Citation: Grant v. SGI CANADA Insurance Services Ltd., 2023 ONLAT 21-009999/AABS

Licence Appeal Tribunal File Number: 21-009999/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:

Everoy Grant

Applicant

and

SGI Canada Insurance Services Ltd.

Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Bahman Azimi, Counsel

For the Respondent: Jason H Goodman, Counsel

HEARD: In writing

OVERVIEW

1Everoy Grant (the “applicant”) was involved in an automobile accident on September 5, 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 SGI Canada Insurance Services Ltd. (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In her written submissions, the applicant withdrew the issue of entitlement to a non-earner benefit (“NEB”). Therefore, the preliminary issue of the applicant being entitled to re-elect his specified benefit is also withdrawn.

ISSUES

3The issues in dispute are:

i. Is the Applicant entitled to $2,074.81 for psychological services, proposed by Canadian Active Rehabilitation Center in a treatment plan/OCF-18 (‘plan’) dated November 28, 2019?

ii. Is the Applicant entitled to $4,878.12 for chiropractic services, proposed by Canadian Active Rehabilitation Center in a treatment plan/OCF-18 (‘plan’) dated December 19, 2019?

iii. Is the Applicant entitled to $3,273.74 for physiotherapy services, proposed by Canadian Active Rehabilitation Center in a treatment plan/OCF-18 (‘plan’) dated September 17, 2019?

iv. Is the Applicant entitled to $4,521.29 for physiotherapy services, proposed by Canadian Active Rehabilitation Center in a treatment plan/OCF-18 (‘plan’) dated September 17, 2020?

v. Is the Applicant entitled to $1,750.00 for optometric services, proposed by Canadian Active Rehabilitation Center in a treatment plan/OCF-18 (‘plan’) dated October 10, 2020?

vi. Is the Applicant entitled to $6,113.08 for chiropractic services, proposed by Canadian Active Rehabilitation Center in a treatment plan/OCF-18 (‘plan’) dated October 15, 2020?

vii. Is the Applicant entitled to $382.78 for prescription expenses, submitted on a claim form (OCF-6) dated February 3, 2021?

viii. 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?

ix. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to $2,074.81 for psychological services, as he has shown that this treatment is reasonable and necessary. Interest is applicable.

5The applicant is not entitled to any of the disputed chiropractic services, as he has not shown these treatments are reasonable and necessary.

6The applicant is not entitled to any of the disputed physiotherapy services, as he has not shown these treatments are reasonable and necessary.

7The applicant is not entitled to the disputed optometric services, as he has not shown these treatments are reasonable and necessary.

8The applicant is entitled to $367.00 of the disputed $382.78 for prescription expenses. Interest is applicable.

9The applicant is not entitled to an award.

ANALYSIS

The applicant is not entitled to the physiotherapy plans - issues iii and iv

10To receive payment for a treatment and assessment plan under s.14, 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

11The applicant submits that the treatment plans (“OCF-18”s) in dispute for physiotherapy are reasonable and necessary. The respondent disagrees. Since the applicant is seeking funding for 2 OCF-18s with the same provider, similar treatment modalities and similar goals, I will address them both at once.

12The applicant relies on the OCF-18 for $4,905,74, authored by Dr. Stephan Bourassa, chiropractor and dated September 17, 2019. The respondent partially approved the OCF-18 for $1,632.00, leaving $3,273.74 in dispute.

13The applicant also relies on the OCF-18 of Farnaz Suleman, physiotherapist dated February 26, 2020, for $4,521.29. The respondent partially approved this OCF-18 for $1,900.48., leaving $2,620.81 in dispute.

14Both OCF-18s seek to provide the applicant with manipulation, mobilization, and therapy for the applicant’s body, with the goals of reducing pain and symptoms, and increasing range of motion, and endurance.

15The applicant submits that he suffers from chronic pain as a result of the accident. The applies relies on the clinical notes and records (“CNR”s) of his physiotherapy clinic from September 17, 2019, until August 2, 2023, where he reported his ongoing pain in his knees, lower back, neck, right shoulder and whole body.

16The applicant relies on the CNRs of Dr. David Yok Ming Lau, physician. On September 18, 2018, Dr. Lau opined that after the applicant’s accident, he required rehabilitation therapy for his physical impairments. The doctor noted on October 18, 2018, that the applicant suffered neck, shoulder, and back strains.

17The applicant also relies on Dr. Lau’s March 28, 2019, CNR, where the doctor ordered an ultrasound of the applicant’s left knee. The ultrasound found evidence of swollen joints and some fluid near the applicant’s iliotibial band. The applicant also notes that Dr. Lau’s CNR of July 17, 2019, agreed with the applicant’s physiotherapist and found that the applicant suffered a concussion.

18The applicant also relies on Dr. Lau’s September 9, 2019, CNR, where an x-ray of the applicant’s spine was ordered. The imaging found the applicant suffered from mild, disc degeneration with anterior longitudinal ligament ossification.

19The applicant continued reporting his symptoms of pain to Dr. Lau throughout 2019 and 2020 and described them as severe, daily and constant.

20The applicant also relies on the CNR of Dr. Reza Noor, neurologist, dated October 2, 2019. Dr. Noor suspected that the applicant suffered from cervical radiculopathy, which may have been worsened by the subject accident. On January 21, 2020, Dr. Noor ordered the applicant to obtain magnetic resonance imaging (“MRI”) of his spine and found degenerative disc disease with stenosis and narrowing.

21The applicant also relies on the CNR of Dr. Charles Thompson, orthopedic surgeon, dated December 10, 2019. Dr. Thompson opined that the applicant’s left knee pain may be caused by mild chondrosis or cartilage breakdown based on the applicant’s x-ray. The applicant was offered injections during this visit but refused.

22The applicant relies on Dr. Thompson’s CNR of October 27, 2022, where the doctor noted he had previously administered a Depo Medrol injection. The applicant reported the injection provided pain relief. Dr. Thompson provided another injection and opined that the applicant would benefit from cortisone injections every 4 months.

23The applicant also relies on the CNRs of Dr. Alexandra Bottas, psychiatrist, where on October 7, 2020, the doctor diagnosed the applicant with chronic pain secondary to the accident. On July 29, 2021, Dr. Bottas found that the most reasonable diagnosis for the applicant’s pain was chronic pain.

24The applicant also relies on the CNR of Dr. Stephen James, physician. On November 30, 2020, the doctor diagnosed the applicant with facet disease, discogenic neck or back pain, sacroiliitis and myofascial pain.

25The applicant also relies on a prescription for additional psychotherapy for physiotherapy for neck shoulder and back pain, written by Dr. Robin Weng, physician, dated February 21, 2023.

26The applicant also relies on the section 25 assessment of Dr. Jardeep Gupta, physician dated March 26, 2023. Dr. Gupta found that the applicant was recovering from the injuries from his previous accident when he was involved in the subject accident. Dr. Gupta diagnosed the applicant with chronic pain syndrome, Fibromyalgia, and chronic pain in the neck, shoulder, back and knee with chronic headaches. Dr. Gupta opined that the applicant’s subject accident exacerbated the applicant’s injuries from his previous accident. Dr. Gupta recommended that the applicant attend an 8-week, multidisciplinary program to manage his chronic pain involving passive therapy and psychological treatment. Dr. Gupta also recommended a home exercise program for the applicant.

27The applicant also relies on the matter of G. K. v Coseco Insurance, 2020 CanLII 34433 (ON LAT), where the Tribunal found that an applicant’s chronic pain removed them from the Minor Injury Guideline (the “MIG”). The Tribunal further found that chiropractic and physiotherapy services were reasonable and necessary to reduce the applicant’s pain and increase her range of motion. The applicant submits that this matter is similar to his own, as he too has chronic pain and requires physical therapy to address his injuries.

28The respondent submits that the applicant is not entitled to either OCF-18 in dispute. The respondent noted that the OCF-18 for $4,905.74 is for eighteen sessions of chiropractic services, twelve sessions of physiotherapy, 10 massage therapy sessions, a progress report, an optometry screen, concussion management education, planning, form completing, administration services, an orthopedic pillow and a lumbar support.

29The respondent relies on the Insurer’s Examinations of Dr. Paul Ranalli, neuro-ophthalmologist, and Dr. Melody Nguyen, physiatrist, dated February 19, 2020. Dr. Nguyen found that twelve sessions of physiotherapy, an orthopedic pillow and lumbar support, totalling $1,663.02, was reasonable and necessary. Dr. Nguyen also opined that the applicant continue with a home exercise program after completing the physiotherapy.

30In this same report, Dr. Ranalli did not find this OCF-18 reasonable and necessary or identify any significant neuro-ophthalmological impairments related to the subject accident.

31The respondent submits it has approved the costs related to physiotherapy and acupuncture but rejected the balance in dispute.

32The respondent also relies on the addendum report IE of Dr. Ranalli, dated April 14, 2020. Dr. Ranalli maintained his original finding that the disputed OCF-18 was not reasonable and necessary and did not find any significant visual or neuro-ophthalmological impairment in the applicant’s accident. Though Dr. Ranalli found visual acuities, the doctor found these were under correction with eyeglasses and unrelated to the accident.

33The respondent also relies on the physiatry paper report IE of Dr. Nguyen dated February 25, 2020. The doctor maintained her previous IE findings. The doctor also suggested that the applicant be weaned from passive therapy and instead be provided with education, self-directed home exercise and non-pharmacological pain management. Dr. Nguyen also commented that there was no strong evidence to support the use of a BioFlex or another low-level laser therapy. Dr. Nguyen also found that chiropractic services were not advisable for people suffering from cervical spine issues. Moreover, the doctor opined that the applicant did not present with any objective findings to support active cervical radiculopathy, but rather, found her radiculopathy was likely resolving.

34The applicant noted that Dr. Nguyen noted that the applicant suffered from carpal tunnel syndrome, soft-tissue injuries and a pre-existing knee issue. The applicant also noted that the respondent failed to address the applicant’s chronic pain and the pain relief he requires from the disputed OCF-18s.

35The applicant also submits that physiotherapy was recommended by Dr. Bourassa, Dr. Suleman and Dr. Gupta.

36Finally, the applicant submits his evidence should be preferred, as Dr. Gupta’s evidence was produced in 2023 while Dr. Nguyen’s and Dr. Ranalli’s reports are from 2020 and 2021 respectively.

37I find that the applicant is not entitled to the 2 OCF-18s for physiotherapy. I accepted that the OCF-18s in dispute have the goals of assisting the applicant with his pain and increasing his physical abilities to return to his ADLs. I also find that the applicant has provided significant evidence of his subjective pain complaints after the accident, as noted in the CNRs of Dr. Lau. However, I note that Dr. Lau did not specifically comment on the disputed OCF-18s and whether they were reasonable and necessary.

38I also note that Dr. Noor’s and Dr. Thompson’s evidence also did not comment on the disputed treatment plans. Instead, the doctors’ evidence provided evidence that the applicant has been dealing with pain, such as degenerative disc disease, stenosis, spine narrowing and chondrosis which is typically related to age.

39Though I did consider the evidence of Dr. Weng, again, her evidence also did not comment on the specific OCF-18s in dispute. Dr. Weng did not state how often the applicant required physiotherapy, how many sessions the applicant needed, and the length of said sessions. Dr. Weng also did not comment on aspects of the OCF-18s such as the massage therapy sessions, a progress report, an optometry screen, concussion management education, planning, form completion, and administration services requested.

40I accepted that Dr. Bottas and Dr. Gupta diagnosed the applicant with chronic pain. However, again, neither doctor commented on the disputed OCF-18s. Instead, Dr. Gupta opined that the applicant required a multidisciplinary program, which is not what is currently in dispute. Though some of Dr. Gupta’s recommendations are captured in the disputed OCF-18s, the latter, as a whole, are not what the doctor recommended for the applicant.

41I did not find the matter of G. K. v Coseco Insurance persuasive, as it addressed an applicant whose injuries were found to be in the MIG. Moreover, the applicant in this matter was able to rely on a Functional Abilities Evaluation (“FAE”) which fully explored the limits of the applicant’s physical abilities. In the subject matter, I was not presented with this evidence. Therefore, I did not find this matter to be convincing.

42Instead, I was more persuaded by the IEs of Dr. Ranalli when considering the ocular aspect of the disputed OCF-18s. Dr. Ranalli addressed the specific OCF-18s in dispute and was able to fully explain why they were not reasonable and necessary. Moreover, this position was fulsomely explored by Dr. Nguyen in her IEs, which also addressed the specific OCF-18s in dispute.

43I also note that the applicant did not specifically address Dr. Nguyen’s concerns that the chiropractic services component of the disputed OCF-18s was inappropriate, nor her comments regarding the efficacy of low-laser therapy.

44I did consider the applicant’s arguments regarding the timing of the evidence, meaning that Dr. Gupta’s should be preferred because it is more recent. However, this argument does not address my comments regarding the specifics of the disputed OCF-18s and therefore, I did not find this argument to be compelling.

The applicant is not entitled to $4,878.12 and $6,113.08 for chiropractic services – issues ii and vi

45The applicant submits that the 2 disputed OCF-18s for chiropractic services are reasonable and necessary. The respondent disagrees. Since the applicant is seeking funding for 2 OCF-18s with the same provider, similar treatment modalities and similar goals, I will address them both at once.

46The applicant relies on the OCF-18 for $4,878.12 authored by Dr. Fayaz Dossa, chiropractor, dated December 19, 2019. The applicant acknowledged that $1,663.02 was approved by the respondent. Therefore, that leaves $3,215.10 in dispute.

47The applicant also relies on the OCF-18 of Dr. Dossa dated October 15, 2020, for $6,113.08. The applicant acknowledged that the respondent approved $1,995.00, leaving $4,118.08 in dispute. Both OCF-18s have the goals of reducing the applicant’s pain and radicular and neurological symptoms, increasing his range of motion and endurance, and helping him return to his activities of daily living (“ADL”s).

48The applicant also relies on Dr. Nguyen’s IE of December 16, 2020, which found that the applicant had carpal tunnel syndrome, bilateral adhesive capsulitis, mechanical back pain and soft tissue pain.

49The applicant relies on the evidence he relied on related to the physiotherapy OCF-18s and submits that his medical evidence shows that he suffers from chronic pain and not simply soft tissue injuries.

50The respondent submits that the applicant is not entitled to either OCF-18 in dispute. Concerning the OCF-18 for $4,878.12, for physiotherapy, acupuncture, chiropractic services and Bioflex laser therapy, the respondent relies on the IE report of Dr. Nguyen, dated February 19, 2020. The doctor found that twelve sessions of physiotherapy, an orthopedic pillow and lumbar support, totalling $1,663.02, was reasonable and necessary. Dr. Nguyen also opined that the applicant continues with a home exercise program after completing the physiotherapy.

51The respondent submits it has approved the costs related to physiotherapy and acupuncture, but rejected costs for a comprehensive rehabilitation program, chiropractic services and laser therapy. The respondent relies on the same evidence it used in support of its position related to the applicant’s physiotherapy.

52The respondent also relies on the addendum report IE of Dr. Ranalli, dated April 14, 2020. Dr. Ranalli maintained his original finding that the disputed OCF-18 was not reasonable and necessary and did not find any significant visual or neuro-ophthalmological impairment in the applicant’s accident. Though Dr. Ranalli found visual acuities, the doctor found these were under correction with eyeglasses and unrelated to the accident.

53I find that the applicant is not entitled to the 2 disputed OCF-18s for chiropractic services. I again accepted the goals of the disputed OCF-18s and that the applicant lived with pain after his accident. However, again, I was not directed to commentary or opinions from the applicant’s treating doctors or specialists concerning the disputed components of the OCF-18s. I was not directed to evidence from Dr. Lau, Dr. Noor or Dr. Thompson commenting on this.

54As stated above, I do not doubt that the applicant was diagnosed with chronic pain by both Dr. Bottas and Dr. Gupta. However, neither doctor provided support for the disputed components of the OCF-18s.

55Moreover, the applicant has not met his evidentiary onus of showing that the disputed aspects of the OCF-18s are reasonable and necessary. I agree with the respondent and find that I was not provided with evidence that addressed Dr. Nguyen’s concerns about the disputed treatments.

56Therefore, I find that both OCF-18s for chiropractic services are not reasonable and necessary.

The applicant is entitled to $2,074.81 for psychological services – issue i

57The applicant submits that the OCF-18 for psychological services is reasonable and necessary. The respondent disagrees.

58The applicant relies on the OCF-18 in dispute, authored by Dr. Maneet Bhatia. psychologist, and dated November 28, 2019. Dr. Bhatia states that the applicant suffered from a psychological disorder as a result of the accident. This OCF-18 has the goal of returning the applicant to his activities of normal living.

59The applicant also relies on the CNRs of Dr. Dief, who was diagnosed with severe post-traumatic stress disorder (“PTSD”) on October 10, 2018.

60The applicant also relies on the CNRs of Dr. Bottas. On June 2, 2020, Dr. Bottas noted that the applicant was being treated for depression after being involved in 2 accidents. Dr. Bottas found that the applicant’s depression worsened after the subject accident.

61On July 8, 2020, Dr. Bottas diagnosed the applicant with major depressive disorder – chronic – in partial remission with treatment, and chronic pain secondary to the accident. The applicant continued to report his low mood and chronic pain to Dr. Bottas throughout 2020.

62The applicant also relies on the CNRs of Dr. Lau. On September 18, 2018, the applicant visited Dr. Lau and the doctor found that the applicant required a psychological assessment related to his accident. On October 18, 2018, Dr. Lau noted that the applicant suffered from major depression, general anxiety and PTSD, which were severe and debilitating.

63The applicant also relies on the CNR of Dr. Fayaz Dossa, chiropractor, dated September 17, 2019, indicating that the applicant suffers from “psychological yellow flags”.

64The applicant also relies on a prescription for psychotherapy for PTSD written by Dr. Weng, dated February 21, 2023.

65The applicant also relies on the independent pain medicine assessment report of IE of Dr. Jagdeep Gupta, physician, dated March 26, 2023. Dr. Gupta diagnosed the applicant with chronic pain syndrome, sleep disturbance, and mood disturbance with symptoms of depression, anxiety, and PTSD. Dr. Gupta recommended that the applicant attend a psychiatric consult.

66The applicant also relies on his prescription summary from September 2, 2018, until August 1, 2019, which shows the applicant was prescribed Cymbalta, Trazadone, Seroquel, Lyrica and Zopiclone to treat his psychological injuries.

67The respondent submits that the OCF-18 for a psychological assessment and screening is not reasonable and necessary. The respondent relies on the IE of Dr. Tatiana Dumitrascu, psychologist, dated December 31, 2019, found that the applicant did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”) criteria for a psychological disorder and did not require psychological treatment as a result of the accident. The doctor found that she was unable to confirm Dr. Dief’s diagnosis of PTSD and found signs of symptom magnification.

68The respondent also relies on the Dr. Dumitrascu’s paper review IE dated March 20, 2020, where the doctor maintained her previous opinions.

69The respondent submits that the applicant’s previous accident was the cause of his current psychological issues. The doctor also notes that the applicant was receiving psychiatric treatment using an anti-depressant before the subject accident, and that said treatment has not changed as a result of the subject accident. The respondent submits that evidence of the applicant’s psychological condition worsening as a result of the subject accident is based on the applicant’s self-reports and not objective, psychometric testing. Based on this, the respondent submits its evidence should be preferred.

70The applicant submits that Dr. Dumitrascu’s findings should be given little weight, as the doctor failed to provide detailed descriptions of the psychometrics used nor the test result numbers. The applicant submits that despite Dr. Dumitrascu’s findings, the applicant’s treating doctors and specialists did not note symptom magnification. Instead, the applicant submits Dr. Bottas’ evidence should be preferred, as the doctor treated the applicant over several years.

71I find that the applicant has shown that the OCF-18 for psychological services is reasonable and necessary. Though I understand that Dr. Dumitrascu failed to identify a DMS-V diagnosis for the applicant, I cannot ignore that Dr. Bottas’ years of CNRs say otherwise.

72This position is also supported by Dr. Lau, Dr. Dief, Dr. Weng and Dr. Gupta, who all agree that the applicant suffers from PTSD and would benefit from some sort of psychological treatment. I found the totality of this evidence extremely persuasive.

73I also find it strange that 5 separate doctors agreed that the applicant suffers from PTSD, and yet this condition was not found in the IE and that the respondent chose not to re-examine the applicant.

74I accepted the respondent’s position that the applicant suffered from depression before his accident, however, this does not account for PTSD being documented only after this accident. Since PTSD is found to be a result of the accident, and the disputed treatment seeks to address this, I find the OCF-18 is reasonable and necessary.

The applicant is not entitled to the disputed optometric services – issue v

75The applicant submits the disputed OCF-18 is reasonable and necessary. The respondent disagrees.

76The applicant relies on the OCF-18 in dispute, authored by Dr. Jason Chan, optometrist, and dated October 10, 2020. Dr. Chan diagnosed the applicant with nystagmus and other irregular eye movements, other disorders of binocular vision, dizziness and giddiness, subjective visual disturbances, other disorders of the lacrimal gland, and other unspecified symptoms and signs involving cognitive functions and awareness. Dr. Chan recommended that the applicant receive a comprehensive vision therapy assessment.

77The respondent submits that the OCF-18 is not reasonable and necessary and relies on the IE of Dr. Ranalli dated February 19, 2020, which found that the applicant did not suffer from visual symptoms as part of an ongoing symptom complex.

78The applicant was asked to attend an IE to address entitlement. The respondent maintained this denial based on the IE of Dr. Ranalli dated June 14, 2021. The doctor found that the applicant had “no visual symptoms as part of an ongoing symptom complex” and found that his photosensitivity had resolved. Dr. Ranalli found that the applicant had a minor refractive issue, but that this was unrelated to the accident. The doctor found the disputed OCF-18 was not reasonable and necessary.

79The applicant took issue with Dr. Ranalli’s IE, arguing that it failed to address the applicant’s light-dark adaptation deficit and only the applicant’s photosensitivity. Instead, Dr. Ranalli noted that the applicant has some minor distortion of distant point sources of light but did not identify a cause. Dr. Ranalli also opined that “the type of vision therapy offered by this branch of optometry has no validated efficacy in this clinical setting” without providing an explanation or research supporting this position.

80The applicant relies on 17-002632 v Gore Mutual Insurance Company, 2017 CanLII 93458 (ON LAT), where the Tribunal found an applicant with similar symptoms as those of the subject applicant and that the symptoms were as a result of the accident. In this matter, the Tribunal found that vision therapy was reasonable and necessary.

81I find that the applicant is not entitled to the disputed OCF-18. Though I considered the OCF-18 of Dr. Chan, I did not find that document in itself to be persuasive. As an optometrist, many of the symptoms noted by the doctor fall outside of his scope of practice including giddiness, and unspecified symptoms and signs involving cognitive functions and awareness. Therefore, I gave these findings little weight.

82The other symptoms observed by the doctor, namely nystagmus and other irregular eye movements, other disorders of binocular vision, dizziness and giddiness, subjective visual disturbances, and other disorders of the lacrimal gland, did not identify if the cause of said injuries was the accident, or if the applicant’s pre-existing visual conditions accounted for the symptoms. Moreover, I am unsure of how Dr. Chan came to these conclusions based on the OCF-18 provided.

83As noted by the Tribunal in J.C. v Aviva General Insurance Company, 2019 CanLII 119752 (ON LAT), an OCF-18 in itself is not persuasive, “especially so given the complete dearth of evidence” to support its findings.

84Instead, I preferred Dr. Ranali’s findings, which provided the methodology and reasons for the findings of the doctor. Moreover, the doctor’s findings addressed the issue in dispute and spoke to the issue of the applicant’s pre-existing ocular conditions.

85I did not find 17-002632 v Gore Mutual Insurance Company to be persuasive, as that applicant was able to rely on a functional ocular-visual assessment to confirm the conditions noted in the disputed OCF-18. In the present matter, I was not presented with evidence beyond the disputed OCF-18 to support that said treatment was reasonable and necessary. Therefore, I did not find myself persuaded by 17-002632.

The applicant is entitled to $372.60 of the $382.78 in dispute for prescriptions

86The applicant submits that his Expenses Claims Form (“OCF-6”) is payable, while the respondent disagrees.

87The applicant submits the OCF-6 relates to his cannabidiol (“CBD”) oil, Cymbalta, Trazodone, Duloxetine, Prazosin, Lenoltec, Zopiclone, Naprozen and Mirtazapine. The applicant submits that most of the prescriptions in dispute relate to his psychological conditions. The applicant submits that based on Dr. Gupta’s report and CNRs, the applicant’s subject accident aggravated his pre-existing psychological issues, and are, therefore, reasonable and necessary.

88The respondent submits that it denied the disputed expenses, as some of the items were purchased before the applicant’s accident. The respondent also noted that the applicant had not provided medical documentation that prescriptions were related to the accident.

89The respondent submits that based on the applicant’s significant, pre-accident medical history accounts for most of his post-accident issues. The respondent submits that the applicant has failed to meet his evidentiary onus showing that the prescriptions are related to the accident, and therefore, they are not reasonable and necessary.

90The applicant submits that based on Dr. Bottas’ CNRs, the applicant's psychological conditions worsened as a result of the subject accident. Therefore, the applicant submits that prescriptions related to his psychological injuries, insomnia and chronic pain are related to the subject's accident, and therefore, are reasonable and necessary.

91I find that some portions of the dispute OCF-6s are reasonable and necessary. I agree with the applicant’s arguments that medications related to his psychological injuries and chronic pain are reasonable and necessary. My reasoning for this is based on the findings related to the applicant’s psychological injuries as noted by Dr. Bottas, Dr. Lau, Dr. Dief, Dr. Weng and Dr. Gupta.

92I also find that medications related to the applicant’s chronic pain are reasonable and necessary. I rely on the evidence of Dr. Bottas and Dr. Gupta, as described above.

93However, I agree with the respondent and found that some of the expenses claimed on the disputed OCF-6s were incurred before the applicant’s accident occurred. Therefore, any expenses billed before September 5, 2019, are not found to be related to the subject accident and are not reasonable and necessary.

94I find the following expenses are not payable:

OCF-6 dated February 3, 2021

Duloxetine billed on January 25, 2019: $5.57

OCF-6 dated February 3, 2021

Duloxetine billed on December 30, 2018: $5.37

Lenoltec billed on September 4, 2018: $1.25

Zopiclone billed on September 17, 2018: $0.76

Lenoltec billed on December 6, 2018: $2.83

Subtotal: $10.21

Total: $15.78

95However, the balance in dispute of, meaning $382.78 minus $15.78, totaling $367.00, is found to be reasonable and necessary.

Interest

96Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since I have found that the applicant is entitled to psychological services and a portion of the prescription expenses, interest is payable on those issues.

Award

97The 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.

98The applicant submits that despite providing the respondent with significant evidence showing his need for more treatment, the respondent denied him this. The applicant submits that the insurer unreasonably delayed his payment of benefits. The applicant did not provide the amount of an award being requested.

99The respondent submits it did not unreasonably withhold or deny payments of benefits to the applicant and therefore, no award is warranted.

100I find that the applicant is not entitled to an award. The applicant did not direct my attention to specific instances of the respondent’s alleged unreasonable conduct and show that the respondent’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate as seen in K.Y. v Aviva Insurance Company, 2022 CanLII 151 (ON LAT).

101The issue of contention is that the respondent withheld the applicant’s benefits related to psychological treatment and medications. However, when considering the context of this application, the respondent relied on its medical experts, namely Dr. Dumitrascu, who did not find that the applicant suffered a psychological injury. Though I did find this strange, given the plethora of CNRs that said otherwise, I do not find that the respondent’s decision to do so was excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, the applicant is not entitled to an award.

ORDER

102The applicant is entitled to $2,074.81 for psychological services and $367.00 for prescription expenses, as these treatments are found to be reasonable and necessary. Interest is applicable.

103The applicant is not entitled to the remaining disputed benefits for chiropractic services, physiotherapy or optometric services, as he has not shown they are reasonable and necessary.

104The applicant is not entitled to an award.