder of the treatment plans in dispute are reasonable and necessary.

8Both the applicant and respondent provided general submissions with respect to all of the treatment plans in dispute for physical therapy and did not distinguish between the various treatment modalities (specifically, physiotherapy, chiropractic, massage, osteopathic or acupuncture treatment). As such, I will consider the various treatment modalities collectively.

9The applicant submits eight treatment plans and claim forms for physical therapy, with the stated goals of pain reduction, increase in strength, increase in range of motion and a return to activities of daily living. She contends that her medical record clearly establishes that she suffers from significant chronic pain as a result of the accident. She argues that the physical therapy is reasonable and necessary as a pain relief measure and to allow her to continue with her regular activities of daily living.

10In contrast, the respondent submits that the applicant has resumed many of her activities of daily living, and that there is no evidence that the ongoing treatment is providing any benefit. It notes that the applicant has reported to numerous assessors that she has had little to no improvement with all of the ongoing treatment and that such treatment makes “no real difference”. Further, the respondent submits that a number of its s. 44 assessors have opined that the applicant has long since reached maximum recovery and that further passive facility-based treatment will not provide any further benefit.

11While I agree with the respondent that a number of its assessors have found that the applicant suffered only from soft tissue injuries and further physical treatment will not aid in her recovery, I further agree with the applicant’s submissions that pain relief is also a legitimate goal of treatment, particularly in the case at hand, where the applicant’s chronic pain has been clearly established by the medical record. Further, I note the applicant’s submissions that such pain relief, even if temporary, allows her to maintain and participate in her activities of daily living (ADLs). The issue at hand is whether the various treatment modalities have been effective in meeting these stated goals of pain relief and resumption of ADLs.

12The applicant relies on two Progress Reports from her chiropractor Dr. Miller, to establish the efficacy of her treatment to date. However, Dr. Miller does not appear to note significant improvement in terms of pain reduction during the course of treatment, between 2016 to 2019. In the most recent progress report dated April 29, 2019, Dr. Miller reports that the applicant’s neck and hip pain had increased since the last progress report in 2016. In terms of the applicant’s scoring on her self-reporting pain questionnaire, that had also increased since 2016. Regardless, Dr. Miller continued to recommend acupuncture and massage therapy.

13I note that from the applicant’s various reports to assessors, she has reported different benefits from the various proposed treatments. To establish her claim, the applicant relies in part on the Physiatry Neuromusculoskeletal Report of Dr. Unarket dated February 15, 2019. However, in this report when the applicant lists the methods by way she obtains pain relief, most of the proposed therapies were not listed. She states that she finds it most helpful to: avoid aggravating activities, practice yoga, mindfulness, her prescribed exercises, use prescription medication and to apply hot packs. The only specific therapeutic method referenced was massage therapy, with respect to her left knee pain.

14The applicant argues that the specific treatment modalities proposed were recommended in a pain consultation report, where Dr. Anushi Patgunarajah recommended that she receive physiotherapy, chiropractic, massage and acupuncture services. However, I do not see that reflected in Dr. Patgunarajah’s report. While the report indicates that physical therapy and regular exercise were “discussed”, I do not see a specific recommendation for the treatment modalities in dispute.

15The respondent relies on a number of its insurer’s examination (“IE”) assessments to deny the claims. However, while some assessors found no ongoing pathology or benefit to ongoing treatment, two of the respondent’s IE assessors noted the efficacy of some continuing treatment for pain relief. The respondent conducted two chiropractic IEs. In the first IE conducted April 25, 2018, Dr. Monica Chadha found that while the applicant’s symptoms remained unchanged, that due to the chronicity of the applicant’s injuries, her daily functioning and ability to remain active was further increased when she receives care, particularly addressing the soft tissue injuries and spasms. As such Dr. Chadha recommended ongoing physical treatment.

16In a subsequent chiropractic IE dated December 30, 2019, while Dr. Darrin Milne found that the proposed acupuncture and osteopathic treatment was not reasonable and necessary, he did not similarly discount ongoing massage therapy. Dr. Milne reviewed the numerous treatments the applicant had received over the years and noted that it was difficult to separate the effects of each treatment modality or assign a benefit to any one of them. Dr. Milne further noted that the applicant was at the time, not attending at chiropractic, osteopathic or acupuncture treatment, but was receiving pain injections, exercising at the gym, practicing Pilates and attending at massage therapy. He found that the proposed acupuncture and osteopathic services did not appear to be supportive or necessary, as “her injection therapy and massage therapy are providing similar benefits”. Dr. Milne also recommended that the applicant return to a chronic pain management program to best consolidate her therapies. As such, although not specifically recommending massage therapy, Dr. Milne noted that the applicant’s treatment at the time, including massage, was sufficient for pain relief.

17The applicant has not confirmed whether she has resumed a chronic pain treatment program. However, based on the medical evidence, I find that the applicant has met her onus to establish that a course of massage therapy is reasonable and necessary to assess the continued efficacy of such treatment for pain reduction and to assist her in maintaining her activities of daily living, particularly if such coordinated chronic pain treatment has not yet been resumed. As such, the applicant is entitled to two of the treatment plans for massage therapy – the OCF-18 for $1,858.62 denied on May 20, 2021 and the OCF-18 for $1,126.41 denied on June 25, 2021, plus interest in accordance with s. 51 of the Schedule.

• OCF-18 for $8,642.18 for occupational therapy services, denied on February 20, 2020;

• OCF-18 for $1,920.00 for occupational therapy services dated October 7, 2019

18Although the applicant has listed two treatment plans for occupational therapy services, upon review, the treatment plan dated October 7, 2019 for occupational therapy (“OT”) services relates to osteopathic treatment provided by Christopher White. As such, this treatment plan was considered as part of the previous section on physical therapy. With respect to the remaining treatment plan for OT services, the OCF-18 for $8,642.18 dated February 7, 2020, I find that the applicant has not established that the outstanding balance of the OCF-18 it is reasonable and necessary.

19Although the applicant’s lists the full amount the OCF-18 - $8,642.18 - as an issue in dispute and provides submissions as to why occupational therapy is reasonable and necessary, I note that this OCF-18 was partially approved. By way of letter dated November 6, 2020, the respondent partially approved the OCF-18 in the amount of $5,021.42.

20The applicant has not provided any submissions or evidence as to why the remaining balance of the treatment plan is reasonable and necessary. Rather, her submissions relate to whether she is entitled occupational therapy itself. However, from the correspondence, it appears that the occupational therapy sessions were approved. Rather the denial related to excessive travel time and time for report preparation. The respondent relies on its OT IE Report by Melanie Robbins, which reviewed the OCF-18 in dispute, partially approved it in an amount up to $5,051.68 and explained why the remaining amounts are excessive. The applicant has not provided any evidence or submissions to refute Ms. Robbins’ conclusions.

21As the applicant has not provided any specific submissions or evidence as to why these remaining amounts are reasonable and necessary, I find that she has not met her onus to prove entitlement to the outstanding balance of this OCF-18 for OT services.

• OCF-18 for $10,000.00 for neuropsychological assessment

• OCF-18 for $1,696.10 for psychological assessment

• OCF-18 for $2,200.00 for neurocognitive testing/assessment

22I find that the applicant has not established the reasonableness and necessity of the three proposed assessments.

23With respect to the neuropsychological assessment for $10,000.00, the respondent submits correspondence that it had partially approved the assessment in the amount of $2,000.00. It submits that pursuant to s. 25 of the Schedule, it is not liable to pay for assessments beyond the amount of $2,000 plus HST. The applicant did not provide any submissions refuting the respondent’s arguments or providing reasons why an additional cost outside of the amounts mandated in s. 25 were warranted. As such, I find that the applicant has not established that she is entitled to the remaining balance of the OCF-18 for a neuropsychological assessment.

24The applicant also submits an OCF-18 for a psychological assessment in the amount of $1,696.10. The applicant argues that the medical record clearly establishes her psychological impairments and diagnoses, which she would like to have assessed.

25The respondent argues that such an assessment is not reasonable and necessary, as the applicant has been continuously under the care of a psychologist since March 11, 2011. It submits a progress report by Dr. Abuhatoum, the applicant’s treating psychologist. The progress report notes that Dr. Abuhatoum had been treating the applicant since August 13, 2018 and that she had just completed a sixteen week session of psychological treatment from September 9, 2020 to January 7, 2021. The applicant did not provide any explanation as to why an additional psychological assessment by a different psychologist is warranted. As such, I find that she has not led sufficient evidence to establish that the proposed psychological assessment is reasonable and necessary.

26Finally, the applicant submits an OCF-18 for $2,200.00 for a neurocognitive assessment. The applicant submits that this assessment is needed to investigate her cognitive impairments arising from the accident. The respondent submits that such an assessment is not warranted, as there is no objective evidence to suggest that the applicant sustained a concussion or cognitive deficits as a result of the accident. The respondent also argues that as it has already approved a neuropsychological assessment, an additional neurocognitive assessment is unwarranted, as a duplication of benefits.

27I agree with the respondent’s submissions. With respect to the neuropsychological and neurocognitive assessments, the applicant simply provides general submissions for both assessments, that she has sustained cognitive difficulties as a result of the accident, and as such, all the assessments are warranted. However, she has not provided any submissions as to the differences between the proposed assessments and why the neurocognitive assessment is required, if the neuropsychological assessment has already been approved. As such, I find that the applicant has not led sufficient evidence to refute that respondent’s argument that the neurocognitive assessment would be a duplication of services.

OCF-18 for dietician services in the amount of $2,159.44 and OCF-6 in the amount of $1,431.04 for dietary supplements

28I find that the applicant has not established that the treatment plan and expenses for dietician services and dietary supplements are reasonable and necessary.

29Although the applicant submits that the medical record clearly establishes that she was diagnosed with gastrointestinal dysfunction and irritable bowel syndrome since the accident, I agree with the respondent that the applicant has not led any evidence to establish that the accident caused such gastrointestinal issues.

30The applicant submits that her registered dietician Aimee Hayes, indicated in her report that digestive symptoms can be the cause or the production of emotional symptoms. As such, she argues that it is “more likely than not” that her digestive symptoms are related to her physical and psychological injuries from the accident. However, I find that this general statement is not sufficient evidence that the accident has caused such gastrointestinal issues. Further, the applicant has not led any other evidence linking the accident to gastrointestinal issues. As such, I find that the applicant has not established entitlement to the OCF-18 and OCF-6 for dietary services and supplements.

OCF-18 for $1,080.00 for pharmacotherapy; OCF-6 for $1,615.71 for prescriptions and psychological treatment and OCF-6 for $3,198.58 for various expenses

31I find that the applicant has not established that the above-listed OCF-18 and OCF-6s are reasonable and necessary.

32The applicant has not provided any specific submissions or evidence as to the particulars of these claims, or why such prescriptions and expenses are reasonable and necessary. The applicant simply provides a general statement that she continues to suffer from ongoing pain, physical, cognitive and emotional symptoms and that there is “no evidence to suggest these expenses do not reduce Anita’s symptoms.” However, the burden of proof rests with the applicant to prove the reasonableness of the proposed benefits, not on the respondent to disprove the reasonableness of them.

33With respect to the OCF-18 in the amount of $1,080.00 for topical cream, the respondent submits an IE report from Dr. Levy, concluding that the topical cream is not reasonable and necessary, as the applicant’s pain was so widespread, it would have limited efficacy. The applicant has not submitted any evidence or arguments to refute the IE assessor’s findings.

34As the applicant has not detailed the various expenses, provided specific submissions or led any evidence in support of these OCF-6s and OCF-18, I find that she has not established that they are reasonable and necessary or payable.

OCF-18 for $9,459.48 for gym membership, Pilates classes and Mindfulness course

35I find that the applicant has met her burden to prove that the OCF-18 for a gym membership, Pilates, and a mindfulness course is reasonable and necessary.

36The applicant submitted an OCF-18 for an annual gym membership at Life Time fitness, along with sessions of Pilates reformer classes and a mindfulness intensive program. The respondent partially approved this plan in the amount of $1,556.00 to cover an annual membership at GoodLife fitness, which includes Pilates classes.

37To establish her claim to the outstanding balance of the OCF-18 in dispute, the applicant relies on a letter from her OT Marianne Brinjak outlining the benefits of the membership at Life Time fitness in contrast to the GoodLife gym. Ms. Brinjak noted the applicant’s ongoing psycho-emotional symptoms and diagnoses, including PTSD, which necessitated the smaller class sizes available at Life Time fitness. The OT noted that the applicant had extreme anxiety and a panic attack when attending the crowded gym at GoodLife. In contrast, Life Time offered Pilates classes in a private room, with reduced lighting and smaller class sizes. Ms. Brinjak further noted that Pilates reformer classes were not offered at GoodLife. With respect to the mindfulness course, Ms. Brinjak recommended enrollment in this course, to assist with management of the applicant’s ongoing pain, emotional and psychological symptoms.

38The respondent submits that the mindfulness course is not reasonable and necessary, as the applicant had previously reported that meditation “did not work for her”. With respect to the Life Time gym membership and Pilates reformer classes, the respondent submits that applicant has not established that the benefits of the more expensive gym outweigh the additional cost. It argues that although the applicant claimed to be bothered by the number of people, smell and light, there is no evidence of concussion related symptoms.

39I find that the applicant has led sufficient evidence establishing entitlement to the mindfulness course and the gym membership. With respect to the mindfulness program, although the respondent states that the applicant reported no benefit to mediation, I note that the applicant has reported its benefits to a number of assessors. Her physiatrist Dr. Unarket, noted that mindfulness assists her with shoulder and knee pain. The applicant’s OT further provided a summary of the benefits of the proposed course. The respondent has not submitted an IE report on this issue to counter the recommendations of Ms. Brinjak. As such, given the applicant’s reports of the benefits of mindfulness in terms of pain management and emotional regulation, and the recommendation of her OT, I find that the applicant has established the course’s reasonableness and necessity.

40With respect to the gym membership and Pilates classes, I find that the applicant has led sufficient evidence of their reasonableness and necessity. The applicant has consistently reported that regular exercise has been helpful in managing her pain symptoms and maintaining her daily function. The respondent partially approved the plan to cover the cost of a less expensive gym, which included Pilates classes, and as such I assume that it accepted the benefits of ongoing gym membership and Pilates. Although there is reference in the documentation to an IE assessment of Dr. Levy which considered this OCF-18 resulting in its partial approval, this IE Report was not included as part of the respondent’s evidence. As such, when considering the respondent’s position on this issue, I am limited to its submissions that the excessive cost severely outweighs any degree of success.

41I find Ms. Brinjak’s assessment of the differences between the two gyms and Pilates programs to be persuasive. Although the respondent submits that there is no objective evidence of concussion-related symptoms which would lead to anxiety or a panic attack from crowds, loud noises or smells, I agree with the applicant that her emotional difficulties, anxiety and PTSD are well-documented. As such, Ms. Brinjak’s recommendations of smaller class sizes, individualized attention and reduced lighting and noise, are reasonable accommodations. Further, Ms. Brinjak provided specific reasons why the Pilates reformer classes at Life time are preferrable to the classes offered at GoodLife, including the fact that reformer classes use equipment that allow for gentle resistance training and muscle training for a larger range of motion. The respondent has not provided any direct submissions or evidence to counter the specific recommendations of the applicant’s OT.

OCF-6 in the amount of $1,869.92 denied May 14, 2020 for prescriptions; OCF-18 in the amount of $600.00 for meditation services and treatment; OCF-6 in the amount of $432.56 for Pilates expenses

42I find that the applicant has not provided sufficient detail of the particulars of these claims and as such, has not established that they are reasonable and necessary.

43Although in her submissions the applicant listed these claims forms and the treatment plan together with the OCF-18 for gym membership/Pilates/mindfulness discussed previously, no particulars were provided as to these three additional OCF-6s and the OCF-18. The applicant has not detailed how these expenses and benefits differ from those listed in the cumulative OCF-18 for $9,459.48. In her reply submissions, the applicant has provided a series of expense claim forms, but does not identify how these claim forms corresponded to the listed issues in dispute.

44Further, as I have previously approved the full amount of $9,459.48 for an annual gym membership, Pilates classes and mindfulness course, it would be appropriate to assess the efficacy of the gym/Pilates and mindfulness benefits after completion of the program, prior to determining whether such additional treatment is warranted.

OCF-6 in the amount of $6,843.80 for medical marijuana

45I find that the applicant has led sufficient evidence to establish that the OCF-6 for medical marijuana is reasonable and necessary.

46The respondent relies on the IE Paper Review Assessment of Dr. Todd Levy to deny the claim for medical cannabis. Dr. Levy found that the medical cannabis was not reasonable and necessary, as there was no indication that the applicant’s level of functioning had appreciated significantly since she began using it. Dr. Levy further concluded that the use of medical cannabis together with the opiates the applicant was currently using, could be problematic. The respondent also submits that the consultation report of Dr. Singh does not indicate a significant benefit of pain reduction with the assistance of medical marijuana and that the same report indicated that it could have an “unknown effect” with respect to psychiatric mood disorders.

47Although the respondent raises concerns about the use of medical marijuana with opiates or its effect on mood disorders, I note that the medication was prescribed under the oversight of Dr. Singh, a physician, who assessed the applicant and who indicated that there would be ongoing medication management. With respect to mood disorders, I agree with the applicant’s submissions that Dr. Singh was aware of the applicant’s mood disorders as they were referenced in his consultation report but was still comfortable with prescribing the medical marijuana.

48Further, the evidence indicates that the applicant has sustained benefits from the use of cannabis. Dr. Singh reported benefits including a two-point reduction on the pain scale, reduction of anxiety and depression symptoms and improved sleep. I note that the applicant’s physiatrist, Dr. Unarket, also supported the use of medical cannabis for pain relief, in her report dated February 15, 2019.

49As such, I find that the applicant has established that the OCF-6 for medical marijuana is reasonable and necessary.

Interest

50The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the two OCF-18s for massage therapy, the OCF-18 for gym membership, Pilates classes and mindfulness course and the OCF-6 for medical marijuana.

Award

51The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

52The applicant argues that she is entitled to an award, as the respondent has not provided satisfactory reasons for its denials and delayed three months in the release of one of its IE reports. Although she cites the respondent’s delay in releasing a report, I note that conduct must rise above being an incorrect decision or error and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. The applicant has not provided sufficient evidence as to how the delay meets this standard. Further, the applicant provides no submissions or argument to refute the respondent’s claim that she failed to provide particulars of her special award claim, as required by the Case Conference Order dated July 12, 2021.

53As a result of the above, I find that the applicant is not entitled to an award.

ORDER

54For the reasons outlined above, I find that:

i. The applicant is entitled to the following treatment plans and expenses, plus interest in accordance s. 51 of the Schedule:

i. OCF-18 for $1,858.62 for massage therapy denied on May 20, 2021;

ii. OCF-18 for $1,126.41 for massage therapy denied on June 25, 2021;

iii. OCF-6 for $9,459.48 for gym membership, Pilates classes and mindfulness course; and

iv. OCF-6 for $6,843.80 for medical marijuana.

ii. The applicant is not entitled to the remaining treatment plans or expenses in dispute.

i. The respondent is not liable to pay an award under Regulation 664.