Licence Appeal Tribunal File Number: 24-000525/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:
Kabir Ravindra
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Adrian Lomaga, Counsel
For the Respondent:
Tefiney Scarlett, Paralegal
HEARD:
By way of written hearing
OVERVIEW
1Kabir Ravindra (the “applicant”) was involved in an automobile accident on January 17, 2023, 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 Aviva General Insurance (the “respondent”) 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 $1,870.21 ($5,495.85 less $3,625.64 approved) for psychological services proposed by Read Clinic in a treatment plan (“OCF-18”) dated April 10, 2023?
Is the applicant entitled to $13,191.62 ($13,546.76 less $355.14 approved) for other goods and services (i.e., a gym membership and personal training) proposed by Goodlife in an OCF-18 dated December 11, 2023?
Is the applicant entitled to the following OCF-18s proposed by Functionability as follows:
(a) $997.50 ($3,192.54 less $2,195.04 approved) for occupational therapy services dated March 10, 2023;
(b) $299.25 ($1,696.26 less $1,397.01 approved) for occupational therapy services (i.e., an in-home assessment and Form-1) dated February 22, 2023; and
(c) $741.65 ($2,136.61 less $1,394.96 approved) for other goods and services dated November 1, 2023?
Is the applicant entitled to $2,200.00 for a physiatry (i.e., chronic pain) assessment proposed by East York Physiatry in an OCF-18 dated May 16, 2024?
Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Once incurred, the applicant is entitled to a gym membership and weekly one-hour personal training services per issue 2 above; the progress report per issue 3(a) above, and the physiatry assessment per issue 4 above. Interest applies accordingly. The applicant is not entitled to any of the remaining disputed benefits, nor an award.
PROCEDURAL ISSUE
The applicant seeks anonymity and relief from public disclosure of his hearing filings.
4I find it is not necessary to restrict public access to the applicant’s submissions and evidence in this matter. Nor do I find it necessary to use a pseudonym in place of the applicant’s name in my written decision.
5For context, the applicant seeks a “sealing order” and asks the Tribunal to render a decision using a pseudonym (i.e., a confidentiality order) pursuant to Rule 13.1 of the 2023 Licence Appeal Tribunal Rules (the “Rules”). The appellant makes these requests on the basis that he may suffer “incalculable financial losses and missed opportunities” if his filed submissions and exhibits—which “contain personal details of his physical and mental challenges”—are placed in the public domain, and specifically on the Canadian Legal Information Institute online repository. He asserts that his clients and employers are likely to search the database during routine screening because he is a licensed legal professional who has adjudicated for several administrative tribunals.
6The respondent’s submissions do not address the applicant’s request.
7Rule 13.1 says the Tribunal may provide public access to, among other things, all documentary or other evidence that has been admitted in any proceeding as well as any written submissions provided by the parties. Under this rule, the Tribunal may also limit access to a record of proceedings. Specifically, the Tribunal may make an order during a proceeding—at the request of one of the parties or on its own motion—that limits public access to all or part of any document or record or hearing to protect confidentiality of personal or sensitive information, as it considers appropriate in relation to:
Matters involving public security;
Intimate financial or personal matters; or
Other matters where, having regard to the circumstances, the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that the hearings, documents or records be open to the public.
8Section 9(1.1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.22, (“SPPA”) provides that, in a written hearing such as this one, members of the public are entitled to reasonable access to the documents submitted, unless the tribunal is of the opinion that certain exclusions should apply. I note here that these exclusions, specified at subsections (1)(a) and (b) of section 9 in the SPPA, are substantively the same as those particularized in Rule 13.1 and therefore do not bear repeating here.
9The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle and section 2(1) of the Tribunal Adjudicative Records Act, S.O. 2019, c. 7, Sch. 60 (“TARA”). However, like the Rules, section 2(2) of TARA provides the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.
10Similarly, the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman”) held that the following requirements must be met before placing limits on the open court principle:
Court openness poses a serious risk to an important public interest;
The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
As a matter of proportionality, the benefits of the order outweigh its negative effect.
11It is well established that sealing and confidentiality orders face a high legal threshold. When addressing openness in administrative proceedings through the SPPA and the Rules, I find the presumption is in favour of public access and the burden of contrary proof lies upon the person who seeks to limit access [see, for example: Sherman, above, at paragraph 38; and A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175].
12The applicant did not specify which of the three grounds specified at Rule 13.1 apply to his request. I take his reference to “personal details of his physical and mental challenges” to mean he is applying for relief under the second factor. This is underscored by the absence of references to public security in his submissions, which also do not extend beyond incalculable financial losses and missed opportunities.” In my view, these concerns are also consistent with matters of a personal nature as contemplated at the second factor of Rule 13.1(b).
13When considering whether the confidentiality of the applicant’s personal matters merits protection from public access, I rely on the binding factors set out in Sherman, which are echoes of the principles established in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522 (“Sierra”). Given that Sierra confirms there is no distinction between a confidentiality order and a sealing order when applying these principles, I have applied the Sherman factors to both aspects of the applicant’s request. I note too, that all elements of the Sherman test must be met to determine it is necessary to issue the order sought by the applicant.
14While the applicant did not reference the Sherman test in his submissions, I have applied it nonetheless because it is binding jurisprudence.
Does court openness poses a serious risk to an important public interest?
15The applicant’s arguments do not persuade me that the orders he requests to restrict the disclosure and accessibility of his personal information and identity are justified.
16This is not to say that the types of privacy concerns expressed by the applicant cannot constitute an important public interest. On the contrary, Sherman notes that privacy cannot be excluded as an interest that could justify, in the right circumstances, a limit to court openness. For this matter, however, I find the applicant’s submissions do not establish the “right” circumstances to justify a sealing and confidentiality order.
17While the applicant claims “incalculable financial losses and missed opportunities” if the personal details of his physical and mental challenges in his filed submissions and exhibits are publicly available on, I find his submissions do not sufficiently explain how these specific personal concerns coincide with important public interests within the meaning of Sherman and Sierra. I do not accept that this requirement is satisfied by the applicant’s rationale, which, as I understand it, is that his personal details would be exposed to more scrutiny simply because he works as a licensed legal professional who has adjudicated for several administrative tribunals. If I did, I find I would be condoning a pass on the Sherman factors for any lawyer or paralegal solely on the basis of occupation, which strikes me as inconsistent with the whole premise of demonstrating how privacy concerns of a personal nature constitute a public interest.
18I am therefore satisfied that the applicant has not shown how the specific factors of his case merit a departure from the open court principle. As such, I decline to make the sealing and confidentiality orders he requests.
ANALYSIS
The applicant’s entitlement to the disputed OCF-18s
19To receive payment for an OCF-18 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.
The unapproved amounts in the OCF-18 for psychological services dated April 10, 2023.
20I find the applicant has not shown that 90-minute psychological counselling sessions are reasonable and necessary, nor that the disputed amounts for planning and brokerage services are reasonable and necessary.
21The applicant submits he is entitled to the 90-minute counselling sessions recommended by Dr. Douglas Misener (psychologist). He argues that the respondent’s position on the length of the sessions (i.e., that 90 minutes appears to be excessive) is unsupported. The appellant also asserts that the respondent did not obtain its own medical opinion on the length of counselling sessions or contact Dr. Misener to seek further details. The applicant relies on the rationale provided by Dr. Misener to support the reasonableness and necessity of 90-minute counselling sessions.
22In his reply, the applicant also addresses unapproved amounts for the brokerage and planning aspects of the OCF-18 by saying the Professional Service Guideline (the “Guideline”) does not prohibit these services.
23The respondent argues that the applicant failed to discuss why any of the denied aspects of this OCF-18 are reasonable and necessary. The respondent also contends that the applicant did not provide objective evidence to support the proposed treatment. The respondent’s submissions go on to say that while it approved 60-minute psychological counselling sessions, it denied the recommended extra 30 minutes in May 2023 because the fees exceed the maximum hourly rate of $149.61 payable to psychologists under the Guideline. The respondent adds that it later deemed 90-minutes to be excessive in November of 2023, when I take it this OCF-18 was either re-evaluated or re-submitted. The respondent maintains that planning and brokerage services were denied in May 2023 because the proposed fees exceed the maximum allowable under the Guideline. This denial was repeated for the same reasons in November 2023.
24The issue here, as I understand it, is whether 90-minute psychological counselling sessions are reasonable and necessary and whether the applicant is entitled to the proposed planning and brokerage services.
25Dr. Misener’s rationale, while uncontested by an opposing medical opinion, is not persuasive because it not supported by the medical evidence relied upon by the applicant. The applicant’s submissions indicate that Dr. Misener offered the following explanation for 90-minute sessions in the additional comments section of the OCF-18:
“[D]ifficulties remain with cognitive efficiency, such that the intended treatment modalities will likely require somewhat lengthier sessions to address re-educational and more cognitively demanding aspects … 90-minute sessions [are] commonly used for prolonged exposures, discussion of especially difficult material, crisis work, or teaching specific skills.”
26However, the applicant’s submissions do not point to corroborating evidence of the cognitive issues that this OCF-18 proposes to address. Aside from pain reduction, the treatment goal specified at Part 9 is to “return as closely as possible to pre-accident psychological functioning.” The psychological injuries at Part 6 are listed as a “sleep disorder” and a “specific (isolated) phobia.” There is no mention of cognitive difficulties. As such, I find the applicant’s position on the reasonableness and necessity of 90-minute sessions to address his “cognitive efficiency” is not persuasive because cognitive difficulties are not identified as either an injury or a treatment goal in the disputed plan.
27Further, the applicant does not point to concerns about cognitive impairment raised in Dr. Misener’s session notes. Based on the applicant’s submissions, Dr. Misener contemplates chronic pain, an inability to work, financial strain, weight gain and a diminished sense of self-identity, wellbeing and self-esteem.
28While those submissions also highlight symptoms of depression documented by Ms. Alena Mandel (occupational therapist), in March 2023, I am not directed to concerns of cognitive impairment she may have observed during her in-home assessment of attendant care needs, or at the time she subsequently completed her June 2024 progress report. As such, I afforded this evidence little weight in support of the applicant’s position.
29I am also not satisfied that the applicant has proven the reasonableness and necessity of the unapproved amounts for planning and brokerage services proposed in this OCF-18. Submissions are not evidence, and the applicant did not produce or point to a specific aspect of the Guideline to support his position. While the applicant points to the lack of support for the respondent’s position, it is the applicant’s onus to prove entitlement, which I find he has not met.
30I therefore find the applicant has not demonstrated on a balance of probabilities that the unapproved amounts are reasonable and necessary.
The unapproved amounts in the OCF-18 for other goods and services dated December 11, 2023.
31I find the gym membership proposed in this OCF-18 is reasonable and necessary. I also find that the proposed personal training services are reasonable and necessary, albeit once weekly.
32The applicant submits he is entitled to a one-year gym membership with twice weekly, one-hour personal training sessions as recommended by Ms. Mandel (occupational therapist). The applicant says he has made several unsuccessful attempts to return to the gym after the accident, attributing one such failure to an injury from “overdoing it” after a period of inactivity. He relies on the clinical notes and records of Ms. Mandel, Dr. Misener, and Dr. Jing Jin (physician) to prove the merits of incorporating personal training into his exercise routine, which include learning new exercises, monitoring progress, and preventing further injury given his ongoing chronic pain.
33The respondent argues that the applicant failed to discuss why any of the denied aspects of this OCF-18 are reasonable and necessary. The respondent also contends that the applicant did not provide objective evidence to support the proposed treatment. The respondent relies on a section 44 examination conducted in April 2024 by Dr. Manoj Bhargava (orthopaedic surgeon), as well as a subsequent paper review he completed in July 2024. In both reports, Dr. Bhargava determined the applicant had likely reached maximum medical improvement as his range of motion was no longer impaired—and that from a strictly musculoskeletal perspective—the proposed gym membership and personal trainer were not reasonable and necessary because these services were unlikely to provide therapeutic benefit in addition to the applicant’s home-based, self-directed exercise program.
34I am satisfied this OCF-18 is reasonable and necessary. The goal of the OCF-18 is to enable the applicant to return to exercising—and “valued” activities like hiking, cycling and diving—with an aim of improving strength and flexibility, reducing pain and optimizing his well being. While I find the evidence referenced in the applicant’s submissions is sparse on medical opinions that convey difficulties with strength and flexibility, there is plenty that supports treatment—and specifically assisted exercise—to address his ongoing pain and decreased self-esteem.
35For example, in her March 2023 report, Ms. Mandel documented the applicant’s feelings of isolation from his social community at the gym. The applicant attributed this to frustration arising from unfulfilling and incomplete workouts. I accept this difficulty was owing, at least in part, to pain from his foot injury. An x-ray of the applicant’s foot completed the day of the accident revealed a “nondisplaced [extra-articular] fracture through the proximal diaphysis.” Put simply, his left foot was broken less than two months earlier. I am satisfied the applicant was still unable to complete his gym workouts because of pain when Ms. Mandel re-assessed the applicant more than a year later in June 2024. The applicant reported restrictions in the type of weight-lifting exercises he could perform, as well as the cardiovascular exercises he could undertake. I find this correlates with a June 2024 MRI of the applicant’s left ankle, which revealed further trauma in this left foot, and specifically a full-thickness tear that predominantly involved middle component of the plantar fascia.
36There is persuasive evidence of self-esteem difficulties in Dr. Misener’s notes, which convey detrimental psychological effects owing to the applicant’s lack of exercise. In September and October 2023, Dr. Misener’s opinion was that the applicant suffered a loss of identity post-accident because his “physicality [was] of importance” and a “large part of [his] identity.” Dr. Misener observed negative thinking patterns (i.e., sadness, grief, and loss) associated with the applicant’s accident-related injuries.
37In my view, the reasonableness and necessity of the personal trainer is made out by the applicant’s inability to complete his workouts without added support. In May 2024, Dr. Jing documented that the applicant had stopped exercising, and then injured himself by “overdoing it.” The applicant’s disclosures to Ms. Mandel show, in my view, that he does not know how to modify his exercises in a way that accommodates his left foot injury and allows for workout completion. I am satisfied that this evidence supports Ms. Mandel’s recommendation for a personal trainer to “guide [the applicant] as he returns to fitness [and] ensure that he does not exacerbate his current injuries or sustain further injuries.”
38I place less weight on the evidence of Dr. Bhargava because it was inconsistent with the bulk of the evidence in this case. I prefer the evidence of Dr. Yen-Fu Chen (physiatrist) because it correlates with the diagnostic imaging results pertaining to the applicant’s left foot. In June 2024, Dr. Chen observed that the applicant’s ankle dorsiflexion and plantar flexion were significantly reduced. He also documented the applicant’s difficulties walking on the toes of his left foot and an antalgic gait (i.e. weight-bearing pain). These impairments, when viewed against the backdrop of the applicant’s foot trauma, makes more sense to me than Dr. Bhargava’s opinion that the applicant no longer demonstrates any impairments in ranges of motion and had recovered from his injuries.
39When taken together on a balance of probabilities, I find this evidence establishes the reasonableness and necessity of the gym membership and personal trainer proposed in the OCF-18. However, in terms of the personal training frequency, I am not persuaded that the applicant has shown this service is required twice weekly to achieve the goal of the plan. The goal of the plan is simply to enable the applicant to return to exercising, and I was not pointed to evidence that satisfied me of the need for twice-weekly sessions to achieve this. As such, I order that the applicant’s entitlement in this regard be once weekly to receive the guidance he needs to enable a return to exercising.
40While this order is subject to section 15(1) of the Schedule, which requires that the expense be incurred by or on behalf of the applicant, I am mindful of the binding decision in Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, which confirmed the Tribunal has the authority to order an insurer to pay for a proposed OCF-18 that is found to be reasonable and necessary—even if the treatment expenses have not been incurred (i.e., self-funded). In Suarez, the court found that requiring claimants to self fund is a barrier to justice and contrary to the consumer protection purpose of the Schedule. So, while this OCF-18 is only payable if incurred, Suarez provides that there is no requirement to incur before appealing to the Tribunal or even before the decision is rendered. Interest applies to this OCF-18 per section 51 of the Schedule.
The OCF-18 for occupational therapy dated February 22, 2023, and March 10, 2023.
41I find the applicant has established that a progress report is reasonable and necessary but has not shown he is entitled to any of the other disputed items in these OCF-18s.
42For context, the February 2023 OCF-18 is for an in-home assessment of attendant care needs and completion of a Form-1. The March 2023 OCF-18 is for occupational therapy sessions.
43Pertaining to the February 2022 OCF-18, the applicant submits that eight hours is a reasonable amount of time to compile a 48-page report and complete two Form-1 assessments. He argues that the respondent has not supported its position on the amount of time needed to produce these items (i.e., that eight hours is excessive). In contrast, the respondent says the time proposed to complete the assessment reports and Form-1 documents exceeds the maximum set out in the Guidelines.
44With regards to the March 2023 OCF-18, the applicant submits that the proposed brokerage services and progress report is reasonable and necessary because Ms. Mandel was regularly liaising with Dr. Misener on treatment goals, which supports the multi-disciplinary approach to occupational therapy recommended by Dr. Chen and the “OT College.” The applicant relies on an April 2023 memorandum that Ms. Mandel prepared to explain the brokerage services and progress report fees to the respondent.
45The respondent argues that the brokerage services and progress report are not payable in accordance with the Guideline. The respondent adds that the progress report is a duplication of services. The respondent explains that a progress report can be provided by submitting a subsequent OCF-18, and that in any event, it did not require a report on the applicant’s progress as part of the disputed OCF-18.
46I find the applicant’s position on the time required to complete an assessment report and corresponding Form-1 is unsupported by the evidence. While I appreciate that the report is many pages and accompanied by Form-1 documents, the applicant did not point to evidence that shows Ms. Mandel actually required eight hours to complete this work. As such, the applicant’s submissions merely constitute his own opinion, which is not sufficient to meet his onus.
47Similarly, the applicant has not established that brokerage services are reasonable and necessary. While I agree that the inter-disciplinary collaboration discussed in Ms. Mandel’s memorandum can be beneficial, in this case I find the applicant’s submissions point to scant evidence of Ms. Mandel regularly liaising with Dr. Misener. The applicant directs me to one excerpt of Ms. Mandel’s June 2024 progress report that says: “[The applicant] expressed to me and Dr. Meisner (psychologist) that, pre-collision, regular physical exercise was an important way that he managed his stress and improve his mood.” In my view, this does not establish that Ms. Mandel liaises with Dr. Misener regularly, or at all for that matter. While I accept that Dr. Chen recommends a multi-disciplinary approach to chronic pain management in his June 2024 assessment report, the applicant did not point me to evidence that shows Dr. Chen contemplated occupational therapy as one of his intended collaborators.
48I find the progress report is reasonable and necessary. Part 9 of the March 2023 OCF-18 indicates that progress will be evaluated by obtaining self-reports and observational assessments of function that employ standardized tools and outcome measures as appropriate. I accept this is compatible with Ms. Mandel’s request for six billable hours over eight therapy sessions to compile the subjective and objective data into memos and ultimately a report.
49In my view, compiling a progress report may be analogous to completing an OCF-18 form, but is certainly not duplicative. For example, Ms. Mandal’s memorandum persuades me that while a progress report does indeed inform an OCF-18 proposed to an insurer, its purpose is much broader and extends to a wider audience who rely on its contents for reasons other than treatment entitlement. She describes a progress report as “a required professional obligation” within the record-keeping standards of her professional College. This satisfies me that a fee for reporting progress is separate and distinct from the fee for completing the OCF-18 form required under the Schedule, and that it is therefore reasonable and necessary to bill it independent of the $200.00 fee for form completion.
50While the respondent contends that additional costs for planning and re-assessment should be included as part of the fee paid to complete the OCF-18 form itself, I am unclear as to what the respondent relies on to support its position. The respondent filed several authorities with the Tribunal—one of which presumably to show that separate billing for a progress report is a duplication of services—but does not specify any of them in its submissions on this OCF-18. Further, the respondent did not produce or point to the relevant section of the Guidelines it relies on to support its claim that progress reports are not payable. In my view, the fact the respondent does not bear onus here does not relieve it of its obligation to support its submissions with evidence.
51Taken together on a balance of probabilities, I am satisfied that the applicant has proven his entitlement to the progress report proposed as part of the March 2023 OCF-18 for occupational therapy services plus interest pursuant to section 51 of the Schedule.
The OCF-18 for other goods and services dated November 1, 2023.
52I find the applicant has not established entitlement to this OCF-18.
53The applicant failed to provide submissions or lead evidence on this aspect of his claim. I therefore find the applicant cannot meet his onus to prove entitlement to this OCF-18 on a balance of probabilities.
The OCF-18 for a physiatry assessment dated May 16, 2024.
54I find this OCF-18 is reasonable and necessary.
55The applicant submits the assessment proposed by Dr. Chen is reasonable and necessary to determine all treatment options for pain that continues to endure eight months post-accident. The appellant asserts that the musculoskeletal perspective employed by the respondent’s section 44 assessor is inadequate because Dr. Chen had diagnosed the applicant with a chronic pain disorder that requires a more comprehensive assessment by “proper expertise” to understand.
56The respondent argues that the applicant failed to discuss why this OCF-18 is reasonable and necessary. The respondent also contends that the applicant did not provide objective evidence to support the proposed assessment. The respondent adds that the medical documentation on file, in concert with Dr. Bhargava’s section 44 examination and addendum, demonstrate the OCF-18 is not reasonable and necessary.
57I agree that that a physiatry assessment was reasonable and necessary at the time it was completed in May 2024. The goal specified in Part 9 of the OCF-18 is to make a “determination for future care.” This goal is further clarified in the additional comments section, where it says a physiatry assessment is recommended to “determine diagnosis and plan management.” I am satisfied these goals are supported by contemporaneous medical evidence. Prior to May 16, 2024, the applicant’s submissions point to the x-ray that demonstrates he sustained a broken foot as a result of the accident. The applicant also points to Dr. Jin’s concerns—documented on May 7, 2024—about left heel and ankle pain and plantar fasciitis. I find these complaints of pain are echoes of those documented by Dr. Misener eight months earlier in September and October 2023. I note too that Dr. Jin recommended modified activities, which correlates with the frustration earlier voiced by the applicant to Ms. Mandel in March 2023 about being able to exercise only his upper body at the gym.
58In my view, this evidence supports the reasonableness and necessity of a physiatry assessment to determine diagnoses and plan for the applicant’s future care. While the respondent argues that the medical information it had on file at the time the OCF-18 was submitted does not support entitlement, it did not specify what evidence it relied on. As such, this argument does little to hinder the persuasiveness of the applicant’s claim.
59Similarly, I afforded little weight to Dr. Bhargava’s section 44 examination and addendum. This is because I am not satisfied that Dr. Bhargava considered this OCF-18 as part of his consultation, let alone reviewed it. Further, I was not presented with evidence that shows Dr. Bhargava ever provided an opinion on the reasonableness and necessity of the physiatry assessment proposed by Dr. Chen. I find that Dr. Bhargava’s section 44 report and addendum relate only to the OCF-18 that proposes a gym membership and personal trainer. In fact, Dr. Bhargava examined the applicant on April 17, 2024, and issued the corresponding report on May 2, 2024, which is before Dr. Chen even completed the OCF-18 on May 16, 2024. The new information that gave rise to Dr. Bhargava’s July 2024 addendum did not include the OCF-18 proposed by Dr. Chen, or the section 25 report of the assessment he completed in June 2024.
60Taken together on a balance of probabilities, I am satisfied that the applicant has proven his entitlement to this OCF-18, which includes interest owing pursuant to section 51 of the Schedule.
Award
61The applicant seeks an award under section 10 of Regulation 664. Under section 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 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.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
62The applicant submits the respondent did not proceed in good faith when adjusting his claim for psychological treatment because the respondent’s decision-making did not support his needs. He attributes his gym injury to the respondent’s denial of personal training resources. The applicant also says it was inappropriate for the respondent to fund an in-person section 44 examination by an orthopaedic surgeon while denying funding for the applicant’s section 25 physiatry assessment by Dr. Chen.
63The respondent argues that it did not unreasonably withhold or delay payment of benefits, or act in bad faith as alleged by the applicant. The respondent maintains it is not liable to pay an award because the applicant failed to provide evidence and because it met its duty of good faith by appropriately reviewing all documentation provided by the applicant, communicating regularly with the applicant and appropriately considering entitlement to benefits based on the documentation provided.
64In my view, the respondent did not adjust the physiatry assessment in a conscientious manner. The respondent offered the vaguest of references to “medical information on file” to justify its denial without specifying what evidence it had or why it fell short of establishing entitlement. The respondent also relied on an addendum—and perhaps erroneously on the originating section 44 report as well—that was not intended to address the physiatry OCF-18, knowing too that the assessor had not even seen the plan or offered an opinion on its reasonableness and necessity. But while this demonstrates the respondent did not do its job well or thoroughly in this particular instance, I find the respondent’s actions do not rise to the high threshold that would merit an award. Put simply, it is sloppy work that falls below what the Tribunal considers unreasonable conduct.
65Further, I am not satisfied that the applicant has demonstrated, with evidence, that his gym injury was owing to the respondent’s denial of personal training services. Nor do I accept that the respondent proceeded in bad faith when adjusting the psychological OCF-18. On the contrary, the majority of it was approved. And in any event, it is not eligible to attract an award in this case because there are no benefits payable on that OCF-18.
ORDER
66Once incurred, the applicant is entitled to a gym membership and weekly one-hour personal training services per issue 2 above; the progress report per issue 3(a) above, and the physiatry assessment per issue 4 above. Interest applies accordingly. The applicant is not entitled to any of the remaining disputed benefits, nor an award.
Released: December 3, 2025
__________________________
Michael Beauchesne
Adjudicator