Licence Appeal Tribunal File Number: 21-005705/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:
Rakesh Sharma
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Renata Szady, Paralegal
For the Respondent:
Parthenia Magharious, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rakesh Sharma (“R.K.”), the applicant, was involved in an automobile accident on October 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). R.K. was denied benefits by the respondent, Aviva, 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. Treatment and Assessment Plan (OCF-18) dated April 2, 2019 in the amount of $1,816.74, completed by Complete Rehab Centre for physiotherapy services, denied April 18, 2019.
ii. OCF-18 dated May 11, 2021 in the amount of $1,550.00, completed by iScope Concussion and Pain Clinics for Botox injections, denied May 26, 2021.
iii. OCF-18 dated October 18, 2021 in the amount of $2,200.00, completed by iScope Concussion and Pain Clinics for a mental health driving assessment, denied November 9, 2021.
iv. OCF-18 dated January 22, 2019 in the amount of $2,460.00, completed by Complete Rehab Centre for psychological services, denied April 29, 2019.
v. OCF-18 dated June 10, 2021 in the amount of $2.200.00, completed by iScope Concussion and Pain Clinics for a virtual social work assessment, denied June 29, 2021.
vi. OCF-18 dated November 19, 2020 in the amount of $1,500.00, completed by InDepth Vision for oculovisual assessment, denied December 1, 2020.
vii. OCF-18 dated May 11, 2021 in the amount of $1,104.00, completed by iScope Concussion and Pain Clinics for a home-based sleep study, denied May 26, 2021.
viii. OCF-18 dated October 18, 2021 in the amount of $2,200.00, completed by iScope Concussion and Pain Clinics for a functional cognitive assessment, denied November 9, 2021.
ix. Assessment of Attendant Care Needs (Form-I) dated October 5, 2021 in the amount of $2,074.43, completed by iScope Concussion and Pain Clinics, denied November 18, 2021.
x. OCF-18 dated October 18, 2021 in the amount of $3,731.44, completed by iScope Concussion and Pain Clinics for an occupational therapy, denied November 18, 2021.
xi. Expenses Claims form (OCF-6) dated March 26, 2020, in the amount of $152.35 for medication, denied April 21, 2020.
xii. Is R.K. entitled to interest on any overdue payment of benefits?
xiii. Is Aviva liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to R.K.?
OCF-18 in the amount of $2,460.00 for a psychological assessment
3In its submissions, Aviva confirms that the OCF-18 was approved based on the August 23, 2021 report of Dr. El-Hage.
4R.K. does not dispute that the OCF-18 was approved, however, he submits that Aviva unreasonably withheld payment of the OCF-18.
5I will address the issue of an award later.
RESULT
6For the reasons set out below, I find that R.K. is entitled to the following benefits:
i. OCF-18 in the amount of $1,816.74 for physiotherapy services;
ii. OCF-18 in the amount of $1,550.00 for Botox treatment;
iii. OCF-18 in the amount of $2,200.00 for a mental health driving assessment;
iv. OCF-18 in the amount of $2,200.00 for a virtual social work assessment;
v. OCF-18 in the amount of $1,104.00 for a sleep study analysis;
vi. OCF-18 in the amount of $1,500.00 for an oculo-visual assessment; and
vii. OCF-6 in the amount of $152.35 for prescription medication.
viii. Interest is payable on all outstanding payments of these seven benefits listed above.
7R.K. is not entitled to the following:
ix. OCF-18 for a functional cognitive assessment in the amount of $2,200.00;
x. OCF-18 for an attendant care assessment in the amount of $2,074.43; and
xi. OCF-18 for occupational therapy in the amount of $3,731.44.
xii. No interest is payable on these three benefits listed above.
8R.K. is not entitled to an award.
ANALYSIS
Reasonable and necessary
9Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, R.K. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. In order to do so, R.K. 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 $1,816.74 for physiotherapy services
10R.K. is entitled to the OCF-18 for physiotherapy in the amount of $1,816.74.
11R.K. submits that his injuries―sprain and strain of the cervical, thoracic, lumbar spine, shoulder girdle; headache; stress; and sleep disorders―have been ongoing and require further treatment. His position is that prior to the accident, he did not suffer from any of these injuries, and that due to the ongoing nature of the injuries, the disputed OCF-18 is reasonable and necessary.
12In support of his claim for treatment, he relies on the clinical notes and records of his family physician, Dr. Danial. Between October 1, 2018 and September 7, 2022, he relies on the evidence of the accident-related pain complaints made to Dr. Danial, to establish that the pain has been ongoing, and he has regularly sought treatment to address same.
13Specifically:
i. October 1, 2018 – day of the accident, neck, upper and lower back pain, and headaches. Restricted range of motion (cervical/lumbar spine) noted. Physiotherapy was recommended;
ii. October 4, 2018 – headache and neck pain;
iii. October 15, 2018 –complaining of right shoulder pain, physiotherapy and massage treatment recommended;
iv. November 7, 2019 – lower back pain, headaches, depression, prescribed anti-depressant;
v. December 5, 2019 – lower back pain, neck pain, headaches, prescription for pain;
vi. December 17, 2019 – chronic pain, headache, depression. Psychiatrist and MRI referrals;
vii. January 30, 2020 – low back pain, headache, fear of driving, anti-depressant prescription;
viii. March 2, 2020 – neck and back pain, headaches, sleep issues due to pain, depression, psychiatrist referral;
ix. March 13, 2020 – headache, sleep issues, depression, prescription for pain medicine; and
x. September 7, 2022 – sleep difficulty, depressed mood, headache, back and neck pain. Still taking anti-depression medication.
14In addition, R.K. relies on an April 27, 2021 neurological report from Linda Johnson, neurology nurse practitioner, who diagnosed him with mild traumatic brain injury; post-concussion syndrome; chronic migraines; post-traumatic vestibulopathy; sleep and mood disturbance; and possible lumbar radiculopathy. R.K. further relies on a June 25, 2021 neurology assessment report from Dr. Punambolam (who agreed with Ms. Johnson’s diagnoses); and an October 4, 2021 physiatry report from Dr. Siva (opining that R.K.’s pain is functionally limiting; possible mild chronic radiculopathy).
15In response, Aviva argues that R.K. has not provided sufficient evidence to satisfy his burden of proof that the OCF-18 is reasonable and necessary. It also points to Dr. Danial’s records, which note that the spinal range of motion is fair, with a diagnosis of lumbar strain. It also refers to the clinical records of Dr. Sandhu, family physician, which note that R.K. exercises and lifts weights, as well as walks daily for one hour. At a November 23, 2021 visit, Dr. Sandhu notes that R.K. is walking well with full range of motion in his back. Dr. Sandhu also reported there were no neurological deficits.
16In support of its determination, Aviva relies on the May 17, 2019 physiatry s. 44 report of Dr. Loritz. R.K. reported to Dr. Loritz that he returned to regular employment three months after the accident and was independent with self-care tasks and able to drive. Dr. Loritz was unable to find any objective functional impairments of a musculoskeletal or neurological nature, concluding that R.K. sustained sprain/strain injuries of his cervical and lumbar spine and blunt trauma to his head as a result of the accident. Dr. Loritz opined that the OCF-18 was not reasonable and necessary.
17I am persuaded by R.K.’s medical evidence, which I find supports that the claimed treatment is reasonable and necessary. My finding is based on the family physician records, that note several presentations of accident-specific pain complaints. Second, there are recommendations made by the family physician for the same type of treatment that R.K. is seeking. Lastly, I find that R.K. has demonstrated that the goals of the treatment are reasonable, that the goals can be met to a reasonable degree, and that the cost of achieving the goals is reasonable.
18For example, the goals of the OCF-18 were identified as pain reduction; increased range of motion; increase in strength, endurance and flexibility; increased cardiovascular fitness levels; improve motor control of lumbopelvic and cervicothoracic muscles; return to activities of normal living; and return to pre-accident work services. I find that the goals are being met to a reasonable degree in that R.K. has returned to performing self-care tasks and his employment duties. Lastly, the cost of the OCF-18 is reasonable.
OCF-18 in the amount of $1,550.00 for Botox treatment
19R.K. is entitled to the OCF-18 for Botox treatment, in the amount of $1,550.00.
20The OCF-18 identifies the treatment goals as―pain reduction, increased range of motion and return to activities of normal living. R.K. submits that the goals are reasonable due to the ongoing concussion and headache symptoms he is experiencing as a result of the accident. In support of his claim, he relies on the previously discussed neurology reports of Dr. Punambolam and Ms. Johnson.
21R.K. submits that despite being treated with oral medication, he is still experiencing ongoing headaches. His position is that even with a dosage increase of oral medication, there has not been any relief from repeated headaches. The Botox injections were recommended to reduce the severity and frequency of post-traumatic headaches.
22In response, Aviva relies on a July 12, 2021 neurological report from Dr. Desai, in which Dr. Desai opined that R.K. met the diagnostic criteria requirements for persistent headache secondary to trauma to the head and neck. Dr. Desai went on to opine that there were no cognitive or affective symptoms reported; nor were any features present which would indicate significant post-concussion syndrome.
23I place more weight on R.K.’s self-reporting and the neurological reports of Dr. Punambolam and Ms. Johnson. First, I find Dr. Punambolam’s report persuasive, due to the consistent nature of R.K.’s self-reporting, which was supported by Dr. Punambolam’s objective results. Second, Dr. Desai contradicts himself in his report, where he first diagnoses R.K. with persistent headache, and concludes in the same report that R.K. has intermittent headaches. Third, various oral medications to address the headache issues, including dosage increases, has not provided any relief. Accordingly, a new treatment modality may provide better relief, under the premise of pain relief being a reasonable goal of treatment, which the Botox injections are intended to be.
24For the reasons above, I find that the OCF-18 for Botox injections is reasonable and necessary.
OCF-18 in the amount of $2,200.00 for a mental health driving assessment
25I find the OCF-18 for a mental health driving assessment is reasonable and necessary.
26The goal of the OCF-18 is to address driver/passenger anxiety, mood disorders and specific phobias. R.K. submits that there is a reasonable possibility that he suffered a psychological impairment, which impacts his driving ability, that the OCF-18 is intended to investigate.
27In response, Aviva relies on the January 18, 2022 psychology paper review from Dr. El-Hage. In her report, Dr. El-Hage opined that there was no indication that R.K. has recently developed a fear of driving. Interestingly, Dr. El-Hage notes that R.K. continues to experience mood/anxiety issues and recommends mental health treatment. Despite this opinion, Dr. El-Hage concludes that the mental health driving assessment is not reasonable and necessary.
28I agree with R.K. that the OCF-18 is reasonable and necessary. First, R.K. reported to s. 44 assessor, psychologist, Dr. Salerno in an April 23, 2019 report that he sometimes has a fear of driving, and worries about being involved in another accident. R.K. also reports a fear of being rear-ended by another vehicle. In January 2020, R.K. reported to Dr. Danial that he experienced fear of driving, which led to Dr. Danial diagnosing post-traumatic stress disorder at the time. Second, as noted above, Dr. El-Hage diagnosed R.K. with an adjustment disorder and commented on his ongoing anxiety issues in her January 2022 paper review. Lastly, based on Dr. El-Hage’s opinion that R.K. suffered psychological impairments as a result of the accident, a psychological assessment was subsequently approved.
29I find Dr. El-Hage’s reports to be contradictory. Where she initially indicates that R.K. has a fear of driving, she does not consider that where there may be evidence that a condition exists, which an assessment is intended to investigate; the OCF-18 may be reasonable and necessary. R.K. reported to Dr. Danial, Dr. Salerno, and Dr. El-Hage that he had driving anxiety and a fear of driving. As the purpose of an assessment is to determine the extent of any accident-related impairments, it is reasonable that a documented impairment by a medical expert, may warrant further investigation.
30Accordingly, I find that the OCF-18 for a mental health driving assessment is reasonable and necessary.
OCF-18 in the amount of $2,200.00 for a virtual social work assessment
31The OCF-18 for a virtual social work assessment is reasonable and necessary.
32It is unclear from the submissions as to why this issue remains in dispute.
33In Aviva’s document brief, the August 23, 2021 s. 44 report from Dr. El-Hage addresses the OCF-18 for a social work assessment. Dr. El-Hage concludes, after diagnosing R.K. with an adjustment disorder with mixed anxiety and depressed mood, that the “OCF-18 in dispute is reasonable and necessary as a result of his involvement in the index accident.”
34Accordingly, I agree that the OCF-18 is reasonable and necessary.
OCF-18 in the amount of $1,104.00 for a sleep study analysis
35The goal of the OCF-18 is to rule out sleep apnea and sleep disorder. I find the OCF-18 is reasonable and necessary.
36R.K. submits that he has been suffering from sleep disorder as a result of the accident. His evidence is that he reported insomnia; interrupted sleep; nightmares; sleep and mood disturbance to Dr. Danial; Ms. Johnson; and Dr. Punambolam.
37In her report, Ms. Johnson noted that the sleep disturbance was as a result of a mild traumatic brain injury; Dr. Punambolam agreed with Ms. Johnson’s opinion.
38In its submissions, Aviva did not specifically address the issue and I am not directed to any argument or objective evidence to refute R.K.’s claim for this OCF-18.
39R.K. reported that prior to the accident, he had no issues with sleep. He reported to Dr. El-Hage that he used to get approximately eight hours of sleep pre-accident, whereas post-accident, he sleeps for four to five hours. I find that there is corroborative medical evidence that R.K. has suffered a significant impact to his sleep as a result of the accident that warrants further investigation. As the goal of the OCF-18 is to rule out sleep apnea and sleep disorder, I find there is a reasonable possibility that R.K. suffers from a condition that the OCF-18 is intended to investigate, due to a mild traumatic brain injury suffered as a result of the accident.
40Accordingly, R.K. is entitled to the OCF-18 for a sleep study analysis as it is reasonable and necessary.
OCF-18 in the amount of $1,500.00 for an oculo-visual assessment
41I find the OCF-18 for an oculo-visual assessment is reasonable and necessary.
42The OCF-18 recommends a functional oculo-visual assessment, including visual field and retinal image. R.K. submits that having reported to Dr. Danial that he has memory problems and eye pain caused by computer use, that the OCF-18 is reasonable and necessary. His position is that he has had to reduce his work hours because he is unable to sit at a computer for longer than 30 minutes due to headaches.
43Aviva relies on the May 17, 2019 s. 44 report of general practitioner, Dr. Loritz in support of its determination denying the OCF-18. Dr. Loritz opined that R.K. sustained blunt force trauma to the head as a result of the accident. Dr. Loritz concluded that the passive interventions and additional facility-based treatment were unlikely to provide any significant long-term therapeutic benefit. I find Dr. Loritz’s conclusion does not address the assessment, but rather treatment.
44I find R.K.’s evidence persuasive and place little weight on the s. 44 report of Dr. Loritz. First, the vision issues have been determined by a neurologist/neurological nurse practitioner to be the result of a mild traumatic brain injury (Dr. Punambolam, Ms. Johnson). Second, R.K.’s vision issues and headaches have been consistently reported as an issue only after the accident and are exacerbated by his use of a computer screen which he needs for work. Lastly, having no pre-accident history of such symptomatology, there is sufficient evidence that the condition exists. I find that this evidence supports that the recommendation to investigate the visual issues is reasonable.
45Accordingly, I find that R.K. is entitled to the OCF-18 for an oculo-visual assessment.
OCF-18 for a functional cognitive assessment in the amount of $2,200.00
46The OCF-18 for a functional cognitive assessment is not reasonable and necessary.
47The purpose of the OCF-18 is to assess R.K.’s cognitive strengths and weaknesses as they pertains to memory; perception; attention; coordination and other cognitive skills.
48In this regard, R.K. submits that he suffers from short-term memory loss; decrease in concentration; and sleep and mood disturbances. In support of his claim, he relies on a November 9, 2021 occupational therapy report from Ms. Manalili, who noted R.K. has experienced challenges with memory issues; reduced concentration; having to rely on his family to support his memory and remember work appointments. Ms. Manalili opined that R.K.’s cognitive issues affect his activities of daily living and impact his relationship with his family. Objective testing results revealed that R.K. suffered cognitive difficulties associated with a head injury.
49In response, Aviva relies on a January 4, 2022 occupational therapy report from Mr. Campos, who noted that R.K. reported that he is able to manage his personal care tasks, as he was prior to the accident. He further reported to Mr. Campos that he is able to engage in home maintenance tasks; grocery shopping; resumed driving; and attend social gatherings. R.K. further reported to walking daily, for 1-2 kilometers.
50In making his observations, Mr. Campos noted that R.K. was able to provide accident details; work two jobs; take his medications; perform his tasks as a real estate agent; organize his appointments; and obtain his prescriptions as needed. Notably, at the time of the assessment, his wife’s vehicle broke down, and R.K. was able to direct and instruct his daughter on how to assist and provided the necessary information to connect with roadside assistance. Based on his observations, Mr. Campos concluded that R.K. does not display or demonstrate any cognitive function impairment.
51I agree with Aviva.
52While I appreciate that R.K. may have reported some challenges to Ms. Manalili about his cognitive abilities, I find that the pre-accident tasks that he has demonstrated an ability to engage in, is persuasive. To his credit, R.K. appears to be managing to return to actively engaging in his pre-accident activities, which Mr. Campos noted should be done with energy conservation techniques, task modification and proper body mechanics. R.K.’s return to two jobs, and performing various self-care; housekeeping and social activities, as well as driving, are strong indicators that his cognitive function appears to be at a substantial level.
53Accordingly, I find that the OCF-18 for the functional cognitive assessment is not reasonable and necessary.
OCF-18 for an attendant care assessment in the amount of $2,074.43
54R.K. is not entitled to the attendant care assessment.
55R.K. submits that he continues to experience ongoing physical, cognitive and psychological challenges. To this end, he relies on an occupational therapy report from Ms. Manalili, in which she observed R.K. completing his activities of daily living, which she opined, revealed various physical, cognitive and psychological limitations. For example, she observed R.K. walking around the home, ascending and descending stairs, noting that the tasks were completed slowly and with pain. R.K. also reported to Ms. Manalili that he does light housekeeping tasks, experiences headaches after being on the computer for 35 minutes and has right leg numbness after driving for more than half an hour.
56Aviva relies on the January 4, 2022 s. 44 report of Mr. Campos, who also reviewed Ms. Manalili’s report. Mr. Campos noted that R.K. reported being able to manage all his personal care tasks, socialize with friends (albeit with less frequency), attend temple and some light housekeeping tasks. In terms of in-home function, Mr. Campos observed R.K. navigating stairs, prepare small meals, bending, kneeling, all with some pain complaints. Mr. Campos concluded that R.K. was able to perform his self-care tasks independently.
57I am not persuaded by Ms. Manalili’s report that the attendant care assessment is reasonable and necessary. First, while she makes observations regarding R.K.’s ambulation around the home and pain, there is little evidence that he is not able to ambulate around his home or engage in his self-care tasks. Admittedly, he reported to Mr. Campos, he is able to do these things, prepare small meals, and generally does not appear to require attendant care services. Second, the onus remains on R.K. to demonstrate that the attendant care assessment is reasonable and necessary, which I am not convinced that he has properly addressed in his submissions or with the evidence that he relies on. Lastly, both Ms. Manalili’s and Mr. Campos’ reports show that R.K. is able to engage in a substantial amount of his pre-accident activities, which, despite pain complaints with some activities, he is still able to do so, without assistance.
58For the reasons set out above, I find that R.K. has not demonstrated that the OCF-18 for an attendant care assessment is reasonable and necessary.
OCF-18 for occupational therapy in the amount of $3,731.44
59I find the OCF-18 for occupational therapy is not reasonable and necessary.
60The OCF-18 proposed physical rehabilitation (24 sessions) with a goal to achieve functional restoration and provide cognitive, remedial and compensatory strategies. In support of his claim, he relies on the previously discussed opinions of Ms. Johnson, Dr. Wong, general practitioner, and Ms. Manalili.
61In her report, Ms. Manalili noted that R.K. required cueing and support to encourage participation in his activities of daily living. She opined that R.K. need several check-ins throughout the day to support his psycho-emotional wellness and cueing to support his cognitive impairments in the home and with work. She also opined that he needed strategies for organization and scheduling. Lastly, Ms. Manalili noted that R.K. needed assistance with facilitating sufficient and restful sleep through proper positioning that alleviates pain.
62In response, Aviva relies on the January 4, 2022 attendant care report of Mr. Campos, in support of its denial of the OCF-18. Mr. Campos opined that R.K. demonstrated adequate function and focus and pay attention throughout the duration of the assessment. Objective testing revealed that R.K. demonstrated adequate function with executive function, able to sit for 30 minutes, with minimal shifting, walk and stand for 10 minutes, walk without using any mobility aids. Mr. Campos noted R.K.’s abilities to perform various tasks, as noted above, and concluded that the OCF-18 for occupational therapy services was not reasonable and necessary.
63Mr. Campos concluded that based on objective measures, R.K. is able to perform all necessary tasks independently, while incorporating energy conservation measures. Mr. Campos also reviewed the reports from the general practitioners and neurologist, which he opined does not support that R.K. requires occupational therapy services.
64As discussed earlier, R.K. has demonstrated his ability to engage in his activities of daily living. Having considered the evidence that R.K. has reported being able to engage in his pre-accident activities, and noting the objective evidence of his abilities, I find Mr. Campos’ report persuasive. While I appreciate that Ms. Manalili concluded that R.K. would need various assistive devices, treatment and assistance, I do not find that the level of care/treatment/assistive devices recommended rises to the level proposed by the OCF-18.
65R.K. suffered soft tissue injuries, with the exception of the mild traumatic brain injury. Despite this, and at over three years post-accident, I find that he has been able to return to and engage in much of his pre-accident activity. This is significant because it represents the progress that he has made from the treatment he has received to date, which has not reported to be of a significant benefit (reporting a nominal improvement in his symptoms). I agree that he could benefit from some additional treatment/assessments for some of his ongoing issues.
66However, considering his post-accident progress, I believe further investigation in to how best to treat his ongoing impairments takes precedence. I note that he attends the gym regularly, and is able to bend, lift, kneel, transfer various items (as noted in the surveillance evidence during a trip to Home Depot), which is also persuasive in comparison to Ms. Manalili’s report of R.K. requiring mobility devices to assist him at home. I find Aviva’s evidence persuasive and prefer it over the evidence that R.K. relies on in support of his claim.
67For the reasons above, I find that the OCF-18 for occupational therapy recommendations is not reasonable and necessary.
OCF-6 in the amount of $152.35 for prescription medication
68I find the OCF-6 is reasonable and necessary.
69The OCF-6 proposed medication to treat depression, anxiety and sleep disturbance, and to provide pain relief for chronic back pain and post-traumatic headaches.
70R.K. submits that the prescription medication is related to impairments that arose as a result of the accident. His position is that the OCF-6 is reasonable and necessary as follows:
i. The accident caused the impairment that necessitates the prescription medication;
ii. The prescription medication is reasonable and necessary; and
iii. A regulated health professional provided the prescription (Dr. Danial).
71Aviva did not specifically address the issue of this OCF-6, therefore, I have not been directed to any argument or evidence to refute R.K.’s claim for the prescription medication.
72As his treating physician Dr. Danial, has an extensive history with R.K. and is very familiar with his medical history. The medical records are persuasive in that R.K. has been regularly prescribed various medications as a result of the accident. It’s unclear why Aviva did not approve the remaining amount for the prescription medication, however, I find that the balance of the OCF-6 is reasonable and necessary. Dr. El-Hage has commented on R.K.’s depression and anxiety, for which she approved treatment. As such, I find that the prescriptions for impairments (for which treatment for same was approved) is reasonable.
73Accordingly, the balance of the OCF-6 for prescription medication is reasonable and necessary.
Interest
74Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
75Interest is payable for the following:
i. OCF-18 in the amount of $1,816.74 for physiotherapy services;
ii. OCF-18 in the amount of $1,550.00 for Botox treatment;
iii. OCF-18 in the amount of $2,200.00 for a mental health driving assessment;
iv. OCF-18 in the amount of $2,200.00 for a virtual social work assessment;
v. OCF-18 in the amount of $1,104.00 for a sleep study analysis;
vi. OCF-18 in the amount of $1,500.00 for an oculo-visual assessment; and
vii. OCF-6 in the amount of $152.35 for prescription medication.
Award
76The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
77Essentially, R.K. submits that Aviva is liable to pay an award because it failed to give any weight to the medical records, referrals and reports. His position is that Aviva maintained its denials despite the medical evidence, which he claims supports his entitlement to the disputed OCF-18s.
78Aviva disagreed and submitted that R.K. has made “bald accusations” of it failing to consider sufficient medical opinions.
79I agree with Aviva.
80At all times, as new reports and records were provided to Aviva, it sent the documents to its assessors to be considered and for an expert opinion to be provided in order for a determination to be made. I find that Aviva followed the opinions of its assessors, where they agreed with R.K. and approved treatment accordingly.
81Aviva relied on its denials, as it is so entitled to do, and where a party may disagree with a determination made by an insurer, this is not a ground for an award. Further, the onus is on R.K. to demonstrate how Aviva has unreasonably withheld or delayed payment of benefits. There is no evidence that I am pointed to, which supports any such action on Aviva’s part. Further, more is required to meet the threshold for an award than a submission about any alleged actions on the part of an insurer.
82Accordingly, I find that an award is not appropriate.
ORDER
83R.K. is entitled to the following:
i. OCF-18 in the amount of $1,816.74 for physiotherapy services;
ii. OCF-18 in the amount of $1,550.00 for Botox treatment;
iii. OCF-18 in the amount of $2,200.00 for a mental health driving assessment;
iv. OCF-18 in the amount of $2,200.00 for a virtual social work assessment;
v. OCF-18 in the amount of $1,104.00 for a sleep study analysis;
vi. OCF-18 in the amount of $1,500.00 for an oculo-visual assessment; and
vii. OCF-6 in the amount of $152.35 for prescription medication.
84Interest is payable on all outstanding payments of these seven benefits.
85R.K. is not entitled to the following:
i. OCF-18 for a functional cognitive assessment in the amount of $2,200.00;
ii. OCF-18 for an attendant care assessment in the amount of $2,074.43; and
iii. OCF-18 for occupational therapy in the amount of $3,731.44.
86No interest is payable on the above three benefits.
87R.K. is not entitled to an award.
Released: August 30, 2023
Derek Grant
Adjudicator
