Licence Appeal Tribunal File Number: 23-015618/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:
Bibi Sonnilal
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Rasha El Sissi
APPEARANCES:
For the Applicant:
Daniela Algieri-Boileau, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Bibi Sonnilal, the applicant, was involved in an automobile accident on February 2, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES in dispute
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding to a hearing on her entitlement to $1,295.00 for assistive devices, proposed by Mackenzie Medical Rehabilitation Centre (“Mackenzie”) in a treatment plan/OCF-18 dated April 29, 2020 (the “AD plan”) because the applicant failed to dispute her denial within the 2-year limitation period?
ii. Is the applicant barred from proceeding to a hearing on her entitlement to $1,977.05 for chiropractic services, proposed by Mackenzie in a treatment plan/OCF-18 dated July 16, 2020 (the “chiropractic plan”) because the applicant failed to dispute her denial within the 2-year limitation period?
SUBSTANTIVE ISSUES IN DISPUTE
3The substantive issues to be decided are:
i. Is the applicant entitled to $1,295.00 for assistive devices, proposed by Mackenzie in the AD plan?
ii. Is the applicant entitled to $1,977.05 for chiropractic services, proposed by Mackenzie in the chiropractic plan?
iii. Is the applicant entitled to $1,047.24 ($4,140.28 less $3,093.04 approved) for psychological services, proposed by Princeton Hills Medical (“Princeton”) in a treatment plan/OCF-18 (“psychological services plan”) dated December 21, 2021?
iv. Is the applicant entitled to $2,520.00 for an orthopaedic assessment, proposed by Princeton in a treatment plan/OCF-18 (“orthopedic assessment plan”) dated October 3, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4On the preliminary issue, I find that the applicant is barred from proceeding to a hearing on the AD plan and the chiropractic plan because she failed to dispute her denials within the 2-year limitation period, and I decline to exercise my discretion to extend the time period under section 7 of the Licence Appeal Tribunal Act (“LAT Act”).
5On the remaining substantive issues, I find that:
i. The applicant is not entitled to the unapproved amounts of the psychological services plan.
ii. The applicant is entitled to the orthopedic assessment plan, plus interest.
iii. No award is justified.
ANALYSIS
Time limit for commencing proceedings
6Under section 56 of the Schedule, an application under section 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
7To trigger the running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-Operators General Insurance Co., 2002 SCC 30 (“Smith”), the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person’s rights to dispute the denial; and the relevant time limits that govern that process.
8Section 54 of the Schedule states that the insurer shall provide the person with written notice of their right to dispute the refusal.
9Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. See, Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492 (“Manuel”).
10The four Manuel factors are not strict elements of a test that must each be met in order to grant an extension of time, but rather they act as a guide to determining the just decision in each case. Statutory limitation periods are to be given effect except in circumstances where a strict application of the time limit would work an injustice. The onus is on the applicant to establish reasonable grounds for an extension under section 7 of the LAT Act.
PRELIMINARY ISSUE
11The applicant submitted in evidence a denial letter of the respondent dated October 16, 2020. In this letter, the respondent stated that it refused to pay the benefits claimed under the AD plan, the chiropractic plan and one other plan not in dispute, because “treatment plans for physical rehabilitation have been approved since the date of the accident… with little improvement reported.” The letter stated that the respondent required an examination under section 44 of the Schedule to determine “if further facility based treatment is reasonable or necessary”. The letter provided notice of a s. 44 family medicine examination with Dr. Maria Nesterenko, general practitioner. A document entitled, “Statutory Accident Benefits claim – your right to dispute”, was attached to the letter.
12The respondent submitted that it issued a further denial letter dated November 24, 2020 based on the section 44 report of Dr. Nesterenko. The second letter stated that, based on Dr. Nesterenko’s findings, the AD plan and the chiropractic plan were not reasonable and necessary, and provided details. The letter also attached, “Statutory Accident Benefits claim – your right to dispute.” The respondent submitted that the two-year limitation period started on October 16, 2020 or, at the very latest, on November 24, 2020.
13This application disputing the respondent’s refusals to pay for benefits claimed under the AD plan and the chiropractic plan is dated December 22, 2023. This was over three years after last denial letter submitted in evidence. As such, the application was commenced well after the end of the two-year time limit for doing so under section 56 of the Schedule.
The refusals to pay the benefits under the plans were clear and unequivocal and advised the applicant of her right to dispute them.
14I find that the refusals to pay the benefits under the AD plan and chiropractic plan were clear and unequivocal. The letters dated October 16, 2020 and November 24, 2020 each referred to the disputed OCF-18/treatment plans and stated that “we’re not able to pay your benefits at this time” and indicated that no amount was payable of the benefits claimed.
15I also find that the respondent provided the applicant with written notices in each letter (in the form of the attachments entitled “Statutory Accident Benefits claim – your right to dispute”) advising her of her right to dispute the decision. These notices met the guidance in Smith and the requirements of section 54 of the Schedule. The written notices addressed the two-year time limit. They also explained the available dispute resolution process in clear steps and pointed the applicant to the Tribunal’s website.
16The respondent submitted that it initially denied the chiropractic plan by a letter dated July 16, 2020 on the basis that it was duplicative of previously approved but not completed treatment plans. In her reply, the applicant submitted that the respondent promised to review the chiropractic plan once the treatment from the previously approved treatment plans had been completed. Given my finding that the October 16, 2020 and the November 24, 2020 letters were clear and unequivocal refusals to pay the chiropractic plan, I do not find the existence of an earlier denial letter changes my analysis of the timeliness of the application.
17Thus, I find the applicant has not complied with section 56 of the Schedule with respect to the AD plan and chiropractic plan because she commenced her action more than two years after clear and unequivocal denials that also explained her right to dispute and the Tribunal’s dispute resolution services. She is therefore barred from proceeding with her claims for entitlement under the AD plan and the chiropractic plan.
Lack of medical reasons in the October 16, 2020 refusal does not extend the expiry of the time limit for commencing proceedings.
18The applicant submitted that the denials of the AD plan and the chiropractic plan in the October 16, 2020 letter were deficient under section 38(8) and section 44(5) of the Schedule because they lacked medical reasons. The applicant submitted that the October 16, 2020 letter contained other, non-medical reasons, but specifically disputed that it contained medical reasons. As such, the applicant submitted that the denials should not be considered as proper. The applicant further submitted that, since they were improper, they were not valid denials, so no limitation period was triggered.
19The respondent disputed that the denials in the October 16, 2020 letter were deficient. In addition, the respondent submitted that the letter dated November 24, 2020 provided extensive medical reasons based on the report of Dr. Nesterenko.
20I disagree with the applicant that the respondent must comply with the provisions in section 38(8) and section 44(5) of the Schedule in order to trigger the limitation period under section 56. This is not supported in the language of the Schedule or the decision of the Supreme Court of Canada in Smith, which are binding on me. The wording of section 56 is different from the wording of section 38(8) and section 44(5). The only requirement to trigger the 2-year time limit in section 56 is that the insurer must refuse to pay the amount claimed. Section 56 does not require medical reasons in order for the limitation period to begin. Smith requires straightforward and clear language, directed towards an unsophisticated person, a description of the most important points of the dispute resolution process, and the relevant time limits that govern the process.
No extension of the time limit for commencing proceedings is warranted.
21The applicant submits that there is merit to her case that justifies an extension of any limitation period under section 7 of the LAT Act. The applicant refers to her submissions that the respondent’s denials of the AD plan and chiropractic plan in its letter dated October 16, 2020 were deficient under section 38(8) and section 44(5) of the Schedule.
22I note that the applicant did not make any submissions or provide any evidence regarding the other factors of the Manuel guidance, i.e., besides the merit of her appeal of the respondent’s refusals on October 16, 2020. In particular, she did not address whether she had an intention to appeal within two years of the denials or explain the length of the delay in commencing proceedings, which was over a year after the statutory limit in section 56 of the Schedule elapsed. She did not argue that she relied on the respondent to review its July 2020 denial of the chiropractic plan. She did not discuss any circumstances or present evidence on why it would be unfair to hold her to the two-year timeline for commencing proceedings after the respondent refused to pay.
23The applicant submits that her preliminary issues should be decided in the same way as similar issues were decided in McPherson v. Aviva General Insurance, 2024 CanLII 67360 (ON LAT) (“McPherson”). In McPherson, the Tribunal exercised its discretion under section 7 of the LAT Act in favour of the insured because it found that there was merit to the insured’s appeal and that an injustice would be served by barring the insured from proceeding with her application. In McPherson, the merits were that the insurer had not met the requirements of section 38(8) of the Schedule with regard to the denial notices for the plans in dispute. The Tribunal found that the consequences of section 38(11) were triggered.
24Prior Tribunal decisions are not binding on me. In addition, I decline to follow McPherson because I do not agree with the application of the guidance in Manuel in that case. In McPherson, the Tribunal found there was no evidence of an intention to appeal and that the length of time it took for the applicant to submit the application was excessive; as well, the Tribunal found some prejudice to the respondent if the application was allowed past the two-year limitation. From this, I infer that the McPherson decision was based entirely on the fact that the denial notices did not meet the requirements of section 38(8) of the Schedule. There was no discussion of how or why, holding the insured to their statutory time limit for disputing the non-compliant refusals, would be unfair or unjust in the circumstances.
25I do not agree with the applicant’s position that the merits of her appeal alone, if it were allowed despite being untimely, are reasonable grounds to grant an extension of time under section 7. This would be inconsistent with the language of section 56 of the Schedule and the decision in Smith that the time limit starts from a clear and unequivocal denial and notice of dispute resolution rights. It would also disregard the weaknesses of her evidence as discussed above, i.e., lack of evidence regarding the other factors of the Manuel guidance besides the merit of her appeal.
26In her reply, the applicant stated that she had incurred the costs of the goods and services proposed in the AD plan and chiropractic plan in the period between October 16, 2020 and November 24, 2020. This submission relates to the consequences of a successful appeal on the merits, which she had already argued has merit. It does not address the other factors in the Manuel guidance.
27In addition, the respondent submits that MacPherson is distinguishable because the delay was only about 30 days in that case, compared to over a year in this case. The duration of the delay was not part of the reasoning in MacPherson, so I do not place weight on that submission.
28Statutory limitation periods are to be given effect except in circumstances where a strict application of the time limit would work an injustice. The applicant has not satisfied me, on a balance of probabilities, that strict application of the time limit would work an injustice in the circumstances her case. Therefore, she has not met her onus to establish that there are reasonable grounds under section 7 of the LAT Act for granting an extension of the limitation period prescribed in the Schedule. Accordingly, the applicant is barred from disputing her entitlement to the benefits claimed under the AD and chiropractic plan.
SUBSTANTIVE ISSUES
Law – Treatment plans
29To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
30It is well established that there must be some medical evidence to support the treatment proposed in the OCF-18/treatment plan besides the plan itself. In the case of a plan for an assessment, there must be some medical evidence to support further investigation of the condition.
Psychological Services Plan
31I find that the applicant has not met her onus to establish that the unapproved goods and services of the psychological services plan are reasonable and necessary.
32The psychological services plan dated December 21, 2021 proposed 12, 90-minute therapy sessions with a psychologist, Ms. Anna Kozina, a Gladshteyn Psychology Treatment Manual and one unit of documentation (i.e., completion of the OCF-18, etc.). These services were approved by the respondent and explained in a letter to the applicant dated June 3, 2022.
33The psychological services plan also included the following proposed services that were declined by the respondent in the same letter: 12 units of psychological testing, one unit of preparation and four units of documentation (progress reporting).
34The psychological services plan was proposed to treat the following injuries as a result of the accident: post-traumatic stress disorder and moderate depressive episode. Ms. Kozina, who completed the OCF-18, checked off in the affirmative for a prior disease, condition or injury that could affect the applicant’s response to the proposed treatment and referenced “the report”. Ms. Kozina also checked off in the affirmative that the applicant’s activities of normal life were impaired by the above injuries and referenced the “psychological assessment report completed on December 21, 2021 and January 31, 2022”. The goals of the plan in relation both to the applicant’s impairments and functioning were pain reduction, return to activities of normal living and return to pre-accident level of psychological functioning. It was noted that the applicant was not employed.
35The applicant submits that the psychological services plan is reasonable and necessary and should be approved in full because the respondent “previously approved 12 psychological treatments”. Further in reply, she submitted that “several of the items proposed were the same items that the applicant used at treatments previously approved and paid for by the respondent”. However, she did not provide any evidence about the previously approved psychological treatments. She did not provide any evidence specific to the proposed services that were not approved, such as the December and January psychological reports. It is well accepted that submissions are not evidence.
36The respondent submits that the applicant had been approved for and underwent a psychological assessment, and did not explain why she required 12 additional units of psychological testing, which were denied. The respondent also submits that it denied the claims for preparation and progress reporting because these were duplicative of the approved one unit of documentation for completion of the OCF-18, etc. in the same plan.
37By way of medical evidence, the applicant pointed to the clinical notes and records (“CNR”) of her family doctor Dr. Bai S. Cheng, from a few days after the accident to March 1, 2024. The applicant also pointed to her OCF-1 dated July 7, 2020. The applicant did not provide the psychological assessment reports referenced by Ms. Kozina in the psychological services plan.
38While Dr. Cheng’s CNR and the OCF-1 record the applicant’s psychological symptoms following the accident, they do not address the narrow issue before me of whether the denied claims for psychological testing, preparation and progress reporting are reasonable and necessary.
39The applicant has not provided any evidence to support her entitlement to the unapproved services under the psychological services plan besides the plan itself. As noted, above, this is insufficient to meet her burden of proof.
40As the applicant has not met her onus to establish that the unapproved services are reasonable and necessary, I find that she is not entitled to them.
Law – Section 38(8) and Section 38(11) of the Schedule
41I find that the respondent’s denial of the psychological services plan met the requirements of section 38(8) of the Schedule and therefore, that the applicant has not established that the plan is payable under section 38(11) of the Schedule
42Section 38(8) of the Schedule 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 as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
43If an insurer fails to comply with its obligations under section 38(8), the following consequences set out in section 38(11) of the Schedule are triggered as a mandatory consequence:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall 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 after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
44It is the applicant’s position that the respondent’s letter dated June 3, 2022 was deficient under section 38(8) of the Schedule. She refers to her submissions in connection with the preliminary issues. These are primarily focused on the requirement to provide medical and any other reasons for the denial of treatment.
45She cited M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) for the proposition that the letter needed to include specific details about her condition forming the basis for the respondent’s denial or the information about her condition that the respondent did not have but required, as well as the specific benefit or determination at issue and the section of the Schedule on which the respondent relied. She also cited 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) for the proposition that medical reasons are required to provide a principled rationale that is based fairly on her file. Finally, she referred to McPherson in which the Tribunal found that the denial letter had not listed the applicant’s injuries or referred to them specifically.
46The applicant accepts that the June 3, 2022 letter included non-medical reasons for the denial of her claims for psychological testing, preparation and progress reporting, but submits that the letters did not include medical reasons.
47I find that that the June 3, 2022 letter included specific details about the basis for the respondent’s denial that cited the applicant’s psychological condition. The letter referred to Ms. Kovina as the applicant’s treating health care provider and stated that 12 psychological treatments, documentation and a Gladshteyn Psychological Treatment Manual had been approved. In connection with the decline of preparation and progress reporting services, the letter provided a principled reason for the refusals. It explained those services were included with the $200.00 approved for documentation and referred to the Professional Services Guideline for details.
48In totality, I find that the letter provided medical and other reasons sufficient to allow the applicant to understand if she should dispute the refusals or not.
49The application of the applicant indicates that the psychological services plan was submitted to the respondent on May 20, 2022. While there is no evidence of when the respondent received the plan, the respondent responded within 10 business days of May 20, 2022 (i.e., on June 3, 2022) and therefore, I find it met the timeliness requirement of section 38(8) of the Schedule.
50For these reasons, I find that the respondent’s denial of the psychological services plan met the requirements of section 38(8) of the Schedule. As such, no consequences under section 38(11) are triggered because the denials of psychological testing, preparation and progress reporting were in accordance with section 38(8).
Orthopedic Assessment Plan
51I find that the applicant is entitled to the orthopedic assessment plan because she was experiencing lingering musculoskeletal (“MSK”) symptoms as a result of the accident that warranted further investigation and treatment recommendations.
52The orthopedic assessment plan was signed by Ms. Jennifer Violante, chiropractor, on October 3, 2022. It proposed the following: an orthopedic assessment, file review, report formulation and writing, completion of the OCF-18 and transportation. The purpose of the assessment was to evaluate and diagnose the MSK injuries that the applicant sustained in the accident in order to provide treatment recommendations (pain reduction and increase in strength and range of motion). The functional goal was to identify impairments and return the applicant to her activities of normal living. It noted that the applicant reported difficulties with prolonged sitting, standing, walking, squatting, kneeling, pushing, pulling and prolonged overhead activity. The assessment would be completed by Dr. Tajedin Getahun, orthopedic surgeon. The plan included a list of accident related physical, neurological and psychological injuries and sequelae. The MSK injuries were: injury of muscle and tendon at the neck level; sprain and strain of thoracic spine; dislocation, sprain and strain of joints and ligaments of the pelvis, knee and lumbar spine; and sprain and strain of the sacroiliac joint, shoulder joint and wrist. The plan also indicated that barriers to recovery were pre-existing health condition, severity and multiplicity of injuries, and psychological stress and anxiety.
53The applicant submits that the CNR of Dr. Cheng show that the applicant has continuously suffered from multiple physical and orthopaedic impairments for which he recommended physiotherapy and chiropractic treatment. She submits that her pre-existing knee injury (a total knee replacement) was exacerbated by the accident, and that she has been diagnosed with right suprapatellar bursitis and treated on multiple occasions for her lingering knee pain by Dr. Richard Kaminker, orthopaedic surgeon. She also submits that she was diagnosed with degenerative disc disorder in her cervical spine, for which she provided medical evidence.
54The respondent submits that the applicant suffered predominantly soft tissue injuries in the accident and that there is no evidentiary basis for the applicant’s submission that her ongoing MSK complaints are accident related. The respondent submits that it has not been conclusively established in the medical records that the accident had any significant impact on her pre-existing knee issues. The respondent points to the conclusion of the physical examination of Dr. Nesterenko on November 5, 2020, in support of its submission that the applicant does not have an accident-related physical impairment.
55The applicant pointed to the consultation note of Dr. Kaminker on November 9, 2019 recording that the accident may have worsened the applicant’s symptoms of right knee pain and instability for which she was using a brace and attending physiotherapy. Dr. Kaminker recommended ongoing rehabilitative treatment. The applicant pointed to a further consultation note from Dr. Kaminker on February 17, 2021 recording the applicant’s continued complaints of diffuse knee pain since the accident for which she continued to be treated non-operatively. He recommended continued management with intermittent physiotherapy, analgesics and anti-inflammatories as appropriate.
56Having reviewed the CNR of Dr. Cheng in evidence, I note that after the accident the applicant had numerous MSK complaints such as suprapatellar bursitis, swelling in the Popliteal area behind the knee, a mass in the biceps femoris (hamstrings), plantar fasciitis and Achilles tendonitis, as well as shoulder pain. In the CNR, the mechanism for these issues is not addressed and there is no evidence to connect them to the physical injuries the applicant suffered in the accident. However, together with Dr. Kaminker’s notes, I find they demonstrate the complexity of the applicant’s accident-related MSK issues because she had pre-existing, accident-related and concurrent MSK issues.
57The respondent submitted in evidence Dr. Nesterenko’s family medicine section 44 report dated November 19, 2020. I note this report pre-dates the orthopedic assessment plan in dispute; it considered the AD plan and chiropractic plan discussed above, as well as a third plan not in dispute for chiropractic and massage therapy. Dr. Nesterenko reviewed lumbar spine X-rays (unremarkable) and cervical spine X-rays (showing degenerative disc disease) taken on the date of the accident. She also reviewed Dr. Cheng’s CNR, including Dr. Kaminker’s note dated November 9, 2019. Dr. Nesterenko conducted a 30-minute physical and neurological exam with some findings. She interviewed the applicant who reported pain in her neck, upper and lower back, left and right shoulder, right knee and right ankle of 7/10 or 8/10 in intensity. She recorded that the applicant reported 10% improvement with respect to her post-accident pain symptoms at the time.
58Dr. Nesterenko diagnosed the applicant with whiplash and sprains and strains as a result of the accident. She opined that the applicant’s pre-existing pathology in the cervical spine and right knee “initially delayed healing of her initially sustained physical injuries in the subject motor vehicle accident. However, at this point in time, now over 21 months since the date of loss, any such effect would be expected to have completely resolved.” She recommended the applicant obtain additional diagnostic imaging to investigate her complaints.
59With respect to the applicant’s right knee, I find that Dr. Nesterenko’s opinion is contradicted by Dr. Kaminker’s later recommendation in February 2021 that the applicant should continue to manage her accident-related pain and instability with intermittent physiotherapy and medication. I prefer Dr. Kaminker’s opinion because it is closer in time to the date of the orthopedic assessment plan in dispute and because he was her treating orthopedic surgeon since the beginning of Dr. Cheng’s CNR in evidence (2016) and ordered diagnostic images and testing.
60I find that the medical evidence submitted by the applicant demonstrates the complexity and persistence of the applicant’s MSK complaints after the accident. I find that this evidence, particularly the consultation notes of Dr. Kaminker, supports further investigation of the applicant’s accident-related MSK impairments to identify barriers to improvement and propose additional treatment options, in alignment with the goals of the plan.
61Therefore, on the totality of the evidence, I find, on a balance of probabilities, that the orthopedic assessment plan is reasonable and necessary.
62The applicant submitted that the orthopedic assessment plan denial letter dated November 17, 2022 did not meet the requirements of section 38(8) of the Schedule. As I have found that the applicant is entitled to the orthopedic assessment plan, it is not necessary for me to address whether the respondent’s denial letter complied with section 38(8) of the Schedule.
Interest
63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the amount due under the orthopedic assessment plan.
Award
64The 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. The onus is on the applicant to justify an award.
65I find that no award is justified.
66The applicant submits that the respondent did not adjust her file in consideration of the totality of evidence available and chose to rely selectively on reports that “tended to support termination”. The applicant submits that the respondent had “everything it needed to reconsider its position and approve the Treatment Plans in dispute” but did not, unreasonably and inappropriately. The applicant submits that she was accordingly limited in receiving required benefits and assessments, disrupting her healing process.
67The respondent submits that an award is only given where the delay or withholding of benefits by the insurer is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The respondent submits that improper denial of a benefit is not a sufficient basis on which to grant an award. Finally, the respondent submits that the applicant did not point to any specific mishandling of her claim to justify a special award.
68The letter dated November 17, 2022 declining the orthopedic assessment plan stated that the applicant’s MSK impairments had been identified throughout her recovery by her treating practitioners. The letter stated that it did not appear that three years after the injury an orthopedic assessment would provide insights beyond what has already been identified in the medical documents on file.
69I find this is a case where the applicant and respondent disagree based on the medical documents on file. This is not a sufficient basis for an award.
70Therefore, I find no award is justified.
ORDER
71For the reasons above, I order that:
i. The applicant is barred from disputing her entitlement to the AD plan and the chiropractic plan pursuant to s. 56 of the Schedule;
ii. The applicant is not entitled to the unapproved amounts of the psychological services plan;
iii. The applicant is entitled to the orthopedic assessment plan, plus interest; and
iv. No award is justified.
Released: October 8, 2025
Rasha El Sissi
Adjudicator