Mungeni v. Aviva Insurance Company of Canada, 2025 CanLII 10780

Citation: Mungeni v. Aviva Insurance Company of Canada, 2024 ONLAT 22-012218/AABS

Licence Appeal Tribunal File Number: 22-012218/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:

Godfrey Mungeni

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Carlyle Mazankowski, Counsel

For the Respondent: Ibrahim Farag, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Godfrey Mungeni, the applicant, was involved in an automobile accident on July 15, 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, Aviva 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. Is the applicant entitled to the amount of $33.00 ($229.93 less $196.93 approved) for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan (“OCF-18”) submitted October 28, 2020?

ii. Is the applicant entitled to the amount of $49.50 ($549.45 less $499.95 approved) for physiotherapy services from Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on December 17, 2020?

iii. Is the applicant entitled to the amount of $33.00 ($1,417.70 less $1,384.70 approved) for physiotherapy services from Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on January 15, 2022?

iv. Is the applicant entitled to the amount of $33.00 ($1,417.70 less $1,384.70 approved) for physiotherapy services from Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on January 28, 2022?

v. Is the applicant entitled to the amount of $2,851.68 for physiotherapy services from Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on April 27, 2022?

vi. Is the applicant entitled to the amount of $2,260.00 for a chronic pain assessment from Princeton Hill Medical Assessments Inc. in an OCF-18 submitted on July 26, 2022?

vii. Is the applicant entitled to the amount of $2,520.00 for a physiatry assessment proposed by Princeton Hill Medical Assessments Inc. in an OCF-18 submitted on August 9, 2022?

viii. Is the applicant entitled to the amount of $2,520.00 for a neurological assessment proposed by Princeton Hill Medical Assessments Inc. in an OCF-18 submitted on September 22, 2022?

ix. Is the applicant entitled to interest on any overdue payment of benefits?

x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xi. Is the applicant liable to pay costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023, (the “Rules”)?

RESULT

3The applicant is not entitled to the OCF-18s for physiotherapy services dated October 28, 2020, December 17, 2020, January 15, 2022, and January 28, 2022, and to the OCF-18 for a neurological assessment.

4The applicant is entitled to the OCF-18 for physiotherapy services dated April 27, 2022, the chronic pain assessment, and the physiatry assessment, plus interest.

5The applicant is not entitled to an award.

6The respondent is not entitled to costs.

PROCEDURAL ISSUES

The respondent’s motion to strike some of the applicant’s submissions

7The respondent’s motion to strike paragraphs 12, 24, 30 and 31 of the applicant’s reply written hearing submissions is denied.

8On April 12, 2024, the respondent filed a Notice of Motion requesting that the Tribunal strike paragraphs 12, 24, 30, and 31 of the applicant’s reply written submissions from the hearing record. It argues that the applicant has submitted new and unsupported information, in his reply submissions, and as a result, it takes the position that the applicant is splitting his case. The respondent relies upon the Supreme Court of Canada decision in R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466 (“Krause”) to support its position. The respondent further argues that the applicant’s reply submissions do not comply with the July 4, 2023 Case Conference Report and Order (“CCRO”) because it used a smaller font size to draft new arguments and that the applicant raised issues not listed on the CCRO.

9The applicant disagrees that paragraphs 12, 24, 30, and 31 of his reply hearing submissions should be struck because it is his position that he submitted a proper reply as it does not contain new evidence and directly responds to the arguments raised by the respondent in its submissions.

10The respondent’s request to strike paragraphs 12, 24, 30, and 31 of the applicant’s reply written submissions is denied.

a) Paragraphs 12 and 24

11The respondent argues that the applicant submitted “new but unsupported information” in his reply submissions at paragraph 12. In paragraph 12, the applicant submitted that Dr. Galati had a phone call with the applicant advocating physiotherapy for his accident-related injuries. I find that the applicant’s reply submission at paragraph 12 to be proper, as the applicant was rebutting the assertion made by the respondent that the applicant reported pain to his family doctor only once in 2020, and three times in total. Paragraph 12 of the applicant’s reply submissions is one of a series of rebuttals highlighting the applicant’s attendance to his family practitioner, referencing evidence that was included and tabbed in the applicant’s initial submissions.

12The respondent also argues that the applicant introduced “new but unsupported” arguments in paragraph 24 of his reply submissions. I find that the applicant’s reply submission at paragraph 24 is proper for the following reasons. The applicant submitted in his initial hearing submissions that, should he undergo a chronic pain assessment, then he would likely be found to meet several of the criteria under the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6^th Edition (“AMA Guides”). The applicant subsequently provided some examples of the anticipated findings. The respondent, in its hearing submissions, took the position that the applicant must demonstrate that there is a reasonable chance that he may have chronic pain syndrome warranting further investigation. The respondent further argued that to assess the likelihood that the applicant may have chronic pain, the Tribunal will assess whether the applicant meets at least three of the six criteria under the AMA Guides. As such, the respondent argues that the applicant must make substantive submissions with respect to the AMA Guides, and in this case, did not do so. The applicant’s reply submissions respond to the respondent’s assertion by stating that he is not required to address the criteria under the AMA Guides to establish entitlement to a treatment plan for a chronic pain assessment, but in any case, provided further examples of how he would likely meet same. I find that the applicant’s reply submissions build on his previous examples of how he will likely meet the AMA Guides and do not contain evidence that has not already been properly submitted in the applicant’s initial submissions.

13In referring to the AMA Guides the applicant was only responding to the issue raised by the respondent and not introducing new evidence and/or arguments. While the AMA Guides are clear that three of the six criteria are required for a diagnosis of chronic pain, this is not required to be proven to be entitled to a chronic pain assessment. As such, while the Tribunal may look to the AMA Guides when determining if an applicant has chronic pain, the Tribunal is not required to use the AMA Guides. Neither is the applicant in arguing entitlement for a chronic pain assessment.

14The respondent also argues that the applicant, in his reply submissions at paragraph 24, failed to comply with the CCRO and used significantly smaller font size to draft new arguments. It is unclear from the respondent’s submissions and reply submissions how this would have an impact on the ability for it to respond to the applicant’s claim. While I agree the use of smaller font is contrary to the CCRO, I will not strike paragraph 24 on this ground, as the respondent did not establish how it would be prejudiced.

b) Paragraphs 30 and 31

15The respondent’s request to strike paragraphs 30 and 31 of the applicant’s reply written submissions on the grounds that they seek relief that is not listed in the CCRO is denied.

16While I appreciate the respondent’s argument that the applicant raised issues not within the CCRO on reply, I do not agree that it prevented the respondent from adequately defending its position. The applicant raised issues with respect to the length and timeliness of the respondent’s submissions. This could not have been raised as an issue and listed on the CCRO or in the applicant’s initial written submissions, as it simply did not exist at that time. Therefore, I am not persuaded that the respondent would be prejudiced by allowing paragraphs 30 and 31 of the applicant’s reply submissions. In any event, even if I am wrong in my analysis of the respondent’s request to strike paragraphs 30 and 31, I address these paragraphs below.

17For all these reasons, the respondent’s motion is denied.

18The respondent also requested costs under Rule 19 of the Rules and I will address this below.

The respondent’s submissions will be considered

19The applicant’s request that the Tribunal not consider the submissions of the respondent is denied.

20The applicant argued in his reply written submissions, dated April 5, 2024, that the respondent’s written submissions exceeded the 10-page limit prescribed by the CCRO and were sent at 7:12pm on March 28, 2024, after the deadline of 5:00 pm.

21When weighing the prejudice to the parties, I find that the respondent would be severely prejudiced if portions of its submissions were otherwise excluded in this matter. Despite the length of the respondent’s submissions and the time that the submissions were served, the applicant was able to file his reply on time and therefore, has failed to demonstrate how he is prejudiced by the respondent’s lengthy and late submissions.

22For these reasons, I will consider the respondent’s submissions.

The applicant’s OCF-18 forms

23The respondent, in its submissions, raised concerns that the applicant did not include all but the OCF-18 for physiotherapy services dated April 17, 2022, in its initial submissions.

24The applicant, in his reply submissions dated April 5, 2024, provided the OCF-18s with respect to the issues in dispute. Despite raising concern in its initial written hearing submissions, the respondent did not further object in its motion materials the inclusion of the OCF-18s in the applicant’s reply submissions.

25As such, I have considered the OCF-18s when rending my decision, as they are required to determine the reasonableness and necessity of the issues in dispute.

ANALYSIS

The applicant is not entitled to the unapproved portions of the four partially approved OCF-18s for physiotherapy services

26I find that the applicant has not proven, on a balance of probabilities, that the balances for these physiotherapy service treatment plans are reasonable and necessary.

27To receive payment for a treatment and assessment plan under s. 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.

28The OCF-18s for physiotherapy dated October 28, 2020, December 17, 2020, January 15, 2022, and January 28, 2022, were partially approved by the respondent, with the denied portion of each OCF-18 being the cost of Personal Protection Equipment (“PPE”).

29The applicant submits that the PPE requested in the OCF-18s was for the period during the COVID-19 pandemic, and PPE was required when attending any medically necessary appointments. The applicant submits that the cost of the PPE is an accepted professional protocol captured in the FSCO decision of Amoa-Williams v Allstate Insurance Co. of Canada, 2000 ONFSCDRS 96 (“Amoa-Williams”). The Applicant further relies on the Tribunal decision in Moravcikova v Aviva Insurance Company of Canada, 2023 CanLII 40089 (ON LAT) (“Moravcikova”), where the Tribunal found that the applicant in that matter was entitled to the cost of PPE as it was reasonable and necessary.

30The respondent relies on two Tribunal decisions, Vila v. Aviva Insurance Company, 2023 CanLII 50529 and Macintosh v Intact Insurance, 2024 CanLII 10511 (ON LAT), in which the Tribunal held that “PPE is captured by administrative and overhead costs” and is therefore not payable.

31I am not bound by Tribunal decisions; however, I distinguish Amoa-Williams and Moravcikova from the present case and refer to the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”) which state that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms. While the applicant argues that it was the height of the COVID-19 pandemic at the time the proposed treatment plans were submitted, I find that PPE was an “expense related to professional services” as referred to in the Schedule, and, therefore, is not reasonable and necessary.

32As such, I find that the applicant has not proven, on a balance of probabilities, that the denied portions of the OCF-18s for physiotherapy dated October 28, 2020, December 17, 2020, January 15, 2022, and January 28, 2022, for PPE are reasonable and necessary.

The applicant is entitled to the April 27, 2022 OCF-18 for physiotherapy services

33I find the applicant has proven, on a balance of probabilities, that the April 27, 2022 OCF-18 for physiotherapy service is reasonable and necessary.

34The OCF-18, completed by chiropractor, Ayden Banibashar, dated April 27, 2022, sought funding for 16 sessions of chiropractic and massage treatment. The OCF-18 identifies treatment goals of pain reduction, increased range of motion, increase in strength, to return to activities of normal living, and to return to modified work activities.

35The applicant submits that the proposed OCF-18 is reasonable and necessary because physiotherapy has provided 10-20% improvement in his symptoms. The applicant also submits that he has been recommended physiotherapy by his family doctor, Dr. Matthew Galati, and s. 25 physiatrist, Dr. Dinesh Kumbhare.

36The respondent submits that the applicant has not put forward any evidence that further chiropractic treatment will assist in treating his accident-related complaints. The respondent relies on the s. 44 physiatry reports of Dr. John Heitzner, dated March 16, 2022, and April 1, 2022, who opined that the applicant had reached maximum medical recovery and further treatment would not be reasonable and necessary.

37I give little weight to the s. 25 assessment report of Dr. Kumbhare, dated April 26, 2023, with respect to this proposed treatment plan, as this report was completed a year after the subject treatment plan was submitted on April 27, 2022. I find that this report does not speak to the applicant’s need for physical therapy in April 2022 given the length of time that had elapsed since the date of the proposed treatment plan and the date of Dr. Kumbhare’s assessment.

38I am also less persuaded by the report of s.44 physiatry assessor, Dr. Heitzner, dated March 12, 2022, and addendum dated April 1, 2022, despite this assessor finding that the applicant has reached maximum medical improvement for the soft tissue injuries resulting from the accident. When weighing the evidence of Dr. Heitzner against that of the applicant’s family practitioner, Dr. Galati, I prefer the latter. I find that the clinical notes and records (“CNRs”) of Dr. Galati support that need for the proposed treatment as Dr. Galati has endorsed physiotherapy around the date the disputed treatment plan was submitted for consideration by the respondent. Dr. Galati reported on January 4, 2022, that the applicant should “continue with physio.” On May 10, 2022, the applicant reported ongoing lower back pain. On August 4, 2022, and September 14, 2022, the applicant again reported lower back pain and Dr. Galati recommended “physio” on both attendances. I find that the evidence of Dr. Galati contradicts the opinion of Dr. Heitzner. At this juncture, I find that the evidence of the applicant’s family doctor provides a more comprehensive clinical history and ought to weigh more than that of a one-time in person assessment, and subsequent paper review.

39For clarity, while Dr. Galati does not specifically opine on chiropractic treatment or massage therapy, Dr. Galati does recommend “physio”. I find that, on a balance of probabilities, these treatment modalities are within the ambit of physical therapy with the aim of goals of pain reduction, increased range of motion, increase in strength, among other things, and as such, is reasonable and necessary.

40Given the above, I find that the applicant has proven, on a balance of probabilities, that the treatment plan for physiotherapy services, dated April 27, 2022, is reasonable and necessary.

The applicant is entitled to the OCF-18 for a chronic pain assessment

41I find that the applicant has proven, on a balance of probabilities, that the proposed chronic pain assessment is reasonable and necessary.

42The OCF-18, completed by physician Dr. Michael Gofeld, dated July 26, 2022, sought funding for a chronic pain assessment. The OCF-18 identifies treatment goals of pain reduction, increased range of motion, and a return to activities of normal living.

43The applicant submits that the reasonableness and necessity of the chronic pain assessment is supported by physiatrist, Dr. Kumbare, who opined in a report dated April 26, 2023, that the applicant requires an assessment with a chronic pain specialist. Moreover, the applicant argues that the respondent removed the applicant from the MIG on account of his chronic pain.

44The respondent submits that to be reasonably entitled to a chronic pain assessment the applicant must demonstrate that there is a reasonable chance that he may have chronic pain syndrome warranting further investigation, and the Tribunal, in reaching its decision, will use the criterion in the AMA Guides to assess whether the applicant has chronic pain. The respondent further relies on the addendum report of Dr. Heitzner, dated August 25, 2022, wherein Dr. Heitzner found the proposed chronic pain assessment to not be reasonable and necessary.

45I find that assessing the applicant’s entitlement to a chronic pain assessment against the six criteria set out in the AMA Guides is a far too stringent test to determine entitlement to a chronic pain assessment. The AMA Guides are clear that three of the six criteria are required for a diagnosis of chronic pain, which is not required to be proven to be entitled to a chronic pain assessment.

46I find that the evidence shows that the applicant has made continuous complaints to his family practitioner, Dr. Galati, of low back pain since the subject accident and contemporaneously with the proposed treatment plan, as indicated above. I also find that the report of Dr. Kumbhare not only recommends a chronic pain assessment, but also supports evidence of functional limitations. Dr. Kumbhare reported the applicant to have decreased mobility of the left shoulder, difficulty with prolonged sitting, standing, walking, and personal care tasks.

47Moreover, the evidence shows that the applicant was removed from the MIG on December 31, 2020. The log notes of insurer representative, Chrishanthie Thomas, dated December 31, 2020, reveal that the applicant was “pulled out of the MIG based on CNR chronic back pain stenosis.” I am not directed to any previously completed chronic pain assessments or investigations, other than the paper review addendum report of Dr. Heitzner, in which Dr. Heitzner was asked to opine on the reasonableness and necessity of the proposed treatment plan.

48I am not persuaded by the addendum report of Dr. Heitzner, dated August 25, 2022. While this assessor concluded that the proposed chronic pain assessment is not reasonable and necessary, this assessor fails to consider that the applicant was removed from the MIG on the basis of chronic pain, and that no prior chronic pain investigations had been completed. Moreover, I find that despite this assessor opining the applicant has reached maximum medical improvement in a prior assessment, dated March 12, 2022, this does not negate the applicant’s consistent complaints of ongoing pain that would warrant a chronic pain assessment. As indicated above, the CNRs of Dr. Galati show the applicant continued to complain of low back pain on several occasions contemporaneously with the treatment plan at issue.

49Lastly, I am not persuaded by the respondent’s argument that Dr. Kumbhare’s report does not differentiate between the pain arising form the applicant’s construction work or from the soft-tissue injuries sustained in the accident. The respondent has not directed me to any evidence that supports the applicant sustained injuries as a result of his employment in construction.

50Given the above, I find that it is more probable than not that the proposed chronic pain assessment is reasonable and necessary.

The applicant is entitled to the OCF-18 for a physiatry assessment

51I find that the applicant has proven, on a balance of probabilities, that the physiatry assessment is reasonable and necessary.

52The OCF-18 dated August 9, 2022, completed by physician, Dr. Ali T. Ghouse, sought funding for a physiatry assessment. The OCF-18 identified treatment goals of pain reduction, increased range of motion, increase in strength, and to return to activities of normal living. The OCF-18 further sought to evaluate persistent soft tissue pain which continues to interfere with the applicant’s essential daily activities.

53The applicant submits that the applicant’s ongoing subjective complaints, the CNRs of Dr. Galati, and the expert opinion of Dr. Kumbhare, all support that the proposed treatment plan is reasonable and necessary. The applicant relies on the Tribunal decision in L.F.B v Intact Insurance Company, 2021 CanLII 48377 (ON LAT) (L.F.B) and Rathakrishnan v Aviva Insurance Company, 2023 CanLII 50585 (ON LAT) (Rathakrishnan), where it was suggested that if an insurer felt it was reasonable and necessary to send the applicant to a specific IE, it stands to reason that the applicant’s own treatment plan for an assessment of the same specialty would be reasonable and necessary.

54The respondent submits that s. 44 physiatry assessor, Dr. Heitzner, in his report dated March 16, 2022, concluded that the applicant had sustained soft tissue injuries and determined the applicant had reached maximum medical improvement.

55I find that the evidence supports that the proposed physiatry assessment is reasonable and necessary. As indicated above, the CNRs of Dr. Galati show the applicant continued to complain of accident-related impairments to his back on several occasions contemporaneously with the treatment plan at issue.

56While I am not bound by Tribunal decisions, I find the Tribunal’s reasons in L.F.B and Rathakrishnan to be persuasive in the present case. The respondent conducted its own physiatry assessment in order to determine whether physiotherapy services were reasonable and necessary. Given the applicant’s ongoing complaints to his family practitioner, and that the respondent had the same physiatry assessor complete addendum reports on three subsequent occasions, it would follow that the applicant’s own physiatry assessment is, therefore, reasonable and necessary.

57Given the above, I find that the applicant has proven, on a balance of probabilities, that the physiatry assessment is reasonable and necessary.

The applicant is not entitled to the OCF-18 for a neurological assessment

58I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.

59The OCF-18, completed by physician, Dr. Vincenzo Basile, sought funding for a neurological assessment. The OCF-18 identified treatment goals of pain reduction, increased range of motion, increase in strength, and a return to activities of normal living.

60The applicant submits that he has complained of neurological symptoms such as “left leg radiation” since October 2020 to his family practitioner, Dr. Galati. The applicant further submits that Dr. Kumbhare, performed a neurological examination in which he found a decreased sensation below the applicant’s knee and recommended an EMG study to evaluate radicular pain and reduced sensation in the left leg and left arm paresthesia.

61The respondent submits that the applicant’s family doctor did not recommend a neurological assessment, and in an addendum report dated October 14, 2022, Dr. Heitzner concluded that a neurological assessment was not reasonable and necessary.

62Both, Dr. Kumbhare in his report dated April 26, 2023, and Dr. Heitzner, in his report dated March 16, 2022, conducted brief neurological assessments, however, neither assessor opined on the need for a further neurological assessment or diagnosed the applicant with any neurological impairment. While the applicant attended his family practitioner complaining of symptoms of “radiation down the left leg” on August 4, 2022, Dr. Galati did not recommend neurological treatment or refer the applicant for any neurological assessment.

63Given the above, I find that the applicant has not proven, on a balance of probabilities, that the proposed neurological assessment is reasonable and necessary.

Interest

64The applicant is entitled to interest on of any overdue benefits pursuant to s. 51 of the Schedule.

Award

65I find that the applicant is not entitled to an award pursuant to s. 10 of Reg. 664.

66Pursuant to s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

67The applicant submits that the respondent failed to properly adjust the claim by not affording adequate consideration, in an even-handed manner, despite all the records and information surrounding this case. The applicant further submits that the respondent removed the applicant from the MIG due to chronic pain, yet it failed to appreciate this in adjusting the file appropriately.

68The respondent argues that it did not unreasonably delay or withhold payment and the applicant has not provided any compelling evidence that the respondent’s actions were “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate” to warrant an award.

69While I accept that the applicant is entitled to some of the treatment plans in dispute previously denied by the respondent, being wrong about entitlement to a treatment plan is not the sort of unreasonable behaviour that would warrant an award. Moreover, despite the respondent removing the applicant from the MIG on the basis of chronic pain, I do not find the denying a chronic pain assessment is necessarily the unreasonable behaviour that would warrant an award. In my view, being wrong about the applicant’s entitlement is wrong adjusting rather than behaviour rising to a level that would substantiate an award. As such, I am not persuaded that the respondent’s conduct was the “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate” conduct that I would deem to warrant an award.

70Therefore, the applicant is not entitled to an award.

COSTS

71I find that the respondent is not entitled to costs.

72Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

73The respondent, in its motion submissions, sought an order for costs if the applicant opposed its motion. The respondent did not further expand on this costs request and the relief sought was limited to one sentence.

74I find that the respondent has not met the test set out in Rule 19. The applicant’s decision to oppose the motion by forming a reply to the respondent’s arguments is not serious misconduct that is unreasonable, frivolous, vexatious or in bad faith. The applicant naturally has a right to respond to such a motion and to do so is proper in the circumstances. As such, I am not persuaded that the high threshold for costs has been met.

ORDER

75I find that:

i. The applicant is not entitled to the physiotherapy services, dated October 28, 2020, December 17, 2020, January 15, 2022, and January 28, 2022;

ii. The applicant is entitled to the physiotherapy services, dated April 27, 2022;

iii. The applicant is entitled to a chronic pain assessment, dated July 26, 2022;

iv. The applicant is entitled to a physiatry assessment, dated August 20, 2022;

v. The applicant is not entitled to a neurological assessment, dated September 22, 2022;

vi. The applicant is entitled to interest on any overdue amounts pursuant to s. 51 of the Schedule;

vii. The respondent is not liable to pay an award; and

viii. The respondent is not entitled to costs.

Released: February 13, 2025

_______________________

Nadia Mauro

Adjudicator