Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-006630/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:
Rafal Polonski
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: Tricia McAvoy, Counsel
For the Respondent: Al Alilovic, Counsel Sina Nastarani, Counsel
Heard by Videoconference: November 27 – December 1, 2023
OVERVIEW
1Rafal Polonski, the applicant, was involved in an automobile accident on December 5, 2018, 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 the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Following a videoconference hearing held from November 27 – December 1, 2023, the Tribunal informed the parties on March 20, 2024 that the adjudicator who heard the matter was unable to provide a decision. On May 23, 2024, the Tribunal ordered the matter to “proceed by having a new adjudicator review the existing record”. The Tribunal received a copy of the transcript on June 14, 2024.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 4, 2019 ongoing, less amounts paid?
ii. Is the applicant entitled to attendant care benefits in the amount of $1,471.35 per month from December 5, 2018 ongoing, less amounts paid?
iii. Is the applicant entitled to $2,166.45 for an in-home attendant care assessment, proposed by Sophie Bielawski in a treatment plan/OCF-18 (“plan”) dated August 26, 2019?
iv. Is the applicant entitled to the assessments proposed by Active Health Management, as follows:
(a) $1,101.11 for physiotherapy treatment, in a treatment plan dated June 15, 2019;
(b) $2,950.89 for chiropractic and physiotherapy treatments, in a treatment plan dated August 30, 2019;
(c) $2,851.14 for chiropractic and physiotherapy treatments, in a treatment plan dated September 5, 2019; and
(d) $2,950.89 for chiropractic and physiotherapy treatments, in a treatment plan dated November 16, 2019?
v. Is the applicant entitled to the assessments proposed by iScope, as follows:
(a) $2,200.00 for an occupational therapy assessment, in a treatment plan dated November 22, 2022; and
(b) $1,995.51 for a physiotherapy assessment, in a treatment plan dated November 22, 2022?
vi. 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?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
4Despite the description in the case conference report and order, the parties informed the adjudicator at the videoconference hearing that the “physiotherapy assessment” under Issue (v)(b) is best described as “vestibular physiotherapy”.
RESULT
5I make the following findings:
i. The applicant is entitled to payment of an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 4, 2019 to December 2, 2020.
ii. The applicant is not entitled to an attendant care benefit (“ACB”).
iii. The applicant is entitled to payment of the following treatment plans:
a. $2,166.45 for an in-home attendant care assessment in a treatment plan dated August 26, 2019;
b. $1,101.11 for physiotherapy treatment, in a treatment plan dated June 15, 2019;
c. $2,950.89 for chiropractic and physiotherapy treatments, in a treatment plan dated August 30, 2019;
d. $2,851.14 for chiropractic and physiotherapy treatments, in a treatment plan dated September 5, 2019; and
e. $2,950.89 for chiropractic and physiotherapy treatments, in a treatment plan dated November 16, 2019.
iv. The applicant is not entitled to the remaining two treatment plans.
v. The applicant is not entitled to an award.
vi. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
PROCEDURAL ISSUES
6Prior to and during the hearing, the parties made several motions.
7The applicant made motions seeking to exclude some of the respondent’s expert evidence, due to alleged failures regarding the notices of examination, pursuant to s. 44 of the Schedule. The adjudicator at the videoconference hearing ruled that none of the respondent’s evidence would be excluded, but rather the parties could make arguments about the appropriate weight for these reports.
8The respondent brought two motions—one prior to the hearing through a Notice of Motion and an oral motion made during the hearing. First, in a Notice of Motion submitted to the Tribunal on November 23, 2023, the respondent sought to exclude the applicant’s vocational assessment report from his rehabilitation counsellor and forensic vocational expert, Joel Kumove (report dated July 6, 2023). According to the respondent, the applicant served this report on the respondent on July 7, 2023—a breach of the July 5, 2023 deadline established at the case conference. The respondent claims this breach prejudiced its case, because “the late productions have prevented the Respondent from factoring in the productions or obtaining addendum reports”.
9Though this Notice of Motion was assigned to be heard at the videoconference hearing, it is unclear from the transcript whether the adjudicator issued an order. It is also unclear whether the parties directly addressed the motion during their oral submissions. I will therefore address it now.
10Rule 9.4 of the Common Rules of Practice and Procedure states a party who has breached an order with respect to disclosure of documents may not rely on the disputed document “without the consent of the Tribunal”. Though I accept that there was a breach of the case conference report and order, I find the respondent has not satisfied me that there is sufficient prejudice to dispense with this relevant piece of evidence. A vocational assessment has direct relevance for assessing entitlement to an IRB, and the respondent has not demonstrated how this minor disclosure breach impacted its ability to prepare for and respond to the applicant’s claim. I decline to grant the respondent’s request to exclude the report.
11Second, in the oral motion, the respondent challenged the applicant’s decision to present his expert evidence solely through written reports. The adjudicator ordered that the applicant’s decision not to call these experts to testify would be a consideration for determining the weight of this evidence.
12Finally, in an e-mail sent to the Tribunal and the applicant two minutes before the start of the first day of the videoconference hearing, the respondent asked for an order barring the applicant from proceeding with his request for the in-home attendant care assessment, i.e., Issue (iii). Briefly, the respondent claims the applicant breached s. 38(2) of the Schedule by submitting the OCF-18 for this assessment after the assessment had been incurred. Therefore, unless the applicant can establish one of the four exceptions under s. 38(2), the respondent is not required to pay.
13This request was discussed in detail by the respondent at the start of the videoconference hearing, with much of the applicant’s responding commentary involving the timing of the e-mail (not the substance of the s. 38 argument). The adjudicator did not issue an oral order at the time, and there was no explicit reference to this argument in closing submissions.
14I will not grant the respondent’s request to bar the issue of the in-home attendant care assessment. As the respondent noted in its written materials, the “onus is on the Applicant to establish that one of the four exceptions under section 38 applies”. Due to the timing of the e-mail, I am concerned that the applicant was denied the opportunity to prepare a possible defense. This lack of notice was then compounded by the respondent’s decision to not explicitly pursue this line of argument in its closing submissions. Therefore, I find granting the respondent’s request to bar this issue from proceeding would constitute a breach of procedural fairness.
ANALYSIS
Income Replacement Benefit
15I find the applicant has established that he is entitled to payment of the IRB in the amount of $400.00 per week from October 4, 2019 to December 2, 2020.
16Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. This test becomes more stringent after 104 weeks post-accident, as the insured person must then show a “complete inability” to perform any role they are reasonably suited to perform by way of experience, training, and education. The onus is on the applicant to demonstrate entitlement to an IRB on a balance of probabilities.
17In this case, the 104-week mark post-accident is December 2, 2020, so both tests apply. I note that the applicant referenced the 104-week mark in his closing submissions as December 4, 2020, but I do not accept this date.
18There was no dispute concerning the quantum of the IRB, i.e., $400.00 per week.
Pre-104 Week IRB – Substantial Inability
19To apply the “substantial inability” standard, the Tribunal must determine:
(a) What were “the essential tasks” of the pre-accident employment?
(b) What, if any, impairments were caused by the accident?
(c) Did the applicant’s accident-related impairments cause a “substantial inability” to perform these “essential tasks” of employment?
20The applicant is basing his claim for the pre-104 week IRB on his employment as a journeyman electrician. Starting with “the essential tasks”, I find the applicant has satisfied me that these tasks were both physical and cognitive. For the physical tasks, the applicant’s testimony is supported by the OCF-2 (signed May 23, 2019) that states the “relevant activity demands” of the job included: standing for up to 60 minutes at a time; regularly crouching, squatting, and kneeling; walking “approximately 6 km” over an 8 hour shift; frequent climbing, etc. Taken together, I conclude the essential tasks included the following physical activities: climbing; carrying/pulling weights; and extended periods of kneeling, standing, and walking.
21Turning to the cognitive aspects, I find the applicant again provided compelling testimony regarding the mental calculations and intense focus required to perform his job safely. Specifically, the applicant testified that there is a heightened importance attached to cognitive tasks, as mathematical errors could jeopardize the safety of an electrical system. I accept this testimony, and, as such, I conclude the essential tasks of the pre-accident role also included concentration.
22With these tasks in mind, I can conclude that the applicant’s accident-related impairments caused a substantial inability to perform these essential tasks.
23The applicant supports his claim to the IRB by arguing that the accident caused both physical and psychological impairments. Taken together, these impairments restricted his ability to meet both the physical and cognitive tasks associated with being an electrician. In addition to his testimony, the applicant’s evidence includes: the clinical notes and records of Dr. Sherif Gordon, GP; imaging reports from August and October 2019; and the records of Active Health Management.
24The respondent challenges the applicant’s position by relying on its expert reports. To further challenge the extent of his impairments, the respondent also highlights a period when the applicant was not seeking treatment. Finally, the respondent alleges the applicant’s evidence is overly focused on self-reports.
25First, I accept that the applicant has provided compelling evidence of physical impairments during the pre-104 week period. To start, I find he consistently complained of low back pain to his treating clinic, Active Health Management. These entries include: April 14, 2019, May 30, 2019, July 11, 2019, etc. There was a gap in the treatment records from this clinic, but, when treatment resumes in 2022, there is another complaint of back pain in a note dated February 4, 2022. I find the consistency and persistence of this pain complaint lends credence to the applicant’s testimony concerning the existence and impact of this impairment during the relevant period.
26Then, in a consultation note dated October 29, 2019, Dr. Hui Li commented that the applicant “will probably need to be seen by a pain specialist” to address his “mechanical back pain”. Dr. Li is listed as a practitioner involved in neurosurgery and spinal surgery. I find this note provides further support for the applicant’s testimony about his impairment during this period.
27Additionally, there is support for this physical impairment from the respondent’s occupational therapy assessor, Angela Bertolo (assessment completed November 18, 2019; report dated December 2, 2019). Though Ms. Bertolo concluded the applicant “demonstrated adequate functional abilities” for his daily tasks, I find her objective observations provide compelling support for the applicant’s position. For instance, her observations include the applicant’s need to get up on several occasions during a 45-minute period of sitting, as well as below normal results when testing for flexion and extension of the lumbar spine. The applicant also self-reported low back pain during a number of movements made during the assessment. In sum, I find this report lends compelling support for the position that the applicant’s low back pain was a significant impairment at this time.
28Finally, I find the report from the respondent’s physiatry assessor, Dr. Andrzej Gwardjan (assessment completed August 7, 2019; report dated September 13, 2019), contains similar observations to Ms. Bertolo. For instance, while Dr. Gwardjan found the applicant did not meet the “substantial inability” test, his assessment found similar range of motion findings to Ms. Bertolo in the lumbar spine. The applicant also made similar, subjective pain complaints to Dr. Gwardjan as he made to Ms. Bertolo and Active Health. Once again, this report provides further support for the existence of this physical impairment.
29Turning to the respondent’s other arguments, I find these submissions do not alter my findings. First, the respondent alleges the applicant did not attend physical or psychological treatment for an extended period. This gap in treatment meant the applicant incurred less treatment than the Minor Injury Guideline limit, even though he had approved treatment beyond the $3,500.00 amount. I do not agree with this argument. Though I accept that a lack of incurred treatment may sometimes provide insight into the severity of an insured person’s injuries, in this case, I still find that the evidence detailed above demonstrates that the applicant sustained ongoing, accident-related back pain. Therefore, regardless of the treatment that was incurred, I find the medical evidence supports my conclusion that this impairment exists on a balance of probabilities.
30The respondent also challenges the weight that should be afforded to the applicant’s evidence, claiming it is mainly based on self-reports. Similar to my finding about incurred treatment, I conclude there is sufficient support for the applicant’s pain complaints in the testing and observations detailed above.
31Taken together, I conclude this evidence demonstrates on a balance of probabilities that the applicant sustained physical impairments from the accident, namely low back pain. I further find the persistence of these pain complaints establishes that this pain continued throughout the pre-104 week period.
32Given my determination that the applicant sustained back pain, I conclude this impairment substantially impaired his ability to perform the essential tasks of his pre-accident employment. The essential physical tasks included extended periods of kneeling, standing, and walking, while the cognitive tasks involved concentration. I am satisfied that the need to perform continual, physical tasks over an extended period of time would be substantially impaired by back pain, as this pain would inhibit his ability to repeatedly kneel and change positions. Turning to the cognitive tasks, I also conclude that ongoing back pain would substantially interfere with his ability to maintain concentration over a full shift.
33I note that the respondent submits there are other, possible explanations for why the applicant was not working at the time, namely he was laid off and ready to work (as evidenced by his application for and receipt of COVID-related benefits). I find this submission is not compelling, as, on a balance of probabilities, I find there is sufficient evidence to support the existence of lower back pain, and I am satisfied that this pain would have a substantial impact on his job performance. Put another way, the applicant’s evidence has established that, as a result of accident-related impairments, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. The applicant has met his onus.
Post-104 Week IRB – Complete Inability
34I find the applicant has not established entitlement to an IRB past the 104-week mark. A key argument made by the applicant in support of ongoing IRB entitlement is that he is not suited to sedentary work, including office positions. I find there is insufficient evidence to support the applicant’s position that he is only “reasonably suited” to highly physical employment or self-employment.
35The analysis for the post-104 week period requires the Tribunal to first determine what employment or self-employment the insured person is “reasonably suited” to perform. This assessment involves an appraisal of one’s work history, education, and training. Starting as an apprentice in 2008 and then becoming an electrician in 2013, I find the applicant has spent a significant part of his working life in the electrical trade. The applicant did testify that he has also worked as a delivery driver, tractor trailer mechanic, and as an office employee (though only for about two weeks). Despite these other jobs, I still find most of the applicant’s work history is as an electrician, so I am satisfied that he is reasonably suited to employment in this trade.
36Where I diverge with the applicant’s position is over the physical nature that this reasonably suited employment must take on. Once again, a key argument made by the applicant is that he is not suited for more sedentary work. I find there is insufficient evidence to support this position. That is, while the applicant relies on his expert reports to support his position, I find these opinions raise questions about whether a less physically demanding version of his pre-accident employment could be a “reasonably suited” role. Put another way, I find these opinions support the possibility of the applicant working in a less physically strenuous setting.
37For instance, in the report from Mr. Kumove, the applicant’s vocational assessor concluded he is unlikely to return to any form of employment. Yet, I note that Mr. Kumove does not foreclose the possibility of the applicant ever returning to work. Rather, mirroring the opinion of the applicant’s physiatry assessor, Dr. Zeeshan Waseem, Mr. Kumove concluded:
In the hopeful event of a partial yet significant improvement in his pain management, headaches, mental acuity, emotional wellbeing and stamina, I would consider a best-case scenario consistent with Dr. Waseem’s postulation of part-time reduced capacity light work, following further vocational preparation.
38Therefore, while the applicant testified that he is not “reasonably suited” for more sedentary work, this opinion suggests otherwise. Without a sufficient evidentiary basis to corroborate the applicant’s testimony, I am left with Mr. Kumove’s position that “light work” may be another form of “reasonably suited” employment. On a balance of probabilities, I am then satisfied that the applicant has not established that his accident-related pain and related issues with concentration have left him completely unable to perform a less physically demanding, though still “reasonably suited”, employment position.
39In sum, I find the applicant has established entitlement to an IRB up to the 104-week mark, i.e., $400.00 per week from October 4, 2019 to December 2, 2020.
Attendant Care Benefit
40I find the applicant has not established entitlement to an ACB on a balance of probabilities, as he has not provided compelling evidence that these services have been incurred.
41Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant.
42By way of the Assessment of Attendant Care Needs (“Form 1”) completed by occupational therapist, Sophie Bielawski (dated August 26, 2019), the applicant is seeking services in the amount of $1,471.35 per month. These services include: 210 minutes per week for bathing; 30 minutes per week for medication assistance; 532 minutes per week for hygiene assistance; 420 minutes per week for meal preparation; and 118 minutes per week for grooming and dressing.
43The applicant supports his claim by relying on the opinion of Ms. Bielawski. The respondent submits the applicant has not provided any evidence of incurred services. Relatedly, the respondent argues that case law has established that general statements about help from others is insufficient: Nebesnuik v. Aviva General Insurance Company (“Nebesnuik”), 2022 CanLII 93711 (ON LAT).
44I find the applicant has not established entitlement to an ACB, as I have not been directed to evidence that shows these services have been incurred. As the respondent highlighted during cross-examination of the applicant and then again in closing submissions, there have been no OCF-6s submitted showing that the services were incurred. Also, I have not been directed to any evidence that would indicate an economic loss on the part of a family member, friend, etc. who provided attendant care services. As stated in Nebesnuik, applicants have the onus to demonstrate that attendant care services have been incurred, and the inability to do so will disentitle them to the ACB. I also note that the applicant did not raise the deemed incurred provision under s. 3(8), so I will not consider this discretionary provision, as it was not argued by the parties.
45To receive payment for a treatment and assessment 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. 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.
46I find the applicant is entitled to the treatment plans for the in-home attendant care assessment and the physiotherapy and chiropractic treatment. He is not entitled to the remaining two treatment plans: i.e., the occupational therapy assessment and vestibular physiotherapy.
In-Home Attendant Care Assessment Plan
47I find the applicant has demonstrated entitlement to this treatment plan.
48The treatment plan for the in-home attendant care assessment recommends $2,166.45 for the completion of the assessment, along with funding for provider travel time, documentation, mileage, completing the claim form, etc. The treatment goals are pain reduction, increases in strength and range of motion, and a return to activities of normal living and work. The plan is dated August 26, 2019.
49The applicant challenges the respondent’s denial by claiming it was based on an insurer’s examination conducted several months after the plan was submitted. According to the applicant, Ms. Bertolo concluded that she could not comment on whether the plan was reasonable and necessary at that time. In addition to a more general argument that the applicant has not demonstrated the reasonable and necessary nature of any of the disputed treatment plans, the respondent cites its report from Ms. Bertolo to support its denial of this plan.
50Following on my findings regarding the applicant’s pain complaints, I find it was necessary for him to assess whether attendant care services could assist with pain reduction, especially as there is evidence of pain complaints made during the period prior to the completion of this plan. I further note that these subjective pain complaints are buttressed by the range of motion testing completed by Dr. Gwardjan weeks prior to the completion of this plan. While I accept that Ms. Bertolo concluded this assessment was not reasonable and necessary, I nonetheless conclude there was a sufficient evidentiary basis to support requesting this kind of assessment when the plan was completed in August 2019.
51I find on a balance of probabilities that this plan is reasonable and necessary.
Physiotherapy and Chiropractic Treatments
52I find the applicant has established entitlement to the physiotherapy and chiropractic treatment plans.
53The applicant submitted four treatment plans seeking funding for various forms of physical therapy. They share the treatment goals of pain reduction, increases in strength and range of motion, along with a return to activities of normal living and work. The plans were completed between June and November 2019.
54The applicant claims these services resulted in mild improvements in his symptoms. He also challenges the opinion of Dr. Gwardjan, arguing that this assessor only focused on objective impairments. The applicant then argues that, while the respondent may question the amount of incurred treatment, case law states there is no need to incur treatment before disputing a denial: e.g., Han v. Wawanesa Mutual Insurance Company, 2023 CanLII 1465 (ON LAT) and Tyner v, Certas Home and Auto Insurance Company, 2023 CanLII 91439 (ON LAT).
55The respondent opposes entitlement to the plans, noting that the applicant has incurred little physical therapy since 2019. The respondent also highlights the opinion of Dr. Gwardjan, who found the plans are not reasonable and necessary.
56Once again, following on my findings about the applicant’s pain complaints, I find it was necessary for the applicant to receive physical therapy aimed at assisting with pain reduction and a return to work during this period. I further find the period when these plans were completed was the same period for which I have found the applicant’s pain complaints were impacting his ability to work—complaints that support the reasonable nature of these requests. Therefore, while I accept that Dr. Gwardjan questioned the need for these services, I conclude there was a sufficient evidentiary basis to establish the reasonable and necessary nature of the plans.
57I also find the respondent’s argument about the limited amount of physical therapy incurred by the applicant is not compelling. As articulated in the applicant’s case law, there is no need to incur a treatment plan prior to disputing its denial at the Tribunal. Even if I accepted that the applicant’s level of incurred treatment was a factor weighing against his claim, I would still find (on a balance of probabilities) that he has presented sufficient, compelling evidence to show the reasonable and necessary nature of the plans.
Occupational Therapy Assessment and Vestibular Physiotherapy
58I find the applicant has not established entitlement to the plans for the occupational therapy assessment and vestibular physiotherapy.
59The treatment plan for the occupational therapy assessment is seeking $2,200.00 for the completion of this assessment “to address ongoing occupational performance concerns resulting from collision related cognitive, affective, and physical/functional symptoms.” The plan is also seeking $200.00 for completion of the OCF-18 form. The treatment goals are focused on a return to activities of normal living. The plan is dated November 22, 2022.
60The treatment plan for vestibular physiotherapy proposes $1,995.51 for 16 sessions of this treatment, along with funding for a progress report, file planning, team communication, and completing the form. The treatment goals are to “Decrease post-concussion symptoms” and to “Improve tolerance to every day activities.” The plan is also dated November 22, 2022.
61Starting with the occupational therapy assessment, the applicant points to the treatment goals listed on the OCF-18 form to support payment of the assessment. The applicant also alleges Dr. Gwardjan misunderstood the purpose of the assessment, so his report should be given little weight. Then, for the vestibular physiotherapy, the applicant claims there is an ongoing safety issue to address. The applicant also contends that Dr. Gwardjan and the respondent’s neurology assessor, Dr. Nagib Yahmad (report dated April 5, 2023), both found they were unqualified to comment on vestibular physiotherapy.
62The respondent challenges the plans by claiming that the concussion diagnosis did not come until four years after the accident. The respondent also relies on the opinions of its assessors to dispute the plans.
63Starting with the occupational therapy assessment, I find the applicant has not provided a compelling explanation for why it was reasonable and necessary at the time the plan was completed. As opposed to the in-home attendant care assessment, I find the information available when this plan was prepared does not support the necessity of this assessment. The applicant had not incurred any attendant care services following the completion of the Form 1 in August 2019, so I find the stated treatment goal of returning to activities of normal living was not compelling at the time when this plan was completed in November 2022.
64For the vestibular physiotherapy plan, I find that the applicant has not presented compelling evidence to establish that the post-concussive symptoms this plan is meant to address are accident-related. Rather, I find the respondent has raised a compelling challenge to the applicant’s reason for seeking this treatment, namely the gap in time between the accident and the concussion-related symptoms it is meant to address. As the applicant accepted during cross-examination, the first concussion-related findings were made by iScope in November 2022—almost four years after the accident. I find this gap in time is a significant challenge to the applicant’s onus to demonstrate that this treatment will address an accident-related impairment. The applicant did testify that these symptoms have been persistent from the accident onward. However, without compelling documentary evidence to corroborate this timeline, I put limited weight on this assertion.
65Further, I find the November 21, 2022 report from iScope (wherein the applicant was diagnosed with an accident-related concussion) does not effectively support this assertion. Aside from brief references to how the applicant “has since experienced” certain neurological symptoms following the accident, there is no compelling explanation for how the assessors concluded that: “The patient experienced a motor vehicle collision on 2018-12-01 causing a mild traumatic brain injury.” Without a compelling analysis from the assessor to explain how the accident is connected to the symptoms, I find this report does not adequately address these concerns.
66Finally, I do not find the applicant’s argument about the reliability of the reports from Drs. Gwardjan and Yahmad impacts my analysis, since my conclusion is based on the concerns raised above.
Interest
67Interest applies on the payment of any overdue benefits, pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51.
Award
68The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. However, despite confirming that it remained in dispute, the parties did not make any explicit submissions about the award request during the videoconference hearing. As such, I find the applicant has not met his onus to demonstrate entitlement to an award.
ORDER
69For the above reasons, I make the following orders:
i. The applicant is entitled to payment of an IRB in the amount of $400.00 per week from October 4, 2019 to December 2, 2020.
ii. The applicant is not entitled to an ACB.
iii. The applicant is entitled to payment of the following treatment plans:
(a) $2,166.45 for an in-home attendant care assessment in a treatment plan dated August 26, 2019;
(b) $1,101.11 for physiotherapy treatment, in a treatment plan dated June 15, 2019;
(c) $2,950.89 for chiropractic and physiotherapy treatments, in a treatment plan dated August 30, 2019;
d. $2,851.14 for chiropractic and physiotherapy treatments, in a treatment plan dated September 5, 2019; and
e. $2,950.89 for chiropractic and physiotherapy treatments, in a treatment plan dated November 16, 2019.
iv. The applicant is not entitled to the two remaining treatment plans.
v. The applicant is not entitled to an award.
vi. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
Released: December 12, 2024
Craig Mazerolle Vice-Chair