Licence Appeal Tribunal File Number: 22-008578/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:
Janeth Moises
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Tom Yen, Counsel
HEARD: By way of written submissions
OVERVIEW
1Janeth Moises, the applicant, was involved in an automobile accident on July 11, 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, Allstate Insurance Company of Canada, 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. 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 limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 8, 2020 to date and ongoing?
iii. Is the applicant entitled to attendant care benefits in the amount of $2,013.04 per month from July 11, 2020 to August 4, 2022?
iv. Is the applicant entitled to a medical benefit in the amount of $3,704.97 for assistive devices, proposed by Health Pro Wellness in a treatment plan submitted on August 21, 2020?
v. Is the applicant entitled to a medical benefit in the amount of $3,037.92 for chiropractic treatment, proposed by Health Pro Wellness in a treatment plan submitted on December 15, 2020?
vi. Is the applicant entitled to a medical benefit in the amount of $3,566.29 for psychological treatment, proposed by Health Pro Wellness in a treatment plan submitted on April 7, 2021?
vii. Is the applicant entitled to an attendant care assessment in the amount of $1,800.00, proposed by Health Pro Wellness, in a treatment plan dated submitted on August 14, 2020?
viii. Is the applicant entitled to a psychological assessment in the amount of $2,200.00, proposed by Health Pro Wellness in a treatment plan submitted on October 22, 2020?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant noted in her submissions that the amount of the treatment plan listed as issue (iv) was incorrect in her application. The respondent did not make any submissions in disagreement. The denied treatment plan for assistive devices before me is for $3,704.97. As such, issue (iv) above reflects the accurate amount of the treatment plan for assistive devices in dispute.
RESULT
4The applicant sustained a minor injury as defined in s. 3 of the Schedule and is accordingly subject to the MIG.
5The applicant is not entitled to non-earner benefits.
6Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $3,704.97 for assistive devices, proposed by Health Pro Wellness in a treatment plan submitted on August 21, 2020.
7The remainder of the treatment plans in dispute are not payable.
8The applicant is not entitled to attendant care benefits.
9The respondent is not liable to pay an award.
10The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
ANALYSIS
Application of the Minor Injury Guideline
11Section 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. 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.”
12An 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.
13The applicant submits that she does not belong within the confines of the MIG due to pre-existing injuries, chronic pain, and psychological injuries. Further, the applicant argues that he should be removed from the MIG by virtue of s. 38(11) of the Schedule. The respondent disagrees.
14For the following reasons, I find, on a balance of probabilities, that the applicant does not have an injury or impairment that would remove her from the MIG.
Psychological Impairment
15Tribunal jurisprudence has established that in order to be removed from the MIG due to psychological injuries, the applicant must prove that she has an actual psychological impairment and not just psychological symptoms or sequelae arising from her soft tissue injuries.
16The applicant primarily relies on the report of Fahimeh Aghamohseni, psychologist, who assessed the applicant on April 7, 2021. Ms. Aghamohseni diagnosed the applicant with an Adjustment Disorder with mixed anxiety and depressed mood, Somatic Symptom Disorder, and specific phobia, situational type, vehicle. She recommended 12 sessions of psychotherapeutic intervention, and an in-vehicle anxiety assessment. She opined that the applicant did not belong in the MIG.
17The respondent relies on the s. 44 report of Dr. Douglas Saunders, psychologist, who assessed the applicant on February 18, 2021. Dr. Saunders found that the applicant’s presentation did not meet the diagnostic threshold for a psychological condition as per the DSM. He found that there was no impairment in her overall functioning due to psychological factors. She had mild symptoms of depression and anxiety. Further, the applicant’s scores on the Personality Assessment Inventory led Dr. Saunders to believe that her clinical picture may be distorted, and that her responses showed certain patterns that are relatively common among those feigning mental disorder.
18I note that the applicant did not make reply submissions, or comment on Dr. Saunders’ report.
19I prefer the report of Dr. Saunders over that of Ms. Aghamohseni. Firstly, Dr. Saunders reviewed the applicant’s medical records, whereas Ms. Aghamohseni did not. Secondly, Ms. Aghamohseni administered a number of tests, however she did not report the test scores for the Symptom Checklist-90 Revised, Pain Patient Profile, or Davidson Trauma Scale. Instead, she simply listed the applicant’s endorsed symptoms. On the other hand, Dr. Saunders provided an interpretation of his test scores.
20Further, Ms. Aghamohseni recommended that the applicant receive caregiving assistance. I find that this recommendation is disproportionate considering the applicant only reported one caregiving difficulty, namely that she couldn’t help her son with his online classes. No detail was provided as to whether this was accident-related, or why she was unable to assist him. In addition, the applicant also returned to her full-time employment as a live-in caregiver a few days after the accident. I therefore find it unlikely that the requirement for caregiving benefits would be justified. I also note that Ms. Aghamohseni recommended that the applicant receive housekeeping assistance. However, on February 11, 2021, the applicant’s family physician submitted a medical form for a personal support work program indicating that she was able to lift, carry, and push/pull up to 25 kilograms, and assist with laundry, groceries, personal care, and housekeeping duties. Again, I find that Ms. Aghamohseni’s recommendations were not in keeping with the applicant’s abilities.
21Although the applicant endorsed having nightmares, she advised Dr. Saunders that these nightmares were not accident-related. This was not explored further by either assessor. Otherwise, she described her sleep as being disturbed by pain and discomfort.
22The applicant did endorse feelings of nervousness and hypervigilance in a vehicle, but the affect of this on the applicant’s ability to be in a vehicle was not explored in detail. She reported to Dr. Saunders that she was driving, but less frequently. It was not established whether this was due to psychological difficulties or her physical injuries, which was entirely possible given her reported reduced sitting tolerance.
23Separate from the assessments, the applicant visited her family physician, Dr. Alegado, a handful of times after the accident, but did not make any psychological complaints to him. However, prior to the accident, she had advised him that she was experiencing work stress. This illustrates to me that she was comfortable discussing her psychological condition with Dr. Alegado, but did not see a need to do so after the accident. The applicant subsequently switched family physicians, and began seeing Dr. Gostelow in December 2020. She similarly never discussed her mental health with Dr. Gostelow.
24On balance, I find that the applicant has not met her onus in proving that she has a psychological impairment that would remove her from the MIG.
Pre-Existing Injuries
25S. 18 of the Schedule states that the MIG does not apply if a health practitioner determines and provides compelling evidence that an insured person has a pre-existing medical condition that will prevent the person from achieving maximum medical recovery if they are subject to the monetary limits of the MIG.
26The applicant argues that she suffered from pre-accident right hip pain, headaches, sleeping issues, and stress, all of which were severely aggravated by the accident.
27The applicant was diagnosed with vascular headaches in September 2017 by Dr. Alegado, and was provided with the medication Fional. On August 13, 2022, she reported to Dr. Gostelow that her migraines were stable, and there was no change to her migraine pattern. She requested a renewal of Fional. Dr. Gostelow did not mention anything about the accident in reference to the applicant’s headaches, nor did he say that they had worsened afterwards.
28On May 27, 2018, the applicant reported to Dr. Alegado that she sustained a right hip musculoskeletal injury while pushing. She also reported on July 15, 2020, that she sustained a bruise to her right hip area in the accident. She made no complaints regarding her right hip in between those two visits. Further, there is no indication anywhere in the medical records that the applicant sustained an injury to her right hip in the accident other than bruising, and there is no evidence that she required treatment for a right hip injury as a result of the accident.
29The applicant reported on May 27, 2018, that she was having trouble falling asleep, possibly due to hot weather. No further information is provided regarding a diagnosis, or how long this lasted for. Finally, the applicant reported some work stress on May 27, 2018. She was not provided with a diagnosis, recommendations, or medication as a result.
30I also note that the applicant did not report any pre-existing medical conditions to any assessor, and stated in a statutory declaration on November 23, 2020, that she did not have any pre-existing medical conditions.
31In any event, just because she had experienced medical issues in the past does not mean that she meets the requirements as set out in s. 18 of the Schedule. Dr. Oleg Safir, s. 44 orthopaedic surgeon, assessed the applicant on December 9, 2020 and opined that there was no compelling evidence of a pre-existing medical condition that would prevent her from achieving maximum medical recovery if subjected to the limits of the MIG. I accept the opinion of Dr. Safir, and find that there is no compelling evidence to the contrary. I find that the applicant has not met her burden in this regard.
Chronic Pain
32The applicant submits that her injuries have persisted for two years, making them chronic in nature. She argues that Dr. Gostelow diagnosed her with a tear of the right rotator cuff, disc herniation with persistent back pain, sciatica, and exacerbation of pre-existing migraine headaches, all of which negatively influenced her activities of daily living. The applicant was also referred to a chronic pain clinic and prescribed ongoing pain medication.
33The applicant relies on 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515. It states that, for chronic pain to be more than sequelae from soft tissue injuries, it must be chronic pain syndrome or continuous, and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. Although Tribunal cases are not binding on me, I find it helpful in this analysis.
34The applicant initially visited Dr. Alegado on July 15, 2020, and was diagnosed with a whiplash injury, multiple bruises/hematomas on her abdomen and right leg, and musculoskeletal strain to her cervical area and bilateral shoulders. She was advised to take Advil and Voltaren for pain. She visited Dr. Alegado again on August 19, 2020 due to persistent left upper quad pain, and a uterine fibroid. The applicant then visited Dr. Gostelow on December 10, 2020, due to right shoulder pain. She indicated to him that physiotherapy was helping, but she wanted to get it checked out. An ultrasound revealed a partial rotator cuff tear.
35A partial tear is considered a minor injury. Although the applicant was referred to an orthopaedic surgeon, there is no indication that she ever visited one. Further, she reported to her treatment providers at Pro-Health Wellness that her right shoulder pain improved greatly by March 2021. In fact, she declined manual therapy at that point. On April 17, 2021, the applicant reported that her right shoulder pain was intermittent, and that most of the pain was at night. Her neck pain was described as “not so bad”, and her low back pain was “on and off”.
36There are no further accident-related medical records until the applicant visited Dr. Gostelow on August 13, 2022. She advised that she was experiencing sciatica, and was sent for an MRI of her lumbar spine. The MRI report from January 11, 2023, indicated “worsening back pain rating to lower extremities”. Dr. Gostelow diagnosed a disc herniation at the L4 level, made a referral to a pain clinic, and proposed a trial of 4 weeks of Cymbalta. In the referral form for the pain clinic, Dr. Gostelow noted that the applicant had a disc protrusion/herniation but was “otherwise healthy”. Dr. Gostelow did not make any link between the applicant’s accident-related injuries and the disc herniation. The respondent submits that there is no indication that the back pain at this point in time was related to the accident. Given the applicant’s reported improvement of symptoms in 2021, and the sudden increase in pain in 2022 without explanation, I agree with the respondent.
37I also note that there is no evidence that the applicant ever attended the chronic pain clinic, and there are no prescription records to confirm that she took the Cymbalta.
38As indicated above, there is no compelling evidence that the applicant’s pre-existing migraines were exacerbated by the accident. She told Dr. Gostelow that they were stable and unchanged in pattern.
39With respect to the applicant’s functionality, she returned to work a few days after the accident. She reported in her statutory declaration that she returned to modified hours, worked one evening less, and had some assistance with some of her duties. She also reported to Dr. Saunders that she was working modified duties. However, she reported to Ms. Aghamohseni and Dr. Safir that she returned to work with regular hours and normal duties. I have not been pointed to any evidence regarding how long the applicant’s duties were modified for, or to what extent.
40Dr. Gostelow’s form from February 2021 indicates that the applicant was functionally capable of performing all of the tasks required of a personal support worker, including lifting 25 kilograms. It appears that the applicant’s injuries improved significantly within a year after the accident. After April 2021, there is no information regarding the applicant’s functional abilities.
41For the reasons above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain warranting removal from the MIG.
Section 38(11)
42The applicant argues that the respondent contravened s. 38(8) by failing to respond to one of the treatment plans in dispute within 10 days. As such, she submits that the Tribunal must apply the consequences of s. 38(11), which includes removing the applicant from the MIG. The applicant does not refer to any case law in support of this proposition.
43S. 38(8) of the Schedule states that within 10 business days after it receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments, and examinations that it does not agree to pay for, and the “medical reasons and all of the other reasons” why the insurer does not consider them to be reasonable and necessary. Under s. 38(9), if the insurer believes the MIG applies, the notice must advise the insured of that as well. The consequences of failing to comply with the notice requirements for each treatment plan are indicated in s. 38(11): the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and the insurer shall pay for the goods and services in the treatment plan starting on the 11th business day after the insurer received the application, and ending when proper notice is provided.
44The Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, found that s. 38 refers to the specific treatment plan in question, and s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination. An improper denial therefore does not result in the applicant being removed from the MIG entirely. I accordingly do not accept the applicant’s argument. I will, however, address the issue of s. 38(8) with respect to individual treatment plans below.
45The parties agreed at the case conference on March 24, 2023, that the MIG limits have been exhausted. As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
46However, the applicant submits that some of the respondent’s denials contravened s. 38(8) of the Schedule. I will address whether any of the treatment plans in dispute are payable by virtue of s. 38(11).
$3,704.97 for assistive devices submitted on August 21, 2020
47I find that this treatment plan is payable.
48The applicant submits that the respondent failed to provide specific, meaningful, and accurate reasons or details in its denial letter. The respondent submits that the treatment plan was denied due to the application of the MIG, and that the denial could not be more clear and specific.
49The denial letter indicates that “the assessment proposed is not reasonable and necessary”, as the applicant’s injuries fell under the MIG. It also states that attendant care benefits under s. 19 are payable if the impairment is not a minor injury, and as such, no consideration could be given to the treatment plan. However, the treatment plan in dispute proposed a number of assistive devices, not attendant care benefits or an assessment. The letter does not indicate whether the applicant’s funds under the MIG had already been depleted. If there were funds remaining, the letter should have specified how much was available, so that the applicant could have put the funds towards some of the assistive devices proposed. If the funds were already depleted, the letter should have specified that. I am left with questions as to why the treatment plan was denied in its entirety, or why “no consideration” could be given to it. As such, I find that the reasons for the denial were either not specific enough to allow an unsophisticated person to make an informed decision to accept or dispute the decision, or were otherwise inaccurate.
50I find that the respondent breached its obligation under s. 38(8) and thus the consequences under s. 38(11) are triggered. As such, despite the fact that the applicant is still in the MIG, this particular treatment plan is payable.
$3,037.92 for chiropractic treatment submitted on December 15, 2020
51I find that this treatment plan is not payable.
52The applicant submits that the insurer failed to provide reasonable explanations for the denial, other than to state that the injuries are minor.
53In its denial letter, the respondent stated “we have approved the maximum amount of $3,500.00 of your medical and rehabilitation policy limits allotted to minor injuries sustained in a motor vehicle accident.” The respondent stated that it had not been provided with compelling medical evidence to support the applicant’s injuries being non-minor, and that it would update its position after it received the pending s. 44 insurer examination reports.
54In the denial letter for the treatment plan relating to assistive devices, the respondent stated that it reviewed the OCF-23 from July 15, 2020, and proposed treatment plan at that time, and found that the applicant’s injuries were minor in nature, with no fractures or broken bones. It further stated that there was no medical evidence to support that she had a documented pre-existing medical condition that would prevent her from achieving maximum medical recovery. It requested further medical records if the applicant believed her injuries were not in keeping with the MIG, including the records of her family physician and any hospital records and imaging. I do not know what documents, if any, were provided to the respondent after that request.
55None of the injuries listed in the treatment plans or OCF-23 are conditions that fall outside of the MIG. They were noted as follows: contusion of abdominal wall, sprain and strain of cervical spine, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of shoulder joint, sprain and strain of thoracic spine, sprain and strain of ribs and sternum, acute pain, malaise and fatigue, and whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs. Given the specific reference to the two documents that listed the same injuries, I do not find that the respondent had an obligation to specifically list each of those injuries in its denial letter. At that point in time, I find that the respondent’s explanation for the applicant remaining within the MIG was sufficient.
56By the time this treatment plan for chiropractic services was denied, the respondent had already determined that the applicant belonged in the MIG, had advised her of the reasons why, and had arranged s. 44 assessments. I do not find that the respondent had an obligation to re-state the applicant’s injuries or its reasons for believing that the injuries fell within the MIG, when it had already done so. Finally, unlike in the denial letter for the assistive devices, the respondent explained that the MIG funds had been depleted, which is why the treatment plan was being denied. I find that this letter was sufficiently specific and accurate, such that an unsophisticated person could make an informed decision to either accept or dispute the denial. As such, the respondent is not in breach of s. 38(8) and s. 38(11) is not triggered.
$3,566.29 for psychological treatment submitted on April 7, 2021
57I find that this treatment plan is not payable.
58The respondent denied the treatment plan as a result of the MIG. It referred to its s. 44 report of Dr. Saunders in support of its denial, who stated that the applicant’s symptoms were not sufficient enough to require formal treatment or assessment interventions. It also referred to the report of Ms. Aghamohseni, and stated that it did not agree that the information provided supported that the applicant would be prevented from achieving maximum medical recovery within the minor injury framework, and thus the MIG still applied.
59I do not agree with the applicant’s assertion that the respondent failed to provide meaningful and accurate explanations for its denial, or that the letter was “boilerplate”. I find that the letter provided clear reasons for its denial, namely that due to the opinion of Dr. Saunders, it believed the applicant still belonged within the MIG.
$1,800.00 for an attendant care assessment submitted on August 14, 2020
60The applicant does not make any submissions with respect to s. 38(8) for this treatment plan, so I will not undertake that analysis. This treatment plan is accordingly not payable.
$2,200.00 for a psychological assessment submitted on October 22, 2020
61I find that this treatment plan is not payable.
62The applicant submits that the respondent failed to respond to the treatment plan for this assessment within 10 business days, and thus the consequences of s. 38(11) should be applied.
63The applicant has not provided me with evidence or information as to when the treatment plan was submitted or when it received the denial. The denial letter before me has a fax date of November 9, 2020, and without further information from the applicant I can only assume that was the date it was received. Ms. Aghamohseni’s assessment took place on April 7, 2021.
64S. 38(11)2 states that an insurer shall pay for the goods or services described in the treatment plan from the 11th business day after the day the insurer received the application, and ending on the day that the insurer gave notice described in s. 38(8). Even if the respondent’s denial letter was provided later than 10 days after the treatment plan was submitted, the cost of the assessment was not incurred until after the non-compliance was rectified, so nothing is payable.
Non-Earner Benefit
65I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to a non-earner benefit.
66Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
67The applicant submits that her continuous chronic pain, physical limitations, and ongoing psychological impairments caused her to suffer a complete inability to carry on a normal life. She submits that she was previously independent with all of her daily tasks, however after the accident, she was unable to complete some tasks and required assistance with others.
68The respondent submits that the applicant has not established that her pre-accident functioning substantially differs from her post-accident functioning, and that she has substantially returned to her pre-accident routines.
69The applicant relies on an OCF-3 completed on July 15, 2020, by Dr. Tarulli, which indicated that she suffered a complete inability to carry on a normal life. I agree with the respondent that it is not enough to simply rely on a checked box in an OCF-3 to determine whether an applicant sustained a complete inability to carry on a normal life. The OCF-3 only noted that the applicant had difficulties with tasks requiring lifting from the floor, lifting overhead, and heavy carrying, and reported pain with deep inspiration. This does not, on its own, prove that the applicant was continuously prevented from engaging in substantially all of her pre-accident activities.
70The applicant was employed as a full-time live-in caregiver, responsible for taking care of an elderly individual, housekeeping, cooking, and cleaning. According to her statutory declaration, she returned to work a few days after the accident, but worked one evening less, and had some assistance with some of her duties. She has not provided cogent evidence as to how long her work duties were modified, or to what degree.
71The applicant stated in her statutory declaration on November 23, 2020, that she was nearly at full capacity with respect to her activities, but “with pain and difficulties”. I agree with the respondent that pain alone is insufficient to meet the test for non-earner benefits. In accordance with Heath, the applicant must demonstrate that the pain experienced is such that she is practically prevented from engaging in her former activities. The fact that the applicant was nearly at full capacity, albeit with pain, does not lead me to believe that she was prevented from completing substantially all of her activities.
72Dr. Safir and Dr. Saunders both found that the applicant did not suffer a complete inability to carry on a normal life. The applicant does not make any submissions disputing their opinions, and in fact relies on Dr. Safir’s diagnoses in her submissions. I note that Ms. Aghamohseni does not provide any opinion with respect to whether the applicant meets the test for non-earner benefits. The only other opinion with respect to whether the applicant meets this test was the checked box in the OCF-3 indicated above. Without other medical opinions to the contrary, or any submissions regarding whether their reports should be discounted, I find the opinions of Dr. Safir and Dr. Saunders to be persuasive.
73The applicant was assessed on August 4, 2020, by Haciyeva Kamala, registered nurse, for the purpose of completing an attendant care needs report. Ms. Kamala opined that the applicant required assistance with certain pre-accident personal care activities. While I accept that the applicant may have had difficulty with certain tasks, she was also able to return to a job in which she was responsible for completing personal care tasks for someone else. I find it unlikely that she would require over $2,000 in monthly attendant care services for herself, but be able to provide attendant care services to someone else at the same time. I also find that there are inconsistencies within Ms. Kamala’s report which lead me to assign it less weight. Ms. Kamala opined that prior to the accident, the applicant required assistance with personal hygiene, bathroom cleaning, mopping, sweeping, dusting, and vacuuming. Based on the rest of the evidence before me, that does not appear to have been the case. Ms. Kamala does not provide any details or information to explain why the applicant was restricted, to what degree, or why attendant care is now required for those tasks as a result of the accident if she was previously restricted.
74I also note that the applicant has not provided me with a detailed comparison of her pre-accident and post-accident activities, as described in Heath. Some information is scattered throughout the documents before me, but even the applicant’s self-reported limitations are quite sparse.
75I find that, on a balance of probabilities, there is insufficient evidence that the applicant suffers a complete inability to carry on a normal life as a result of the accident. As such, she is not entitled to a non-earner benefit.
Attendant Care Benefit
76As I have determined that the applicant has not demonstrated that she should be removed from the MIG, an analysis of whether she is entitled to attendant care benefits is not required, pursuant to s. 14(2) of the Schedule.
Interest
77Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
78The 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. I find that the applicant is not entitled to an award in this case.
79The applicant has not particularized her claim for an award. The threshold for an award is high. While its denial letter was certainly confusing, I do not find that the respondent’s actions rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. As such, I find an award is not appropriate.
ORDER
80The applicant sustained a minor injury as defined in s. 3 of the Schedule and is accordingly subject to the MIG.
81The applicant is not entitled to non-earner benefits.
82Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $3,704.97 for assistive devices, proposed by Health Pro Wellness in a treatment plan submitted on August 21, 2020.
83The remainder of the treatment plans in dispute are not payable.
84The applicant is not entitled to attendant care benefits.
85The respondent is not liable to pay an award.
86The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
Released: September 9, 2024
Rachel Levitsky
Adjudicator