Licence Appeal Tribunal File Number: 23-014004/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:
~~Ruto ~~Ezekiel Ruto
Applicant
and
TD General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Lily Rodriguez, Paralegal
For the Respondent:
Stefan Sistilli-Sguazzin, Counsel
HEARD:
By way of written submissions
OVERVIEW
1~~Ruto ~~Ezekiel Ruto, the applicant, was involved in an automobile accident on December 9, 2021, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
Preliminary Issues:
2The preliminary issue in dispute is:
- Is the applicant barred from proceeding to a hearing for the following benefit: issue number 5 listed below because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
Substantive issues:
3The issues to be decided in the hearing are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline(“MIG’) limit?
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 21, 2022 to February 21, 2023?
Is the applicant entitled to $1,422.73 ($3,622.73 less $2,200.00 approved) for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“treatment plan”) dated April 12, 2022?
Is the applicant entitled to $2,023.00 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated July 15, 2022?
Is the applicant entitled to $1,525.84 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated January 24, 2023?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Marigold Medical Assessment Centre in a treatment plan dated February 2, 2024?
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
Preliminary Issue
4I find that:
- The applicant is not barred from proceeding with the treatment plan for $1,525.84 for chiropractic services dated January 24, 2023.
Substantive Issues
5I find that:
The applicant is subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an NEB.
The treatment plans for chiropractic services dated April 12, 2022, July 15, 2022, and January 24, 2023 are payable in accordance with s. 38(11) of the Schedule.
The applicant is not entitled to the treatment plan for a psychological assessment dated February 2, 2024.
The applicant is entitled to interest on any outstanding payments in accordance with s.51.
The applicant is not entitled to an award.
PROCEDURAL ISSUES
Motion to strike Appendix A in the applicant’s submissions
6I decline to strike the submissions under the heading “Appendix A” in the applicant’s submissions.
7The respondent submits that the applicant’s submissions are overlength because the applicant submitted a half page of additional submissions under the title as an appendix to his submissions.
8The applicant argues that the respondent did not indicate how the additional half page would be prejudicial to the respondent.
9I agree with the respondent that the applicant’s submissions exceed the limit set out in the Case Conference Report and Order (“CCRO”) and in my view, non-compliance with Tribunal orders is a serious matter. However, as the respondent did not articulate how it would be prejudiced if I were to accept the additional half page of submissions, and the respondent had the opportunity to and did address the applicant’s submissions in its submissions in response, I decline to strike the section of the applicant’s submissions under the heading “Appendix A.”
Applicant’s request to strike s. 44 Insurer’s Examination (“IE”) reports
10I decline to strike the IE report of Dr. Peter Cobrin, psychologist, dated March 20, 2024.
11The applicant submits that the IE reports of Oleg Safir, orthopaedic surgeon, Dr. Dr. Edwin Urovitz and Dr. Peter Cobrin be struck from the record as the Notices of Examination (“NOEs”) dated December are not compliant with s.44(5) of the Schedule. However, the applicant has led no evidence to suggest that he attended IEs scheduled with Dr. Safir or Dr. Urovitz, in 2023 or 2024, and no such corresponding IE reports have been submitted into evidence. Accordingly, the only IE report in dispute is Dr. Cobrin’s psychological report.
12For clarity, I note that the applicant attended a previous IE with Dr. Safir on May 30, 2022, and the applicant has not requested that the resultant January 30, 2023 IE report be stricken from the record.
13The applicant submits that Dr. Cobrin’s March 8, 2024 IE report, which was based on a February 26, 2024 IE, should be excluded from evidence because the applicant did not receive a denial or NOE with respect to the treatment plan dated February 2, 2024 which was addressed in Dr. Cobrin’s report. The applicant submits that he believed that the IE was scheduled pursuant to an earlier treatment plan dated January 23, 2023, which was not addressed in the report. The applicant also argues that the previous NOE’s received for the February 26, 2024 did not comply with s. 44(5) of the Schedule.
14The respondent submits that the applicant received an NOE for the February 2, 2024 treatment plan, and submitted an NOE dated February 23, 2024 into evidence, and argues that all of the notices were compliant with s. 44(5).
15The applicant relies on Tribunal decision, NM v. Aviva Insurance Canada, 2019 CanLII 94126, where the adjudicator did not admit two IE reports because the applicant had not been notified that the examinations were taking place. I am not bound by Tribunal decisions and I find that this case is distinguishable, because in NM v. Aviva, the insurer conducted an IE without ever informing the applicant, and the applicant did not attend. In the present case, the applicant attended the scheduled IE.
16Even if I were to accept the applicant’s submission that he did not receive the February 23, 2024 NOE, the applicant attended a psychological IE less than two weeks after submitting the treatment plan for a psychological assessment. The applicant has not directed me to any case law or legal authority to support his contention that the treatment plan should not be considered in the IE report.
17I will consider the applicant’s submissions with respect to the sufficiency of the notice below, however, I decline to strike Dr. Cobrin’s report because there is nothing in the Schedule that states that an IE report should be excluded due to an insufficient notice, and the applicant was not obligated to attend the IE based on an insufficient notice. In the present case, the applicant acknowledges that he attended the February 26, 2024 IE without protest.
ANALYSIS
Preliminary Issue:
18I find that the applicant is not statute barred from proceeding to a hearing with respect to issue #5 above:
- Is the applicant entitled to $1,525.84 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated January 24, 2023?
s. 44 and s.55 of the Schedule
19Section 55(1) of the Schedule states than an insured person shall not apply to the Tribunal under s.280(2) of the Insurance Act, R.S.O. 1990, c. I.8 if the insurer has provided the insured person with notice in accordance with the Schedule that it requires an examination under s.44, but the insured person has not complied with that section. Section 55(2) permits an insured person to apply despite this non-compliance, subject to permission being granted by the Tribunal.
20Section 44(5)(a) states that, if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination, whether the attendance of the insured person is required, the name of the person conducting the examination, any regulated health profession to which they belong including their titles, and designations indicating their specialization, if any. The notice must also include the day, time, and location of the examination and if the examination will require more than one day, the same information for the subsequent days is also required.
21The respondent submits that the applicant should be barred from proceeding with the treatment plan dated January 24, 2023, because the applicant failed to attend a properly scheduled IE on January 10, 2024 without an explanation. The respondent submits that the IE was rescheduled, and the applicant was sent NOEs on January 4, 2024 and March 6, 2024, but the applicant did not attend.
22The applicant did not make any submissions with respect to the preliminary issue.
23The respondent’s NOE scheduling the January 10, 2024 IE, is dated December 14, 2023. It does not identify the applicant’s injuries; instead, stating that there is no compelling medical information on file to support the recommended treatment, and that there is no progress report on the applicant’s condition contained in the OCF-18. It states that the reason for the examination is to determine whether the proposed goods and services in the treatment plan are reasonable and necessary.
24I find the notice confusing because the sole mention of the MIG is in a line referring to the purpose of the examination as “MIG Determination; Medical & Rehabilitation Benefits;” however, there is no mention of the MIG as a reason for the denial, and the NOE does not contain a definition of minor injury, or direct the applicant to s. 3 of the Schedule. Further, the NOE states that a further NOE for a psychological IE will follow, but the treatment plan is for chiropractic services.
25For these reasons, I find that the December 14, 2023 NOE is not sufficiently clear or detailed for an unsophisticated person to make an informed decision whether to dispute the notice. As such I find that the NOE is not compliant with s. 44(5).
26The January 4, 2024 NOE contains identical language, and as such I find that it does not cure the December 14, 2023 NOE. The March 6, 2024 NOE is related to a different treatment plan, which was submitted on February 2, 2024, and seeks funding for a psychological assessment.
27As a result, I find that the respondent has not provided a valid notice under s. 44(5). Therefore, the applicant is not barred from proceeding with their application for the treatment plan for chiropractic services dated January 24, 2023.
Substantive Issues:
Applicability of the MIG
28I find that the applicant’s injuries are predominantly minor and the applicant remains subject to the MIG.
29Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
30An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
Chronic Pain
31The applicant submits that he should be removed from the MIG because he suffers from chronic pain as a result of his accident-related injuries. The applicant relies on the OCF-3 of Dr. Mitesh Pantal, chiropractor, dated April 1, 2022, the clinical notes and records (“CNRs”) of his family physician, Dr. Vered Kakzanov, and the CNRs of the Mackenzie Medical Rehabilitation Centre.
32The respondent argues that the applicant’s accident-related injuries are minor, and relies on Dr. Safir’s January 30, 2023 orthopedic IE report, and Dr. Cobrin’s March 8, 2024 psychological report.
33I accept that the applicant experienced ongoing pain from his accident-related soft- tissue injuries, because Dr. Safir notes that the applicant was experiencing residual pain from his accident-related soft tissue injuries in his January 30, 2023 IE report. However, I find that the evidence does not establish that the applicant is suffering from chronic pain with functional impairment that would warrant his removal from the MIG.
34The CNRs of Dr. Kakzanov reveal that the applicant first complained to his family doctor of pain related to the accident two months after the accident, and was prescribed Baclofen and Naproxen on an as needed basis. The applicant complained of pain on two further occasions, on April 8. 2022, when he complained of intermittent neck and back pain, and on December 17,2022, when Dr. Kakzanov diagnosed the applicant with chronic neck pain, which he described as “mild myofascial neck pain.”
35With respect to functional impairment, the applicant submits that that he told Dr. Cobrin at his February 26, 2024 IE that is unable to work full-time due to neck pain, which I find inconsistent with the OCF-3 which noted that he had returned to work, and the CNRs of Mackenzie Medical Rehabilitation Centre reveal that the applicant had returned to work, his caregiving responsibilities, and activities of daily living at his initial consultation on April 1, 2022.
36As the applicant has not directed me to any other evidence of functional impairment, I find insufficient basis to determine that the applicant has a functional impairment related to his accident-related injuries.
37For these reasons, I find that the applicant has not met his onus, on a balance of probabilities to prove that he has chronic pain with functional impairment that warrants his removal from the MIG.
38The applicant remains subject to the MIG, and its $3,500.00 funding limit.
Is the applicant entitled to an NEB?
39I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB of $185.00 per week from April 21, 2022 to February 21, 2023.
40The applicant makes no submissions with respect to his substantive entitlement to an NEB, instead arguing that the NEB is payable, because the respondent did not comply with the Schedule’s requirements with respect to informing the applicant about the election of benefits under s. 35(1) and s. 32(2)(d) and provided insufficient notice to the applicant under s. 36(4), because the respondent’s May 2, 2022 Explanation of Benefits (“EOB”) did not refer to the election of benefits.
41The respondent argues that as it had determined that the applicant was not entitled to two or more specified benefits, the respondent did not require the applicant to make an election of benefits, and the respondent was not required to provide information about an election of benefits. The respondent further argued that the May 2, 2022 EOB was compliant with s. 36(4).
Election of Benefits (“OCF-10”)
42S. 32(2)(d) sets out an insurer’s obligation to provide information in response to the application with respect to the election of benefits. It provides that the insurer must provide:
information on the election relating to income replacement, non-earner and caregiver benefits, if applicable.
43S. 35 (1) sets out an insurer’s obligation to notify the applicant of his or her requirement to choose one benefit, if they may be eligible for two or more of the income replacement benefit, the non-earner benefit or the caregiver benefit. It provides:
If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.
s. 36(4) and s. 36(6) of the Schedule
44Section 36(4) sets out the requirements for an insurer’s response to an application for a specified benefit, and is silent with respect to election of benefits. It provides:
Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
a) pay the specified benefit;
b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) send a request to the applicant under subsection 33 (1) or (2).
45Section 36(6) sets out the consequences if an insurer fails to comply with s. 36(4). It provides:
If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.
46The evidence reveals that the applicant submitted an OCF-1 on January 30, 2022, which indicated that the applicant’s injuries had not prevented him from returning to work after the accident. The applicant’s Disability Certificate (OCF-3), which was dated April 1, 2022 and submitted on April 23, 2022, indicated that the applicant had a complete inability to carry out a normal life, and a substantial inability to perform the responsibilities of his employment, and that the applicant was employed. In its Explanation of Benefits (“EOB”) dated May 3, 2022, the respondent informed the applicant that it had determined that the applicant was not entitled to an IRB because he had returned to work, and he had not indicated that he had experienced a reduction in income. The EOB also informed the applicant that he may be entitled to an NEB.
47I am not persuaded by the applicant’s argument that s. 32(2)(d) and s. 35(1), either separately or read together, confer an obligation on an insurer to inform an applicant of their option to elect a benefit, where the respondent has determined that the applicant is not eligible for two or more specified benefits. In the present case, the respondent had determined that the applicant was not entitled to an IRB, and was therefore not required to provide the applicant with information relating to an election of benefits.
48The applicant relies on multiple Tribunal decisions in support of his argument. I note that I am not bound by Tribunal decisions, and I find that the cases are distinguishable from the present case because they are all related to circumstances where the respondent provided OCF-10 forms to the applicant and the applicant failed to submit a response electing the specified benefit they wished to receive. In the present case, the respondent determined that the applicant may be eligible to receive only one of the three specified benefits, and did not provide an OCF-10. Therefore, I find the cases are not helpful in my analysis.
49The respondent relies on, Jones vs. The Co-operators, 2021 CanLII 13200 ONLAT, (”Jones vs. The Co-operators”) where the Tribunal held that there is nothing in s. 35(1) to provide an applicant with a unilateral right to elect benefits, and that it was up to the insurer to assess and determine whether the applicant was eligible for IRBs and NEBs.
50I agree with the reasoning in Jones vs.The Co-operators. In my view, the applicant has not proven, on a balance of probabilities that the circumstances triggered the respondent’s obligations to inform the applicant about the election of benefits pursuant to s. 32(2)(d) or s. 35(1) of the Schedule.
Is the May 2, 2022 EOB compliant?
51I find that the May 3, 2022 EOB is compliant with s. 36(4) because it was issued within 10 business days of the receipt of the applicant’s OCF-3, and is a clear and unequivocal denial, and explains the reasons why the respondent determined that the applicant is ineligible for the IRB and caregiver benefit, and advises the applicant that an IE is required to determine whether he is eligible for the NEB. Additionally, the notice provides information with respect to the applicant’s right to dispute the denial and the timeframe for doing so.
52Further, I found above that the respondent was not required to provide information about the election of benefits, and the applicant has not directed me to any case law in support of her argument that a notice is non-compliant if it fails to refer to an election of benefits.
53For these reasons, I find that the denial was compliant with s. 36(4) of the Schedule and the NEB is not payable pursuant to s.36(6).
54As I have found that the applicant remains subject to the MIG and its $3.500.00 funding limit, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
55I will consider the applicant’s submissions with respect to whether the denials of the treatment plans are compliant with s. 38(8) of the Schedule.
Section 38
56Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
57If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
Is the remaining $1,422.73 for chiropractic services in a treatment plan dated April 12, 2022 payable under s.38(11)?
58I find that the treatment plan dated April 12, 2022 is payable in accordance with s. 38(11) of the Schedule.
59The applicant submits that the respondent’s April 21, 2022 partial denial of the treatment plan is not compliant with s.38(8) because it does not provide sufficient medical and other reasons for the denial.
60The respondent argues that the denial letter is compliant because it references the MIG as a medical reason, and it asks the applicant for specific medical information.
61The denial letter sets out that the respondent has approved $2,200.00 of the treatment plan, however it does not identify the applicant’s injuries or set out which goods and services it has denied While the denial letter informs the applicant that “you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline”, it does not define “minor injury,” or explain what the MIG is. Further the notice does not identify the MIG limit, or whether it has been exhausted. The denial letter states that both that the applicant’s injuries are minor, and that there has been no compelling evidence submitted for review, which I find confusing, because it is unclear what the basis is for a determination that the injuries are minor, and the respondent does not request specific documents, asking only for “compelling evidence” that the applicant has a pre-existing condition.
62As such, I find that the notice is not sufficiently detailed for an unsophisticated person to make an informed decision as to whether to dispute the denial, and is not compliant with s.38(8). As a result, s. 38(11) is triggered.
63As neither party has directed me to a subsequent denial notice to cure the deficient April 21, 2022 denial letter, the remaining $1,422.73 in the treatment plan for chiropractic services is payable in accordance with s.38(11).
Is the $2,023.00 for chiropractic services in a treatment plan dated July 15, 2022 payable in accordance with s. 38(11)?
64I find that the treatment plan dated July 15, 2022 is payable in accordance with s. 38(11).
65The applicant submits that the respondent’s denial letter dated July 21, 2022 is not compliant with s.38(8) because the respondent did not provide sufficient medical or other reasons for the denial.
66The respondent submits that the letter is compliant because it cites the MIG as a reason and, and requests that the applicant send information if the applicant has a pre-existing condition.
67I find that the July 21, 2022 denial letter is not compliant with s.38(8) because it does not identify the applicant’s injuries. While the respondent requests that the applicant have their doctor send any evidence of a pre-existing injury and informs the applicant that no compelling medical evidence has been submitted, its request for medical records refers only to a pre-existing condition. Further, the letter informs the applicant that he is approved for treatment within the $3,500.00 MIG limit, and that the limit has been exhausted, however it does not define “minor injury” or direct the applicant to s.3 of the Schedule.
68For these reasons, I find that the notice is not sufficiently clear or detailed to allow an unsophisticated person to make an informed decision whether to dispute the denial, and is therefore not compliant with s. 38(8) and s. 38(11) is engaged.
69As neither party has directed me to a subsequent denial to cure the deficient notice, I find that the treatment plan is payable in accordance with s. 38(11).
Is the $1,525.84 for chiropractic services in a treatment plan dated January 24 2023 payable in accordance with s. 38(11)?
70I find that the treatment plan dated January 24, 2023 is payable in accordance with s. 38(11).
71The applicant submits that the February 2, 2023 denial letter is not compliant with s, 38(8) because it does not provide sufficient medical reasons.
72The respondent argues that the denial letter provides the MIG as a medical reason and asks for further medical information.
73I agree with the applicant. The sole reason provided in the February 2, 2023 denial letter is that the MIG limit has been exhausted. The denial letter does not identify the applicant’s injuries, and requests only information with respect to a pre-existing condition
74As such, I find that the denial does not comply with s. 38(8) because it does not provide medical reasons for the denial and is not sufficiently detailed for an unsophisticated person to determine whether to dispute the denial. As a result, s. 38(11) is engaged, and the respondent may not take the position that the applicant is subject to the MIG in considering this treatment plan.
October 17, 2024 denial letter
75The applicant received a subsequent denial notice on October 17, 2024, which I find does not comply with s.38(8), and therefore does not cure the previous deficient notices.
76The October 17, 2024 denial letter identifies the treatment plan for chiropractic services, and encloses the psychological IE report of Dr. Peter Cobrin, dated October 4, 2024. The medical reason given for the denial is that the applicant’s injuries fall within the MIG, and the respondent is not permitted to take this position in accordance with s. 38(11). Further, I find that the denial letter is confusing, because it relies solely on Dr. Cobrin’s opinion that the applicant “is not suffering from an accident-related psychological diagnosable condition,” while the treatment plan s for chiropractic services.
77For these reasons, I find that the deficient February 2, 2023 notice has not been cured, and the treatment plan is payable under s.38(11), once incurred and properly invoiced.
Is the applicant entitled to $2,200.00 for a psychological assessment, in a treatment plan dated February 2, 2024?
78I find that the treatment plan dated February 2, 2024 is not payable under s. 38(11).
79The respondent denied the treatment plan for a psychological assessment in a denial letter dated February 23, 2024.
80The applicant submits that he never received the denial letter, which I addressed above at paragraphs 14-16. I find that the February 23, 2024 denial letter is not compliant with s. 38(8) because it does not identify the applicant’s injuries. Therefore s. 38(11) is engaged.
81However, I find that the subsequent March 20, 2024 denial letter complies with s. 38(8) as it is a clear and unequivocal denial and quotes directly from Dr. Cobrin’s March 8, 2024 IE, in which Dr Corbin opined that the applicant does not suffer from a psychological impairment as a result of the accident, and that the treatment plan for a psychological assessment is not reasonable and necessary. Further, Dr. Cobrin’s IE report is attached to the denial letter.
82As I found that the March 20, 2024 denial letter is compliant, the applicant is entitled to payment for any services incurred under the treatment plan from February 28, 2024 to March 20, 2024. The applicant has not directed me to any evidence that the applicant incurred any costs related to the treatment plan during the period of non-compliance. Therefore, I find that the treatment plan dated February 2, 2024 is not payable under s. 38(11).
Interest
83The applicant is entitled to interest on any overdue payment in accordance with s. 51 of the Schedule.
Award
84The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
85While I agree with the applicant that the respondent was procedurally non-compliant with s. 38(8) of the Schedule with respect to its denials of three of the treatment plans in dispute, the applicant has not directed me to any evidence that the respondent has behaved in a manner that rises to the level of excessive, imprudent, inflexible, or unreasonable.
86Therefore, I find that the applicant is not entitled to an award.
ORDER
87The applicant is subject to the MIG and its $3,500.00 funding limit.
88The applicant is not entitled to an NEB.
89The treatment plans dated April 12, 2022, July 15, 2022, and January 24, 2023 are payable in accordance with s. 38(11).
90The treatment plan dated February 2, 2024 is not payable in accordance with s. 38(11).
91The applicant is entitled to interest on any outstanding payments in accordance with s. 51.
92The applicant is not entitled to an award.
Released: December 17, 2025
__________________________
Kathleen Wells
Adjudicator