Licence Appeal Tribunal File Number: 21-004303/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:
Suresh Lakshman
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Suresh Lakshman, Applicant Patricia Edwards, Paralegal Andrew Bergel, Counsel
For the Respondent: Modasir Rajabali, Counsel
HEARD: By way of written hearing
OVERVIEW
1Suresh Lakshman, (the “applicant”), was involved in an automobile accident on February 23, 2019, 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 BelairDirect Insurance Company (the “respondent”) 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 and in the Minor Injury Guideline?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 30.2019 to date and ongoing?
iii. Is the applicant entitled to $2,304.06 for chiropractic treatment, proposed by Prime Health Care in a treatment plan/OCF-18 denied on January 22, 2020?
iv. Is the applicant entitled to $2,000 for psychological treatment, proposed by Prime Health Care in a treatment plan/OCF-18 denied on January 22, 2020?
v. Is the applicant entitled to $213.06 ($3,302.28 less approved $3,089.22) for chiropractic treatment, proposed by Prime Health Care in a treatment plan/OCF-18 denied on February 6, 2020?
vi. Is the applicant entitled to $2,000 for occupational therapy, proposed by Prime Health Care in a treatment plan/OCF-18 denied on February 12, 2020?
vii. Is the applicant entitled to $3,943.49 for psychotherapy, proposed by Prime Health Care in a treatment plan/OCF-18 denied on August 24, 2021?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
3In written submissions, the applicant withdrew issues v. and vi. Therefore, they do not need to be addressed. The remaining issues in dispute will be considered.
RESULT
4The applicant’s accident-related injuries are found to be within the Minor Injury Guideline (“MIG”) because he has not shown that his pre-existing injuries require removal from the MIG. The applicant has also not shown that he suffered from chronic pain or a psychological injury as a result of the accident.
5The applicant is not entitled to $2,304.06 for chiropractic treatment, $2,000 for psychological treatment, or $3,943.49 for psychotherapy, as he has not shown that these OCF-18s are reasonable and necessary.
6The applicant is not entitled to the non-earner benefit as he has not shown he suffers a complete inability to carry on a normal life as a result of the accident.
7The applicant is not entitled to interest.
8The applicant is not entitled to an award.
PROCEDURAL ISSUES
Page limits
9In the applicant’s reply submissions, he submits that the respondent did not comply with the Tribunal’s case conference report and order of February 28, 2022, which limited the parties’ submissions to a maximum of ten pages. The applicant also submits that the respondent included several “long passages” of single-spaced text, thereby circumventing the Tribunal’s order. The applicant submits that the respondent provided 13 pages of submissions, and therefore, the Tribunal should only consider submissions until page nine.
10After reviewing the respondent’s submissions and the case conference report and order, I note that the respondent counted its cover page when labelling its page number, which I find should not count towards its page limit. However, I did also note that the respondent provided 11 pages of written submissions.
11In terms of the respondent’s “long passages” of single-spaced text, I note that these passages are quotes from the Schedule, and case law, and will allow said quotes to be considered. I rely on the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”), specifically Rule 3.1 and its subsection (c), which allows me to vary the rules and ensure consistency with the Tribunal’s governing legislation and regulations.
12However, I agree with the applicant in that the respondent failed to explain why it did not comply with the Tribunal’s order. I will only consider submissions from page “2 of 13” until “page 11 of 13”, as the respondent did not comply with the Tribunal’s order. I rely on Rule 3.1(b) as it allows me to ensure that the hearing is efficient, proportional and timely.
Expert’s Duty Acknowledgement
13The respondent also submits that the applicant did not provide the Tribunal Expert’s Duty Acknowledgement described in Rule 10.2 and therefore, has not complied with the Rules. The respondent submits the applicant’s submissions are not evidence.
14The applicant submits that the evidence of the applicant’s treating health care practitioners do not require an Expert’s Duty Acknowledgement based on the Ontario Court of Appeal decision Westerhof v. Gee Estate, 2015 ONCA 206. In that matter, the Court of Appeal found that treating professionals are entitled to give factual evidence of their observations and treatment of a party without being qualified as expert witnesses. The Court of Appeal also noted that these practitioners could not provide opinions as to the cause of an injury, its pathology or prognosis without the Expert’s qualification.
15I agree with the applicant’s position, as Westerhof is binding on the Tribunal. As such, I will consider the applicant’s treating practitioners’ evidence, but not their opinions on the cause of the applicant’s injuries, pathology, or prognosis.
16I also acknowledge that the applicant provided an Expert’s Duty Acknowledgement form for the evidence of Dr. Andrew Shaul, psychologist. However, I also note that the applicant did not comply with Rule 10.3(a), nor explain why the applicant failed to provide this Acknowledgement at least 30 days before the hearing.
17I will admit the report of Dr. Shaul but will assign it less weight.
ANALYSIS
The Applicant’s injuries fall within the Minor Injury Guideline
18Section 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.”
19An 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.
20The applicant submits that his pre-existing medical conditions prevent him from reaching maximum medical recovery if confined to the financial limits of the MIG. The respondent disagrees.
21The applicant submits that before his accident, he lived with diabetes, hypertension, dyslipidemia, an atrial flutter, an atrial septal defect that required surgery, tachycardia, and transient ischemic attacks. The applicant relies on a report of Dr. Chad Hefford, chiropractor, dated April 5, 2021, as well as a letter from Dr. Andrei Hirsch, the applicant’s family doctor, dated July 27, 2022, and Dr. Hirsch’s clinical notes and records (“CNR”s).
22The respondent submits that there is no evidence that the applicant suffers a pre-existing medical condition warranting removal from the MIG. The respondent argues that the evidence of Dr. Hefford should be afforded little weight as the doctor’s scope of practice does not qualify him to comment on the applicant’s diabetes. The respondent relies on its Insurer’s Assessment (“IE”) conducted by Dr. Zafer Mian, physician, dated March 4, 2020, which found that the applicant’s pre-existing diabetes did not slow his recovery.
23I find that the applicant has not shown that his pre-existing conditions prevent him from reaching maximum recovery if confined to the financial limits of the MIG, as required by s. 18(2). I agree with the respondent and did not find Dr. Hefford’s evidence convincing that the applicant required further treatment to address his pre-existing issues. I find that his findings are outside his scope of practice as a chiropractor. Dr. Hefford is qualified as a chiropractor to document the applicant’s pre-existing conditions, however, he is not qualified to comment on how the applicant’s conditions would prevent him from reaching maximum recovery under the MIG.
24While I agree that Dr. Hirsch commented on the applicant’s arthritic changes in his joints, I was not directed to any evidence that showed this was a pre-existing condition. Moreover, Dr. Hirsch’s report does not comment on how the applicant’s other pre-existing conditions impact on his recovery. Therefore, the applicant did not meet his evidentiary burden on this basis.
25The applicant also submits that he suffers from chronic pain because of his accident. The respondent disagrees.
26The applicant relies on the report of Dr. Hefford of April 5, 2021, the CNRs of Dr. Hirsch, imaging of the applicant’s wrists, hip, and pelvis, as well as his lumbar and cervical spine from 2022, and Dr. Hirsch’s report of June 27, 2022. The report of Dr. Hefford diagnoses the applicant with chronic pain and Dr. Hirsch also references chronic pain in his CNRs.
27The respondent relies on the Treatment Confirmation Form (“OCF-23”) of Thompson Denisha, physiotherapist, dated November 8, 2019.
28The respondent also submits that based on 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT), the applicant ought to have addressed how he meets three of the six criteria for evaluating chronic pain claims in the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). Since the applicant has not done so, the respondent submits the Tribunal cannot find that the applicant meets the criteria for chronic pain requiring removal from the MIG.
29The respondent also submits that based on the matters of R.J. v Pembridge Insurance Company, 2020 CanLII 80289 (ON LAT) and S.A. v. Intact Insurance Company, 2020 CanLII 57372 (ON LAT), the applicant has not shown that his subjective, self-reported pain amounts to chronic pain requiring removal from the MIG. The respondent submits that the applicant has not provided objective testing or data to corroborate his position, nor demonstrated that he suffers a functional impairment.
30The applicant disagreed that 17-007825 requires him to address the AMA Guides and submits that they can be a helpful consideration but are not essential to success. The applicant also submits that should the Tribunal accept the AMA criteria, he fulfils them as he has secondary physical deconditions, withdrawal from social milieu, a failure to restore his pre-injury function after a period of disability, and the development of psycho-social sequelae after the accident. The applicant further argues that his pain impairments impact his sleep, mood and emotional regulation, and his activities of daily living (“ADL”s,) further supporting his position that his chronic pain requires removal from the MIG.
31Instead, the applicant submits that the definition of chronic pain from 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) is more appropriate, being: “Chronic pain can be described as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being. A simpler definition for chronic or persistent pain is pain that continues when it should not.”
32I find that the applicant does not suffer from chronic pain in accordance with the Schedule. Again, I found Dr. Hefford’s evidence and findings generally unpersuasive as much of his commentary concerning the applicant’s chronic pain falls outside of his scope of practice. Dr. Hefford is qualified to note the applicant’s limited range of motion throughout his body and document the applicant’s pain complaints. Though Dr. Hefford opines that the applicant’s strains and sprains have become chronic pain requiring removal from the MIG, I disagree that the doctor’s findings that the applicant’s pain persisting beyond the 12-week period of a minor injury to heal is in itself a basis to remove an applicant from the MIG.
33In terms of assessing if the applicant suffers from chronic pain as a result of the accident, I agree that I am not specifically bound by the AMA Guides. However, as noted in many of the Tribunal’s decisions, the AMA Guides are a useful tool for assessing chronic pain claims. I am also not bound by 17-000835 and find that the spirit of that decision is captured by the AMA Guides, which provide a thorough “snapshot” of the impact of an applicant’s chronic pain, and therefore, will accept to use them in this decision.
34In terms of AMA Guides criteria, I note that:
i. Dr. Hefford noted the applicant’s over-use and reliance on prescription medications, specifically Tylenol 3 and Flexeril.
ii. The applicant reported experiencing psychosocial sequelae, including anxiety, fear and sleep disturbances to Dr. Hirsch.
35However, I did not note that the applicant experienced any of the other factors, being:
i. Excessive dependence on health care providers, spouse, or family.
ii. Secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain.
iii. Withdrawal from the social milieu, including work, recreation, or other social contracts.
iv. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
36I am alive to the fact that Dr. Hirsch diagnosed the applicant with osteoarthritis after his accident and that this could delay the applicant’s recovery. However, arthritis is largely a degenerative, age-related condition. In this case, the doctor failed to tie his diagnosis to the AMA Guides and specifically did not connect the applicant’s arthritic changes to the accident and not his age.
37I am also aware that the applicant reported being able to work less and reported some withdrawal from social milieu. However, I was not provided with what I would describe as a “fulsome” exploration of this because I was not given further details as to how the applicant’s pain caused a withdrawal from his recreational or other social contracts. Instead, I note that the applicant reported to Dr. Douglas Saunders, psychologist, in the respondent’s IE of April 26, 2022, that despite the applicant’s wife and daughter assisting with more household chores, the applicant was independent with his ADL’s and was able to engage in light exercise and relaxing at home. I would have expected the applicant to report a more significant withdrawal from his ADLs and housekeeping tasks for his diagnosis of chronic pain in accordance with the Schedule.
38I did see that Dr. Hirsch noted that the applicant had chronic pain. Yet again, I must also address the fact that the doctor did not fully explore the AMA Guides, the basis of this diagnosis and fully explore the functional impairment(s) this pain causes. Therefore, I do not find that the applicant suffers from chronic pain as a result of the accident, as defined by the Schedule.
39The applicant also submits that because of his accident, he suffers from psychological injuries, requiring removal from the MIG. The respondent disagrees.
40The applicant relies on a psychological pre-screen interview authored by Dr. Andrew Shaul, psychologist, dated December 18, 2019, and the CNRs of Dr. Hirsch. The respondent relies on the IEs of Dr. Saunders, dated July 14, 2020, and April 26, 2022.
41I find that the applicant has not shown that he suffers from a psychological injury as a result of the accident. Though I did note that the applicant reported experiencing anxiety and sleep issues to Dr. Hirsch, I must agree with the respondent’s argument that there was no formal diagnosis or testing of the applicant pursuant to a Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) diagnosis. Instead, I find that Dr. Hirsch noted the applicant’s symptoms but did not refer the applicant for further treatment or prescribe medication to address this.
42Though the applicant took issue with Dr. Saunder’s IE, as there was an overlap in the applicant’s pain-related symptomology which showed some clinical impairment, as discussed above, the applicant has not ultimately shown that his pain is accident-related and not age-related. Therefore, I did not find this argument convincing.
43In terms of Dr. Shaul’s pre-screen interview, I did not find this evidence persuasive. I rely on J.C. vs Aviva General Insurance Company, 2019 ONLAT 18-006576/AABS, where the Tribunal found a pre-screen interview not persuasive evidence of a DSM-5 diagnosis or psychological impairment. Therefore, I find that the applicant has not shown that he suffers a psychological impairment as a result of his accident.
44The respondent submits that the applicant has not consumed $162.56 of the MIG’s limits. The applicant submits there are procedural issues with one of the disputed OCF-18s. Therefore, I must address the OCF-18 with the alleged procedural error and the reasonableness and necessity of the remaining treatment plans.
The OCF-18 for chiropractic treatment in the amount of $2,304.06 is not payable
45Section 38(8) of the Schedule states that an insurer shall notify an insured person within 10 business days of receiving a treatment and assessment plan (“OCF-18”) if it agrees or refuses to pay for the OCF-18 and provide the medical reasons and all other reasons the OCF-18 is not reasonable and necessary.
46Section 38(11) of the Schedule states that if an insurer fails to comply with section 38(8), the insurer shall not take the position that the applicant’s injuries fall within the MIG and must pay for the OCF-18 related to the period, starting on the 11th business day after the day the insurer received the plan, and ending on the day the insurer provides a notice that complies with section 38(8).
47The applicant submits that the respondent failed to comply with subsections 38(8) and (11) of the Schedule. The respondent disagrees.
48The applicant argues that he submitted the disputed OCF-18 on January 8, 2020, and that the respondent only denied this treatment by fax on January 22, 2020. The applicant further submits that since the respondent only provided the denial at 10:56 PM on this date, it therefore is deemed received on January 23, 2020, or the eleventh day. The applicant relies on the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”), specifically Rule 6.2(c), which states that when a document is served by a party by fax, receipt is deemed to have occurred when the person sending the document receives a fax confirmation receipt. For documents sent after 5:00 PM, service is deemed to have happened the next day that is not a holiday. The applicant submits that in this case, the deemed receipt was only actually made on January 23, 2020, or the 11th day. The applicant relied on its copy of the faxed denial.
49The respondent submits that the disputed OCF-18 was received on January 8, 2020, but was denied on January 22, 2020. The respondent submits that it provided the applicant with a denial letter on the 10th business day. In this letter, it informed the applicant that it had insufficient medical documentation regarding the disputed OCF-18 and requested that the applicant attend an Insurer’s Examination (“IE”) to address this. Therefore, it argues the denial complied with the Schedule.
50The applicant also argues that the denial was insufficient, as the denial was made on the basis of “the Minor Injury Guideline applies”. The applicant argues this fails to provide the medical and all other reasons for the denial. As such, the applicant submits that he is entitled to the disputed benefit on the basis of the faulty denial.
51The applicant submits that he has partially incurred this treatment in the amount of $1,738.76, and he is entitled to payment for the entire benefit, as the respondent has not provided proper notice.
52The respondent disagrees and submits that its denial complied with the Schedule. The respondent argues that the January 22, 2020 denial notes that the applicant’s injuries fall within the MIG and that he has provided insufficient evidence indicating that he suffers from a pre-existing condition which would prevent him from reaching maximum recovery if kept in the MIG. The respondent also noted that the denial requested the applicant attend an IE.
53The respondent further submitted that it further denied the applicant’s OCF-18 via letter dated March 18, 2020, and relied on the IE of Dr. Ahmed Mian, physician; this IE was quoted in the denial and attached. The respondent submits that the denial communicated that the applicant’s injuries were found to be in the MIG and that the OCF-18 was not found to be reasonable and necessary.
54I find that both of the respondent’s denials complied with the Schedule. I agree that the respondent, in its letter of January 22, 2020, provided medical and other reasons for denying the OCF-18 by stating that the applicant’s injuries fell within the MIG and that it had insufficient evidence regarding his pre-existing conditions. Based on the circumstances, this denial addresses the applicant and his condition at the time of the requested OCF-18.
55I also find that the denial of March 18, 2020 was sufficient, as it too addressed the applicant’s medical condition and other circumstances, namely that the applicant’s injuries fell within the MIG, and that Dr. Mian did not find the OCF-18 reasonable and necessary.
56Therefore, since the respondent gave its denial on the 11th day, and before the applicant incurred the disputed OCF-18, the applicant is not entitled to payment of the OCF-18 on this basis. I rely on the binding matter of Aviva General Insurance Company v. Catic, 2022 ONSC 6000, which addressed this issue. In Catic, the Divisional Court found that an OCF-18 is only payable on the basis of section 38(11) of the Schedule if incurred during the period of non-compliance. As the applicant has not shown that he incurred the OCF-18 before the denial was received, he is not entitled to be removed from the MIG on this basis.
57Since neither party specifically addressed the reasonableness and necessity of this OCF-18, I find that the applicant has not met his evidentiary burden. Therefore, the OCF-18 is found not to be reasonable and necessary.
The OCF-18s of $2,000 for a psychological assessment and $3,943.49 for psychotherapy are not reasonable and necessary
58Since the OCF-18s for the applicant’s psychological assessment and psychotherapy address similar issues and goals, I will address them together.
59The applicant submits that the OCF-18 for psychological assessment and psychotherapy are reasonable and necessary. The respondent disagrees.
60The applicant relies on the IE of Dr. Saunders of July 14, 2020 and submits that despite the doctor not diagnosing the applicant with a DSM-5 diagnosis, the applicant showed he suffered from anxiety and depression on his psychometric testing.
61The respondent also relies on the IE of Dr. Saunders, and notes that the doctor further found that the applicant showed a “diagnosis of the sub-clinical level of psychological symptoms that do not meet clinical criteria for impairment”. Therefore, the applicant’s symptoms do not demonstrate that the OCF-18 is reasonable and necessary.
62I find that the OCF-18s for psychological treatment and psychotherapy are not reasonable and necessary. I agree with the respondent, and that despite the applicant’s psychometric scores, Dr. Saunders did not find that the applicant suffers from a psychological impairment. As discussed above, Dr. Saunders considered the applicant’s scoring and found that despite this, the applicant did not meet the definition of a DSM-5 diagnosis.
Non-earner Benefit
63Section 12(1) provides that an insurer shall pay a non-earner benefit (“NEB”) to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
64The applicant relies on the OCF-3 of Dr. Hirsch of November 9, 2019, the psychological pre-screen of Dr. Shaul dated December 18, 2019, Dr. Shaul’s report of May 7, 2021, and the CNRs of Dr. Hirsch.
65The applicant also submits that the respondent’s denial of the NEB was insufficient, and it failed to provide medical reasons but instead was denied because the applicant was working at the time of his accident.
66The respondent submits that the applicant has not met his evidentiary burden of showing that he suffers a complete inability to carry on a normal life. The respondent also relies on Dr. Shaul’s prescreen, the CNRs of Dr. Hirsch, the report of Dr. Hefford dated April 5, 2021, and the IEs of Dr. Saunders. The respondent also submits its denial was compliant with the Schedule.
67I find that the respondent’s denials of the applicant’s entitlement to an NEB of November 21, 2019, January 2, 2020, and August 26, 2020, were valid under the Schedule. I am aware that the applicant may be entitled to an NEB despite being employed at the time of their accidents under Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508. However, I am also mindful that the applicant returned to his employment almost immediately after his accident, and that the applicant was employed as a security guard. Galdamez found that an employed person may only claim an NEB if mobility is not a requirement of the job. In this case, I cannot ignore that the applicant required some mobility to engage in the duties of his employment. Moreover, the Court of Appeal found that qualifying for an NEB while employed is a rare occurrence. Therefore, the respondent’s denials are found to be valid.
68I find that the applicant is not entitled to the NEB. Though I appreciated the applicant’s self-reports of issues with his ADLs and employment, I agreed that Heath requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period. I also agree that the applicant has not provided this comparison. I find that the applicant has not provided detailed information regarding his pre-accident activities which he normally engaged in, including the frequency and time commitments of said activities and how long these now take after his accident versus before the accident.
69Though the applicant’s doctors and assessor captured the applicant’s report of pain and symptoms, this does not speak to the legal issue at hand concerning the Heath test. The evidence of Dr. Shaul, Dr. Hirsch and Dr. Hefford does not provide a comparison of the applicant’s pre-accident activities beyond subjective, self-reporting after his accident.
70I was not provided with a detailed account of how the applicant spent his time before and after the accident, nor was there a quantified comparison of such. As this is a requirement for entitlement, the applicant has not met his burden of proof of showing he suffers a complete inability to carry on a normal life as a result of his accident-related injuries. When considering the applicant’s circumstances concerning Heath, I find there was limited evidence concerning the applicant’s pre-accident activities and how his accident-related impairments have caused a complete inability to carry on with them after the accident.
71The applicant also did not provide any direct evidence via testimony or affidavit to speak to the Heath factors. Instead, the applicant’s evidence supported that he was having pain that made his ADLs more difficult, but that he was still able to engage in them, albeit at a reduced level. As the applicant submitted that his pain was impeding him from living a normal life, he had not provided sufficient evidence that this pain practically prevents him from engaging in the majority of his self-care and ADLs. I was also not given a full understanding of how the applicant’s accident impairments led to a complete inability to carry on a normal life, and especially so where he continued to work post-accident.
72Since I have found that the applicant does not suffer a complete inability to carry on a normal life because of his accident-related impairments and injuries, he is not entitled to an NEB.
Interest
73Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since I have found that no benefits are outstanding, no interest is owed.
Award
74The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits are outstanding, no award is owed.
ORDER
75The applicant’s accident-related injuries are found to be within the Minor Injury Guideline as he has not shown that his pre-existing conditions required removal from the MIG, nor that he suffers from a chronic pain or a psychological impairment as a result of the accident.
76The applicant is not entitled to the non-earner benefit because he has not shown that he suffers a complete inability to carry on a normal life as a result of the accident.
77The applicant is not entitled to the treatment plans for the chiropractic treatment, the psychological assessment nor the psychotherapy treatment, as he has not shown that these are reasonable and necessary.
78The applicant is not entitled to interest or an award, as no benefits are outstanding.
Released: July 28, 2023
Stephanie Kepman
Adjudicator