Licence Appeal Tribunal File Number: 21-014816/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:
Lubna Gulnaz
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
APPEARANCES:
For the Applicant:
Muhammad Aftab Alam, Counsel
For the Respondent:
Modasir Rajabali, Counsel
HEARD: In Writing
OVERVIEW
1Lubna Gulnaz, the applicant, was involved in an automobile accident on April 12, 2020, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing on issue ix. because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?
ISSUES
3The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $225.62 ($1,300.00 less $1,074.38 approved) for physiotherapy services proposed by Progressive Rehab Clinic in a treatment plan/OCF-18 (“plan”) submitted September 14, 2020?
iii. Is the applicant entitled to $2,907.44 for physiotherapy services proposed by Progressive Rehab Clinic in a plan submitted December 3, 2020?
iv. Is the applicant entitled to $4,875.39, for psychological services proposed by Pearson Medical Assessment Centre in a plan submitted July 8, 2021?
v. Is the applicant entitled to $2,200.00 for a psychological assessment in an assessment proposed by Pearson Medical Assessment Centre in a plan submitted October 23, 2020?
vi. Is the applicant entitled to $2,460.00 for an orthopaedic surgery assessment in an assessment proposed by Pearson Medical Assessment Centre in a plan submitted June 1, 2021?
vii. Is the applicant entitled to $2,153.00 for a chronic pain assessment in an assessment proposed by Pearson Medical Assessment Centre in a plan submitted July 2, 2021?
viii. Is the applicant entitled to $1,988.80 for a functional impairment assessment in an assessment proposed by Pearson Medical Assessment Centre in a plan submitted August 6, 2021?
ix. Is the applicant entitled to $2,200.00 for a psychiatric examination in an assessment proposed by Pearson Medical Assessment Centre in a plan submitted August 16, 2022?
x. 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?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is statute-barred from proceeding with her claim for the plan for a psychological assessment submitted on August 16, 2022, pursuant to s. 55(1)2 of the Schedule.
5The applicant is entitled to payment of the balance of $225.62 in the plan for physiotherapy submitted September 14, 2020, pursuant to s. 38(11), including interest in accordance with s. 51(1).
6The applicant sustained predominantly minor injuries as a result of the accident and subject to the MIG and its $3,500.00 treatment limit.
7As the applicant remains within the MIG and treatment limit has been exhausted, the applicant is not entitled to payment of the remaining disputed plans, or interest.
8The applicant is not entitled to an award pursuant to section 10 of Regulation 664.
PROCEDURAL ISSUE
Applicant’s late production of her family physician’s CNRs
9The respondent submits that the applicant did not produce her family physician’s clinical notes and records (“CNRs”) in accordance with the production deadlines as set out in the Case Conference Report and Order dated October 12, 2022 (“CCRO”). The respondent did not elaborate on how it was prejudiced by the applicant’s late production and the remedy it wished to seek from the Tribunal.
10I find no evidence that the respondent filed any motion requesting for an extension on the due date of its submissions prior to the hearing. The respondent’s submissions referred and commented on the said CNRs, which in my opinion, is evidence that the respondent managed to review the CNRs within the time limitations without substantial prejudice.
11Hence, I am not persuaded by the respondent’s argument and therefore will not affect the weight I assign to the family physician’s CNRs.
ANALYSIS
Issue ix - The applicant is barred from proceeding with the plan for a psychological assessment submitted on August 16, 2022, pursuant to s. 55(1)2 of the Schedule
12I find that the applicant failed to attend the scheduled Insurer’s Examination (“IE”) without reasonable explanation. As such, she is statute-barred from proceeding with the plan for a psychological assessment submitted August 16, 2022, pursuant to s. 55(1)2 of the Schedule.
13This plan proposes a psychological assessment by Dr. Sadiq Hasan, a physician of Pearson Medical Assessment Centre Inc., submitted on August 16, 2022.
14Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit.
15Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
16Section 55(2) of the Schedule does allow an insured person to apply to the Tribunal to apply despite section 55(1) of the Schedule, with s. 55(3) providing that the Tribunal may impose terms and conditions for such.
17The respondent submits that the applicant failed to attend the psychological IE scheduled on October 18, 2022, and January 26, 2023, and failed to provide reasons for the non-attendance, despite attempts made by the respondent to reschedule. It submits that the applicant should be barred from seeking entitlement to a psychiatric examination pursuant to s. 55(1)2 of the Schedule.
18The applicant’s submissions neither address the section 55(1) issue, nor seek that the Tribunal use discretion under section 55(2) of the Schedule. In reply, the applicant only submits that she was waiting for the assessment. Based on this, I made an inference that the applicant did not dispute that she failed to attend the scheduled insurer’s assessment on October 18, 2022, and January 26, 2023.
19I find that the scheduled IE were reasonably necessary to assist the respondent to assess the applicant’s entitlement to the benefits claimed. A psychological IE would help the respondent determine whether the psychological assessment was warranted.
20The applicant is required to attend all reasonably necessary IE examinations. By not attending the scheduled assessments, the applicant has precluded the respondent from adjusting her file and helping it make the determination of whether the treatment plan is reasonable and necessary.
21As previously noted, the applicant has failed to file submissions or evidence for this hearing explaining why she failed to attend the scheduled IE. The onus rests with the applicant to provide a reasonable explanation for her non-attendance. Based on the record before me, I find that the respondent has established the applicant’s non-attendance at reasonably necessary IE, without reasonable explanation.
22Given the above reasons, I find that the applicant is statute-barred from proceeding with her claim for the plan for a psychological assessment, submitted August 16, 2022, pursuant to s. 55(1)2 of the Schedule.
Minor Injury Guideline (MIG)
23I find the applicant has not met her onus to prove removal from the MIG is warranted.
24Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
25An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
26The applicant submits that she suffers from pre-existing medical conditions that affected her ability to achieve maximal recovery, a psychological impairment, and chronic back pain as a result of the injuries sustained from the accident, that warrant removal from the MIG.
The applicant’s physical injuries do not take her outside of the MIG
27The applicant provided limited evidence that she sustained physical injuries from the accident which would remove her from the MIG. The hospital records from the day of the accident reported that the applicant complained of neck and left shoulder pain. It also reported that the applicant’s physical examination was normal; no neck pain on palpation, she demonstrated full ranges of motion with no numbness or tingling sensation at her extremities. The applicant was diagnosed with a whiplash and was discharged on the same day. Subsequent diagnostic imaging results of the applicant’s cervical spine, neck, left shoulder and abdomen were normal.
28During multiple post-accident visits to Dr. Buongiorno, she diagnosed the applicant with myofascial and soft tissue injuries as a result of the accident and prescribed pain medication. The Disability Certificate indicate that the applicant sustained accident-related injuries including sprain and strain of thoracic spine, ribs and sternum, unspecific parts of thorax, shoulder lesion, sprain and strain of shoulder joint, laceration of muscle and tendon at neck level, headache, nausea alone, sprain and strain of lumbar spine, disturbed sleep. These injuries are defined as predominantly minor in accordance with the Schedule.
29I find that the applicant’s accident-related injuries fall squarely within the definition of a minor injury as defined in the Schedule.
The applicant has not established that she suffers from a pre-existing condition that warrants removal from the MIG
30The applicant has not demonstrated that she suffers from a pre-existing condition that would prevent her maximal medical recovery if limited to the MIG.
31The applicant submits that her pre-existing depression, anxiety, bilateral wrist carpal tunnel and bilateral plantar fasciitis condition in her heels warrants removal from the MIG. She relies on the CNRs from various family physicians from Platinum Medical Clinic, including Dr. Aliya Hirani, Dr. Angela Chan and Dr. Pinella Buongiorno, and a s. 25 psychological assessment report by Dr. Tony Toneatto, psychologist.
32The respondent disagrees and submits that the existence of a pre-existing condition will not automatically exclude a person’s impairment from the MIG.
33The pre-accident CNRs revealed that Dr. Hirani diagnosed the applicant with depression and anxiety on June 4, 2018, and bilateral plantar fasciitis in her foot on April 16, 2018. However, I am not referred to any post-accident CNRs by any of the abovementioned family physicians who state that the applicant’s pre-existing medical conditions would prevent the applicant from achieving maximal medical recovery if she was kept within the MIG, as is required for removal from the MIG under s. 18(2) of the Schedule.
34In Dr. Toneatto’s report, he stated that he was unable to comment on the applicant’s pre-existing health and noted that the applicant appeared to be “functioning well psychologically at the time of the subject accident, as she does not report history of mental health problems”.
35Given the above reasons, I find that the applicant failed to establish that she has any pre-existing conditions that prevented her from achieving maximal recovery and that would warrant removal from the MIG pursuant to s. 18(2) of the Schedule.
The applicant does not suffer from a psychological impairment that warrants removal from the MIG
36The applicant has not established that she suffers from any psychological impairment as a result of the accident that would warrant removal from the MIG.
37The applicant submits that she developed a severe and chronic psychological impairment that warrants removal from the MIG and relies on post-accident CNRs of Dr. Buongiorno and a s. 25 psychological assessment report by Dr. Toneatto, who diagnosed the applicant with a DSM-5 diagnosis (might be helpful to provide the specific diagnosis?).
38The respondent submits the applicant’s evidence does not support any psychological impairment. It submits that the applicant’s psychological symptoms, if any, are unrelated to the accident but are related to her personal circumstances which she self-reported to Dr. Buongiorno and are documented in the CNRs. It relies on Dr. Syed’s IE report dated September 24, 2021, and Addendum report dated January 4, 2021.
39The respondent also submits that Dr. Toneatto’s report is non-compliant with Rules 10.2(b) and 10.2(d) of the Tribunal’s Common Rules of Practice and Procedure (“Rules”), that the applicant failed to file an expert’s duty form and Dr. Toneatto does not outline the basis for his conclusions.
40I agree with the respondent that the applicant’s s. 25 report does not contain an Expert Duty Acknowledgement and does not address the issues in dispute as required by Rule 10.2. Hence, I accept Dr. Toneatto’s report, not as an expert report, but as relevant evidence to the applicant’s claim and will assign less weight.
41I am not persuaded by the medical evidence that the applicant suffers from a psychological impairment as a result of the accident, largely because I have reservations about the circumstances surrounding Dr. Buongiorno’s diagnoses because she noted on numerous visits that the applicant’s responses were “very vague”, tangential and circumferential.
42The applicant submits that Dr. Buongiorno provided a referral to see a psychologist for her driver and passenger anxiety as a result of the accident. However, I agree with the respondent that the applicant was provided a referral to see a psychologist, on May 11, 2020, for her anxiety with respect to her personal circumstances at home, which I find to be unrelated to the accident.
43The applicant also asserts that Dr. Buongiorno diagnosed her with a driving anxiety, August 5, 2020. However, during this appointment, the applicant requested from Dr. Buongiorno that “[she] would like a letter to give to lawyer indicating that she has anxiety re. driving”. Dr. Buongiorno also noted that the applicant was a “very difficult historian due to language barrier and also [because] answers are very circumferential/tangential and vague and needs to be redirected often; finally had to bring husband on the phone to translate, and still was not answering questions directly”. Based on this evidence, I find that Dr. Buongiorno relied primarily on the applicant’s subjective complaints.
44During another visit on April 16, 2021, Dr. Buongiorno diagnosed the applicant with a situation anxiety relating to driving. However, Dr. Buongiorno only provided counselling on a healthy diet, recommended the applicant to increase exercise to 150 minutes per week, and (non-psychotropic) prescriptions.
45Similarly, I am not persuaded by the consultation letter dated January 27, 2023, by Dr. Alexandra Bottas, physician from Scarborough Health Network, who opined that the applicant has an unspecified anxiety relating to driving. I find that Dr. Bottas is a medical doctor and not a psychologist; did not administer any psychometric tests; and like Dr. Buongiorno, relied on the applicant’s subjective reports. Hence, I assigned less weight to Dr. Bottas’ letter.
46I do not find Dr. Toneatto’s s. 25 report to be persuasive. Although Dr. Toneatto diagnosed the applicant with a DSM-V diagnosis, he did not review any medical documents during his assessment and was unaware of the applicant’s pre-existing diagnosis of depression and anxiety on June 4, 2018. I find the applicant’s pre-accident medical history to be relevant and critical to Dr. Toneatto’s final opinion and diagnosis of the applicant. In his report, he stated “I am unable to comment on the patient’s pre-existing health. However, Ms. Gulnaz appeared to be functioning well psychologically at the time of the subject accident, as she does not report history of mental health problems”. I give this report less weight as there is clear evidence that Dr. Toneatto’s diagnosis was based primarily on the applicant’ subjective reports and psychometric results.
47I prefer Dr. Syed’s IE report as she administered thorough psychometric testing, interviewed the applicant, reviewed medical documents and concluded that the applicant’s overall psychological functioning was within normal limits and does not suffer from a psychological impairment as a result of the accident, and with no limitations noted. Dr. Syed also opined that “from a psychological perspective, she can remain within the purview of the Minor Injury Guidelines” and the applicant is able to resume her pre-accident activities of daily living and/or employment. In her Addendum report, Dr. Syed’s opinion did not change despite being provided further medical documents for review. Given that Dr. Syed is a registered psychologist who conducted a thorough review of the medical file and assessed the applicant in person, I have no reason to doubt her findings and opinions.
48Given the above reasons, the applicant has not established that she suffers from a psychological impairment as a result of the accident that warrants removal from the MIG.
The applicant has not established that she suffers from chronic pain with a functional impairment that warrant removal from the MIG
49The applicant has not demonstrated that she suffers chronic pain with a functional impairment as a result of the accident-related injuries.
50For a person to be taken out of the MIG due to chronic pain, there must be an effect on their functionality. While not binding, the Tribunal has consistently referred to the six criteria provided in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (the “AMA Guides”) as an interpretive tool for evaluating chronic pain claims. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of a chronic pain syndrome to be established:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
ii. Excessive dependence on health care providers, spouse, or family;
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
iv. Withdrawal from social milieu, including work, recreation, or other social contacts;
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
51The applicant submits that she suffers from chronic pain and is reliant on her sons to assist with her housekeeping duties and that she has avoided social and recreational activities after the accident. She relies on the CNRs of her family physicians (Dr. Buongiorno and Dr. Michelle Mair) and a s. 25 chronic pain assessment report by Dr. Grigory Karmy, physician, who diagnosed the applicant with chronic pain syndrome. Based on the applicant’s submissions, I infer that the applicant claims that she satisfies criteria ii and vi, but it is unclear which other criteria she claims to satisfy.
52The respondent submits that the applicant is not functionally impaired, and that a chronic pain diagnosis requires satisfying three of the six factors of the AMA Guides. The respondent submits that the applicant does not meet any of the six criteria and there was no such diagnosis by her family doctor that would take her out of the MIG.
53I am not persuaded by the evidence that the applicant suffers from chronic pain with a functional impairment. As mentioned above, the hospital records from the day of the accident noted a diagnosis of a whiplash, myofascial and soft tissue injuries to the applicant’s neck and left shoulder as a result of the accident. The post-accident diagnostic imaging results of the applicant’s neck and shoulder were normal.
54While Dr. Buongiorno’s CNRs indicate that the applicant complained of pain on April 16, 2021, May 19, 2021, September 3, 2021, as mentioned above, they also indicate that Dr. Buongiorno found the applicant to be a “vague historian” and “very tangential or circumferential”. Furthermore, Dr. Buongiorno’s CNRs do not indicate that the applicant had any functional limitations in relation to her pain complaints.
55I assigned limited weight on Dr. Mair’s CNRs as the applicant only had three telephone consultations with her on April 13, 2022, May 16, 2022, and May, 2022, two years post-accident. I find that these consultations were primarily based on the applicant’s subjective complaints as Dr. Mair did not conduct a physical examination of the applicant.
56I am not persuaded by Dr. Grigory Karmy’s s. 25 chronic pain assessment report dated October 22, 2022, for the following reasons.
57In this report, Dr. Karmy opined that the applicant was suffering from chronic pain in her wrist, ankles and left hip as a result of the accident. However, the CNRs from Dr. Buongiorno and the hospital records revealed that the applicant had suffered accident-related injuries only to her neck and left shoulder. There were very limited post-accident complaints noted by Dr. Buongiorno about the applicant’s wrists, ankles and left hip. I also note that Dr. Buongiorno never made any such connection or finding that the applicant’s wrists, ankles and left hip pain were linked to the accident. Therefore, I am not persuaded that the applicant’s pain in the wrists, ankles, and left hip was a result of the accident.
58With respect to the six criteria of the AMA Guide, I do not find the applicant satisfies three of the six criteria for the following reasons:
i. Apart from the regular medications taken by the applicant for her pre-existing medical conditions, the applicant did not provide sufficient evidence that she is dependent on prescription drugs such as pain medication beyond the recommended duration or evidence of any abuse of drug usage for her accident-related injuries. I am not persuaded that the applicant satisfies criteria one;
ii. There is limited evidence that the applicant is dependent on physicians with respect to her accident-related injuries. While the applicant submitted that she relies on family for help with chores, all of the medical evidence indicates that the applicant remains independent on majority of her personal care activities. I do not find that the applicant satisfies criteria two. However, even if she establishes dependency on physicians and family members, this would only establish one of the six criteria of the AMA Guides;
iii. The applicant did not provide sufficient evidence that she has developed secondary physical condition due to disuse and/or fear-avoidance of physical activity due to pain. In fact, on June 15, 2022, Dr. Buongiorno recommended the applicant to do exercise. Hence, I do not find that the applicant satisfies criteria three;
iv. The applicant relies on Dr. Karmy’s opinion that she withdrew from her work as a homemaker, restricted her usual recreational activities and experienced social decline since the accident. I do not find Dr. Karmy’s opinion persuasive because it was based on the applicant’s subjective self-reports. In Dr. Syed’s IE report dated September 24, 2021, she noted that “the applicant denied being socially isolated since her accident as she continues to enjoy the company of her loved ones” despite “feeling slowed down in her daily activities [due to being] physically and cognitively slower”. Due to the inconsistent self-reports by the applicant and lack of objective medical evidence from the applicant’s treating physicians, I am not persuaded that the applicant has satisfied criteria four;
v. Similar to criteria four above, other than the subjective reports by the applicant that she has been reliant on her family members with house chores, I have not been directed to any evidence from the applicant’s treating physicians that she has failed to restore pre-injury function, such that the applicant is physically unable to pursue work, family or recreational needs. I am not persuaded that the applicant satisfies criteria five; and
vi. Although the applicant submits that she has sustained psychosocial sequelae after the accident, as previously noted, I preferred the Dr. Syed’s IE report who found that the applicant did not meet the threshold of any DSM-V diagnosis. However, even if the applicant establishes development of a psychosocial sequelae, this will only establish two out of the six criteria of the AMA Guide.
59Given the above, I am not convinced that the applicant suffers chronic pain with a functional impairment resulting from the accident that would warrant removal from the MIG.
60The respondent submits that the MIG has been exhausted, with no objections made by the applicant in reply.
61As I have found that the applicant has not met the onus to prove that she is removed from the MIG, and the MIG treating limit of $3,500.00 has been exhausted, an analysis of whether the disputed plans are reasonable and necessary is not required.
62As a separate argument, the applicant submits that the respondent did not issue compliant notices pursuant to s. 38(8) of the Schedule with respect to issues ii, v, vi, vii and viii, which are addressed below.
Issue ii - The applicant is entitled to payment of the balance of $225.62 for physiotherapy services
63The applicant is entitled to payment of the balance of $225.62 of the subject plan pursuant to s. 38(11), including interest in accordance with s. 51(1).
64The applicant submitted the subject plan on September 14, 2020, which sought medical benefits including eleven (11) physiotherapy sessions and an assessment in the amount of $1,300.00. On September 30, 2020, the respondent partially approved the amount of $1,074.38, leaving a balance of $225.62 unpaid.
65Section 38(8) of the Schedule requires an insurer to inform an insured person within 10 business days after it receives a plan which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
66Section 38(11) provides that where an insurer fails to give notice according to s. 38(8) of the Schedule, the insurer is prohibited from taking the position that the MIG applies and the insurer shall pay for all incurred items described in the plan for the period starting on the 11th business day after the day the insured received the plan and ending on the day the insurer provides a notice that complies with s. 38(8) of the Schedule.
67The applicant submits that the respondent’s letter dated September 30, 2020, did not provide sufficient reasons for denying the outstanding balance of $225.62.
68The respondent submits that the partial approval of the plan was because the MIG treating limit has been exhausted.
69I disagree with the respondent. Upon review of the letter dated September 30, 2020, the respondent did not state that the MIG treating limits have been exhausted. It did not provide reasons for why the partial approval had been approved and why the remaining balance of $225.62 was denied.
70I find that the respondent is non-compliant with the requirements of s. 38(8) of the Schedule, by failing to provide “the medical and other reasons” for its denial of the remaining balance of the plan.
71The respondent did not adduce further evidence in its submissions that it subsequently issued a compliant notice. Further, as the matter is now before me, the respondent no longer has the opportunity to issue a compliant notice to cure the defect for the purposes of s. 38(11).
72As the CNRs of Progressive Rehab Clinic documented the applicant’s numerous appointments for physiotherapy between the period from May 14, 2020, to April 13, 2022, this evidence suggests that the applicant incurred the cost of physiotherapy as proposed in the subject plan.
73Pursuant to s. 38(11), the applicant is entitled to payment of the balance of $225.62 in the plan for physiotherapy services, including interest in accordance with s. 51(1) of the Schedule.
Issues v, vi, vii and viii - The applicant is not entitled to payment of the plans for a psychological assessment, an orthopedic assessment, a chronic pain assessment and a functional impairment assessment
74The applicant is not entitled to payment of the plans for psychological assessment, orthopedic assessment, chronic pain assessment and functional impairment assessment (issues numbered v, vi, vii and viii respectively).
75The applicant submits that the respondent failed issue the respective denial notices for the subject plans within ten business days after receipt in accordance with s. 38(8).
76The applicant failed to provide any evidence showing the confirmation dates for when the subject plans were submitted to the respondent. I am unable to determine when the plans were submitted for the purposes of s. 38(8) analysis.
77As such, I find the applicant has failed to establish her onus to prove that the respondent is non-compliant with s. 38(8) of the Schedule and the applicant is not entitled to payment of the subject plans.
Award
78The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
79The applicant submits that the respondent did not act in a fair manner but did not provide reference to any evidence to support her claim.
80The award threshold is a high bar and more is required to demonstrate that the respondent’s behaviour satisfies the threshold requirements of an award.
81For the above reasons and as the applicant did not present any evidence to support her claim, I find an award is not appropriate.
ORDER
82The applicant is statute-barred from proceeding with her claim for the plan for a psychological assessment submitted on August 16, 2022, pursuant to s. 55(1)2 of the Schedule.
83The applicant is entitled to payment of the balance of $225.62 in the plan for physiotherapy submitted September 14, 2020, pursuant to s. 38(11), including interest in accordance with s. 51(1).
84The applicant sustained predominantly minor injuries as a result of the accident and subject to the MIG and its $3,500.00 treatment limit.
85As the applicant remains within the MIG and treatment limit has been exhausted, the applicant is not entitled to payment of the remaining disputed plans, or interest.
86The applicant is not entitled to an award pursuant to section 10 of Regulation 664.
Released: April 19, 2024
Lisa Yong
Adjudicator