Citation: Kandeepan v. Certas Direct Insurance Company, 2024 ONLAT 23-007770/AABS

Licence Appeal Tribunal File Number: 23-007770/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:

Kayalvily Kandeepan

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nathan Prince

APPEARANCES:

For the Applicant:

David S. Wilson, Counsel

For the Respondent:

Jonathan Schrieder, Counsel

HEARD by Videoconference:

November 5, 2024

OVERVIEW

1Kayalvily Kandeepan, the applicant, was involved in an automobile accident on June 13, 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 the respondent, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRBs”) in the amount of $371.67 per week from June 14, 2023, to date and ongoing?

ii. Is the applicant entitled to $19,097.00 for a CAT assessment, proposed by Omega Medical Associates in a treatment plan/OCF-18 (“plan”) dated June 7, 2023?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

3Prior to the hearing, the respondent advised the Tribunal that the parties had resolved issue i as listed above. Therefore, the issue of IRBs was not before me.

RESULT

4The applicant is entitled to the treatment plan for a CAT Assessment in the amount of $9,266.00 and interest pursuant to s. 51 of the Schedule.

5The applicant is not entitled to an award.

PROCEDURAL ISSUES

Motion to convert to a written hearing

6Prior to the hearing, the respondent filed a notice of motion seeking to convert the hearing to a written hearing. It submitted that the IRBs issue had been resolved and the only remaining issues were a treatment plan, award, and interest. It advised that it does not intend to call any witnesses and that these issues can be efficiently dealt with by way of a written hearing.

7The applicant opposed the motion to convert the hearing to a written hearing. She conceded that the normal course for resolving disputes relating solely to treatment plans would be a written hearing; however, noted that there are exceptional circumstances in this case. She submitted that the motion was brought at the 11^th hour and the parties were all present and ready to proceed with their oral submissions. She advised that she would not be calling any witnesses and that the matter could be heard in one day. Finally, she submitted that it would be timely and efficient to have the matter proceed as the Tribunal had already allocated the necessary resources for a videoconference hearing.

8I denied the respondent’s motion and ordered that the videoconference hearing proceed on the basis that it would lead to a more efficient and timely resolution of the matter. The parties were all present and ready to proceed and there was no compelling reason that the matter could not be heard by way of a one-day videoconference hearing.

Motion to exclude respondent’s IE reports

9Prior to the hearing, the applicant brought a motion to exclude nine of the respondent’s IE reports on the basis that the Notices of Examination did not comply with s. 44(5) of the Schedule and, in any event, that the IE reports were commissioned for the purposes of determining entitlement to IRBs and therefore irrelevant. The applicant relied on several cases wherein the Tribunal found that any report which is the product of a deficient Notice of Examination should be excluded (See for example: M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) and NM v. Aviva Insurance Canada, 2019 CanLII 94126 (ON LAT) amongst others).

10The respondent submitted that its Notices of Examination complied with s. 44(5) of the Schedule. With respect to relevance, it submitted that there is no provision in the Schedule which prohibits the use of its IE reports for other purposes and that the reports are therefore still relevant. Further, the respondent submitted that the applicant waived any recourse she may have had by attending the various examinations.

11In the alternative, the respondent submitted that, if it is found that the Notices of Examination are deficient, that the Schedule is silent with respect to a remedy and to exclude the reports would be to read in a remedy which is not provided. It submits that exclusion of these reports would be highly prejudicial as they are the very basis upon which the respondent relied upon. It suggests that any deficiency in the Notices of Examination can be properly addressed by the Tribunal in considering how much weight to assign to the evidence. The respondent pointed to several prior Tribunal decisions in support of its position (See for example: Doran v Gore Mutual Insurance Company, 2023 CanLII 58490 (ON LAT) and Mayers v Aviva Insurance Company, 2020 CanLII 101806 (ON LAT)).

12While I acknowledge that there are cases which have excluded IE reports completed pursuant to deficient notices, there are also cases which have admitted reports and provided the parties with the opportunity to make submissions as to the weight that should be afforded. I note that I am not bound by prior decisions of the Tribunal.

13I admitted the reports notwithstanding potential deficiencies in the Notices of Examination. Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. s.22 permits the Tribunal to admit at a hearing any document or thing that is relevant to the subject-matter of the hearing. I find that the reports are relevant to the remaining issues in dispute as they speak to the applicant’s impairments. Furthermore, I was not pointed to anything in the Schedule, the Rules, or any prior decisions which would suggest that these reports could not speak to the remaining issues in dispute, despite being authored for the purpose of ascertaining entitlement to IRBs. In addition, I find that exclusion of the reports would be highly prejudicial to the insurer and any potential prejudice to the applicant can be remedied by assigning appropriate weight to the reports.

Motion to admit the addendum report of Dr. Kekosz

14Prior to the hearing, the applicant brought a motion seeking to extend the date for delivery of the addendum report of Dr. Kekosz beyond the timeline outlined in the Case Conference Report and Order (“CCRO”).

15The CCRO provided that all responsive documents must be exchanged by no later than 120 days from the date of the case conference which took place on February 7, 2024.

16The addendum report of Dr. Kekosz was completed on August 13, 2024, and served on the respondent on August 23, 2024, outside of the time limits outlined in the CCRO. The applicant conceded that reason for the delay in obtaining the addendum report was inadvertence.

17The applicant submitted that the report should be admitted as it was delivered to the respondent two and a half months prior to the commencement of the hearing, did not raise any new issues, could not have taken the respondent by surprise, and did not prejudice the respondent. She further submitted that, if the Tribunal finds Dr. Kekosz’s original report insufficient, she will be prejudiced if she cannot rely on the addendum report as it provides clarification of the initial report and speaks to the seriousness of her medical condition.

18The respondent objected to the admission of the report. It submitted that the report was not relevant to the remaining issues in dispute and, further, that the report was served months after the deadline in the absence of compelling reasons. In addition, the respondent submitted that it was prejudiced by the late service of the report as it was put in a position where it could not obtain responsive addendum reports in time for the hearing.

19I admitted the report and advised the parties that they could make submissions as to the weight that should be assigned to it. As previously noted, the SPPA allows the Tribunal to admit any relevant document that is not otherwise privileged or statutorily inadmissible. In addition, Rule 9.3 permits the Tribunal to admit the report despite service of the document being non-compliant with the CCRO. I found the report to be relevant to the remaining issues in dispute in that it speaks to the applicant’s impairments. Furthermore, I found that there was no evidence of prejudice to the respondent as it did not point me to any evidence which suggested that it attempted to obtain a responsive report to Dr. Kekosz’s addendum report and were unable to do so prior to the hearing. As such, the addendum report of Dr. Kekosz dated August 13, 2024, was admitted into evidence.

Motion to reopen the hearing

20The applicant’s motion to reopen the hearing is dismissed.

21On November 13, 2024, eight days after the hearing had concluded, the applicant brought a motion seeking to reopen the hearing to allow for the filing of new evidence.

22The evidence in question consists of two letters from Service Canada to the applicant dated October 29, 2024. These letters were received by the applicant on November 5, 2024, and November 6, 2024, and were therefore not available for the hearing.

23While I appreciate that these documents could not have been made available at the hearing, the evidentiary portion of the hearing has concluded and, at the time of receipt of the notice of motion, the decision was at an advanced stage of completion.

24In addition, I find that the applicant is not prejudiced by denying the motion as she is not without recourse. It remains open to the applicant to request reconsideration is she is of the belief that admission of the Service Canada correspondence would satisfy the criteria under Rule 18.

25As such, the applicant’s post-hearing motion to reopen the hearing is denied.

ANALYSIS

The applicant is entitled to $9,266.00 for a CAT assessment

26I find that the applicant is entitled to $9,266.00 of the total of $19,097.00 for a CAT assessment.

27To 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.

28The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. In this case, the applicant must establish that there is a reasonable possibility that she is catastrophically impaired (See: L.G. v Unifund, 2019 CanLII 101604 (ON LAT) and C.A. v Intact Insurance Company, 2018 CanLII 130861 (ON LAT)).

29The CAT assessment treatment plan in dispute was completed by Dr. Lisa Becker on June 7, 2023 (“Treatment Plan”). The Treatment Plan proposed funding for a multidisciplinary CAT assessment of the applicant comprised of:

i. Intake and Triage Assessment - $2,000.00 plus HST

ii. Physiatry Assessment – Criteria 6/7 - $2,000.00 plus HST

iii. Psychiatry Assessment – Criterion 7 - $3,250.00 plus HST

iv. Psychiatry Assessment – Criterion 8 - $3,250.00 plus HST

v. OT ADL/Community Assessment – Criterion 8 - $2,000.00 plus HST

vi. OT Situation Assessment – Criterion 8 - $2,000.00 plus HST

vii. CAT Analysis & Summary – $2,000.00 plus HST

viii. OCF-19 Application Form completion - $200.00 plus HST

ix. OCF-18 Form completion - $200.00 plus HST

30The Treatment Plan lists the applicant’s injuries as: sprain and strain of the cervical, thoracic, and lumbar spine, radiculopathy, post-traumatic stress disorder, reaction to severe stress and adjustment disorders, and somatoform disorders. There were no attachments to the Treatment Plan; however, the applicant pointed me to a letter from Dr. Becker dated June 27, 2023, which sought to explain the reasonableness and necessity of each of the various assessments. In her letter, Dr. Becker opines that based on the nature and extent of the applicant’s symptoms that there is a potential that the applicant would meet the catastrophic threshold under criteria 6, 7, and 8.

31For the reasons set out below, I find that the applicant is entitled to the following elements of the Treatment Plan:

i. Physiatry Assessment - $2,000.00 plus HST

ii. Psychiatry Assessment - $2,000.00 plus HST

iii. OT Assessment - $2,000.00 plus HST

iv. CAT Analysis & Summary – $2,000.00 plus HST

v. OCF-18 Form completion - $200.00 plus HST

32Conversely, I find that the applicant is not entitled to the following elements of the Treatment Plan:

i. Intake and Triage Assessment

ii. Second Psychiatry Assessment

iii. Second OT Assessment

iv. OCF-19 Application Form completion

The applicant is entitled to a physiatry assessment

33I find that the applicant is entitled to a physiatry assessment in the amount of $2,000.00.

34The applicant noted that the respondent has approved her entitlement to post-104 IRBs and suggests that approval of this benefit, while at the same time denying the Treatment Plan in dispute, is inconsistent.

35I do not agree. In my view, entitlement to the CAT assessment does not necessarily flow from the approval of post-104 IRBs. While the fact that the respondent has approved IRBs may indicate that the applicant has significant physical impairments, the respondent’s approval of IRBs does not necessarily mean that a physiatry assessment is reasonable and necessary. This is a separate determination that I must now make.

36The applicant relies on the physiatry reports of Dr. Veronica Kekosz which I find to be persuasive. Dr. Kekosz conducted two assessments dated October 29, 2021, and December 23, 2023. I find that the applicant has consistently reported her physical impairments to Dr. Kekosz throughout both reports. Furthermore, the respondent did not obtain any responsive reports which would suggest that Dr. Kekosz’s findings are inaccurate. Dr. Kekosz listed the applicant’s physical impairments as a WAD 2 injury of the cervical spine with limitation of neck mobility, limited mobility of the lumbar spine related to pain, impairment of both shoulders with respect to range of movement, weakness in the entire right arm, mild weakness of the hips, and balance impairment. In her addendum report, Dr. Kekosz noted that the applicant’s pain has become chronic in nature.

37The respondent obtained expert reports from three experts: Dr. Paul Cha, chiropractor; Dr. Todd Levy, physician, and Dr. Mohammed Khaled, physician. I find that the reports of Dr. Levy and Dr. Cha bolster the applicant’s position because they indicate that the applicant exhibits several physical impairments.

38The May 25, 2023, assessment conducted by Dr. Cha notes that the applicant exhibited mildly limited lumbar flexion and extension. Furthermore, the applicant could not perform several lifting tests during the assessment and reported being unable to crouch or kneel due to reported low back pain, which I find supports the applicant’s position that she suffers from physical impairments.

39The April 21, 2021, report of Dr. Levy notes that the applicant suffered from reduced range of motion in the cervical and thoracolumbar spines and shoulders. He did not agree with Dr. Kekosz’s diagnosis of chronic pain; however, Dr. Kekosz’s rebuts Dr. Levy’s position and opines that he may not have fully appreciated the relationship between psychological depression, anxiety, and the level of pain that the applicant reported to him. In any event, while there is disagreement with regards to whether the applicant suffers from chronic pain, Dr. Levy’s report nonetheless indicates that the applicant does suffer from physical limitations.

40With respect to Dr. Khaled’s report, dated May 25, 2023, it appears to be an outlier in that it did not identify any valid indicators to support residual or ongoing or permanent musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. Dr. Khaled concluded that there was no objective evidence of ongoing permanent accident-related impairment, and that the applicant should be reassured that it is safe to resume all aspects of life that she was engaged in prior to the motor vehicle accident without restrictions.

41I am not persuaded by Dr. Khaled’s report because his findings are inconsistent with those of the other assessors, including the other insurer’s assessors. Moreover, it appears that even the respondent put little weight on Dr. Khaled’s report as it approved the applicant’s post-104 IRBs notwithstanding Dr. Khaled’s opinion that the applicant could resume her employment without restriction.

42The respondent further relies on surveillance footage gathered on November 12, 14, 25, 26 and 27, 2021. The footage depicts the applicant leaving her residence on two of the five days to go shopping. I assign very little weight to the surveillance footage. I was not pointed to any surveillance which was inconsistent with the information the applicant provided to assessors. Furthermore, the surveillance was conducted in 2021, two years before the Treatment Plan was submitted, and is therefore of little assistance in assessing the applicant’s impairments in 2023.

43The respondent also points to the fact that the applicant has only used approximately $6,000 of the $65,000 available to her. While I am alive to the fact that the applicant has used limited treatment to date, I find that this is outweighed by the bulk of the medical reports indicating that the applicant suffers from physical impairments.

44Based on the foregoing, I find that there are grounds to believe that the applicant suffers from physical impairments which warrant further investigation by way of a physiatry assessment. Therefore, I find on a balance of probabilities that a physiatry assessment in the amount of $2,000.00 plus HST is reasonable and necessary.

The applicant is entitled to a psychiatry assessment

45I find that the applicant is entitled to a single psychiatry assessment in the amount of $2,000.00.

46At the hearing, the applicant conceded that the proposed amounts for the psychiatry assessments, $3,250.00 each, are above the $2,000.00 cap found in s. 25 of the Schedule. As such, she advised that she was seeking $2,000.00 for each of the psychiatry assessments, and not $3,250.00 per assessment as indicated in the Treatment Plan.

47The applicant relies on the reports of Dr. Pusha Kanagaratnam, psychologist, completed on August 28, 2021, September 23, 2023, and May 1, 2024. Dr. Kanagaratnam conducted several psychometric tests and two in-person assessments with the applicant and diagnosed her with post-traumatic stress disorder, somatic symptom disorder with predominant pain, moderate, and major depressive disorder, single episode, mild to moderate. Dr. Kanagaratnam recommended 16 sessions of psychological treatment, which the applicant underwent. At the conclusion of these treatments, Dr. Kanagaratnam recommended additional cognitive behaviour therapy noting that treatment was very important for the successful management of the applicant’s chronic symptomology with respect to her major depression, anxiety, sleep, and pain issues.

48I find the reports of Dr. Kanagaratnam to be persuasive because she conducted numerous treatment sessions with the applicant and her involvement with the applicant has spanned nearly three years. In addition, she was able to conduct psychometric testing in the applicant’s first language (Tamil) which allowed her to obtain detailed clinical data. Dr. Kanagaratnam opined that a psychiatry assessment was warranted based on the applicant’s deteriorating condition with chronic symptomatology and associated impairment in functioning. Her reports speak to several domains of function and note that the applicant has isolated herself from previous social circles because she is not in the mood to talk and socialize and, further, that she suffers from concentration and focus issues which limit her ability to read or watch television.

49Turning to the respondent’s reports, I find that the reports of the respondent’s psychologist assessor, Dr. Rakesh Ratti, further support the proposition that the applicant suffers from psychological impairments. Dr. Ratti conducted an initial assessment on April 21, 2021, an addendum report on December 8, 2021, and a final addendum report on May 25, 2023. In his initial report, Dr. Ratti noted that the applicant exhibited visible signs of physical and emotional distress over the course of the assessment. He diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and noted objective findings of depressed mood in the moderate range and symptoms of anxiety in the low-severe range. In his final report, Dr. Ratti found that the applicant presented with a bit more distress than in her prior assessment and diagnosed her with Major Depressive Disorder with Anxious Distress, Mild and Single Episode. He opined that the applicant would benefit from an additional 12 standard 1-hour weekly/biweekly sessions of mental health treatment.

50Based on the foregoing, I find that the applicant is entitled to a psychiatry assessment; however, I must still determine whether the applicant is entitled to two psychiatry assessments as outlined in the Treatment Plan.

51The respondent submits that the proposed psychiatry assessments are duplicative, and that the assessing psychiatrist can adequately address both criteria 7 and 8 in the same assessment. I note that the proposed assessor for both assessments is Dr. Shazad Shamalak. While I am alive to the fact that the assessments under criteria 7 and 8 involve two distinct analyses by the assessor, the factual matrix upon which those analyses rely is similar. As such, I find that there is overlap between the assessments under criteria 7 and 8 and that entitlement to both assessments would not be reasonable. Furthermore, I was not pointed to any compelling evidence which would suggest that both assessments are reasonable and necessary.

52Based on the foregoing, I find on a balance of probabilities that one psychiatry assessment in the amount of $2,000.00 plus HST is reasonable and necessary.

The applicant is entitled to an OT assessment

53I find that the applicant is entitled to a single OT assessment in the amount of $2,000.00 plus HST.

54The applicant relies on the FCE reports of Atila Balaban, physiologist, in addition to the aforementioned reports of Dr. Kekosz and Dr. Kanagaratnam. I find these reports to be persuasive because the applicant has consistently reported her limitations to all her assessors over a span of nearly 3 years. Mr. Balaban’s reports, dated July 29, 2021, and November 27, 2023, note that the applicant’s functional capacities are not consistent with meeting the essential physical demands of sedentary work or the physical demands of the majority of her housekeeping tasks. This is corroborated by Dr. Kekosz’s reports which found that the applicant has significant impairments which impacted her ability to work, complete household chores, and engage in social/recreational activities. These findings are further bolstered by Dr. Kanagaratnam’s reports which note that the applicant could not complete the majority of the household tasks she used to complete and that she has withdrawn from several social/recreational activities.

55In addition to the applicant’s expert reports, I find that the section 44 reports of the respondent also confirm the presence of the applicant’s functional impairments. Dr. Cha’s reports indicate that the applicant is only able to perform light household chores, occasionally requires assistance with dressing, and requires assistance from family members with caring for her youngest son. Dr. Levy’s reports indicate that the applicant has difficulty standing or walking for more than 10-15 minutes, difficulty falling asleep and staying asleep, and no longer performs household chores such as cooking, dishwashing, cleaning, and laundry.

56Again, the only report which does not indicate that the applicant suffers from functional impairments is that of Dr. Khaled who concluded that there was no objective evidence of ongoing permanent accident-related impairment and that it is safe to resume all aspects of life that she was engaged in prior to the motor vehicle accident without restrictions. I put little weight on this report for the reasons previously stated in my analysis of the physiatry assessment.

57I find that the bulk of the medical reports indicate that the applicant suffers from functional impairments in several domains of her life and that there is a sufficient basis upon which further investigation by way of an OT assessment is warranted.

58Turning to whether both proposed OT assessments are reasonable and necessary, the respondent submitted that they are duplicative and that only one assessment is reasonable and necessary. The applicant notes that one assessment is an in-home assessment while the other is a community-based assessment. She relies on the letter of Dr. Becker which indicates that the OT assessment involves a 2-day evaluation of the applicant’s pre- and post-accident function in multiple areas.

59I find that Dr. Becker’s letter does not support a finding that both assessments are reasonable and necessary, or that there are even two assessments being proposed. The wording of Dr. Becker’s letter explicitly states that the OT assessment is a singular assessment that will take place over two days. While I am alive to the fact that part of the assessment will occur in-home and another part will occur in the community, I find that these are merely components of the overall OT assessment. Section 25(5) of the Schedule is clear that no more than $2,000.00 plus HST is payable for conducting any one assessment or examination and for preparing reports in connection with it. The Schedule does not provide for per diem billing in the event that an assessment takes more than one day to complete. I find that the attempt to split the OT assessment into two separate sub-assessments is an effort to circumvent the monetary limits of the Schedule when, in fact, there is only one assessment being conducted. As such, I find that the applicant is entitled to one OT assessment.

60Based on the foregoing, I find on a balance of probabilities that one OT assessment in the amount of $2,000.00 plus HST is reasonable and necessary.

The applicant is entitled to the CAT analysis & summary

61I find the CAT analysis & summary assessment to be reasonable and necessary.

62Dr. Becker advised that her CAT analysis & summary fee includes case conferencing with the medical team and preparation of the overall analysis and final ratings based on the assessments completed. Given that the applicant is entitled to several medical assessments, I find on a balance of probabilities that this component of the Treatment Plan is reasonable and necessary as it encompasses the required analysis to make an overall determination with respect to whether the applicant’s potential CAT determination.

The applicant is not entitled to the intake and triage assessment

63The applicant is not entitled to payment for the intake and triage assessment because I find that this expense is not reasonable and necessary.

64Dr. Becker advised that her intake and triage assessment involved a complete review of the medical records to determine the necessary assessment team and the preparation a detailed document summary.

65It is well settled that a file review should be completed as part of an assessment. (See: 16-004501 v The Sovereign General Insurance Company, 2018 CanLII 13158 (ON LAT)). There is no evidence to suggest that this file review is not duplicative of the review that should be undertaken as part of the CAT analysis & summary which I have already found the applicant to be entitled to. Therefore, I find that for the intake and triage assessment in addition to the CAT analysis & summary is not reasonable and necessary.

The applicant is not entitled to completion of an OCF-19

66Dr. Becker’s letter notes that an OCF-19 has not been completed and will only be completed if the applicant is found to meet the catastrophic threshold.

67As no OCF-19 has been completed, and may never be completed, I find on a balance of probabilities that this expense is not reasonable and necessary.

The applicant is entitled to completion of the OCF-18

68As I have found the components of the Treatment Plan to be reasonable and necessary, it follows that the fee for completion of the OCF-18 is also reasonable and necessary. As such, the applicant is entitled to payment for this expense.

The applicant is entitled to interest

69Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under the Schedule.

70The payment of the CAT assessment is overdue, and interest is therefore payable in accordance with section 51 of the Schedule from the date payment became overdue to the date that payment is made.

The applicant is not entitled to an award

71The 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”. The applicant has the onus to demonstrate entitlement to an award on a balance of probabilities.

72The applicant submitted that the respondent’s position was stubborn and inflexible in the face of an abundance of medical documentation. Further, she submitted that the unreasonableness of the respondent’s position is corroborated by the fact that it approved the applicant’s post-104 IRBs.

73I do not agree.

74As previously noted, the legal test for entitlement to post-104 IRBs is different than the test for entitlement to a CAT assessment and I find that it is therefore not unreasonable for the insurer to have approved post-104 IRBs while at the same time maintaining its denial for a CAT assessment.

75Furthermore, the insurer continued to adjust the file in light of the evidence it had before it, which included the fact that the applicant had only used approximately $6,000 of the $65,000 available to her.

76The applicant is not entitled to an award simply because the insurer did not approve the benefits in dispute. The bar for finding that the applicant is entitled to an award is high, and in this instance, I find on a balance of probabilities that it has not been met and therefore no award is payable.

ORDER

77For the reasons outlined above, I find:

i. The applicant is entitled to the following elements of the Treatment Plan in the amount of $9,266.00 and interest thereon:

a. Physiatry Assessment – Criteria 6/7 - $2,000.00 plus HST

b. Psychiatry Assessment - $2,000.00 plus HST

c. OT Assessment - $2,000.00 plus HST

d. CAT Analysis & Summary – $2,000.00 plus HST

e. OCF-18 Form completion - $200.00 plus HST

ii. The applicant is not entitled to the following elements of the Treatment Plan:

a. Intake and Triage Assessment

b. Second Psychiatry Assessment

c. Second OT Assessment

d. OCF-19 Application Form completion

iii. The applicant is not entitled to an award.