Kaleb Hennin v. Economical Mutual Insurance Company, 2023 CanLII 50593

Licence Appeal Tribunal File Number: 20-009486/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:

Kaleb Hennin

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Rajiv Kapoor, Paralegal

For the Respondent: Colin MacDonald, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kaleb Hennin, the applicant, was involved in an automobile accident on May 1, 2018, 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 the respondent, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $1,020.00 for chiropractic treatment, proposed by Baldwin Street Chiropractic in a treatment plan dated July 10, 2019?

iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Novo Medical Services in a treatment plan dated July 7, 2020?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Novo Medical Services in a treatment plan dated July 14, 2020?

v. Is the applicant entitled to $2,200.00 for a social work assessment proposed by Novo Medical Services in a treatment plan dated September 25, 2020?

vi. Is the applicant entitled to $3,641.09 for psychological treatment proposed by Novo Medical Services in a treatment plan dated September 25, 2020?

vii. Is the applicant entitled to $3,341.87 for psychological treatment proposed by Novo Medical Services in a treatment plan dated February 26, 2021?

viii. Is the applicant entitled to $1,106.00 for chiropractic treatment proposed by London Chiropractic and Massage in a treatment plan dated March 1, 2021?

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

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

RESULT

3The applicant is entitled to the following, plus interest pursuant to s. 51 of the Schedule:

i. $1,020.00 for chiropractic treatment, proposed by Baldwin Street Chiropractic in a treatment plan dated July 10, 2019 (issue ii);

ii. $2,200.00 for a psychological assessment proposed by Novo Medical Services in a treatment plan dated July 14, 2020 (issue iv);

iii. $2,200.00 for a social work assessment proposed by Novo Medical Services in a treatment plan dated September 25, 2020 (issue v);

iv. $3,641.09 for psychological treatment proposed by Novo Medical Services in a treatment plan dated September 25, 2020 (issue vi); and

v. $3,341.87 for psychological treatment proposed by Novo Medical Services in a treatment plan dated February 26, 2021 (issue vii).

4The applicant is not entitled to the following:

i. $2,200.00 for a chronic pain assessment proposed by Novo Medical Services in a treatment plan dated July 7, 2020 (issue iii); and

ii. $1,106.00 for chiropractic treatment proposed by London Chiropractic and Massage in a treatment plan dated March 1, 2021 (issue viii).

5The applicant is entitled to an award pursuant to s. 10 of O. Reg. 664 in the amount of $1,000.00, plus interest.

ANALYSIS

Application of the Minor Injury Guideline

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

8The applicant submits that he suffers from psychological impairments, chronic pain, and pre-existing conditions that preclude him from recovering within the monetary purview of the MIG.

9The respondent submits that the applicant’s current psychological issues and complaints of low back pain predate the accident and would still exist even if the accident did not occur. The respondent argues that if the applicant is suffering from chronic pain, it is due to his obesity and degenerative disc changes. Further, it argues that the applicant’s obesity, childhood trauma, and ongoing personal struggles are the cause of his psychological conditions.

10I find that the applicant has proven on a balance of probabilities that he should be removed from the MIG as a result of his pre-existing and current psychological conditions.

11The applicant relies on the report of Dr. Leon Steiner, psychologist, who diagnosed him with Adjustment Disorder and Generalized Anxiety Disorder in September 2020. Dr. Steiner recommended that the applicant attend psychotherapy and be assessed for a vehicular-reintegration assessment. Dr. Steiner also recommended a multi-disciplinary pain management program to avoid the entrenchment of chronic pain disorder. I note that the applicant’s family physician, Dr. Chowdhury, agreed with Dr. Steiner’s recommendations.

12The respondent relies on the s. 44 report of Dr. Cobrin, psychologist, from November 2020. He found that the applicant was suffering from an adjustment disorder with depression and anxiety, however his opinion was that this was due predominately to non-accident factors, with the accident playing at most a secondary role.

13The applicant has a history of depression and anxiety, and since the accident has dealt with a number of unrelated life stressors, such as the health of his partner, his weight, and family issues. However, there are also accident-related psychological symptoms that have been documented by various practitioners, including anxiety, stress, and sleep issues. I note that Dr. Hamodi, an anaesthesiologist who treated the applicant for lower back pain after the accident, suggested a referral to a psychologist to improve his coping mechanisms. The applicant was also referred to psychiatrists Dr. Fluttert and Dr. Pillai by Dr. Chowdhury. He reported to them that the accident was traumatic and caused flashbacks, and that he started having anxiety after the accident. It appears that the applicant’s accident-related and unrelated stressors are intertwined and are difficult to separate out. However, it cannot be said that the applicant is not suffering from any accident-related psychological difficulties. I find that there are psychological difficulties the applicant would not be experiencing but for the accident.

14Aside from Dr. Cobrin’s clinical interview, he conducted only one test: the Personality Assessment Inventory (“PAI”). Unlike Dr. Steiner, Dr. Cobrin did not administer any tests for depression and anxiety. I agree with the applicant’s submission that one will not find an impairment if one does not test for it. Further, Dr. Cobrin also concluded that the applicant’s other life stressors are the main sources of his psychological difficulties, without elaborating on why he believed the accident-related difficulties were only playing a secondary role. For those reasons, I assign less weight to Dr. Cobrin’s opinion regarding the applicant’s psychological condition.

15Even putting aside the issues I have with Dr. Cobrin’s opinion, Dr. Cobrin actually stated that there was clear evidence of a pre-existing psychological condition which could prevent the applicant from achieving maximum medical recovery from his physical injuries if he is subjected to the $3,500 limit in the MIG. Further, Dr. Cobrin was asked whether two treatment plans were reasonable and necessary, however he was specifically directed to “only answer this question if you or a co-assessor has determined the insured sustained a non-minor injury or it has been determined by you or a co-assessor that there is a pre-existing condition that will impact recovery of the minor injury.” Dr. Cobrin went on to answer the question, opining that they were not reasonable and necessary.

16The respondent does not address this at all in its submissions, despite it being raised by the applicant. I am at a loss as to why the respondent ignored its own assessor’s opinion. I find the fact that the respondent’s s. 44 assessor believes the applicant’s pre-existing condition warrants removal from the MIG weighs heavily in the applicant’s favour.

17For those reasons, I find that the applicant has proven on a balance of probabilities that his pre- and post-accident psychological injuries justify removal from the MIG.

18To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

$1,020.00 for chiropractic treatment, proposed by Baldwin Street Chiropractic in a treatment plan dated July 10, 2019 (issue ii)

19The treatment plan in dispute is for 20 sessions of chiropractic treatment. The applicant submits that chiropractic treatment has been recommended by a number of treatment providers and assessors, and that pain relief is a legitimate reason to continue therapy.

20The respondent submits that this treatment plan was found not to be reasonable and necessary by s. 44 assessor Dr. Abram, general practitioner, in her report of August 16, 2019. The respondent also argues that the OCF-3 prepared by Dr. Chowdhury on June 11, 2018 lists the only injury as “whiplash”.

21Dr. Abram diagnosed the applicant with a resolved WAD I injury, and mild lumbar sprain/strain. She opined that the treatment plan was not reasonable and necessary because the applicant’s injuries were soft tissue in nature and fell within the MIG. Dr. Abram mentions that the applicant has been attending treatment but does not state whether further treatment would be beneficial.

22The applicant admits that his neck pain has resolved completely with treatment. This appears to have been the case at the time of the applicant’s assessment with Dr. Abrams, as she stated that his whiplash injury had completely resolved, and his range of motion was full. However, Dr. Abram noted that the applicant was still experiencing pain to his thoracolumbar spine at the time of her assessment. She also noted that Kemp’s testing was positive, indicating possible facet inflammation.

23I do not agree with the respondent’s submission that the applicant’s “obesity had been causing pain for some time”. Although this is something that the applicant struggled with prior to the accident, there is no indication in any of the medical records before me that it was the cause of his pain. The respondent states that the physicians at the London Spine Centre concluded that the applicant had “ongoing back pain prior to the accident caused by obesity and degeneration”. I have reviewed the note from Dr. Hughes, physiatrist at the London Spine Centre, and although the applicant’s obesity is noted, at no point did Dr. Hughes state that it was the cause of his pain. Dr. Hughes’s diagnosis was chronic axial low back pain related to L5-S1 degenerative disc and superimposed herniation. It may be that these underlying conditions are unrelated to the accident, although the respondent has not provided any evidence or opinion from a s. 44 assessor in that regard. Dr. Hughes did not provide an opinion with respect to what impact, if any, the accident had on those conditions, so his note is of limited use with respect to causation. Further, in the year prior to the accident, the applicant complained of low back pain only one time to Dr. Chowdhury, and he was sent for an x-ray to rule out a fracture (no fracture was indicated). Dr. Chowdhury did not make any further recommendations or conclusions regarding that incidence of back pain. Without further evidence, I do not find the respondent’s argument regarding the etiology of the applicant’s back pain to be compelling.

24Dr. Abram also did not comment specifically with respect to causation, and in fact she stated that the applicant did not have a pre-existing medical condition that would prevent him from reaching maximum medical recovery in the MIG. Dr. Abram indicated that she reviewed Dr. Chowdhury’s records that covered the time period prior to the accident where the applicant visited him for back pain. Even with those records in hand, Dr. Abram did not opine that the applicant’s back issues pre-dated the accident. She did not opine that his back pain was due to obesity either.

25The respondent also states that the applicant inaccurately reported to physicians that his low back pain began immediately after the accident, as the contemporaneous records show complaints only to his left shoulder and chest as a result of the accident. I find that this is inaccurate. The applicant attended the hospital for a second time the week after the accident, complaining of neck pain, and mid to lower back pain. If the respondent was correct in stating that the applicant did not sustain an injury to his low back in the accident, that would also contradict Dr. Abram’s diagnosis of a lumbar sprain/strain. I note that the respondent relies on Dr. Abram’s report and opinion and does not discard her diagnosis.

26I find that there is compelling evidence that in July 2019, chiropractic treatment was reasonable and necessary. The progress note from Baldwin Street Chiropractic from July 2019 indicates that the range of motion to the applicant’s lower back had improved, although he still had tenderness and discomfort in that area. Chiropractic treatment was also recommended by Dr. Hamodi in April 2020. Dr. Hughes also indicated in March 2020 that the applicant was visiting a chiropractor, and that his back pain symptoms were improving. It appears that chiropractic treatment was having a positive impact on the applicant’s symptoms around the time the treatment plan was submitted.

27I do not find Dr. Abram’s opinion to be especially helpful with respect to this treatment plan as she did not address whether the applicant could benefit from further treatment for his back pain, or whether the treatment he had received for it was helpful. She simply addressed whether the applicant belonged in the MIG.

28I find that on a balance of probabilities, the treatment plan in dispute was reasonable and necessary at the time it was submitted. I agree with the applicant that pain relief is a legitimate goal of treatment, and I do not find the cost of this treatment plan to be excessive in an attempt to reach that goal at the time.

$2,200.00 for a chronic pain assessment proposed by Novo Medical Services in a treatment plan dated July 7, 2020 (issue iii)

29The applicant submits that a chronic pain assessment, which was ultimately completed by Dr. Getahun, orthopaedic surgeon, assisted with outlining a strategy to assist in the management and hopeful resolution of the impairments the applicant sustained. He also argues that the respondent’s denial letter violates s. 38 of the Schedule as it failed to identify the items described in the treatment plan, and at a bare minimum the respondent should have at least outlined the type of examination being denied.

30I do not see a reason why the applicant required an assessment with Dr. Getahun. The applicant was referred to a pain management program at St. Joseph’s Health Care, where he visited Dr. Hamodi in April 2020, prior to the treatment plan being submitted. Dr. Hamodi made a number of diagnoses and treatment recommendations, including injections, chiropractic treatment, physiotherapy, water therapy, and medications. The applicant was assessed by Dr. Getahun in March 2021. His recommendations were very similar, and included physiotherapy and chiropractic interventions, as well as injections. Dr. Getahun also recommended enrolment in a multidisciplinary chronic pain program. I note that there is no indication that the applicant has enrolled in this type of program, or even requested funding from the respondent for one.

31The applicant submits that although Dr. Chowdhury referred him to a pain management facility, treatment under OHIP is limited and will not cover modalities such as physiotherapy and chiropractic treatment. Although physiotherapy and chiropractic therapy may not be covered by OHIP, the treatment plan is not for these treatment modalities. There is no reason why an OHIP-funded physician cannot make recommendations for treatment that is not funded by OHIP, which is exactly what Dr. Hamodi did.

32The applicant visited Dr. Hamodi again on May 7, 2021. Dr. Hamodi noted that the applicant had not tried the recommended medications and was not doing physiotherapy or core strengthening. Dr. Hamodi recommended referrals for psychotherapy, psychiatry, physiotherapy, core strengthening exercises, and water fitness. The applicant indicated to Dr. Hamodi that he was not interested in medications as he was concerned about side effects and their impact on his job, and he was not interested in injections.

33The treatment plan states that its purpose is to determine the appropriate course of treatment and management of unresolved pain arising from the accident. The functional goal listed in the treatment plan was to arrange an appropriate pain management program. It appears to me that the goals of the treatment plan were already met by Dr. Hamodi (twice). I do not know what it means to “arrange” a pain management program. If it means to make recommendations, Dr. Hamodi already did that. If it means to facilitate and arrange enrolment in a program, there is no evidence that has occurred even after Dr. Getahun completed his report, and I do not see a reason why one could not have been arranged after reviewing Dr. Hamodi’s recommendations. I fail to see a reason why the respondent should pay for an assessment where one has already been completed and funded by OHIP.

34For those reasons, I find that the applicant has not discharged his burden in proving that a chronic pain assessment is reasonable and necessary.

35I also do not accept the applicant’s assertion that s. 38 of the Schedule was violated by the respondent. The respondent denied the treatment plan in its entirety as a result of its assertion that the applicant sustained a minor injury, which was based on the opinion of its s. 44 assessor. It also cannot be said that the respondent did not identify the type of assessment it was denying, because it attached a copy of the treatment plan with its denial letter. S. 38(11) is not triggered just because an insurer believes, erroneously or not, that an insured person belongs in the MIG. S. 38(11) is triggered by an insurer failing to give proper notice of a denial, which I find that they did not do here.

$2,200.00 for a psychological assessment proposed by Novo Medical Services in a treatment plan dated July 14, 2020 (issue iv)

36The applicant submits that a psychological assessment is reasonable and necessary as he has been diagnosed with psychological impairments. The respondent argues that there is no compelling medical evidence to suggest that the applicant suffered any psychological impairment as a result of the accident.

37As I have already noted above, I am persuaded that the applicant suffers from psychological conditions as a result of the accident, and that warrants exploration through a psychological assessment. Further, the respondent was content to pay for its own psychological assessment with Dr. Cobrin, so it cannot be said that it was unreasonable to assess the applicant’s psychological condition.

38I therefore find that this assessment is reasonable and necessary.

$2,200.00 for a social work assessment proposed by Novo Medical Services in a treatment plan dated September 25, 2020 (issue v)

39The applicant submits that a social work assessment is warranted based on the recommendations of Dr. Steiner, and the psychosocial stressors outlined by various other practitioners. The respondent submits that there is no medical evidence to suggest a need for social worker services as a result of the accident. It argues that, as social work treatment is not reasonable and necessary, neither is an assessment.

40The treatment plan indicates that a social work assessment and treatment is recommended to address social and environmental factors that affect the applicant’s well-being. The assessment aims to help the applicant identify skills and community resources to resolve problems (for example, whether the applicant can benefit from programs such as Meals on Wheels and health education classes). The treatment plan explains that social workers perform counselling with a particular emphasis on connecting people with the community and support services, whereas psychotherapists help people change their own ways of coping with problems.

41Dr. Steiner specifically recommended a social work assessment and treatment to identify social and environmental variables that impair the applicant’s return to his pre-morbid function. Dr. Chowdhury also stated that he agreed with Dr. Steiner’s recommendations.

42There appears to be no dispute that there are many environmental and social variables that are affecting the applicant. Dr. Cobrin opined that a social work assessment is not reasonable and necessary because, although it was his belief that the applicant could benefit from psychological intervention, it was his opinion that the accident was playing a minor, secondary role in the etiology of the applicant’s psychological difficulties. As I have already indicated above, I find his opinion with respect to the etiology of the applicant’s psychological difficulties to be lacking, and I give it less weight.

43I find that, on balance, the applicant has demonstrated that the social work assessment is reasonable and necessary.

$3,641.09 for psychological treatment proposed by Novo Medical Services in a treatment plan dated September 25, 2020 (issue vi)

$3,341.87 for psychological treatment proposed by Novo Medical Services in a treatment plan dated February 26, 2021 (issue vii)

44The applicant submits that psychological treatment has been recommended by various practitioners. The respondent submits that psychological treatment was denied on the basis of Dr. Cobrin’s report, where he stated that the applicant does not suffer from a psychological impairment as a result of the accident, and no psychological treatment is reasonable or necessary.

45Dr. Cobrin stated that the applicant could benefit from psychological intervention, but not because of accident-related issues. As discussed above, I have difficulty with the fact that Dr. Cobrin discounted the applicant’s accident-related issues without explanation.

46Around the time that the first treatment plan was submitted, the applicant was prescribed Clonazepam and was counselled by Dr. Chowdhury. He was subsequently prescribed Cipralex for depression. Dr. Steiner recommended 12-16 sessions of psychotherapy in September 2020. In a letter dated March 24, 2021, Dr. Chowdhury stated that he agreed with Dr. Steiner’s recommendations.

47Further, in May 2021, the applicant was referred to Dr. Hamodi for a second time for his lower back pain. Dr. Hamodi suggested that the applicant be referred to a psychologist to improve his coping mechanisms. The applicant was also referred to a psychiatrist by Dr. Chowdhury.

48Despite the denials, the applicant completed eight sessions of psychotherapy with Hidayahtullah Sherzad, registered psychotherapist. Ms. Sherzad completed a progress report on January 30, 2021. She re-assessed the applicant’s levels of depression and anxiety, and noted that he was experiencing severe levels of depression and moderate levels of anxiety. It appears that after receiving treatment from Ms. Sherzad, the applicant’s anxiety had reduced from being “severe” to “moderate”. Ms. Sherzad recommended 12 additional counselling sessions to address the applicant’s ongoing anxiety, low mood, negative thinking patterns, and health teaching around pain, symptom management, and sleep issues.

49I find that both treatment plans are reasonable and necessary. Psychological treatment was recommended by numerous practitioners, and given the applicant’s psychological condition, psychological treatment was reasonable and necessary at the time the first treatment plan was submitted. It appears that the initial slate of treatment has been somewhat beneficial to the applicant, but he still has difficulties to work through. Further treatment has been recommended by the applicant’s treating psychotherapist. I find that on a balance of probabilities, the additional slate of treatment outlined in the second treatment plan is also reasonable and necessary.

$1,106.00 for chiropractic treatment proposed by London Chiropractic and Massage in a treatment plan dated March 1, 2021 (issue viii)

50The applicant submits that the respondent relied on Dr. Abram’s report, which was outdated by the time the treatment plan was submitted. The applicant argues that the respondent failed to consider Dr. Hamodi’s opinions, and did not consider having a s. 44 assessor revisit the treatment plan in the face of compelling medical evidence that would support entitlement and removal from the MIG. The applicant also submits that the respondent failed to adhere to s. 38(8) of the Schedule by failing to outline the items described in the treatment plan.

51The respondent does not make any submissions with respect to this treatment plan specifically.

52This treatment plan is for chiropractic treatment and massage therapy. Around the time the treatment plan was submitted, Dr. Hamodi recommended physiotherapy and core strengthening, but did not make a recommendation for chiropractic treatment or massage therapy, despite having recommended chiropractic treatment in 2020. I also note that the applicant was still receiving chiropractic treatment at Baldwin Street Chiropractic around the time this treatment plan was submitted. In the final progress note from February 11, 2021, the treatment provider stated that the applicant’s range of motion in his lumbar spine had actually decreased. It is not clear at that point whether the chiropractic treatment was actually assisting the applicant or was warranted at that time.

53The only evidence that chiropractic treatment was being recommended around this period of time was from Dr. Getahun. He recommended physiotherapy, including chiropractic interventions, in a multidisciplinary supervised setting focusing on range of motion and strengthening of the lumbosacral spine and cervical spine. The treatment plan at issue does not appear to be for chiropractic interventions in a multidisciplinary supervised setting, and it does not appear to have a physiotherapy or strengthening component.

54Taking into consideration the fact that Dr. Hamodi was no longer recommending chiropractic treatment, there is limited evidence that chiropractic treatment was actually assisting the applicant, there is no indication that massage therapy has been recommended by any practitioners, and this does not appear to be the specific type of treatment recommended by Dr. Getahun, I find that the applicant has not met his burden in proving that the treatment plan, as submitted, is reasonable and necessary.

55With respect to the applicant’s arguments regarding the respondent’s conduct, I do not find that the respondent violated s. 38(8) of the Schedule such that s. 38(11) is triggered. The respondent denied the treatment plan outright based on its s. 44 assessor’s opinion that the MIG applied, and it included a copy of the treatment plan it had denied with its letter. It cannot be said that the respondent did not provide the applicant with proper notice of the denial.

56The applicant submits that the respondent ignored Dr. Hamodi’s diagnosis of radiculopathy, and therefore should not have continued to deny the treatment plan on the basis that the applicant’s injuries are minor. However, the applicant has not provided any documentation to show that the respondent had a copy of Dr. Hamodi’s notes. I cannot determine whether the respondent failed to review these records without further evidence showing if and when the records were provided. In any event, ignoring medical evidence does not necessarily trigger the consequences of s. 38(11). I do not find that the respondent violated s. 38(8) with respect to this treatment plan, and it is accordingly not payable.

Interest

57Having determined that certain benefits are payable, it follows that interest applies pursuant to s. 51 once the benefits are incurred.

Award

58The applicant sought an award under s. 10 of Reg. 664. Under s. 10, I may grant an award of up to 50% of the total benefits payable if I find that the respondent unreasonably withheld or delayed the payment of benefits.

59The applicant argues that he is entitled to an award because the respondent has unreasonably held and delayed payments, failed to adhere to the Schedule, and failed to adjust the file on a good faith basis. The respondent argues that there is no basis for a s. 10 award in this case, as all denials were made in accordance with compelling medical evidence on record.

60I find that the applicant is entitled to an award. The respondent completely ignored the opinion of Dr. Cobrin, its own s. 44 assessor, who found that the applicant’s pre-existing psychological injuries preclude him from the monetary limits of the MIG. Some of the denials were made because the respondent stated the applicant was in the MIG. After receiving Dr. Cobrin’s report, the respondent should have removed the applicant from the MIG and re-assessed the treatment plans it denied solely for that reason. It is now more than five years after the accident occurred, and the applicant has not been able to access certain benefits as a result of the respondent’s failure to properly adjust its file.

61At no point in the respondent’s submissions does it explain its reasoning for ignoring Dr. Cobrin’s conclusion with respect to the MIG, despite this issue being pointed out in the applicant’s submissions.

62I agree with the following statement made by Adjudicator Johal in A.A. v. Aviva General Insurance Company, 2020 CanLII 19571 (ON LAT): “Once the respondent has evidence, especially from its chosen IE assessors, that the applicant’s injuries are not within the definition of the MIG, it cannot ignore that evidence and choose to rely on the evidence it prefers in order to deny the treatment plan.”

63Of the treatment plans that I have found to be payable, the following were denied strictly because of the respondent’s assertion that the applicant was in the MIG: $1,020 for chiropractic treatment in a treatment plan dated July 10, 2019 (issue ii), and $2,200 for a psychological assessment in a treatment plan dated July 14, 2020 (issue iv). Dr. Abram did not provide an opinion with respect to whether those treatment plans were reasonable and necessary; she simply stated that the applicant belonged in the MIG. Once the respondent knew or should have known that the applicant no longer belonged in the MIG, it had an obligation to re-assess those denials. To do otherwise was to act in a manner that was imprudent, stubborn, inflexible, and unyielding.

64With respect to the other denials, the respondent did not deny them solely because of the MIG. The respondent is entitled to rely on opinions from its s. 44 assessors and the evidence available to it. I do not find that the respondent acted improperly with respect to the other treatment plans.

65In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.¹

66In this case, the respondent’s conduct should be strongly deterred. The respondent has provided no excuse for its actions. The respondent still maintained its position that the applicant belonged in the MIG in its submissions at this hearing and relied on the rest of Dr. Cobrin’s report. It erroneously kept the applicant in the MIG for years and gained a monetary advantage by being able to do so. I have not been provided evidence of specific harm to the applicant, or his vulnerability. I do not find that the respondent’s conduct attracts the full 50% maximum allowable under O. Reg. 664. I find that $1,000.00 is an appropriate quantum for the award, plus interest pursuant to O. Reg. 664. This represents approximately 30% of the unreasonably denied chiropractic treatment and psychological assessment.

ORDER

67The applicant is entitled to the following, plus interest pursuant to s. 51 of the Schedule:

i. $1,020.00 for chiropractic treatment, proposed by Baldwin Street Chiropractic in a treatment plan dated July 10, 2019 (issue ii);

ii. $2,200.00 for a psychological assessment proposed by Novo Medical Services in a treatment plan dated July 14, 2020 (issue iv);

iii. $2,200.00 for a social work assessment proposed by Novo Medical Services in a treatment plan dated September 25, 2020 (issue v);

iv. $3,641.09 for psychological treatment proposed by Novo Medical Services in a treatment plan dated September 25, 2020 (issue vi); and

v. $3,341.87 for psychological treatment proposed by Novo Medical Services in a treatment plan dated February 26, 2021 (issue vii).

68The applicant is not entitled to the following:

vi. $2,200.00 for a chronic pain assessment proposed by Novo Medical Services in a treatment plan dated July 7, 2020 (issue iii); and

vii. $1,106.00 for chiropractic treatment proposed by London Chiropractic and Massage in a treatment plan dated March 1, 2021 (issue viii).

69The applicant is entitled to an award pursuant to s. 10 of O. Reg. 664 in the amount of $1,000.00, plus interest.

Footnotes

1. 1Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649.