Houmani v. Lloyd’s Underwriters, 2023 CanLII 87428

Citation: Houmani v. Lloyd’s Underwriters, 2023 ONLAT 21-001863/AABS

Licence Appeal Tribunal File Number: 21-001863/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:

Hussein Houmani Applicant

and

Lloyd’s Underwriters Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Colleen L. Burn, Counsel

For the Respondent: Alon S. Barda, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Hussein Houmani (the “applicant”) was involved in a motor vehicle accident on June 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Lloyd’s Underwriters (the “respondent”) denied income replacement benefits (“IRB”) and two treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to IRB of $400.00 per week from October 18, 2018 to date and ongoing?
2. Is the applicant entitled to $4,131.80 for chiropractic treatment recommended by Dr. Andrew Kirk of Athlete’s Care Sports Medicine Centres Inc. in a treatment plan/OCF-18 dated November 10, 2019?
3. Is the applicant entitled to $2,294.54 for a psychological assessment recommended by Ricci and Associates in a treatment plan/OCF-18 dated March 2, 2021?
4. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

3I find that:

i. The applicant is entitled to IRB at the rate of $400.00 per week from October 18, 2018 to date and ongoing. He has demonstrated that he suffers from both a substantial inability to perform the essential tasks of his employment and a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. Therefore, he meets both the pre-104 and the post-104 IRB tests as established by the Schedule. He is also entitled to interest, pursuant to s. 51 of the Schedule.

ii. The applicant is entitled to the treatment plans dated November 10, 2018 and March 2, 2021, as he has demonstrated them to be reasonable and necessary. He is also entitled to interest on any incurred amounts, pursuant to s. 51 of the Schedule.

iii. The respondent is not liable to pay an award.

ANALYSIS

Income Replacement Benefits (“IRB”)

4Two sections of the Schedule define the process required to determine entitlement to IRB. To receive payment for pre-104 week IRB under s. 5(1), the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. To receive payment for post-104-week IRB under s. 6, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. The applicant bears the burden of proving, on a balance of probabilities, that he meets the tests and criteria noted above.

5Here, the applicant is seeking entitlement to both pre-104 and post-104 IRB. Both parties agree on the period of time in dispute. The accident took place on June 8, 2017, meaning that the initial 104-week IRB period ran until June 8, 2019. However, the applicant did not leave his job as a salesperson at Hunt Club Honda in Ottawa, ON until October 18, 2018, meaning that he is eligible to 33.5 weeks of pre-104 IRB to be assessed under the parameters of s. 5(1) of the Schedule. Any IRB entitlement beyond June 8, 2019 will be assessed under the parameters of s. 6 of the Schedule.

6The applicant submits that persistent back and neck pain suffered as a direct result of the accident has led to the development of depression, anxiety, and cognitive impairments. As a result, he suffered from a substantial inability to perform the essential tasks of his employment as of October 18, 2018 that progressed to a complete inability to engage in any employment or self-employment for which he is reasonably suited. The applicant primarily relies on the following evidence:

• A Disability Certificate/OCF-3 dated October 18, 2018.
• Clinical notes and records (“CNRs”) of Prime Physio Plus and Athlete’s Care.
• CNRs of the Ottawa Hospital Emergency Department.
• CNRs of Dr. Francois Constant, family physician, of the Centres for Pain Management.
• “Psycholegal” psychological assessment reports completed by Dr. Tammie Ricci, psychologist, dated June 21, 2021, July 7, 2021, and April 29, 2022.
• Physiatry assessment reports completed by Dr. Alex McKee, physiatrist, dated February 10, 2021 and June 29, 2022.

7In response, Lloyd’s argues that the applicant does not meet either the pre-104 substantial inability or the post-104 complete inability tests in the Schedule. It also raises the question of causation, noting that the applicant suffered from depression, anxiety, and panic attacks before the accident, and that he returned to work for over a year post-accident. The respondent relies mainly on the following evidence:

• CNRs of Dr. Harjeet Singh, the applicant’s family physician.
• CNRs of Appletree Medical Group.
• Employment documents such as the applicant’s WSIB file and his employment file from Hunt Club Honda.
• S. 44 insurer’s examination (“IE”) neurological report completed by Dr. Tilak Mendis, neurologist, dated May 2, 2019.
• S. 44 IE physiatry report completed by Dr. Shariff Dessouki, physiatrist, dated May 2, 2019.
• S. 44 IE neuro-psychology report completed by Dr. Paul Duhamel, psychologist, dated August 20, 2019.
• S. 44 IE psychology report completed by Dr. Alan Chan, psychologist, dated March 21, 2022.
• S. 44 IE vocational assessment report completed by Daniel Egarhos, certified vocational evaluator, dated March 21, 2022.
• S. 44 IE functional abilities evaluation (“FAE”) reports completed by Candace Lee, kinesiologist, dated May 2, 2019 and March 21, 2022.
• S. 44 IE orthopaedic report completed by Dr. Sanjeev Sharma, orthopaedic surgeon, dated March 21, 2022.

8Below, I assess the applicant’s entitlement to both pre-104 and post-104 IRB, beginning with the respondent’s challenge of causation.

Would the applicant’s impairments not have occurred but for the accident?

9I find that the applicant has demonstrated that the impairments resulting in his application for IRB would not have occurred but for the accident. He is eligible for IRB for the period of time claimed from October 18, 2018 to date and ongoing.

10The respondent contends that the roughly 18 months between the date of the accident on June 8, 2017 and the filing of the OCF-3 and application for IRB as of October 18, 2018 are sufficient to raise doubts about causation. The applicant submits that he did his best to continue working throughout this period, as his sales position as a leasing and finance agent at Hunt Club Honda was his “dream job.” However, escalating pain, cognitive impairments, and emotional symptoms gradually made it too difficult for him to complete his job tasks, which were identified as mainly computer-based desk work as a car leasing and finance agent. He left this position after 18 months of struggling with pain that prevented him from remaining seated and concentration/anxiety/depression issues that left him unable to focus on a computer screen.

11I am persuaded by the applicant’s evidence that he suffered from physical and psychological injuries shortly following the accident. Physical injuries were diagnosed both at the scene of the accident and shortly afterward by the applicant’s primary treatment care physicians’ clinic. The Ottawa Paramedic Service report on the day of the accident indicated that the applicant complained primarily of a sore left forearm. Appletree Medical Group CNRs dated June 19, 2017 note that the applicant complained about back pain, neck pain, and leg pain as a result of the accident. The treating family physician at this clinic, Dr. Imran Mushtaq, provided the applicant with a note to his employer requesting that he be allowed to stay off work until June 24, 2017 and then be put on light duties as tolerated on his return. Follow-up treatment was sought at Prime Physio Plus, where the applicant was diagnosed on June 28, 2017 by a physiotherapist (the signature is illegible) with whiplash associated disorder II (“WAD II”), a left back strain, a left shoulder strain, and neck.

12Post-accident psychological issues are first mentioned in the CNRs of Athlete’s Care dated September 14, 2017. Dr. Kirk Andrew, chiropractor, primarily diagnosed the applicant with costovertebral joint sprain, facet sprain/syndrome, dorsal scapular entrapments, and upper-crossed myofascial trap sprain during this appointment, but he also recorded the applicant’s complaints of increasing anxiety and panic attacks after the accident. Although I assign this observation limited weight in connection with a diagnosis, as Dr. Andrew has no claimed psychological expertise, the applicant’s comments at this appointment indicate that he was concerned about increasing anxiety and panic attacks just weeks after the accident occurred. In my view, this supports the applicant’s contention that pre-existing psychological issues (Appletree Medical Group CNRs show that the applicant was treated for anxiety and panic attacks and prescribed Ativan and Celexa on multiple occasions in 2015 and 2016) were triggered and exacerbated by the subject accident, leading to him eventually having to leave work.

13In all, I am satisfied that the applicant has demonstrated that his impairments would not have occurred but for the accident. The applicant’s evidence shows that he was reporting issues in the wake of the accident that would eventually lead to him leaving his place of employment and making the pre-104 and post-104 IRB claims, not that these issues suddenly arose some 18 months later.

Is the applicant entitled to pre-104 and post-104 IRB?

14I find that the applicant has met his burden and demonstrated, on a balance of probabilities, that he meets both the pre-104 and post-104 IRB tests. Therefore, he is entitled to $400.00 per week in IRB from October 18, 2018 to date and ongoing, plus interest in accordance with s. 51 of the Schedule.

15I am persuaded by the applicant’s medical evidence, which tells a consistent story from shortly after the accident into 2022, and strongly supports his claims to both substantial and complete inability to work with regard to the IRB tests. In addition, this evidence is supported by many of the diagnoses and observations of the respondent’s IE assessors, if not their final conclusions—which I doubt due to the absence of an integrated assessment that takes into account all of the applicant’s impairments.

16I assign significant weight to the psychological reports of Dr. Ricci, which I find to be comprehensive in their assessment of the applicant. Dr. Ricci completed three reports and addendums dated June 21, 2021, July 7, 2021, and April 29, 2022 that thoroughly catalogued the applicant’s serious psychological impairments. She examined the applicant in person for 1.5 hours, administered nine psychometric tests, reviewed virtually all of the medical CNRs and reports on file, and additionally interviewed the applicant’s sister. As a result, Dr. Ricci diagnosed the applicant with somatic symptom disorder with predominant symptoms of moderate to severe chronic pain, major depressive disorder, unspecified anxiety disorder (vehicle-related anxiety, including generalized anxiety symptoms with panic attacks and post-traumatic stress disorder features). She further found that these psychological impairments were directly caused by the accident, that they were likely to continue indefinitely, and that they prevented him from working in any job position.

17Although Dr. Ricci did not refer to the specific terminology and tests governing entitlement to pre-104 and post-104 IRB in the Schedule, her comments indicate that she deemed the applicant to be suffering from both a substantial inability to perform his job tasks as well as the complete inability to engage in any employment to which he is suited. Additionally, Dr. Ricci reaffirmed these opinions in a report dated April 29, 2022, where she did a paper review of the 2022 IE reports completed on behalf of the respondent and found that they largely supported her own diagnoses, if not her conclusions. While Dr. Ricci did not provide a full listing of the applicant’s specific job tasks and specific challenges completing them, she did opine that his “psychological injuries and impairments prevent him from working any job position,” due to his high levels of anxiety and depression and cognitive issues that were negatively impacting on his ability to focus and interact with other people in his workplace.

18I also assign considerable weight to the physiatry report of Dr. McKee dated February 10, 2021 and his paper review addendum dated June 29, 2022, as they provide an extensive assessment of the applicant as well as the medical evidence on file. He found that the applicant suffered from cervical, thoracic, and lumbar spine dysfunction with evidence of multi-level interspinous ligament involvement and facet joint injury, along with headaches due to traumatic brain injury/concussion.

19Dr. McKee also did not reference either of the IRB tests prescribed in the Schedule. Still, he opined that the applicant would be permanently impaired as a direct result of the accident and that his injuries both prevented him from working at the time of the assessment and would require significant clinical improvement if the applicant were to considering returning to any gainful employment. Dr. McKee also noted that the insurer’s IE reports concurred with his opinions that the applicant had significant symptoms as a result of the accident that were supported by objective clinical findings, even if these reports outlined different conclusions. Lastly, Dr. McKee did not change any of his diagnoses or opinions in his paper review addendum.

20Compelling support for the diagnoses of Dr. McKee can be found in the CNRs of Dr. Constant with the Centres for Pain Management. At the referral of Dr. Singh, the applicant sought treatment at this clinic starting on May 23, 2019 for cervical and thoracic pain and numbness in both arms and legs. Dr. Constant diagnosed the applicant with bilateral thoracic outlet syndrome, bilateral C5-C6 and C6-C7 facet joint dysfunction, bilateral spasms of the trapezius, Levator scapulae, Rhomboid minor and Rhomboid major muscles, right infraspinatus tendinopathy, right anterolateral shoulder impairment, T4 syndrome, left T3-T4, T4-T5, and T12-L1 facet joint dysfunction, and right T4-T5, T5-T6, and T11-T12 facet joint dysfunction. He recommended physiotherapy, massage therapy, and chiropractic treatment, and began providing nerve block injections to assist with pain management that seem to have continued into at least 2021.

21Of note, the applicant also mentioned to Dr. Constant that his pain was leading to exaggerated changes in mood, panic attacks, and concentration issues. Again, although I assign this limited weight given Dr. Constant’s training as a family physician and not as a psychologist, this also shows that the applicant told a consistent story to his physicians regarding these psychological impairments.

22Further, I concur with Dr. Ricci’s and Dr. McKee’s views of the respondent’s IE reports. Lloyd’s ordered two sets of IEs to assess the applicants claims—four in 2019 that were completed by Dr. Dessouki, Dr. Mendis, Dr. Duhamel, and Ms. Lee, and then another four in 2022 that were completed by Dr. Chan, Dr. Sharma, Mr. Egarhos, and Ms. Lee, again. Almost all found that the applicant was experiencing some form of physical and/or psychological impairment as a result of the accident. Although none of these assessors supported that these issues reached a level where the applicant met the IRB tests as defined in the Schedule, there was no attempt to provide an integrated overview that took all of the applicant’s health issues into account. I find that this leaves each of these reports somewhat isolated and, in my view, incomplete and insufficient.

23Consequently, I agree with the applicant’s argument that the conclusions of these IE assessments should be assigned limited weight overall. The applicant cites Gupta v. TD Insurance Meloche Monnex, 2021 CanLII 124062 (ON LAT) in support of this position, and even though I am not bound by previous Tribunal decisions, I find it persuasive. Although this decision of Adjudicator Grant involved a catastrophic disability, the situation before him regarding multiple IE assessors working in “silos” is quite similar to this one, in that the assessments here were also completed individually.

24Here, we have seven IE assessors each finding that the applicant suffered from a range of related and unrelated physical and psychological impairments as a result of the accident, but that none of these issues really impacted on his ability to work. I do not find this rationale compelling, especially given how almost every assessor found the applicant to be impaired in some fashion within his or her area of expertise, but then failed to offer an opinion on other key matters—even if these other key matters would have added context to or even refuted that core opinion.

25To summarize these IEs:

The 2019 IE Reports

i. Dr. Dessouki diagnosed soft-tissue injuries of the cervical, thoracic, and lumbar spine and post-traumatic headaches, along with some reduced range of motion, as a result of his physiatry assessment on March 2, 2019 (report dated May 2, 2019). He found that these injuries were minor as defined by the Schedule, however, and could be resolved in treatment within the Minor Injury Guideline (“MIG”). (At the time, the applicant was still being held within the MIG by his insurer.)

ii. Dr. Mendis diagnosed WAD II and cervicogenic headaches in his neurological assessment on March 26, 2019 (report dated May 2, 2019), along with a mild traumatic brain injury (concussion) with prolonged symptoms of post-concussive symptomology. He revised his opinions in a September 20, 2019 addendum written after reviewing Dr. Duhamel’s report described below to clarify that he found that the applicant had no physical neurological impairment or cognitive impairment caused by the motor vehicle accident. While I find it noteworthy that a neurologist would adjust his diagnoses regarding a neurological matter on the basis of the findings of a psychologist, Dr. Mendis still maintained in his addendum that the applicant sustained a mild traumatic brain injury.

iii. Dr. Duhamel is the one outlier, in that he did not diagnose the applicant with any neuropsychological or psychological impairment as a result of his psychological assessment conducted on July 24-25, 2019 (report dated August 20, 2019). However, I do not find that this diagnosis was in accord with Dr. Duhamel’s assessment and testing, to which he wrote that the applicant’s responses “reflected severe accident-related cognitive, emotional, and physical impairment.” Granted, Dr. Duhamel included the caveat “at face value,” but he did not perform any tests for symptom magnification or malingering to support allusions that the applicant was not entirely forthcoming during the examination. Dr. Duhamel seems to have based his final diagnoses more on his opinion that the applicant did not suffer a concussion in the accident than his own test results. This opinion was also outside of his medical area of expertise and was arrived at solely through a review of the ambulance call reports. As a result, I assign this report minimal weight in my analysis.

iv. Ms. Lee reported in her first FAE conducted on February 27, 2019 (report dated May 2, 2019) that the applicant demonstrated “upper crossed myofascial strain of his traps and rhomboids as well as discogenic pain,” along with decreased range of motion in the cervical and lumbar spine, right shoulder, and both hips, a weak core and decreased pelvic stability, and significant fear avoidance and pain-focused behaviours. Although Ms. Lee opined that the applicant was capable of light physical exertion, she deferred a decision on his ability to return to his job as a car salesperson to a physician due to his declining to perform a number of dynamic movements in the assessment (presumably because of the pain avoidance behaviour she noticed).

The 2022 IE Reports

i. Dr. Chan found that the applicant suffered from somatic symptom disorder with predominant pain that was moderate and persistent, along with adjustment disorder with mixed anxiety and depressed mood (with panic attacks) as the result of a February 16, 2022 assessment (report dated March 21, 2022). Despite these findings, however, Dr. Chan concluded that the applicant’s symptoms were not severe enough to cause him to suffer a complete inability to engage in employment in lines of work such as those noted in the vocational assessment of Mr. Egarhos (see below).

I have doubts about Dr. Chan’s conclusion, however, given the severity of the applicant’s psychological issues that he noted in his report. Dr. Chan wrote in his report that the applicant was “severely depressed, discouraged, and withdrawn,” “probably severely constricted by his tension and he may not be able to meet even minimal role expectations without feeling overwhelmed,” and experiencing “somatic complaints...likely to be chronic and accompanied by fatigue and weakness that render [the applicant] incapable of performing even minimal role expectations.” All of these observations, in my view, contradict Dr. Chan’s conclusion that the applicant did not suffer a complete inability to work.

Dr. Chan also provided qualifiers for his opinion that the applicant was not suffering from a complete inability to engage in employment or self-employment for which he is reasonably suited. He explained that the applicant would benefit from psychological support to facilitate such a return to work and a graduated work-return program, even though he acknowledged that this might not be available with a new employer. And Dr. Chan further noted that the applicant may be experiencing other limitations associated with headaches, neck, and back pain that were beyond the scope of his assessment.

In all, I assign the Dr. Chan report weight when it comes to its overall assessment of the applicant, but I question his final conclusions and recommendations as they do not match his findings. I also question his recommending a course of action for the applicant’s return to the workplace that he admitted would be unfeasible with a new employer and his offhanded mention of other impairments that might complicate this situation even further—without seeming to consider that these key factors might well make the doctor’s ideas impossible to implement.

ii. Dr. Sharma diagnosed the applicant with myofascial sprains and strains in his February 14, 2022 orthopaedic assessment (report dated March 21, 2022), and concluded that he did not suffer a complete inability to engage in any employment for which he was reasonably suited. However, he did not comment on the applicant’s claims of ongoing chronic pain, and did not address the applicant’s report of frequent headaches and difficulty with concentration and balance, even to refer him to another physician better suited to deal with neurological or psychological matters.

iii. Mr. Egarhos assessed the applicant on February 8, 2022 for a vocational assessment report that was filed on March 21, 2022. He listed the applicant’s previous occupations such as car salesperson, call centre agent, and security officer/commissionaire as primary possible occupations. But Mr. Egarhos’ aptitude testing of the applicant found that his profile was “consistent with the lowest-skilled and most elemental occupations in the Canadian labour market” due to significant problems that the applicant had in completing tests. Most of his results seem to have been below average. The applicant declined to do any of the computer testing, for example, due to headaches.

Mr. Egarhos concluded that, at “face value” and setting aside the other, conflicting medical documentation on file, that it “must be specified that [the applicant] might require full medical and/or psychological clearance to return to work before undertaking a return-to-work plan associated with any of the above-listed vocational options.” This is hardly a definitive endorsement of the applicant’s ability to return to the workforce at all, let alone to the types of jobs listed in the vocational assessment report.

iv. Ms. Lee’s second FAE took place on February 11, 2022, with the resulting report being dated March 21, 2022. This examination was to specifically assess the applicant’s entitlement to post-104 IRB. Ms. Lee found that the applicant presented with fatigue and a severe headache that caused him to decline performing a number of physical tests, along with compensatory movement patterns when walking and climbing stairs, and pain-focused fear-avoidance behaviour. She found that the applicant’s behaviour and self-reporting was consistent throughout the examination and correlated with his diagnosed injuries and her own physical finding. Ms. Lee did not write that the applicant met or failed to meet the Schedule test for post-104 IRB, but that he was capable of sedentary physical exertion.

26In summary, I am not convinced that the IE medical assessors’ conclusions match their observations and test results. I am further not persuaded by the FAEs of Ms. Lee or the vocational report of Mr. Egarhos. Neither addressed all of the applicant’s functional limitations. Mr. Egarhos left the applicant’s ability to work at all an open question at the end of his report. Ms. Lee deferred a final diagnosis on the applicant’s pain to a physician, a recommendation that does not seem to have been directly addressed by the other assessors, even though they did note her report in the documents that they reviewed. Additionally, she pointedly avoided making a finding on the post-104 IRB issue, while acknowledging the honesty of the applicant’s complaints of pain and his legitimate struggles to complete her testing.

27Although I would not go as far as Adjudicator Grant did in Gudas and claim that these IE assessors did their work in silos (they did coordinate their efforts somewhat, in that they shared their reports with one another in advance of them being released together in multidisciplinary report packages in 2019 and 2022), I find that they offered contradictory conclusions in their individual reports. There was never an attempt made to connect their disparate analyses into one holistic assessment of the applicant that would account for the combined impact of his impairments.

28Consequently, I prefer the submissions and the medical evidence of the applicant. The reports of Dr. Ricci and Dr. McKee provide the most consistent assessments of the applicant’s impairments. Moreover, their reports are largely bolstered by the IE assessors. As shown above, most of the IE assessors arrived at the same or similar diagnoses as Dr. Ricci and Dr. McKee, even if they did not reach the same conclusions.

29As a result, I find that the applicant has proven that he suffers from both a substantial inability to perform the essential tasks of his pre-accident employment and the complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. He is therefore entitled to IRB at a rate of $400.00 per week from October 18, 2018 to date and ongoing, plus interest pursuant to s. 51 of the Schedule.

The Treatment Plans

30To be entitled to a treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

31Below, I separately assess each of the treatment plans in dispute.

Is the applicant entitled to the treatment plan for chiropractic services dated November 10, 2018?

32I find that the applicant is entitled to the treatment plan for chiropractic services in the amount of $4,131.80, plus interest in accordance with s. 51 of the Schedule, as he has proven it to be reasonable and necessary.

33This treatment plan in dispute was completed by Dr. Kirk of Athlete’s Care Sports Medicine Centres. It recommended 10 sessions of chiropractic manipulation, 12 sessions of physical rehabilitation, 16 sessions of therapy on multiple body sites, and eight sessions of acupuncture, and it included a fee for documentation. This treatment was to address WAD II, sprain and strain of the thoracic and lumbar spine, sprain and strain of the shoulder girdle, injury of muscle and tendon at neck level, and injury of the peripheral nerves of the neck. Goals were to provide pain reduction, increase strength and range of motion, and help the applicant return to the activities or normal living and pre-accident work activities.

34The applicant submits that he has demonstrated this plan to be reasonable and necessary, and relies on the medical evidence already described above. He also claims that the respondent contravened s. 38(8) of the Schedule in its denial letter dated May 15, 2019 in that it did not provide sufficient “medical reasons and any other reasons” in accordance with 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).

35The respondent counters that the IE assessments of Dr. Dessouki and Dr. Mendis demonstrate that the applicant sustained only soft-tissue injuries in the accident and that this treatment plan is therefore not reasonable and necessary. Lloyd’s further submits that it complied with the requirements of s. 38(8) and provided proper explanations for its denials.

36I agree with the respondent and find that it met its obligations to provide proper notification of the reasons for its denial of this treatment plan. Lloyd’s provided enough specific information in its references to the medical reasons for the denial found in the reports of Dr. Mendis and Dr. Dessouki to allow an unsophisticated person to make an informed decision in response—as held in 16-003316/AABS v. Peel, a decision to which I am not bound, but to which I concur.

37However, I agree with the applicant and find that the treatment plan has been demonstrated to be reasonable and necessary. I prefer the physiatry assessment report of Dr. McKee to the respondent IE reports of Dr. Mendis and Dr. Dessouki due to its thorough nature, as I address in greater detail in the section assessing the applicant’s IRB claim. In addition to the diagnoses and opinions recounted above, Dr. McKee also wrote an extensive section in his report covering possible treatment options for the applicant. These options included physical therapy of the same sort as recommended in this treatment plan.

38I am not persuaded by the Dr. Mendis and Dr. Dessouki reports. The former assessed the applicant solely on a neurological basis and deferred comment on treatment to a specialist in myofascial injuries, which to me dramatically lessens the relevance of his opinion regarding this plan, which addressed precisely those types of injuries. The latter I find to not be in agreement with the majority of the medical evidence before me. I am also not convinced that Dr. Dessouki was entirely thorough in his assessment. He seems to have formed an opinion that the severity of the applicant’s symptoms did not match the “mechanism of the accident in question,” yet he proffered no evidence or even a direct opinion that the applicant was amplifying his symptoms. As a result, I assign Dr. Dessouki’s report limited weight.

39Accordingly, and for the above reasons, the applicant is entitled to this treatment plan for chiropractic services, plus interest pursuant to s. 51 of the Schedule.

Is the applicant entitled to the treatment plan for a psychological assessment dated March 2, 2021?

40I find that the applicant is entitled to the treatment plan for a psychological assessment in the amount of $2,294.54, plus interest on any overdue and incurred amount, in accordance with s. 51 of the Schedule, as he has proven it to be reasonable and necessary.

41The treatment plan in question here was completed by Lindsey S. McLeod, psychologist, of the Ricci Psychology Professional Corporation. The plan recommends a psychological assessment and includes added services such as a documentation review, measures and testing, and completion of the OCF-18 itself. Stated goals include determining treatment recommendations to address the applicant’s accident-related emotional and cognitive issues.

42The applicant submits that he has demonstrated this plan to be reasonable and necessary, and relies on the medical evidence described above. He also claims that the respondent contravened s. 38(8) of the Schedule in its denial letter for the same reasons as noted in its argument about the chiropractic treatment plan.

43Lloyd’s relies on a June 8, 2021 psychological IE report of Dr. Ronald Frey, psychologist, who found the treatment plan to not be reasonable and necessary. The insurer further argues that it followed all notice requirements of s. 38(8).

44I begin with the applicant’s allegation of a s. 38(8) violation. I find that the applicant has not met his burden to prove that the respondent’s denial violated s. 38(8). Unlike his identical argument regarding the chiropractic treatment plan, he does not provide any evidence supporting this assertion, including the denial letter. I now turn to the merits of the disputed psychological assessment.

45I find in favour of the applicant. The preponderance of the medical evidence before me presented by both parties satisfies me that a psychological assessment was fully reasonable and necessary. As I have detailed the applicant’s psychological impairments in significant detail above, I will not recount my rationale again here.

46Further, I am not persuaded by Dr. Frey’s report, as he took a somewhat dismissive approach to the applicant. Dr. Frey disagreed with prior diagnoses of concussion and post-concussion syndrome solely due to his reading of the ambulance call report from the scene of the accident, despite having no claimed neurological expertise. He rejected test results showing that the applicant had high levels of depression and anxiety, as the applicant’s “clinical presentation” was apparently inconsistent with his claimed impairments. And Dr. Frey all but directly accused the applicant of putting on a “performance,” even though only one of three tests that Dr. Frey conducted suggested this.

47Due to the reasons detailed above, the applicant is entitled to this treatment plan for a psychological assessment, plus interest pursuant to s. 51 of the Schedule.

AWARD

48I find that the respondent is not liable to pay an award.

49Section 10 of O. Reg. 664 allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which an insured person is entitled plus interest as applicable if it is found that the insurer behaved in a manner that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, and as a result unreasonably withheld benefits. Conduct warranting an award must involve more than the insurer simply “getting it wrong.”

50The applicant argues that an award is due largely because Lloyd’s held the applicant in the MIG for an unduly long period of time and because it failed to properly analyze its own assessments with regard to both the pre-104 and the post-104 IRB issues. Further, the applicant adds that an award should be ordered as the insurer did not properly assess the new medical evidence introduced by Dr. McKee and Dr. Ricci and because the insurer violated s. 38(8) of the Schedule with improper notice of its denials. The applicant does not specify the amount of the award that he is seeking.

51The respondent denies all of these accusations. In regard to the MIG accusation, Lloyd’s claims that even though the MIG was referenced in treatment plan denials, the plans were clearly denied due to them not being reasonable and necessary. The insurer admits that the MIG mention in a denial letter dated January 4, 2022 was an error, but that no harm was done as the treatment plan in question had already long been denied on a reasonable and necessary basis. Also, the respondent submits that keeping an applicant within the MIG is not subject to an award claim, as the MIG is a designation, not a benefit. And in regard to accusations that the IRB claim was not adjusted properly, Lloyd’s argues that it thoroughly assessed the applicant’s health issues on an ongoing basis through well-reasoned reports from multiple experts.

52I agree with the respondent.

53First, I do not find the MIG argument to be relevant. A MIG determination is not before me. No evidence has been provided to substantiate the applicant’s contention that the MIG was unfairly used to delay payment of the treatment plans in dispute here. The respondent erred in mentioning the MIG, but this did not impact on benefits. There is nothing here to warrant an award.

54Second, even though my findings demonstrate that I disagree with a number of the respondent’s positions regarding both the IRB issue and the disputed treatment plans, Lloyd’s made significant efforts to ensure that the applicant was treated appropriately. All that I fault the respondent for is the absence of an IE summary connecting the diagnoses spread across multiple medical disciplines and reports. This would have provided a fulsome accounting of the applicant’s physical and psychological impairments in totality. Still, this is a shortcoming that has been dealt with in my findings. It is not conduct that would warrant an award.

55For the rationale detailed above, the respondent is not liable to pay an award.

ORDER

56I find that:

i. The applicant is entitled to IRB at the rate of $400.00 per week from October 18, 2018 to date and ongoing, as he has demonstrated that he suffers from both a substantial inability to perform the essential tasks of his employment and a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. He is also entitled to interest, pursuant to s. 51 of the Schedule.

ii. The applicant is entitled to the treatment plans dated November 10, 2018 and March 2, 2021, as he has demonstrated them to be reasonable and necessary. He is also entitled to interest on any incurred amounts, pursuant to s. 51 of the Schedule.

iii. The respondent is not liable to pay an award.