Morrissey v. Wawanesa Mutual Insurance Company, 2023 CanLII 58522

Morrissey v. Wawanesa Mutual Insurance Company, 2023 CanLII 58522

Citation: Morrissey v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-010897/AABS

Licence Appeal Tribunal File Number: 21-010897/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:

Steven Morrissey

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Nick de Koning, Counsel

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Steve Morrissey (“S.M.”), the applicant, was involved in an automobile accident on January 13, 2000, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, 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. Is S.M. entitled to $881.90 for massage therapy proposed by Cambridge Physio and Rehab dated December 4, 2020?

ii. Is S.M. entitled to $3,418.74 for physiotherapy proposed by Pathways Therapy dated November 30, 2020?

iii. Is S.M. entitled to $742.55 for massage therapy proposed by Cambridge Physio and Rehab dated May 20, 2021?

iv. Is S.M. entitled to $69.99 ($1,668.91, less $1,598.92 approved) for a Costco membership proposed by Julie Mogk dated August 13, 2019?

v. Is S.M. entitled to $2,223.92 for private pool therapy proposed by Pathways Therapy dated December 1, 2020?

vi. Is S.M. entitled to $2,122.84 for assistive devices proposed by Jacquie Gallivan dated November 17, 2020?

vii. Is S.M. entitled to $7,488.26 ($10,812.04, less $3,323.78 approved) for a Rehabilitation Support Worker proposed by Jacquie Gallivan dated June 11, 2021?

viii. Is S.M. entitled to $13,100.85 for a hot tub proposed by Jacquie Gallivan dated March 18, 2021?

ix. Is S.M. entitled to $3,128.68 for occupational therapy services proposed by Functional Abilities Rehab dated November 31, 2021?

x. Is S.M. entitled to $7,370.85 for speech pathology services proposed by JAV Speech Language Pathology dated November 26, 2021?

xi. Is S.M. entitled to $2,228.66 for a Rehab Support Worker proposed by Functional Abilities dated November 25, 2021?

xii. Is Wawanesa liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payment of benefits?

xiii. Is S.M. entitled to interest on any overdue payment of benefits?

3In its submissions, Wawanesa advised that issues 2(vi) and 2(x) above, are no longer in dispute as both treatment plans have been approved. S.M. acknowledged in his submissions, that the two issues have been agreed to by Wawanesa, to be funded in full. As such, this decision will focus on the remaining issues in dispute.

RESULT

4S.M. is entitled to funding for the OCF-18s for massage therapy, physiotherapy, aqua therapy and a hot tub. Interest is payable.

5S.M. is not entitled to the remaining OCF-18s, as he has not established that they are reasonable and necessary.

6S.M. is not entitled to an award.

BACKGrouND

7The accident happened over 22 years ago on January 13, 2000. S.M. was a passenger in a vehicle that left the roadway and struck a pole. He suffered a brain injury, facial lacerations with orbital fractures, pelvic fracture (non-surgical), bladder rupture, chest wall injury and right shoulder contusion. S.M. has been accepted as having suffered a catastrophic impairment due to having sustained a Glasgow Coma Scale score of 9 or less due to his brain injury.

8The following timeline outlines S.M.’s achievements in his recovery:

i. January 13, 2000: Subject accident;

ii. September 27, 2000: returned to work at the Budweiser (Labatt) Plant on the assembly line;

iii. February 12, 2006: permanently lay off from Bud Plant;

iv. July 2007 to early 2018: worked at EBS Construction, worked in general construction all over Ontario, ultimately quit due to “safety reasons” (working 14 hours per day, “too hard mentally”);

v. 2009: worked at Kelsey’s Restaurant; was a prep cook at Val’s Family Restaurant; worked assembling furniture at Structube for approximately 5 months; passed his personal training certificate and was self-employed part-time as a trainer and life skills coach;

vi. 2010: earned approximately $3,000 from personal training; attended a 6-month culinary management course at Liaison College and completed his diploma with help from the school and close friends;

vii. 2011: worked part time preparing food for a caterer on weekends; worked at two manufacturing jobs, let go in July;

viii. 2012: physical treatment was restarted;

ix. 2015-2020: started playing Ice Stock (EisstockschieBen) on the Canadian national team; attended Ice Stock (EisstockschieBen) tournaments in Ontario, Italy, Brazil and Germany;

x. 2015-2018: involved in a pool league where he won MVP;

xi. 2017: rock climbing at a rock-climbing gym; and

xii. 2017-2020: regularly going to the gym and pool until the Covid pandemic.

ANALYSIS

Are the medical and rehabilitation benefits reasonable and necessary?

9The issues in dispute are restricted to issues of medical and rehabilitation benefits. Sections 14 and 15 of the Schedule state 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. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society or the labour market.

10S.M. bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

OCF-18 in the amount of $881.90 dated December 4, 2020

OCF-18 in the amount of $3,418.74 dated November 30, 2020

OCF-18 in the amount of $742.55 dated May 20, 2021

OCF-18 in the amount of $2,223.92 dated December 1, 2020

11S.M. is entitled to the OCF-18s for massage therapy and physiotherapy.

12S.M. is not entitled to the OCF-18 for pool therapy.

13The OCF-18s dated December 4, 2020 and May 20, 2021 for massage therapy list the following injuries under Part 6―superficial injuries involving the thorax with abdomen, lower back and pelvis; fractures involving thorax with lower back and pelvis with limb(s), closed; shoulder lesions; sprain and strain of other unspecified parts of knee; sprain and strain of ankle and unspecified injury of shoulder and upper arm.

14The OCF-18 dated November 30, 2020, proposed a year of physiotherapy sessions, noting that S.M. struggles with pain and reduced range of motion. Due to the COVID pandemic, he was remaining home and participating in virtual sessions. He continued with massage osteopathy and physiotherapy, which he reported, assisted with pain control and improved movement and function at home.

15Lastly, the OCF-18 dated December 1, 2020, proposed 15 sessions of aqua-stretch pool therapy for a duration of 15 weeks. I note that the OCF-18 indicated that S.M. had regressed in terms of pain control, range of motion and balance, due to lack of therapy during the COVID pandemic. I further note that S.M. had previously been approved for 20 pool therapy sessions, as well as an annual pool membership. S.M. submits that as a result of his injuries, specifically, the pain and dysfunction in the right shoulder, which was interfering with his activities of daily living and recreational activities, the OCF-18 is reasonable and necessary. He points to the fact that he experienced generalized pain around the right shoulder, especially with repetitive movement of the right arm or prolonged raising of the right arm, which resulted in pain.

16The treatment goals of the aqua stretch OCF-18 were manual stretching, strengthening, and soft tissue techniques, with goals of pain reduction and maintain functioning.

17S.M. submits that his right shoulder difficulties, ongoing pain, particularly with the right knee and right ankle were all relieved by way of regular pain maintenance achieved through weekly massage over the past 20 years. His position is that the goal of pain reduction, is reasonable, and therefore the OCF-18s should be approved.

18In support of his claim, S.M. refers to the notes of Cambridge Physio, which indicates his subjective reporting in response to treatment, as follows:

i. February 26, 2021 – post-massage, S.M. noted quality of motion in lower body increased;

ii. March 1, 2021 – S.M. reported that after his last massage, he felt much better after a couple of days; no pain and swelling in ankles and pain overall decreased for a short time; range of motion returns to original state soon after appointment…due to pain levels;

iii. April 7, 2021 – entry indicates that two weeks of massages were missed, pain levels increased to initial levels. The therapist opined that the return of tension and sensitivity to S.M.’s lower body is indicative that regular treatment is needed to maintain lower levels of discomfort and maintain lower tension levels;

iv. May 3, 2021 – muscle tone had not improved for long term but had become more responsive to change with regular massage sessions; however, tension returned within a week; and

v. July 4, 2022 – S.M. reported enjoying regular massages, combined with running and working out, which was helping to maintain a decrease in muscle tension and pain [sic].

19S.M. raises several points with respect to Dr. Jaroszynski’s report. First, he submits that Dr. Jaroszynski appears to accept that S.M. experiences ongoing chronic pain; not questioning that the chronic pain is related to the accident. Second, S.M. submits that Dr. Jaroszynski does not comment on the extent of the chronic pain, or to what extent massage therapy helps to reduce his pain. Lastly, S.M. takes the position that Dr. Jaroszynski’s conclusion suggests that for the recommended treatment to be reasonable and necessary, the result must be a cure of pain or symptoms. Accordingly, S.M. submits that pain reduction, even temporarily, is a reasonable goal of treatment, and satisfies the reasonable and necessary test.

20In response, Wawanesa argues that given that 20 years has passed since the accident, that S.M. suffered internal injuries and soft tissue injuries to the right shoulder and knee, the massage therapy treatment was not reasonable and necessary.

21In support of its determination, Wawanesa relies on the April 14, 2021 report of its s. 44 assessor, orthopaedic surgeon, Dr. Jaroszynski, who opined that S.M.’s current impairments were a combination of accident-related injuries and aging, which contributed to his current symptoms. Dr. Jaroszynski diagnosed S.M. with tendinopathy of the right rotator cuff; lumbosacral/pelvic pain and bilateral patellofemoral crepitus. Dr. Jaroszynski commented that the prognosis was guarded; that S.M.’s symptoms would gradually increased due to aging. Dr. Jaroszynski recommended a self-directed stretching and aerobic exercise program that he believed S.M. could engage in a self-directed manner. Dr. Jaroszynski concluded that the proposed OCF-18s were not reasonable and necessary.

22Wawanesa agrees that pain relief can be a legitimate goal, however, it also directs me to Director’s Delegate Draper in General Accident Assurance Co. of Canada v. Violi [2000 Carswell ON 3453 Financial Services Commission of Ontario], wherein Director Draper commented on an indefinite dependency as a result of ongoing treatment or services. Director Draper considered the effectiveness of treatment, noting the importance of same and whether it should continue over a lengthy period. Of note is the notion that pain relief measures should not encourage an inappropriate or indefinite dependency or interfere with other aspects of rehabilitation. Wawanesa’s position is that at 20 years post-accident, S.M. still reports being in pain “every minute of every day in multiple locations in his body”, despite weekly massages for the past 20 years. Further, it submits that S.M. has received physiotherapy, kinesiology treatment, rock climbing, osteopathy, pool therapy and aqua stretch over the past 17 years.

23In response, S.M. submits that Dr. Jaroszynski’s opinion narrowly focused on whether the treatment would eliminate or cure his pain; since it would not, and the pain is permanent, S.M. posits that this was the sole reason Dr. Jaroszynski concluded the treatment was not reasonable and necessary. S.M. further submits that, Dr. Jaroszynski’s comment that S.M. may develop a “psychological dependence”, should be afforded little weight, because psychological considerations should be addressed by a psychologist or psychiatrist, not an orthopaedic surgeon.

24It is well indicated throughout the medical records and subjective reporting that S.M. has experienced ongoing pain. Notably, when he has received in-person, facility-based treatment, he has reported improvement, albeit temporary. I note that he reported to his treatment providers at Cambridge Physio, that his in-home exercise appeared to provide the most relief when combined with the massage treatment he received from Cambridge Physio. It is further evident that his symptoms worsened during the COVID pandemic when he was unable to engage in the various treatment modalities, including aqua stretch/therapy. Lastly, Wawanesa approved a similar aqua therapy OCF-18 dated July 21, 2020, which also noted that S.M. regressed in terms of pain control, range of motion and balance due to a lack of therapy during the COVID pandemic.

25I find S.M.’s evidence persuasive. When he received treatment, there was noted improvement with his pain symptoms. While I appreciate that Dr. Jaroszynski considered a dependence on ongoing treatment, I place little weight on Dr. Jaroszynski’s opinion as it pertains to any psychological opinion, as such a consideration is outside Dr. Jaroszynski’s area of expertise. Further, as S.M. has argued, and which is also supported in Violi, pain reduction is a reasonable goal. The OCF-18s have a similar goal of pain reduction, which S.M. has experienced, as recently as 2020, when he has received facility-based treatment. Having suffered significant catastrophic injuries and resulting chronic pain, I find that the OCF-18s for massage therapy, aqua therapy and physiotherapy are reasonable and necessary to address the goal of pain reduction.

26Despite this, I find that the OCF-18 for private pool therapy is not reasonable and necessary. S.M. already has access to a pool, by way of an annual pool membership, and he has received aqua therapy treatment, which I have also found that further aqua therapy is reasonable and necessary. I find that the private pool therapy is a duplication of services that he is already able to engage in on his own. Further, he has been very active with his Ice Stock activities, pool league, going to the gym, and various other examples of engaging in activities of daily living, that suggest he is functioning well with the various treatment modalities that he has received to date. I see no benefit to private pool lessons that could not be achieved through self-directed exercises that S.M. can engage in with his pool membership, especially since there are exercise classes available at locations that offer public access to a pool.

27Accordingly, the OCF-18 for private pool therapy is not reasonable and necessary.

OCF-18 in the amount of $69.99 dated August 13, 2019

28S.M. is not entitled to the OCF-18 for a Costco membership.

29S.M. submits that the Costco membership was reasonable and necessary, as a result of his frustration with the significant level of food waste, and subsequently, the monetary waste. It should be noted that the amount of the OCF-18 that was approved was for an upright freezer, which has enough space for prepared food. The occupational therapist, Julie Van Mogk, who completed the OCF-18 noted that the membership was reasonable because it would allow S.M. to buy food in bulk at discounted prices and fits in with overall meal planning. S.M. submits that further benefit from the membership would be additional discounts, such as discounted movie tickets.

30In response, Wawanesa based its determination on a November 20, 2019 s. 44 report, from occupational therapist, Tracie Shaw. In her report, Ms. Shaw supported the need for the upright freezer, but found the membership not reasonable and necessary, noting that most grocery stores carry bulk products. Its position is that a Costco membership is not necessary as a result of the accident. It further argues that buying food in bulk contradicts S.M.’s noted frustration with food waste.

31While S.M. submits that bulk food products at Costco can be purchased in larger quantities at member-only discounts, I do not find the membership to be reasonable and necessary as a result of the accident. I disagree that there is any rehabilitative benefit from the membership, that accords with the provision in s. 16 of the Schedule, that the membership is “reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.”

32Section 15 of the Schedule requires that an insurer pay for all reasonable and necessary medical and rehabilitation expenses incurred by or on behalf of the insured person as a result of the accident. While the goals of the OCF-18 to increase independence, are noted to be: a) meal preparation; b) budgeting and c) healthy living, I do not find that a Costco membership is required to attain these goals. Further, I agree with Wawanesa that, bulk purchases at a discount price are beneficial, a Costco membership is not necessary to be able to make bulk purchases, or necessary as a result of the accident. Further, the discount benefits from a Costco membership are also not reasonable and necessary as a result of the accident.

33While S.M. submits that the cost of the membership is insignificant to the insurer, this is not a ground to establish whether the OCF-18 is reasonable and necessary. While I appreciate that S.M. submits that the membership is reasonable, including the cost of same, I do not find that he has demonstrated that it is necessary. There are other bulk grocery options available, without the need for a membership, including points programs that can be used for additional discounts, saving and benefits. Accordingly, the Costco membership is not reasonable and necessary as a result of the accident.

OCF-18 in the amount of $7,488.26 dated June 11, 2021

OCF-18 in the amount of $2,228.66 dated November 25, 2021

34S.M. has not demonstrated that the OCF-18s for a rehabilitation support worker are reasonable and necessary.

35S.M.’s submissions focus mainly on his position with respect to the February 8, 2021 in-person and July 11, 2021 paper review, s. 44 reports of occupational therapist, Taylor Sanderson. Unfortunately, S.M.’s submissions on the two OCF-18s fail to address the reasonableness and necessity of both OCF-18s. While there is a reference to the OCF-18s that were recommended by occupational therapist, Jacquie Gallivan, there is no discussion as to whether the goals of the treatment plans are reasonable; whether the goals are being met to a reasonable degree; or whether the cost of achieving the goals are reasonable.

36S.M.’s issues with Ms. Sanderson’s reports are secondary to him meeting his onus to demonstrate on a balance of probabilities, that the OCF-18s are reasonable and necessary. Further, S.M. fails to direct me to any objective evidence, in his discussion of the two OCF-18s, that supports that the treatment plans are reasonable and necessary.

37Accordingly, I find that S.M. has failed to meet his onus to establish that the two OCF-18s for a rehabilitation support worker are reasonable and necessary.

OCF-18 in the amount of $13,100.85 dated March 18, 2021

38S.M. has demonstrated that the OCF-18 for a hot tub and related services are reasonable and necessary.

39The March 18, 2021 OCF-18 proposed a hot tub and related goods and services (electrical work and a concrete pad, plus HST). In support of his claim, S.M. relies on the March 30, 2021 report of Ms. Gallivan, in which she notes that he continues to struggle with chronic pain, and that the hot tub is supported as a treatment modality. She reports that the use of hot water and therapeutic jets assist with improved blood flow and help to decrease pain. Ms. Gallivan notes the passive component of the hot tub, in that it would allow S.M. to do some water-based exercises.

40S.M. also relies on a March 16, 2021 report from psychologist/neuro-psychologist Dr. Lad and Dr. Hornak. In their report, the doctors note that S.M. suffers from chronic pain in the right leg, pelvis and low back on a daily basis. Drs. Lad and Hornak supported the recommendation of the hot tub as a means of pain management, and to less directly reduce emotional symptoms.

41In an April 22, 2021 letter to the adjuster, Ms. Gallivan notes that S.M. has experienced a decline in his pain management as the manual therapies and aqua therapy treatments have stopped. Ms. Gallivan commented that his pain management would improve with the use of a hot tub, and by having it available at home, he would be able to access it as needed. I note that the recommended model based on features, size and cost, is a lower end model.

42In response, Wawanesa relies on a May 26, 2021 paper review report and an orthopaedic surveillance review report from Dr. Jaroszynski. In his reports, Dr. Jaroszynski recommended self-directed stretching and aerobic exercise. The surveillance evidence documented S.M. attending the gym; performing outdoor home maintenance (with a leaf blower and riding lawn mower that was recommended and funded by Wawanesa); engaging in lifting, pushing and carrying large items (carpets, boxes, groceries) and being active in various other everyday activities.

43Wawanesa suggests that S.M. can use a hot tub at the gym (this assumes that a gym has such facilities available, and also suggests that the use of a hot tub is, in fact, reasonable). Wawanesa further suggests that a pool membership is also an additional treatment alternative, along with Dr. Jaroszynski’s recommendation of self-directed exercise.

44I agree with S.M.

45Notably, the use of a hot tub at a gym is not a guarantee for a number of reasons. First, availability of such facilities at a gym may not be an option. Second, access to the hot tub may also not be available, due to the number of people wanting to use such a facility. Lastly, the obvious health factors to consider of sharing a hot tub with countless individuals, and the germ/disease risk that can be associated with a public facility.

46Wawanesa’s suggestion of using a hot tub at a gym, in my view, suggests that such an option is reasonable, were it available to S.M. While the suggestion of aqua therapy has been previously approved, there are different therapeutic benefits between pool exercise and using a hot tub, namely, the inclusion of the jet system in a hot tub, actually providing heat and pulsation, which assists in pain relief.

47As has been previously noted, it is well-documented and not disputed that S.M. suffers from chronic pain as a result of the accident. Wawanesa submits that there is a lack of any identified functional impairment that the hot tub will have “some improvement with” (as noted in Ms. Gallivan’s report), therefore the hot tub is not reasonable and necessary.

48I disagree and place more weight on Ms. Gallivan’s report than those of Dr. Jaroszynski. As an occupational therapist, Ms. Gallivan has the opportunity to assess S.M. in his home and determine his level of function and the implements that would allow him to function with a reduced-pain capacity. Having the benefit of determining his in-home abilities, garners more weight than an in-office assessment, where S.M.’s engagement in various activities around his home cannot be adequately re-enacted. Further, Wawanesa did not rely on the reports of its own occupational therapist, Ms. Sanderson, which I find curious, as she would have had the same benefit of an in-home assessment and may have provided a stronger case against the need for the hot tub, accordingly.

49As such, I find that S.M. has demonstrated that the hot tub and associated costs are reasonable and necessary.

OCF-18 in the amount of $3,128.68 dated November 31, 2021

50The OCF-18 proposed 8-1.5-hour weekly sessions of occupational therapy. The goals of the treatment plan are to improve emotional regulation, organization and coping skills.

51I find that S.M. has not demonstrated that the OCF-18 is reasonable and necessary.

52As discussed previously, S.M.’s submissions focus on Wawanesa’s reliance on it’s s. 44 reports of Ms. Sanderson and Dr. Jaroszynski. While he briefly mentions some of the wording of s. 15 and 16 of the Schedule as it pertains to reducing or eliminating the effects of any disability or facilitating the person’s reintegration into family or the rest of society, there is a complete absence of any discussion as it pertains to the reasonable and necessary test.

53This is a fundamental requirement in demonstrating that the treatment claimed is reasonable and necessary. Having failed to direct me to the evidence that establishes that the elements of the reasonable and necessary test are met, I am unable to determine that the OCF-18 is reasonable and necessary.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

55Interest is payable on the OCF-18s for massage therapy, aqua therapy, physiotherapy and the hot tub.

Award

56S.M. 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.

57S.M. submits that Wawanesa “appears to have made some kind of decision to simply abruptly terminate all of the treatment and rehabilitation.” His position is that Wawanesa was unreasonable and demonstrated inflexible conduct in assessing his claims for treatment. Specifically, he submits that it was unreasonable for an insurer to “make a hard and fast decision to simply deny all claims going forward and put the person to the proof of each and every claim at the Tribunal.”

58S.M. further submits that the issues that were previously confirmed by Wawanesa to be payable, were not paid, despite being supported by the s. 44 assessor. Wawanesa acknowledged the oversight, and therefore, I find an award is not appropriate regarding these two OCF-18s.

59Regarding the remaining issues in dispute, S.M. has not established that Wawanesa unreasonably withheld or delayed payment of several of the benefits, which I found were not reasonable and necessary. Accordingly, an award is not appropriate regarding those OCF-18s.

60For the remaining OCF-18s that were payable, I do not find that Wawanesa’s actions warrant an award. First, Wawanesa has been paying out benefits on S.M.’s claim for approximately 20 years. There is no greater counterclaim to S.M.’s position on the award, than Wawanesa’s long-term commitment of paying out benefits to its catastrophically impaired insured person. Second, under s. 44 of the Schedule, Wawanesa is within its right to request reasonably required examinations after such a significant period of time, in order to properly determine the extent of any ongoing impairment.

61S.M.’s position seems to suggest that because he is catastrophically impaired, any claim made is payable, no questions asked. That is not how the accident benefits scheme works, nor was it intended to be a free-for-all for insured persons injured as a result of an accident, catastrophically or otherwise. The Schedule provides a means for insurers to make fully informed determinations to ensure that applicants are not benefitting from a windfall of funding just because treatment is recommended as a result of a catastrophic impairment. Wawanesa’s choice to exercise its s. 44 rights are not a ground for an award, even if the Tribunal determines that a denied OCF-18 is ultimately payable. Wawanesa followed the recommendations of its assessors in denying claims for benefits, and further acknowledged, that where errors were made in making determinations, those benefits were payable. I find this does not demonstrate that Wawanesa unreasonably withheld or delayed payment of benefits.

62Accordingly, I find that an award is not appropriate.

ORDER

63S.M. has demonstrated that the following OCF-18s are reasonable and necessary:

i. OCF-18 in the amount of $881.90 dated December 4, 2020;

ii. OCF-18 in the amount of $3,418.74 dated November 30, 2020;

iii. OCF-18 in the amount of $742.55 dated May 20, 2021;

iv. OCF-18 in the amount of $13,100.85 dated March 18, 2021; and

v. Interest is payable in accordance with s. 51 of the Schedule.

64S.M. is not entitled to the remaining OCF-18s in dispute, and accordingly no interest is payable on these amounts.

65S.M. is not entitled to an award.

Released: July 4, 2023

__________________________

Derek Grant

Adjudicator