Licence Appeal Tribunal File Number: 23-013815/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:
Yi Wen Zhu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bruce Stanton
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Russell Tilden, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Yi Wen Zhu, the applicant, was involved in an automobile accident on April 25, 2022, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 2, 2022 and ongoing?
Is the applicant entitled to the following treatment plans proposed by Total Recovery Rehab Centre:
i. $399.01 ($1,300.00 less $909.99 approved) for physiotherapy services, in a treatment plan/OCF-18 (“plan”) dated June 30, 2022; and
ii. $4,069.56 for physiotherapy services, in a plan dated August 5, 2022?
- Is the applicant entitled to the following treatment plans proposed by Somatic Assessments & Treatment Clinic:
i. $448.80 ($2,804.12 less $2,355.32 approved) for psychological services, in a plan dated April 13, 2023;
ii. $1,146.96 ($2,804.12 less $1,657.16 approved) for psychological services, in a plan dated September 20, 2023; and
iii. $573.48 ($1,682.06 less $1,108.58 approved) for psychological services, in a plan dated February 22, 2024?
- Is the applicant entitled to the following benefits submitted on claim forms (OCF-6):
i. $75.33 ($188.14 less $112.81 approved for ambulance, Naproxen and Baclofen portions) for medications, dated May 30, 2022;
ii. $147.99 for medication, dated June 22, 2022;
iii. $109.16 for medication, dated August 2, 2022;
iv. $102.45 for medication, dated November 15, 2022; and
v. $115.53 for medication, dated April 13, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not eligible for income replacement benefits in the amount of $400.00 per week.
4The applicant is entitled to the treatment plans for physiotherapy for $399.01 and $4,069.56.
5The applicant is not entitled to the unapproved portions of the three treatment plans for psychological treatments for $448.80, $1,146.96 and $573.48 or to payments for the medications claimed on OCF-6 forms of $75.33, $147.99, $109.16, $102.45 and $115.53.
6The applicant is entitled to interest on treatment plans for physiotherapy.
7The applicant is not entitled to an award.
ANALYSIS
The respondent is not liable to pay pre-104 IRBs. The applicant is not entitled to post-104 IRBs.
Pre-104 IRBs
8The parties agree that the only issue in dispute on pre-104 IRBs is quantum. However, he is not entitled to any payments because he did not provide the respondent with sufficient information with which to calculate the IRB amount (“quantum”).
9The applicant submits that the Employer’s Confirmation Form (“OCF-2”) sent to the respondent on November 2, 2022, contained the weekly salary information needed to calculate the quantum. The OCF-2 referred to by the applicant reported gross salary income of $1,125.00 per week during each of the four weeks prior to the accident, which would qualify him for an IRB of $400.00 per week.
10The applicant submits he is the owner of Wenfa Food Trading Inc. (“Wenfa”). The applicant referred me to tax documents showing that, in 2022, he received $17,250.00 in employment income from Wenfa, as well as $86,533.00 in business income from two corporations: $40,000.00 from 2812090 Ontario Limited, and $46,533.00 from 2625984 Ontario Limited.
11The applicant submits that his tax records demonstrate a clear disparity of income pre- and post-accident. For example, the applicant’s Notice of Assessment of 2021, the calendar year prior to the accident, reveals that he had $54,000.00 in employment income. His Notice of Assessment for 2023 reported no (zero) employment income.
12The applicant submits that all of the relevant IRB documentation was provided to the respondent to calculate quantum, specifically the OCF-2 salary information and the fact that his Notices of Assessment for 2023, both his personal and the corporate assessment for Wenfa Food Trading, confirm he had no employment income in 2023. As such, he submits he is entitled to IRBs at $400.00 per week from May 2, 2022 to date and ongoing.
13As noted above, the respondent does not dispute the applicant is entitled to pre-104 IRBs, but it requires information to calculate quantum. The respondent questions whether the applicant returned to work before June 7, 2024, noting that the applicant’s psychological counselling progress report of January 25, 2024 indicates that he returned to work, or was earning income, as of January 2024. The respondent has the right to deduct from its IRB payments, any earnings during the time of eligibility for IRBs pursuant to s. 7(3) of the Schedule.
14The respondent submits the applicant was self-employed at the time of the accident, noting that he attested to being self-employed in a statutory declaration, dated June 29, 2022, and he is therefore required to provide self-employment financial information to support the quantum of his IRB claim. It submits that, despite its numerous letters and requests between June 29, 2022 and February 28, 2024, the applicant has not provided sufficient self-employment financial documents for the purposes of determining quantum. Consequently, despite meeting the disability threshold, no IRBs have been paid to date.
15The respondent disagrees with the applicant’s submission that providing salary information on an OCF-2 form is sufficient to determine quantum for a self-employed person and submits that the applicant would have been in receipt of IRBs, potentially to up to June 7, 2024, had he provided the documentation requested over the last 2 ½ years.
16The respondent submits that, pursuant to s. 33(1) of the Schedule, an applicant is required to provide information reasonably required to assist the insurer in determining an applicant’s entitlement to a benefit, and s. 33(6) and (8) confirm that an insurer is not required to pay a benefit during a period in which a request under s. 33(1) has not been complied with. The respondent notified the applicant his IRB was denied under s. 33 non-compliance on July 7, 2022, adding that it would reconsider entitlement once documentation and an explanation was provided. The applicant made no specific submissions on the alleged non-compliance with s. 33(1) or reasons for not providing the self-employment information requested by the respondent.
17The respondent submits that it remains without sufficient employment and/or self-employment documentation that is reasonably required to assist it with determining the weekly quantum of the IRB, with respect to the applicant’s income and expenses both before and after the accident, information about other companies he has an interest in, and current information regarding the date of his return to work.
18The respondent submits it is not required to pay IRBs to the applicant due to his non-compliance with s. 33 of the Schedule and reiterates that, if and when the documentation requested by it, and its forensic accounting contractor, Insignia Forensic Group (“Insignia”), is received, payment of IRBs will be reconsidered.
19As noted, the parties agree that the applicant meets the disability threshold for pre-104 IRBs. The dispute on the payment of pre-104 IRBs therefore, is only over the extent of financial information reasonably required to be provided the insurer in accordance with s. 33(1) of the Schedule.
S. 33 obligations of the applicant
20For a self-employed insured person, the Schedule is clear and unambiguous in stating that the weekly amount of an IRB payable, pursuant to s. 7(2), is the lesser of $400.00 and 70% of the amount by which the sum of the insured’s gross weekly employment income and self-employment income, exceeds the weekly loss from self-employment. Further, s. 7(3) allows the insurer to deduct, from any IRB payable, 70% of income from self-employment earned during the period in which IRBs are deemed to be payable.
21As the applicant has declared he was self-employed at the time of the accident, it is reasonable for the respondent to request documents relating to the applicant’s self-employment that can confirm such things as his gross weekly income and self-employment income and any weekly loss from self-employment, including the financial information of the four corporations that the applicant has an interest in. Although the applicant filed notices of assessment for his personal CRA account and corporate account for Wenfa showing no income in 2023, the applicant provided no information relating to the two numbered companies that collectively tallied $86,533.00 in income in 2022.
22The respondent expressed in its letters to the applicant that financial information from all income sources must be considered before IRB calculations can be quantified. I have reviewed the approximately 20 requests sent by the respondent or Insignia between May 26, 2022 and December 19, 2024 and find them to be reasonable because they relate to confirming income and expenses for the pre- and post-accident periods. These periods and amounts are relevant to the calculation of IRBs when an insured is self-employed. The respondent needs to have financial information from all self-employment sources so that it can calculate the weekly IRB amount and apply, as applicable, any deduction of the applicant’s weekly IRB pursuant to s. 7 of the Schedule.
23I find that the respondent is not liable to pay IRBs, pursuant to s. 33(6), as the applicant has not complied with s. 33(1) of the Schedule. He did not provide the respondent with the information reasonably required to assist it in determining his entitlement to a benefit, in this case, the financial information relating to his self-employment.
Post-104 week IRBs
24To receive payment for an IRB beyond 104 weeks (“post-104”) under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
25The applicant submits that his injuries continue to make him unable to competitively engage in pre-accident employment for which he is suited by education, training or experience, and he faults the respondent for failing to reassess the validity of his IRB claim as new information was received.
26The applicant relies on the OCF-3 disability certificate, hospital and clinical notes and records (“CNRs”) of his physicians, and an in-home occupational therapy assessment to establish his entitlement to pre-104 IRBs. He submits that his impairments continue to prevent his employment and that he is entitled to IRBs from May 2, 2022 and ongoing at $400.00 per week.
27The respondent disagrees that the applicant is entitled to IRBs beyond 104 weeks because a s. 44 IE report of Dr. Godwin Lau, psychologist, dated May 27, 2024, concluded the applicant did not suffer, as a result of the accident, a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. Dr. Lau’s IE report was attached to the respondent’s letter to the applicant of June 7, 2024, advising that no further IRBs would be payable beyond that date. The respondent submits that “it is acknowledged that the post-104-week IRB disability test is not at issue in this LAT proceeding”. The respondent made no further substantive submissions on entitlement to post-104 IRBs.
28I find that the applicant has not demonstrated that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience, which is his onus to be entitled to post-104 IRBs.
29The applicant submits that the summation of his accident injuries render him unable to competitively engage in pre-accident employment but that is not the threshold for entitlement to post-104 IRBs. The threshold is “a complete inability” to engage in any such employment.
30The applicant has not pointed or directed me to medical evidence beyond January 25, 2024 (still within the first 104 weeks) to support his assertion that he suffered a complete inability to engage in any employment. The only reference to him having sustained such a severe impairment was by chiropractor, Georgina Palantzas, on May 4, 2022, where the checkbox under Part 6 of the OCF-3 was checked as “affirmative” to the question of whether the applicant sustained a complete inability to carry on a normal life (the test for non-earner benefits which does not apply in this case). I give little weight to Ms. Palantzas responding “yes” to this question because the psychological progress report of January 25, 2024 is more recent and it refers to the applicant having returned to his employment in January 2024, and Dr. Lau’s s. 44 IE report, which was requested specifically on the question of post-104 week entitlement, concluded the applicant did not meet the post-104 threshold.
31Accordingly, I find the applicant is not entitled to post-104 IRBs.
Physiotherapy treatment plans are reasonable and necessary
32I find the two disputed treatment plans for physiotherapy are reasonable and necessary.
33To receive payment for a treatment and assessment plan under s. 15 and s. 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.
34The applicant submits that his physical accident injuries and the limitations they imposed on him were well documented in the OCF-3, the Brockville Hospital records, the clinical notes and records of Dr. Heung Wing Li and Dr. Alex Chan, the occupational therapy assessment by Raymond Wong of April 14, 2023, and the psychological progress reports from August 2023 and January 2024.
35The applicant referred me to the subject OCF-18s to identify the goals of treatment. The first OCF-18 noted in issue (ii)(a) for the remaining amount of $339.01, which was partially approved up the Minor Injury Guideline (“MIG”) limit, cites the goals of pain reduction, increase in strength, and increased range of motion, in the hope of the applicant returning to the activities of normal living and modified work activities. The second OCF-18 in issue (ii)(b) for $4,069.56, cites the same goals. Both treatment plans were authored by Ahmed Afifi, physiotherapist.
36The applicant submits that the medical evidence establishes that the treatments he has received over the post-accident years were beneficial in either improving, i.e., reducing, his functional limitations, or significantly assisting with pain reduction. For example, in the second treatment plan of August 5, 2022, Mr. Afifi reports that the treatments provided since June 2022 resulted in the applicant’s neck disability index (NDI) improving from 70% to 62%, his Roland-Morris Questionnaire (RMQ) result improving to 14 of 24, down from 16 of 24, and the severity of the applicant’s right shoulder pain improving to 4/10 from 5/10.
37The applicant submits that the physical treatments are helping to reduce pain and improve his strength and range of motion, but he is continuing to experience physical pain from his injuries and has not achieved his pre-accident state. He submits that his physical pain is limiting his ability to share in household tasks and engage in employment. The applicant submits that the denied portion of the first OCF-18 and the entirety of the second OCF-18 are reasonable and necessary and ought to be paid by the respondent.
38The applicant did not provide any insights as to how or why the costs of achieving the goals of the treatment plans were reasonable. He submits that the denials of the two treatment plans were based on the applicant being in the MIG. Now that he is out of the MIG, he submits that the treatment plans ought to be payable by the respondent.
39The respondent submits that neither of the disputed OCF-18s are reasonable and necessary. It relies on the IE report of Dr. R. J. Zabieliauskas, M.D., dated February 28, 2023, which reported that the applicant sustained uncomplicated soft tissue injuries in the accident and had, by that date, made a full physical recovery. Dr. Zabieliauskas concluded the applicant had no physical impairments and the OCF-18 relating to issue (ii)(b) was not reasonable and necessary.
40The respondent acknowledges that the treatment plans were initially denied based on the applicant being within the MIG; however, it subsequently relied on Dr. Zabieliauskas’ IE report in maintaining the denial of both.
41The respondent submits the applicant has not provided any medical evidence to counter Dr. Zabieliauskas’ opinion, and that the applicant’s medical evidence merely confirms that he sustained minor, soft tissue injuries from the 2022 accident. The respondent relies on Dr. Zabieliauskas’ opinion that the applicant had recovered from those minor injuries by the time of his IE in February 2023.
42The respondent submits that neither of the two treatment plans are reasonable and necessary, and the applicant is not entitled to the claimed services beyond that which was approved to the MIG limit.
43I find the two disputed treatment plans are reasonable and necessary.
44Dr. Li’s clinical notes from November 5, 2022, roughly 6 months post-accident, report that the applicant was continuing to experience neck and shoulder pain similar to his symptoms immediately post-accident. At that time, his neck was reported to be tender along the paraspinals and trapezius on both sides and range of motion was down to 50%. Dr. Li recommended continuing physiotherapy. Dr. Li’s clinical notes corroborate the reported symptoms in the OCF-18s and point to the accident injuries remaining unresolved at that time.
45The two treatment plans in dispute were proposed to reduce pain, increase range of motion, and improve function, all of which were presenting limitations for the applicant in the period immediately post-accident through until at least November 2022. The treatments were intended to proceed at a time when the applicant was experiencing the effects of these injuries.
46I am persuaded that the applicant meets his burden in demonstrating the two treatment plans are reasonable and necessary because Dr. Li’s clinical notes confirm the applicant’s symptoms and complaints that are described in the treatment plans, Dr. Li recommended continued physiotherapy, and the fees for services proposed for treatments seem to align with the Professional Services Guideline.
47I am less persuaded by Dr. Zabieliauskas’ IE report because it is inconsistent with Dr. Li’s clinical notes and records and the applicant’s reports of persistent pain from his accident injuries. Dr. Zabieliauskas concludes the applicant suffered only minor injuries in the accident and they had “long since resolved” and “he has no evidence of residual physical impairment”. Yet, the applicant reported to him that he was, at the time of the assessment, continuing to experience headaches and intermittent pain from his injuries. The applicant’s reports of continuing pain are corroborated by Dr. Li’s clinical notes which reveal the applicant’s injuries persisted well into six months post-accident which coincides with the time for which Dr. Li recommended physiotherapy.
48I give some weight to the psychological progress reports of Ling Tse, social worker, who reported, in August 2023 and January 2024, that the applicant was continuing to experience neck and lower back pain and the physiotherapy he was undertaking was helping to improve those symptoms. I acknowledge that Ling Tse, as a social worker, is not qualified to opine on physical symptoms, but she is a registered practitioner. Even if they reflect self-reports of the applicant, her progress reports provide relevant insights into the applicant’s medical condition at that time.
49I find the balance of medical evidence supports the appellant’s contention that the treatment plans are reasonable and necessary.
50For the reasons discussed above, I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plans for physiotherapy are reasonable and necessary and they should be paid by the respondent.
Disputed portions of the three treatment plans for psychological treatments are not reasonable and necessary
51I find the unapproved portions of the three treatment plans for psychological treatments are not reasonable and necessary.
52The applicant submits that the three partially approved treatment plans, issues 3(i), (ii) and (iii), are reasonable and necessary and should be paid in full. The respondent agrees they are necessary, but only at the approved rates and session times. The basis of the disputed amounts rests with the professional services rate proposed versus that which was approved for the September 20, 2023 and February 22, 2024 (issues 3(ii) and (iii)) treatment plans, and the length of the sessions proposed in all the psychological treatment plans.
53The applicant submits that the respondent has not provided a detailed explanation or justification for its partial approval. He submits that the respondent has an ongoing duty to assess and reassess a claim as new information is available, and, by partially approving the treatment plans, it failed to reassess the claims as new evidence became available
54The applicant submits that the disputed treatment plans are reasonable and necessary and ought to be payable by the respondent.
55The respondent submits that it approved the proposed treatments in all three OCF-18s to the applicable Professional Services Guideline - Superintendent’s Guideline 03/14 (the “Guideline”). It explained the reasons for the partial approvals in letters sent May 1, 2023 for issue 3(i); September 25, 2023 for issue 3(ii); and February 27, 2024 for issue 3(iii).
56For issue 3(i), the respondent explains that the difference in the disputed amount of $448.80 relates to approving 12, one-hour sessions of psychological treatment in accordance with IE assessor and psychiatrist, Dr. Lorne Tugg. The OCF-18, on the other hand, proposed 12 x 1.25-hour sessions at the same hourly rate which accounts for the difference between the amount proposed and the amount approved.
57For issues 3(ii) and (iii), the disputed amounts of $1,146.96 and $573.48, respectively, arise out of the respondent approving treatment at a rate of $91.43 per hour, which it submits was the appropriate rate for a registered social worker. As with the duration of psychological treatments recommended by Dr. Tugg in the previous disputed treatment plan, the respondent approved the treatments for 60 minutes versus the 75 minutes proposed in the OCF-18. The respondent submits that, based on the psychological progress reports of Somatic Assessments & Treatment Clinic (“Somatic”) of August 16, 2023 and January 25, 2024, the treatments for these two OCF-18s were conducted by a social worker. The rate proposed in the OCF-18s at $149.61 per hour is the rate for a psychologist.
58The respondent’s letters in relation to the OCF-18s explained that, since the Guideline does not list an applicable rate for a social worker, the rate for a Registered Nurse or Nurse Practitioner was used, given their relative training and responsibilities.
59I find the applicant has not met his onus to explain why the 1.25-hour sessions are required or why the $149.61 hourly rate should apply for the services rendered by Ms. Tse.
60The applicant’s submissions included only general support for the plans being reasonable and necessary. He did not provide any specificity or commentary on why 75-minute sessions are proposed versus 60-minutes or why the hourly rates proposed in the treatment plans are warranted. The applicant had the opportunity to provide submissions in reply to the respondent’s submissions yet no reply was received.
61I am not persuaded by the applicant’s submissions that the respondent failed in a duty to assess and reassess a claim as new information became available because he did not explain what the “new information” was or make comment on how or why it was relevant.
62Accordingly, I find, on a balance of probabilities, that the applicant has not shown that the amounts denied by the respondent for the three treatment plans were reasonable and necessary under the circumstances, and, therefore, the unapproved portions of the three treatment plans are not payable.
OCF-6 claims for medications are not reasonable and necessary
63I find the claims for medications submitted on OCF-6 forms are not reasonable and necessary.
64The applicant submits that, since the Schedule is consumer protection legislation, it should be liberally construed in favour of an insured person. Since the applicant and the respondent share a good faith relationship, the applicant should be treated fairly. The applicant submits that, since he has provided receipts and details for each of these claims, they should be deemed reasonable and necessary and be paid.
65The applicant directs me to Lafrance v. The Co-operators General Insurance Company, 2024 ONLAT 21-010547 (“Lafrance”), noting that the Tribunal approved payment of an OCF-6 claim because the applicant in that case provided a receipt for the claim.
66The applicant also submits that all the medications are connected to his accident-related injuries, and, as such, they are reasonable and necessary for his recovery. For example, Duloxetine treats depression and anxiety, Zopiclone provides short-term treatment for severe insomnia, and Apo Naproxen relieves pain and reduces swelling and inflammation.
67The respondent submits that the applicant has not provided any evidence to support the reasonableness and necessity of the subject OCF-6 claims, and it maintains its denial of them. It provided letters to the applicant responding to each OCF-6 submitted, explaining that the applicant had not provided medical documentation from a physician to support the prescribed medications, and did not establish that any of the claimed expenses are associated with his accident-related injuries.
68I find the medications claimed on the OCF-6 are not reasonable and necessary.
69The applicant has not pointed or directed me to evidence to show they are reasonable and necessary as a result of the accident, which is his burden to show on a balance of probabilities.
70I am not persuaded by the applicant’s reference to Lafrance, namely, his argument that providing receipts is sufficient to prove expenses are reasonable and necessary. In Lafrance, at paragraphs 11 and 12, the adjudicator deemed the cost of a replacement helmet was payable because, under s. 24(1) of the Schedule, the respondent is obliged to pay for all reasonable expenses incurred by an applicant in repairing/replacing clothing lost or damaged as a result of the accident, and the applicant provided a receipt for its purchase. I disagree with the applicant’s interpretation of Lafrance. It does not suggest that a claim is reasonable and necessary simply by virtue of producing a receipt for the claimed expenses. Rather, it reinforces the principle that accident-related expenses are reimbursable in accordance with the Schedule, in this case, the threshold in s. 24(1), the expense incurred to replace clothing lost or damaged as a result of the accident.
71The applicant has not met his burden in demonstrating these expenses are reasonable and necessary as a result of the accident. I find, on a balance of probabilities, that they are not reasonable and necessary.
The applicant offered no basis for his submissions about s. 38 non-compliance
72The applicant made submissions that the respondent’s denial notices for the OCF-18s and OCF-6s failed to comply with s. 38(8) of the Schedule.
73Section 38(8) stipulates that an insurer must notify an insured person, within 10 business days after it receives a treatment plan, of the goods and services in the plan it agrees to pay for, and not pay for. In the case of those it disagrees to pay for, the insurer must provide the insured party with the medical and all of the other reasons why it considers the proposed services to not be reasonable and necessary.
74Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after it received the application and ending on the day the insurer gives a notice described in s. 38(8). The insurer is also prohibited from taking the position that the insured person has an impairment to which the MIG applies.
75The applicant submits that the respondent failed to meet the requirements set out in s. 38(8) in relation to the OCF-18s and OCF-6s in dispute. He reiterates the requirements of s. 38(8), namely, that the notice must include an explanation of the medical and all the other reasons why the respondent considers the proposed services, or the cost of them, to not be reasonable or necessary. However, the applicant submitted no examples or references as to how or why he believed the notices were deficient.
76The respondent submits that the applicant has not provided any particulars or explanations of why he believes it is not compliant with s. 38(8). As such, his argument on s. 38 non-compliance should be disregarded.
77I find the applicant has not explained why he believes the respondent’s notices in respect to the OCF-18s and OCF-6s did not comply with the requirements of s. 38. Accordingly, I dismiss his arguments in relation to s. 38 non-compliance.
Interest
78Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The payment of benefits for the physiotherapy treatment plans is overdue, therefore the applicant is entitled to interest on the payments of them.
Award
79The 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.
80The applicant submits he has paid premiums to the insurer for the benefit of insurance in the case of an accident and it is reasonable that he should expect to have his claim assessed in transparency and good faith. The applicant seeks an award on the basis of the reasonableness of the denials and to provide deterrence to Insurers acting in a high-handed manner.
81I find that payment of benefits is owing only on the two physiotherapy treatment plans. However, I find there is no evidence before me to suggest that the respondent unreasonably withheld or delayed the payment of those benefits. Its denials were reasonably informed by the IE report of Dr. Zabieliauskas. Accordingly, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
ORDER
82I order the following:
i. The applicant is eligible for IRBs from May 2, 2022 to June 7, 2024, subject to confirmation of the date the applicant returned to work or the date he resumed receiving employment or self-employment income, and the applicant providing the financial information reasonably required to determine the weekly IRB quantum, as expressed in the respondent’s requests between May 26, 2022 and December 19, 2024, and, if required, a reasonable explanation for the delay in providing the requested information pursuant to s. 33(8)(b). The applicant is currently disentitled to IRBs pursuant to s. 33(1) and s. 33(6) of the Schedule.
ii. The applicant is entitled to the claimed physiotherapy treatments for $399.01 and $4,069.56.
iii. The applicant is not entitled to the unapproved portions of the treatment plans for psychological treatments, or the disputed claims for medications submitted on OCF-6 forms.
iv. The applicant is entitled to interest on the overdue payment of the treatment plans for physiotherapy. Interest on these benefits is payable in accordance with the Schedule.
v. The applicant is not entitled to an award.
Released: December 1, 2025
Bruce Stanton
Adjudicator