Mckenzie v. Intact Insurance Company, 2024 CanLII 70382

Citation: Mckenzie v. Intact Insurance Company, 2024 ONLAT 20-014935/AABS

Licence Appeal Tribunal File Number: 20-014935/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:

Delroy Mckenzie

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Joshua A Lindzon, Counsel

For the Respondent: Peter Durant, Counsel

HEARD: By way of written submissions

OVERVIEW

1Delroy Mckenzie, the applicant, was involved in an automobile accident on March 27, 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.

2At the case conference held on January 23, 2020 two separate applications with file numbers 22-004048/AABS and 20-014935/AABS were combined. File number 22-004048/AABS was closed and the application proceeded under file number 20-014935/AABS.

PRELIMINARY ISSUES

3The preliminary issue as identified in the Case Conference Report and Order is:

1. Is the applicant barred from proceeding with all of the substantive issues in dispute because he failed to attended insurer’s examinations?

ISSUES

4The substantive issues in dispute are:

1. 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?
2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 29, 2020 to ongoing?
3. Is the applicant entitled to $3,370.87 for chiropractic services, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan (“OCF-18”) dated June 3, 2020?
4. Is the applicant entitled to $3,195.46 for chiropractic services, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in an OCF-18 dated July 31, 2020?
5. Is the applicant entitled to $2,226.00 for a psychological assessment, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in an OCF-18 dated January 25, 2022?
6. Is the applicant entitled to $3,200.00 for a post concussion syndrome workshop, proposed by PiOT in an OCF-18 dated March 25, 2021?
7. Is the applicant entitled to $3,856.51 for psychological services, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in an OCF-18 dated April 23, 2021?
8. Is the applicant entitled to $2,226.00 for a chiropractic assessment, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in an OCF-18 dated March 23, 2022?
9. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by Dr. Neilank Jha in an OCF-18 dated January 25, 2022?
10. Is the applicant entitled to $2,200.00 for other goods and services, proposed by PiOT in an OCF-18 dated May 19, 2021?
11. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by PiOT in an OCF-18 dated April 28, 2021?
12. Is the applicant entitled to $7,006.00 for a neuro psychological assessment, proposed by Access Rehab in a treatment plan dated April 9, 2022?
13. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
14. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5In its submissions, the respondent confirmed that it was not proceeding with the preliminary issue in dispute.

6With respect to the substantive issues:

1. The applicant is removed from the MIG;
2. The applicant is entitled to the following OCF-18s, plus interest in accordance with s. 51 of the Schedule: a) OCF-18 dated June 3, 2020 for chiropractic services; b) OCF-18 dated January 25, 2022 for a psychological assessment; c) OCF-18 dated April 23, 2021 for psychological services; d) OCF-18 dated May 19, 2021 for $2,200.00 for a Vox neuro cognitive assessment; and e) OCF-18 dated March 25, 2021 for a post concussion syndrome workshop.
3. The applicant is not entitled to the remaining treatment plans in dispute;
4. The applicant is entitled to pre-104 week IRBs from September 29, 2020 to March 25, 2022, plus interest in accordance with s. 51 of the Schedule;
5. The applicant has not established entitlement to post-104 week IRBs;
6. The respondent is not liable to pay an award; and
7. Neither party is entitled to costs.

PROCEDURAL ISSUES

7The respondent’s request to have the applicant’s hearing submissions struck due to late-filing, is denied.

8The respondent submits that the applicant filed his initial hearing submissions 12 days late in contravention of the timelines prescribed in the Case Conference Report and Order dated April 26, 2023 (“CCRO”). The respondent argues that it has been significantly prejudiced by this delay, as it only had 4 days to prepare its response, rather than the 16 days provided by the CCRO. It relies on the Tribunal decision Ahmad v. Economical Insurance Company, 2023 CanLII 34465 (ONLAT) in support of its position that late-filed submissions should not be admitted.

9The applicant argues that his submissions were late-filed due to his counsel’s medical leave. He further submits that his counsel had suggested an extended time-line until October 16, 2023 to serve and file the respondent’s submissions, but that the respondent instead provided comprehensive submissions on October 6, 2023. As such, the applicant argues that the respondent has not established any prejudice as a result of the late-filing.

10I decline to strike the applicant’s submissions.

11While I appreciate that the respondent had less time to prepare its materials, when considering the prejudice to both parties I find that excluding the applicant’s submissions and evidence in this manner would be unduly prejudicial and contrary to procedural fairness, pursuant to Rule 3.1(a) of the Licence Appeal Tribunal Rules. The respondent has provided extensive responding submissions and materials. However, by striking the entirety of the applicant’s initial hearing submissions, he would be barred from effectively participating in these proceedings.

12Moreover, I find the decision cited by the respondent in support of its position to be distinguishable. In Ahmad v. Economical Insurance Company, 2023 CanLII 34465 (ONLAT), the applicant’s submissions were struck in their entirety, however, the delay in that case was substantial. Unlike in the present matter, in Ahmad the applicant had failed to file his initial written hearing submissions until after the respondent had filed its hearing submissions and after the written hearing date had passed. As such, I find this decision to be of limited persuasive value.

ANALYSIS

PRELIMINARY ISSUE

13Although the CCRO listed the applicant’s non-attendance at s. 44 examinations as a preliminary issue in dispute, in its submissions for this written hearing the respondent does not appear to be proceeding with the preliminary issue.

14By way of background, the preliminary issue had first been raised at a prior case conference on May 28, 2021. At this case conference, the respondent had confirmed that it would bring a motion to have the preliminary issue addressed before the substantive issue hearing.

15Such a motion was brought by the respondent and in a Motion Order dated January 13, 2022, the substantive hearing originally scheduled for February 22, 2022 was adjourned, pending the applicant’s completion of the insurer’s examinations (“IEs”). In this Motion Order, the Tribunal found that all nine of the respondent’s Notices of Examination (“NOEs”) were non-compliant with s. 44(5) of the Schedule, as they failed to provide medical reasons. As such, the remedy found in s. 55(1) of the Schedule was not available to the respondent. However, the Tribunal further found that as all of the proposed IEs were reasonably necessary, the substantive hearing was adjourned to allow the respondent to schedule new IEs.

16From the parties’ submissions, it appears that the applicant continued to refuse to attend the rescheduled IEs, pending the reconsideration of the January 13, 2022 Motion Order. On August 8, 2022 the applicant’s reconsideration request was dismissed by the Tribunal, although the applicant continued to refuse to attend rescheduled IEs. On January 17, 2023, the Tribunal confirmed the stay of proceedings until the applicant attended the IEs. The applicant then began to request that the respondent reschedule the IEs. When these IEs were not rescheduled, the applicant brought a further motion requesting that the Tribunal set up a timeline for the rescheduled IEs. By way of Motion Order dated May 5, 2023, the Tribunal established a pre-hearing deadline by which the respondent could obtain and exchange IE reports prior to this hearing.

17In its submissions for this hearing, the respondent has provided background details as to the applicant’s failure to 13 scheduled and rescheduled IEs. However, it did not expressly request that the applicant be barred from proceeding with the issues in dispute due to non-attendance at the various IEs. In its “Order Sought” section, the respondent did not request any remedy pursuant to s. 55(1)2 of the Schedule. Further, in its submissions the respondent stated that it “acknowledged and respected” the May 5, 2023 Motion Order “effectively dealing with the preliminary issue – as the written hearing was ordered to proceed”. As such, from my review of the respondent’s submissions I infer that the respondent is no longer proceeding with the preliminary issue in dispute.

18Further, in the applicant’s submissions he asserts that he subsequently participated in all recently rescheduled IEs, thereby curing any previous non-compliance. The respondent has not addressed the applicant’s submissions on this issue or provided any submissions or evidence as to which rescheduled IEs the applicant has attended or whether any IEs remain outstanding. As a result, I am unable to determine whether the applicant remains non-compliant with s. 44 of the Schedule.

19As such, I find that based on the evidence before me the respondent is not proceeding with the preliminary issue as specified in the CCRO. In the alternative, I find that the respondent has not provided sufficient evidence to establish that the applicant should be barred from barred from proceeding pursuant to s. 55(1) of the Schedule.

SUBSTANTIVE ISSUES

Minor Injury Guideline

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”

21An insured person 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 from any accident-related minor injury 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.

The applicant is removed from the MIG

22The applicant has established that he has sustained a concussion as a result of the accident, warranting removal from the MIG.

23Soon after the accident, on April 9, 2020, the applicant was referred to a neurosurgeon, Dr. Neilank Jha, by his nurse practitioner Betiel Debessai. Ms. Debessai noted in the referral “whiplash ?concussion. due to MVA” and that the applicant had reported dizziness and neck pain beginning 2 days after the accident.

24Dr. Jha initially conducted a telephone appointment and in a report dated June 18, 2020, noted the applicant’s reports of dizziness, pressure headaches, vision disturbances, fatigue and emotional disturbances. Dr. Jha diagnosed the applicant with a mild Traumatic Brain Injury as a result of the accident which had progressed to Post-Concussive Syndrome.

25The respondent disputes Dr. Jha’s June 18, 2020 reporting letter on the grounds that the assessment was conducted by telephone and that the diagnosis was not supported by any other medical evidence. It points to the fact that the subsequent clinical notes and records (“CNR”) entries of the applicant’s nurse practitioner do not reference a concussion or concussion-related symptoms.

26However, I note that Dr. Jha also provided a subsequent Independent Neuro Examination Report dated December 14, 2021. This report was prepared after an in-person assessment. Dr. Jha confirmed his diagnosis of a mild Traumatic brain Injury – Post Concussive Syndrome and opined that the applicant will require treatment outside of the MIG. Dr. Jha further noted that there was a psychological component to the diagnoses.

27I agree with the applicant and his cited caselaw that the Tribunal has consistently held that that a concussion diagnosis falls outside of the definition of a “minor injury”. I find that the applicant has led sufficient medical evidence to support his claim for removal from the MIG on this ground. The applicant further submits that his accident-related psychological impairments remove him from the MIG. As I have already found that the applicant is removed from the MIG due to his concussion, it is unnecessary to consider the additional ground of psychological impairment.

28Sections 14 and 15 of the Schedule set out that an insurer is liable to pay medical benefits that shall cover all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

29The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

30In addition to arguing that all of the treatment plans are reasonable and necessary, the applicant also submits that the OCF-18s in dispute are payable due to the respondent’s non-compliance with the requirements of s. 38 of the Schedule.

31Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 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.

32If an insurer fails to comply with its obligations under s. 38(8), s. 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day until such time that it gives proper notice.

OCF-18 dated June 3, 2020 for $3,370.87 for chiropractic treatment

OCF-18 dated July 31, 2020 for $3,195.46 for chiropractic treatment

OCF-18 dated March 23, 2022 for $2,226.00 for chiropractic assessment

33I find that the applicant has established that the OCF-18 dated June 3, 2020 for $3,370.87 is reasonable and necessary. However, I do not find that the subsequent OCF-18 for chiropractic treatment or the OCF-18 for a chiropractic assessment are reasonable and necessary.

34The OCF-18 dated June 3, 2020 proposed a combination of chiropractic and massage therapy, and therapeutic devices such as a heat pad, cervical pillow, TENs machine and back support. The stated goals of treatment included pain reduction, increase in strength and range of motion.

35I agree with the applicant that the proposed treatment is reasonable and necessary. The OCF-18 states that this was the first treatment plan, as therapy could not previously be started due to COVID. The applicant reported pain at the time of the accident, and the hospital records indicate that physiotherapy should be considered. The applicant’s nurse practitioner in her April 9, 2020 referral noted a working diagnosis of whiplash and concussion. In his June 8, 2020 reporting letter, Dr. Dja noted the applicant’s musculoskeletal pain and similarly recommended physiotherapy. Although the OCF-18 in dispute recommended chiropractic and massage therapy treatment rather than physiotherapy, given that it was an initial course of treatment and at that on June 3, 2020 the applicant was still in the acute stage of his whiplash injury, I find that the proposed physical treatment is reasonable and necessary.

36However, with respect to the subsequent OCF-18 dated July 31, 2020 for $3,195.46 for chiropractic treatment and the OCF-18 dated March 23, 2022 for a chiropractic assessment, I find that the applicant has not established that they are reasonable and necessary. With respect to the subsequent chiropractic and massage treatment proposed on July 31, 2020, in my view it would be appropriate to determine whether the chiropractic treatment was effective after the initial course, before approving a subsequent plan. Especially since all of the contemporaneous medical records were proposing physiotherapy treatment rather than chiropractic treatment.

37I further find that the applicant has not established that a chiropractic assessment is reasonable and necessary two years after the accident. The applicant does not direct me to any CNR entry post-2020 from his nurse practitioner or a treating physician to establish that he continued to report and be treated for ongoing accident-related pain or that his treating medical practitioners recommended chiropractic treatment.

38Moreover, the applicant has submitted as evidence a chiropractic assessment dated June 22, 2022 from Mount Dennis Weston. Although the report notes that the applicant had been attending therapy at the facility and reported benefits, no treatment records have been provided in support of this claim. No progress reports or details of any treatment sessions have been submitted by the applicant. To the extent that the applicant was making progress with the proposed treatment, treatment records would have been helpful to substantiate the results. As such, I find that the applicant has not met his burden to prove that the additional chiropractic treatment or the chiropractic assessment are reasonable and necessary.

Applicant’s s. 38(8) argument

39As an alternative argument, the applicant submits that all of the OCF-18s in dispute are payable pursuant to s. 38(11) of the Schedule as the respondent failed to comply with its notice obligations under s. 38(8) for all of the applicable notices. I do not find that the applicant has established that the OCF-18 dated July 31, 2020 for $3,195.46 for chiropractic treatment and the OCF-18 dated March 23, 2022 for $2,226.00 for a chiropractic assessment are payable pursuant to s. 38(8).

40In support of his claim, the applicant argues that in its January 13, 2022 Motion Order on the preliminary issue of s. 44 non-attendance, the Tribunal confirmed that all of the respondent’s notices are deficient. As such, the applicant argues that the notices should correspondingly be found to be deficient in the present matter. I am not persuaded by the applicant’s argument. While I agree with the applicant that in the January 13, 2022 Order the Tribunal found that the respondent’s “nine Notices of Examination are similarly deficient by failing to provide medical reasons specific to the applicant”, the Order does not provide any details or dates of the respective NOEs. Without specific submissions or evidence from the applicant establishing that the present notices are the same ones that were considered as part of the January 13, 2022 Motion Order, I cannot conclude that they are same NOEs before me.

41However, the applicant further cites s. 38(8) of the Schedule arguing that that none of the respondent’s notices provided medical reasons for the requested s. 44 examination or the denial of benefits. As such, I will consider whether the respondent’s notices are in compliance with the notice requirements in s. 38(8) and whether they should be found payable pursuant to s. 38(11).

OCF-18 dated July 31, 2020 for $3,195.46 for chiropractic treatment is not payable pursuant to s. 38(11)

42I agree with the applicant that with respect to this treatment plan, the NOE dated August 18, 2020 did not provide sufficient medical and other reasons for the requested examination. The correspondence simply referenced the MIG, without any reference to the applicant’s specific medical condition.

43However, the respondent provided a subsequent provided NOE dated April 13, 2022. I find that this notice did provide sufficient medical and other reasons. It summarized the specific evidence the respondent had reviewed, including the reporting letter from Dr. Jha, the hospital records and the s. 25 psychological assessment. The explanation further stated that there was insufficient compelling medical evidence of the various diagnoses and that there was insufficient evidence of impairments outside of soft tissue sprain and strains. I find that the respondent’s stated explanation provided specific details about the applicant’s medical condition and was a clear and unequivocal denial. The applicant may disagree with the stated reasons provided by the respondent, but this does not render the notice non-compliant with the Schedule.

44The respondent’s subsequent notice dated April 13, 2022 cured the August 18, 2020 non-compliance. As such, as per the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 (“Catic”), the respondent would only be liable to pay for the OCF-18 if the services were incurred during the period of non-compliance. The applicant has led no evidence that the chiropractic services were incurred during this period. Although he points to a letter from his chiropractor stating that there is an “outstanding account in the amount of $8,872.58 for treatment incurred from June 3, 2020 to October 3, 2022, no details were provided as to the dates this treatment was incurred or with respect to which OCF-18. As such the applicant has not established that the OCF-18 dated July 31, 2020 is payable pursuant to s. 38(11) of the Schedule.

OCF-18 dated March 23, 2022 for $2,226.00 for chiropractic assessment is not payable pursuant to s. 38(11)

45The respondent’s notice dated March 30, 2022 contained similar language to the NOE dated April 13, 2022. As previously noted, I have found that this language provided a sufficient medical reason for the denial. As such, the applicant has not established that the notice was non-compliant with s. 38(8) or payable pursuant to s. 38(11).

OCF-18 dated January 22, 2021 for $2,226.00 for psychological assessment

OCF-18 dated April 23, 2021 for $3,586.51 for psychological treatment

46I find that the applicant has established that both OCF-18s for a psychological assessment and psychological treatment are reasonable and necessary.

47The CNRs of the applicant’s nurse practitioner Ms. Debessai indicate that the applicant reported psychological symptoms post accident. On September 10, 2020, the applicant reported feeling “traumatized’ as a result of the accident and waking up in the middle of the night. On June 18, 2020 the applicant’s neurosurgeon Dr. Jha noted the applicant’s reports of increased frustration, anger, worry and episodes of depression. In his subsequent December 14, 2021 neurological report, Dr. Jha again noted the applicant’s psychological symptoms and recommended cognitive behavioural therapy.

48In a s. 25 psychological assessment report dated April 14, 2021, the applicant was diagnosed with Major Depressive Disorder, Somatic Symptom Disorder with Predominant Pain and Specific Phobia – Vehicular. Psychotherapy sessions were recommended, involving a combination of supportive cognitive and behavioural interventions. As such, I find that the applicant has led sufficient evidence that a psychological assessment and a course of psychological treatment are reasonable and necessary.

OCF-18 dated January 25, 2022 for $2,460.00 for neurological assessment

OCF-18 dated April 9, 2022 for $7,006.00 for neuropsychological assessment

OCF-18 dated May 19, 2021 for $2,200.00 – Vox Neuro Cognitive Assessment

OCF-18 dated March 25 2021 for $3,200.00 for Post-Concussion Syndrome Workshop

OCF-18 dated April 28, 2021 for $2,200.00 for Occupational Therapy Assessment

49I find that the OCF-18 for the Vox neuro cognitive assessment and the OCF-18 for the post-concussion syndrome workshop are reasonable and necessary. The applicant has not established that the remaining OCF-18s are reasonable and necessary.

50The applicant was diagnosed by Dr. Jha with a mild Traumatic Brain Injury and Post Concussive Syndrome. Both Dr. Jha and the applicant’s s. 25 psychological assessor noted the applicant’s reports of cognitive impairments. The neuro cognitive assessment proposes to measure the applicant’s core cognitive function and identify cognitive impairments and the concussion syndrome workshop is a program for people with persistent concussion symptoms. Given the applicant’s diagnosis and reported cognitive symptoms, I find that these OCF-18s are reasonable and necessary.

51I do not find that the medical evidence supports that the remaining assessments are reasonable and necessary. Further, the applicant has not provided any specific submissions on these treatment plans other than to state that all of the OCF-18s are reasonable and necessary and that “further investigations” were needed into the applicant’s psychological and concussion symptoms.

52With respect to the OCF-18 dated January 25, 2022 for a neurological assessment by Dr. Jha, the applicant has not provided any submissions or evidence as to why this assessment is needed. Dr. Jha had already provided an Independent Neuro Examination Report dated December 14, 2021. No explanation was provided by the applicant as to why an additional neurological assessment was required a little more than a month later, or how it differs from the report Dr. Jha had already provided.

53Similarly, the applicant has not provided any specific submissions on the OCF-18 in the amount of $7,006.00 for neuropsychological assessment or the OCF-18 for an occupational therapy assessment. It appears that the applicant has separately filed with the Tribunal a completed neuropsychological assessment months after the submissions from both parties had been provided, and after the written hearing date had passed. In providing the report the applicant noted that it was for the “Hearing Adjudicator’s consideration”. I agree with the respondent that submitting evidence after submissions and evidence have been filed and after the written hearing date had passed is improper, and as such this neuropsychological assessment will not be considered as part of the applicant’s evidence for this hearing.

54In terms of the reasonableness and necessity of the neuropsychological assessment, the applicant was already in receipt of a neuro examination from Dr. Jha, and I have approved a psychological assessment and a neurocognitive assessment. The onus rests with the applicant to provide specific submissions and evidence as to why such this additional assessment is reasonable and necessary, particularly given the cost. Further, the applicant has not provided any specific submissions on his functional restrictions necessitating attendant care to justify the completion of a Form 1. Without any submissions from the applicant on these treatment plans, the applicant has not met his onus to establish entitlement.

55As an alternative argument, the applicant submits that all of the OCF-18s should be payable due to the respondent’s non-compliance with s. 38 of the Schedule.

The applicant has not established that the OCF-18s for a neurological assessment, neuropsychological assessment or occupational therapy assessment are payable pursuant to s. 38(11)

56With respect to the OCF-18 dated January 25, 2022 for a neurological assessment and the OCF-18 dated April 9, 2022 for a neuropsychological assessment, I find that the notices dated February 10, 2022 and June 22, 2022 provide sufficient medical reasons for the proposed IEs. They provide detail as to the medical information reviewed, and specific reference to the applicant’s impairments. While the applicant may disagree with the stated reasons, this does not render them non-compliant with the Schedule.

57In regard to the OCF-18 dated April 28, 2021 for an occupational therapy assessment, while I agree with the applicant that the initial NOE did not provide a compliant medical and other reason for the examination, as previously noted I found that the respondent’s subsequent notice dated April 13, 2022 rectified the non-compliance. The applicant has not led any evidence that he incurred the occupational therapy assessment during the period of non-compliance. As such, the applicant has not established that the OCF-18 is payable pursuant to s. 38(11) of the Schedule.

Pre-104 week IRBs

Entitlement to pre-104 week IRBs

58I find that the applicant has established entitlement to pre-104 week IRBs.

59At the time of the accident, the applicant was employed as a heavy machine operator at Cool Innovations Inc. According to the Physical Demands s. 44 assessment report dated March 22, 2022 conducted by the respondent, this position involved strength demands at the heavy demands level, handling loads more than 20 kg. However, the respondent’s s. 44 Functional Abilities assessment report dated March 22, 2022 confirmed that the applicant had functional abilities at the “Light and medium physical demands characteristic levels”.

60Further the applicant’s s. 25 chiropractic assessment dated June 22, 2022 confirmed his widespread pain, inability to stand for long periods of time and limited range of motion in his back, neck and shoulders. Dr. Topp confirmed that this resulted in a substantial inability to perform the essential tasks of the applicant’s employment. The applicant’s pre-accident employer Cool Innovations confirmed by letter that there were no accommodations that would allow the applicant to address his stated impairments.

61As such, I find that the applicant has met his onus to prove that he sustained a substantial inability to perform the essential tasks of his employment as required by s. 5(1) of the Schedule. From the parties’ submissions, it appears that the applicant was paid IRBs until September 29, 2020 when the benefit was suspended due to the applicant’s non-attendance at IEs. As such, the applicant is entitled to pre-104 week IRBs for September 29, 2020 until the expiration of the 104-week period post-accident, being March 25, 2022.

62In terms of the quantum of IRBs, the CCRO identified the amount of IRBs in dispute as being $400.00 per week. The onus rests with the applicant to prove the quantum. The applicant has not provided any submissions on quantum or led any evidence to substantiate his employment income such as income tax returns, T4s, or an Employer Confirmation Form (“OCF-2”). As such, I am unable to make a determination as to the quantum of pre-104 week IRBs.

Post-104 week IRBs

63I find that the applicant has not established entitlement to post-104 week IRBs.

64To receive payment for post-104-week IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

65The applicant has not provided any submissions or evidence of entitlement to post-104 week IRBs. In his submissions, he has not referenced the “complete inability” test for entitlement, or provided evidence in support of such a complete inability. I further note that all of the applicant’s s. 25 assessors opined on his substantial inability to complete his tasks of employment. However, the test for post-104 weeks involves a higher threshold for entitlement. Without any submissions or evidence on post-104 week IRBs I am unable to find that the applicant has met his onus to prove that any IRBs are payable post-104 weeks after the accident.

Interest

66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for the OCF-18 dated June 3, 2020 in the amount of $3,370.87 for chiropractic treatment, the OCF-18 dated January 22, 2021 for a psychological assessment, the OCF-18 dated April 23, 2021 for psychological treatment, the OCF-18 dated May 19, 2021 for a Vox Neuro Cognitive assessment and the OCF-18 dated March 25, 2021 for the Post-Concussion Syndrome workshop. The applicant is further entitled to interest in accordance with s. 51 of the Schedule for the outstanding portion of pre-104 week IRBs.

Award

67The 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.

68The applicant submits that he is entitled to an award due to the respondent’s deficient notices for all requested IEs and its delay in paying for a catastrophic file review, despite being so ordered in a Tribunal order dated January 17, 2023. The applicant further argues that the respondent refused to remove him from the MIG despite medical evidence to the contrary which delayed his ability to access needed medical treatment.

69I find that the applicant has failed to establish a basis for an award. The threshold for an award is high. Although I have found that the applicant is removed from the MIG, entitled to various treatment plans and pre-104 week IRBs, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. Moreover, with respect to the respondent’s deficient notices, I do not find that this procedural non-compliance rises to the threshold of being excessively impudent, stubborn, unyielding or immoderate. As such, I find that the applicant has not established a basis for an award.

Costs

70Both parties request costs of this proceeding from the other. They both allege that the conduct of the other party had been unreasonable, frivolous, vexatious or in bad faith within the meaning of Rule 19 of the Licence Appeal Tribunal Rules. This is a high bar for conduct and is an exceptional remedy.

71The applicant requests an $8,000.00 cost award against the respondent arguing that the respondent failed to attend multiple motions, inappropriately deducted the cost of a catastrophic file review, failed to produce certain IE reports, clinical notes and records and updated adjuster’s log notes. The respondent requests costs arguing that the applicant’s counsel’s conduct was disproportionately and unreasonably argumentative throughout the file. It further cites the applicant’s delay in provide his written hearing submissions.

72I decline both requests for costs. I do not find that either party led sufficient evidence to establish behaviour that was unreasonable, frivolous, vexatious or in bad faith. Nor has the cited behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process. I find that costs are not merited.

ORDER

73For the foregoing reasons I find that:

1. The applicant is removed from the MIG;
2. The applicant is entitled to the following OCF-18s, plus interest in accordance with s. 51 of the Schedule: a) OCF-18 dated June 3, 2020 for chiropractic services; b) OCF-18 dated January 25, 2022 for a psychological assessment; c) OCF-18 dated April 23, 2021 for psychological services; d) OCF-18 dated May 19, 2021 for $2,200.00 for a Vox neuro cognitive assessment; and e) OCF-18 dated March 25, 2021 for a post concussion syndrome workshop.
3. The applicant is not entitled to the remaining treatment plans in dispute;
4. The applicant is entitled to pre-104 week IRBs from September 29, 2020 to March 25, 2022, plus interest in accordance with s. 51 of the Schedule;
5. The applicant has not established entitlement to post-104 week IRBs;
6. The respondent is not liable to pay an award; and
7. Neither party is entitled to costs.