Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-000240/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:
Poonammah Samaroo
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Michael H. Hazan, Counsel
For the Respondent: Cecil Jaipaul, Paralegal
HEARD: By way of written submissions
OVERVIEW
1Poonammah Samaroo, the applicant, was involved in an automobile accident on June 3, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, The Commonwell Mutual Insurance Group, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2By way of Motion Order dated September 1, 2023, the Tribunal added a substantive issue in dispute to this written hearing, being the payment of an invoice (“OCF-21”) in the amount of $3,815.13 for mental health therapy, dated July 25, 2023. The Tribunal also added the following preliminary issue:
i. Is the applicant barred, pursuant to s. 55(1)3 of the Schedule, from proceeding with the issue of the payment of the OCF-21 dated July 25, 2023 because the applicant failed to provide information to the respondent in accordance with s. 46.2 and s. 46.3 of the Schedule?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 19, 2020 to June 3, 2020?
ii. Is the applicant entitled to $2,770.75 for a neurological assessment, proposed by Excel Medical Diagnostics Inc. in a treatment plan (“OCF-18”) dated November 27, 2020?
iii. Is the applicant entitled to $2,669.05 for a functional abilities evaluation, proposed by Excel Medical Diagnostics Inc. in an OCF-18 dated November 27, 2020?
iv. Is the applicant entitled to $2,770.75 for a chronic pain assessment, proposed by Excel Medical Diagnostics Inc. in an OCF-18 dated November 27, 2020?
v. Is the applicant entitled to the denied amount of $673.26 for psychological services, proposed by Excel Medical Diagnostics Inc. in an OCF-18 dated February 25, 2021 and partially approved by the respondent?
vi. Is the applicant entitled to $14,933.19 for a chronic pain program and transportation, proposed by Excel Medical Diagnostics Inc. in an OCF-18 dated July 20, 2021?
vii. Is the applicant entitled to $4,239.55 for psychological services, proposed by Excel Medical Diagnostics Inc. in a treatment plan dated June 2, 2022?
viii. Is the applicant entitled to the payment of an OCF-21 in the amount of $3,815.13 for mental health therapy, submitted by Excel Medical Diagnostics Inc., dated July 25, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4On the preliminary issue I find that the applicant is barred from proceeding with the issue of the payment of the OCF-21 dated July 25, 2023.
5On the substantive issues I find that:
i. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from January 19, 2020 to June 3, 2020, plus interest;
ii. The applicant is entitled to the OCF-18 dated June 2, 2022 for psychological services, plus interest.
iii. The applicant is partially entitled to the following treatment plans, plus interest, in the amounts specified below:
(a) OCF-18 dated November 27, 2020 for a functional abilities evaluation in the amount of $2,200, plus HST;
(b) OCF-18 dated November 27, 2020 for a chronic pain assessment in the amount of $2,200, plus HST;
iv. The applicant is not entitled to the following treatment plans:
(a) OCF-18 dated November 27, 2020 for a neurological assessment;
(b) outstanding balance of OCF-18 dated February 25, 2021 for psychological services;
(c) OCF-18 dated July 20, 2021 for a chronic pain management program; and
v. The respondent is not liable to pay an award.
PRELIMINARY ISSUE
6Under section 46.2(1) of the Schedule, an insurer may request any information from a provider that the insurer requires, acting reasonably, to determine its liability for the payment, including access to inspect and copy the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment.
7Another provision relevant to this matter is section 55(1) of the Schedule, which bars an insured person from applying to this Tribunal if, among other circumstances, the issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that:
i. the insurer requested information from a provider under subsection 46.2(1), and
ii. the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.
8With respect to the OCF-21 in the amount of $3,815.13 for mental health therapy, the parties agree that the respondent has approved the related OCF-18. However, it has made a number of s. 46.2 requests to the treatment provider. In correspondence dated December 2, 2021, July 15, 2022 and August 23, 2022, the respondent requested the supervision notes of Dr. Sharleen McDowell, psychologist, which were prepared in connection with the OCF-18 and in each treatment session. The applicant subsequently provided the file from Excel Medical Diagnostics Inc. to the respondent on March 30, 2023 and submits that this file included Dr. McDowell’s records.
9The respondent subsequently sent a letter dated August 23, 2023 to Dr. McDowell, reiterating its request for supervision notes. It was noted that supervision records record the interaction between the supervisor and supervisee. The letter further details the fact that the Excel records indicate that psychological services were provided by a number of practitioners who were not identified on invoices. The applicant submits that she was not aware of this letter until she received the respondent’s submissions for this written hearing. As such, she argues that the respondent should not be permitted to rely upon this correspondence.
10Even if I accept the applicant’s argument with respect to the respondent’s August 23, 2023 correspondence, I note that the previous letters dated December 2, 2021, July 15, 2022 and August 23, 2022 clearly requested Dr. McDowell’s supervision notes. From my review of the Excel file, these were not provided to the respondent. The file includes notes from over 25 therapy sessions signed by different treating practitioners. However, the file appears to only contain reference to one supervision note from Dr. McDowell, although it does not appear to have been signed by Dr. McDowell.
11I find that the information requested by the respondent was information that was necessary to determine the level of care the applicant received and from whom. As such, it was reasonable for the respondent to request Dr. McDowell’s complete supervision notes. To the extent that they did not exist, this should have been communicated to the respondent. As the information requested under section 46.2(1) of the Schedule was not provided, I find that the applicant is precluded from proceeding with the issue of the OCF-21 under 55(1) of the Schedule.
PROCEDURAL ISSUES
12By way of Notice of Motion dated January 2, 2024, the respondent requested that either the applicant’s reply be struck in full or that paragraphs 5, 9 to 21, 24, 30, 31, 34 to 36 and 42 to 49 be struck from the applicant’s reply submissions. The respondent submits that in these paragraphs the applicant has improperly raised issues that should have been raised in initial submissions or reformulated her initial argument.
13The applicant submits that her reply did not improperly raise new issues that should have been raised in first instance. Rather, the applicant submits that she was replying to issues raised in the respondent’s hearing submissions. She argues that the entirety of her reply submissions should be retained. The applicant further submits that the respondent’s motion was frivolous and that it should be dismissed with costs payable to the applicant in the amount of $1,000.00.
14I agree with the respondent that paragraphs 34 to 36 and 42 to 49 improperly raise arguments that should have been raised in first instance. In paragraphs 34 to 36, the applicant discusses the fact that she was improperly kept within the MIG which stunted her ability to seek treatment, that new medical information had been provided which the respondent failed to consider and that it improperly relied on outdated insurance examination reports. I agree with the respondent and its cited decision Garvey v. Economical Insurance Company, 2023 CanLII 26960 (ONLAT) that reply is not an opportunity to raise issues that should have been addressed in first instance, or to reformulate their argument. In these paragraphs the applicant is not responding to issues raised in the respondent’s submissions.
15Further, in paragraphs 42 to 49 of the applicant’s reply submissions the applicant summarizes why she could not complete the tasks of her employment, how the respondent wrongfully denied treatment plans or failed to conduct assessments and why an award is warranted. In her motion submissions the applicant argues that these paragraphs “mirror the conclusion sought in her initial written submissions”. I agree with the respondent that the reply is not an opportunity for a party to reformulate their argument. As such, I accept the respondent’s request to strike paragraphs 34 to 36 and 42 to 49 from the applicant’s reply submissions.
16However, I agree with the applicant that paragraphs 5, 9 to 21, 24, 30 and 31 are not improper and address arguments raised in the respondent’s submissions. From my review of the parties’ submissions, all of these paragraphs reply to issues directly raised in the respondent’s hearing submissions. I further agree with the applicant that these were not issues that should have been anticipated by the applicant. As such, I decline the respondent’s request to strike these paragraphs from the applicant’s reply.
17Finally, I decline the applicant’s request for costs. I do not find that the respondent’s motion to strike portions of the applicant’s reply submissions 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.
ANALYSIS
Income Replacement Benefits (“IRBs”)
18I find that the applicant has established entitlement to pre-104 week IRBs.
19To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
20The applicant submits that as a result of the accident she has developed serious psychological impairments and chronic pain which caused her to be substantially unable to perform the essential tasks of her employment as a legal assistant. To establish her claim, she relies on s. 25 psychological, neurological and functional abilities assessments. The applicant further cites the Disability Certificates (“OCF-3”) and clinical notes and records (“CNRs”) of her family physician Dr. Eng. She submits that during the period of pre-104 week IRBs, she had consistently been diagnosed with severe psychological impairments and had been referred to CAMH for psychiatric consultation. Her family physician and referring psychiatrist all opined that she was unable to work during the period in dispute, and she was ultimately found to be eligible for Canada Pension Plan Disability (“CPP-D”) benefits.
21The respondent raises the issue of causation. It submits that the applicant had been placed on long-term disability (“LTD”) for a period in 2016 after being diagnosed with depression and had reported low mood for 30 years. She further had pre-existing low back pain and arthritis and meniscus damage in both knees. As such, the respondent argues that the subject accident was not the cause of the applicant’s ongoing psychological impairments or chronic pain. It further argues that the applicant has not led sufficient contemporaneous evidence to establish that she was substantially unable to complete the essential tasks of her employment. All of the applicant’s s. 25 assessments were conducted well after the period in dispute and it argues that the test for CPP-D benefits is different from that of entitlement to IRBs. Finally, the respondent relies on the findings of its s. 44 psychological, neurological, physiatry and functional capacity assessors, all of whom found that the applicant did not meet the test for entitlement to pre-104 week IRBs.
Causation
22Although the respondent raises the issue of causation, I note that its s. 44 psychological assessor Dr. Amena Syed linked the subject accident to the applicant’s psychological impairments. In her December 20, 2019 s. 44 report, Dr. Syed found that the applicant was “psychologically compromised and fragile” at the time of the accident and that the additional stress of the accident taxed her psychological resources. Dr. Syed found with a high degree of certainty that the accident contributed to the applicant’s clinical presentation. Dr. Syed confirmed this opinion in an addendum dated February 27, 2020. Similarly, the treatment records from CAMH note that the applicant reported that her depression was at an “all-time low” since June 2018 and that there were multiple subacute triggers including sequential losses of family members and the subject accident.
23The applicant’s family physician also referred the applicant for an additional psychiatric assessment with Dr. Zakaria at Lakeridge Hospital. In a February 12, 2020 CNR entry, Dr. Zakaria noted that the applicant had previously been seen in 2016 for major depressive disorder, until January 2017. However, since the June 2018 accident and her ongoing pain, the applicant reported being increasingly more depressed, with panic attacks. The applicant was diagnosed with major depression, on the background of residual chronic depression and a history of recurrent depression.
24The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. I find that the applicant has led sufficient evidence to establish that the accident was a “necessary” cause of her depressive symptoms post-accident.
Substantive entitlement to IRBs
25I further find that the applicant has led sufficient evidence to establish that her psychological impairments rendered her substantially unable to complete the essential tasks of her employment. During the 104 week period post-accident, the applicant was diagnosed with major depression by her treating psychiatrist. The respondent’s s. 44 psychological assessor Dr. Syed also diagnosed the applicant with major depressive episode and an adjustment disorder with anxiety, but further found that the applicant’s impairment was not of a sufficient incapacitating degree to substantially impair her pre-accident employment.
26However, I place significant weight on the findings of the applicant’s treating physicians. In October 2019 her treating psychiatrist at CAMH, Dr. Qi Xue, noted the applicant’s functional impairment such as her inability to return to work. Further, in a reporting letter dated February 12, 2020 Dr. Zakaria at Lakeridge Hospital similarly found that the applicant “remains disabled from work independently at this point.” I find Dr. Zakaria’s report to be persuasive as he had previously treated the applicant for her prior depressive episode in 2016. Finally, the applicant’s family physician Dr. Eng completed her application for CPP-D benefits during the period in dispute. Dr. Eng confirmed the applicant’s depression and identified its precipitating event as being the June 3, 2018 accident. Dr. Eng identified her functional limitations as being unable to focus on tasks, poor motivation, unable to handle stress at work and poor decision-making.
27The applicant’s job description as a legal assistant at a law firm identifies her needed skills as including the ability to effectively multi-task, be detail oriented to keep track of multiple files and the ability to demonstrate judgement and solve problems. I agree with the applicant that her major depressive episode causing an inability to focus, lack of motivation and inability to handle stress, rendered her substantially unable to complete these tasks. As such, the applicant has established entitlement to pre-104 week IRBs from January 19, 2020 to June 3, 2020.
28Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
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.
OCF-18 dated November 27, 2020 for a neurological assessment is not reasonable and necessary
30The applicant has not provided any specific submissions on why a neurological assessment is reasonable and necessary, other than to state that the OCF-18 has been incurred and a corresponding report was prepared.
31While the applicant had reported cognitive impairments and post-concussive symptoms to her family physician in the months post accident, from my review of the CNRs, such complaints did not continue throughout 2019 or 2020. Rather, at that point the applicant consistently reported psychological symptoms and pain complaints.
32Further, the applicant was referred by her family physician Dr. Eng, to a neurologist with respect to her multifocal somatic pain and left hand numbness. In a reporting letter dated January 20, 2021, Dr. Roussev, neurologist, found that there were no signs of myelopathy or progressive pain for radiculopathy. The applicant has not provided any specific submissions as to why an additional neurological assessment was required two and a half years post-accident. Without any specific submissions on the treatment plan, I find that the applicant has not met her burden to prove that it is reasonable and necessary.
OCF-18 dated November 27, 2020 for a functional abilities examination is partially reasonable and necessary
33I find that the applicant has demonstrated that the OCF-18 for a functional abilities examination (“FAE”) is partially reasonable and necessary.
34The applicant is claiming entitlement to an IRB, and in the years post-accident consistently reported to all treating physicians and assessors that she was unable to return to work and suffered from ongoing functional impairments. The stated goals of the proposed assessment were to identify the applicant’s current physical ability to manage her job, and how to develop appropriate strategies to return to work. The corresponding s. 25 report assessed the physical demands of the applicant’s job and opined as to both pre-and post-104 week IRBs. The respondent conducted its own FAE assessment in support of its IRB denial. Given the applicant’s consistent reports of functional impairments and inability to return to work, I find the proposed FAE to be reasonable and necessary.
35As such, I find that items specified in Line 1 and Line 2 of the OCF-18 are reasonable and necessary, being the FAE assessment and OCF-18 form completion, in the amount of $2,200.00. However, the applicant has not provided any submissions or evidence with respect to Line 3 of the OCF-18 – transportation to treatment in the amount of $275.00. As such, the applicant has failed to discharge her onus to establish that the $275.00 cost is reasonable and necessary.
OCF-18 dated November 27, 2020 for a chronic pain assessment is partially reasonable and necessary
36The CNRs of the applicant’s family physician Dr. Eng establish that in the years post-accident the applicant consistently reported ongoing pain in her neck, back, shoulders, knees and elbow. In November 2020 she was referred by Dr. Eng to Dr. Jing at Athlete’s Care to assess her bilateral shoulder and elbow pain. Dr. Jing noted that the assessment was complicated by the applicant’s widespread pain and hyperalgesia. He queried whether there was an underlying chronic pain syndrome or fibromyalgia. The OCF-18 in dispute was subsequently submitted, with the stated goals being pain reduction, increased range of motion, increase in strength and further treatment recommendations.
37The respondent submits that the applicant was already receiving treatment from a number of OHIP funded physicians for her chronic pain issues. As such, it submits that the proposed assessment is not payable pursuant to s. 47(2) of the Schedule. I agree with the applicant’s submissions and the reasoning in her cited Tribunal decision, G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ONLAT), that s. 47(2) does not preclude the applicant from seeking an additional assessment. Although the applicant had received cortisone injections in her knees and shoulders and saw a number of OHIP funded physicians, the applicant’s ongoing pain complaints were subject to ongoing investigation. Dr. Jing queried whether the applicant suffered from chronic pain. Given the complex nature of the applicant’s ongoing pain complaints, I agree with the applicant that the proposed chronic pain assessment was reasonable and necessary.
38As such, I find that items specified in Line 1 and Line 3 of the OCF-18 are reasonable and necessary, being the chronic pain assessment and OCF-18 form completion, in the amount of $2,200.00. However, the applicant has not provided any submissions or evidence with respect to Line 2 of the OCF-18 – transportation to treatment in the amount of $185.00. As such, the applicant has failed to discharge her onus to establish that the $185.00 cost is reasonable and necessary.
The outstanding balance of $673.26 of the OCF-18 dated February 25, 2021 for psychological services, is not reasonable and necessary
39The applicant submitted an OCF-18 in the amount of $4,239.55 for 15 sessions of psychological treatment. The respondent partially approved the treatment plan in the amount of $3,566.29 for 12 out of the 15 proposed counselling sessions. The partial approval letter cited the s. 44 psychological assessment report of Dr. Syed, who had recommended 12 sessions of psychological treatment.
40I find that the applicant has not provided sufficient evidence to establish that the additional three sessions are reasonable and necessary. She argues that the respondent cannot simply rely on its s. 44 assessment to approve only 12 sessions. However, no specific submissions or evidence was provided by the applicant to establish why the additional three sessions were required. The onus rests with the applicant to establish why the outstanding sessions were required, rather than on the respondent to disprove it. Without specific submissions on this point, I find that the applicant has not established that the additional three sessions were reasonable and necessary.
OCF-18 dated June 2, 2022 in the amount of $4,239.55 for psychological services, is reasonable and necessary
41The respondent denied this subsequent psychological treatment plan by way of letter dated July 15, 2022. The correspondence referenced the psychological progress report and reassessment reports of Dr. McDowall for the previously completed sessions. The respondent noted that despite completing a number of psychological treatment sessions, there was little or no improvement in the applicant’s condition. The respondent questioned the efficacy, reasonableness and necessity of continued treatment and denied the OCF-18 in dispute.
42The applicant argues that Dr. McDowell’s progress and reassessment reports establish that she still suffered from severe anxiety and depression. She submits that her test scores on the Beck Anxiety Inventory and Beck Depression Inventory demonstrate a need for continued treatment in order to avoid further deterioration. The applicant further argues that in denying the applicant’s claim, the respondent did not seek an additional s. 44 psychological assessment, or request a paper review to see how the applicant could be best treated.
43I agree with the applicant that an additional course of psychological treatment is reasonable and necessary. Dr. McDowell noted that during initial treatment, scores on many indexes can increase based on the nature of the therapeutic process and the client’s exposure to underlying emotional realities. However, Dr. McDowell noted that continued therapeutic treatment would continue to introduce appropriate coping tools and help solidify supportive habits.
44While I agree with the respondent that it is not required to conduct an insurer’s examination for every treatment plan, I note that in her last s. 44 assessment report conducted six months before the OCF-18 in dispute was submitted, Dr. Syed found that additional psychological treatment was reasonable and necessary. This report considered a previous OCF-18 dated October 13, 2021 in the same amount. Dr. Syed found that the applicant was suffering from adjustment disorder with mixed anxiety and depressed mood, but cautioned that she was at risk of developing major depressive disorder should her condition not improve. Dr. Syed found that the prior 15 sessions of psychological treatment were reasonable and necessary given the results of the evaluation.
45After completing two courses of psychological treatment from May 2021 to June 2022, the applicant continued to report ongoing psychological impairments. The respondent’s own assessor had noted in December 2021 that the applicant was at risk of developing major depressive disorder. The medical record establishes that the applicant had suffered from recurrent depressive episodes, and the respondent’s IE assessor had found that the applicant was psychologically compromised and fragile at the time of the accident. Although the respondent points to the fact that the applicant has not shown improvement with two courses of psychological treatment, given the applicant’s complex psychological history, I find that the proposed fifteen sessions of additional psychological treatment are reasonable and necessary to see if the applicant can sustain improvement through additional counselling.
OCF-18 dated July 20, 2021 in the amount of $14,933.19 for a chronic pain program and transportation, is not reasonable and necessary
46The applicant submitted an OCF-18 in the amount of $14,933.19 for a chronic pain program. It is comprised of $4,887.99 for psychological treatment, $4,436.16 for chiropractic treatment, $2,245.04 for physiotherapy treatment, $2,800.00 for transportation and $200.00 for OCF-18 completion.
47I agree with the respondent that the OCF-18 proposes a duplication of services. The psychological services proposed in the chronic pain program were to be provided by Dr. McDowell. However, Dr. McDowell had already submitted a separate treatment plan for psychological treatment, which had been approved by the respondent in October 2021.
48With respect to physiotherapy and chiropractic services, I agree with the respondent that the applicant consistently reported over the years that she did not find physiotherapy to be helpful for her pain. She reported to Dr. Jing at Athlete’s Care in November 2020 that physiotherapy did not help. However, the applicant did report throughout 2021 that cortisone and nerve block injections helped her pain. The applicant does not direct me to any evidence that at the time of the submission of the OCF-18, her treating physicians were recommending physical therapy, as opposed to injections for pain. Further, I agree with the respondent that the applicant’s chronic pain assessment report by Dr. Brown is of limited persuasive value, as Dr. Brown did not conduct a physical examination of the applicant. Dr. Brown also expressly stated in his report that there are “no objective findings because the client was not directly examined as part of the assessment.”
49Finally, with respect to transportation costs the respondent submits that transportation expenses are not payable for the first 50km of the trip, pursuant to s. 3(1) of the Schedule, citing the Tribunal decision Wazir v. Aviva General Insurance Company, 2023 CanLII 93010 (ONLAT). The applicant did not provide any submissions on the issue of transportation expenses. As such, I agree with the respondent that the expenses are not authorized transportation expenses as outlined in section 3(1) of the Schedule.
50The applicant makes the additional argument that the respondent’s August 5, 2021 denial letter was deficient pursuant to s. 38(8) of the Schedule. She submits that the respondent used outdated medical information such as an old OCF-3 and out of date s. 44 assessments. I find the respondent’s denial letter is compliant with s. 38(8). While the correspondence did reference an outdated OCF-3, it also specifically cited the s. 44 psychological, neurological, FAE and physiatry assessments and summarized the assessors’ findings. It provided medical reasons for the denial and was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. The applicant may disagree with the stated reasons or with the fact that the respondent relied on previously obtained s. 44 assessments. However, that does not render a denial invalid.
Interest
51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on IRBs for the period in dispute, the OCF-18 dated June 2, 2022 for psychological services and the partial payment of the OCF-18s dated November 27, 2020 for the FAE and chronic pain assessments.
Award
52Under s. 10 of Regulation 664, 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. The applicant seeks an award on the basis that the respondent’s own psychological assessor diagnosed the applicant with a psychological impairment, that the respondent improperly relied on an old an OCF-3 to deny requested treatment plans, and that it did not conduct updated s. 44 assessments.
53I do not find that the applicant has established a basis for an award. The threshold for an award is high. Although I have found that the applicant is entitled to IRBs for the period in dispute and certain treatment plans, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. Moreover, I do not find the respondent’s reliance on its s. 44 assessments to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.
ORDER
54On the preliminary issue I find that the applicant is barred from proceeding with the issue of the payment of the OCF-21 dated July 25, 2023.
55On the substantive issues I find that:
i. The applicant is entitled to an IRB in the amount of $400.00 per week from January 19, 2020 to June 3, 2020, plus interest;
ii. The applicant is entitled to the OCF-18 dated June 2, 2022 for psychological services, plus interest.
iii. The applicant is partially entitled to the following treatment plans, plus interest, in the amounts specified below:
i. OCF-18 dated November 27, 2020 for a functional abilities evaluation in the amount of $2,200, plus HST;
ii. OCF-18 dated November 27, 2020 for a chronic pain assessment in the amount of $2,200, plus HST;
iv. The applicant is not entitled to the following treatment plans:
i. OCF-18 dated November 27, 2020 for a neurological assessment;
ii.
iii. outstanding balance of OCF-18 dated February 25, 2021 for psychological services;
iv. OCF-18 dated July 20, 2021 for a chronic pain management program; and
v. The respondent is not liable to pay an award.
Released: September 17, 2024
Ulana Pahuta
Adjudicator