Citation: Agyapong v. Aviva Insurance Canada, 2025 ONLAT 18-004309/AABS

Licence Appeal Tribunal File Number: 18-004309/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:

Samuel Agyapong

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Kwaku Bona, Paralegal

Frank Grande, Counsel

For the Respondent:

Geoffrey Keating, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Samuel Agyapong, the applicant, was involved in an automobile accident on September 26, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This matter was initially set down for a written hearing on December 22, 2023. In a decision dated January 4, 2024, the application was dismissed as the applicant had not filed submissions for the written hearing and as such, the Tribunal found that he had not met his evidentiary burden with regard to the issues in dispute. In a reconsideration decision dated May 21, 2024, the Tribunal granted the applicant’s request for reconsideration, in part. All of the issues in dispute were set to be reheard by a different adjudicator by way of written submissions. The parties have filed their written hearing submissions and the matter is now presently before me.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to receive a non-earner benefit for the period March 27, 2017 to date and ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $1,340.93 per month for the period October 26, 2017 to date and ongoing?

iii. Is the applicant entitled to $1,977.05 for chiropractic treatment, recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated March 14, 2017?

iv. Is the applicant entitled to $1,384.70 for chiropractic treatment, recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated April 24, 2017?

v. Is the applicant entitled to $2,569.40 for chiropractic treatment, recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated July 21, 2017?

vi. Is the applicant entitled to $1,230.92 for occupational therapy services, recommended by Prime Health Care Inc. in a treatment plan dated December 15, 2016?

vii. Is the applicant entitled to $1,230.92 for occupational therapy services, recommended by Prime Health Care Inc. in a treatment plan dated June 22, 2017?

viii. Is the applicant entitled to $2,000.00 for a psychological assessment, recommended by Prime Health Care Inc. in a treatment plan dated July 13, 2017?

ix. Is the applicant entitled to $2,758.87 for assistive devices, recommended by Prime Health Care Inc.in a treatment plan dated September 27, 2017?

x. Is the applicant entitled to $998.86 for chiropractic treatment recommended by Nor Med Assessment Services in a treatment plan dated October 19, 2016?

xi. Is the applicant entitled to $2,000.00 for an orthopedic assessment, recommended by NorMed Assessment Services in a treatment plan dated December 29, 2016?

xii. Is the applicant entitled to $752.53 for a psychological assessment (original treatment plan amount $1,999.82, partially approved $1,247.29) recommended by Nor Med Assessment Services in a treatment plan dated October 19, 2016?

xiii. Is the applicant entitled to $3,352.02 for chiropractic treatment, recommended by East Sheppard Rehabilitation Clinic in a treatment plan dated March 27, 2016?

xiv. Is the applicant entitled to payments for the cost of examinations in the amount of $200.00 for a disability certificate (OCF-3), recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated July 14, 2017, and denied by the respondent on August 9, 2017?

xv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find that:

i. The applicant is entitled to non-earner benefits for the period in dispute, plus interest in accordance with s. 51;

ii. The applicant has not established entitlement to attendant care benefits or the treatment plans in dispute; and

iii. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

Respondent’s motion to exclude portions of the applicant’s reply submissions

5The parties provided their written hearing submissions in accordance with the timelines set out in the May 21, 2024 reconsideration decision. After the applicant filed his reply submissions, the respondent brought a Notice of Motion, requesting that portions of the applicant’s reply submissions be struck. The motion was set to be heard as part of this written hearing.

6The respondent’s request to strike portions of the applicant’s reply is denied.

7The respondent submits that the applicant’s reply submissions have raised new arguments relating to Rule 10 of the Tribunal’s Common Rules of Practice and Procedure (Common Rules), which should have been raised as part of his initial submissions. It argues that this constitutes trial by ambush, and that allowing the applicant to raise new arguments in reply submissions offends the respondent’s right to procedural fairness. It requests that any reference to the Common Rules be struck from the applicant’s reply.

8The applicant submits that references to the Common Rules in his reply submissions are not new arguments or prejudicial to the respondent. He argues that in his initial hearing submissions, he had provided submissions on Rule 10 of the new Licence Appeal Tribunal Rules (“New Rules”), particularly the requirement under Rule 10.2 for the respondent to have filed an expert’s acknowledgement form. While he may have mistakenly referred to the Common Rules rather than the New Rules in his initial hearing submissions, the applicant argues that both the current and old Rule 10 are aligned in purpose to compel parties to exchange expert disclosure, and that the new 10.2 is substantively similar to the previous Rule 10.2.

9I agree with the applicant and find that the respondent has not established any prejudice as a result of the applicant citing Rule 10 of the Common Rules in his reply submissions. I do not agree with the respondent that the applicant was raising a new argument in reply with respect to his submissions on Rule 10.2 of the Common Rules or that this amounted to trial by ambush. Rather, the applicant noted the respondent’s submissions that the New Rules were not applicable and corrected his reference to Rule 10.2 to properly identify the applicable Common Rules. I agree with the applicant that the substance of both the previous and New Rule 10.2 is the same, and that the respondent was aware of the applicant’s argument from his initial hearing submissions. As such, the respondent’s request to strike the portion of the applicant’s reply submissions that reference the Common Rules, is denied.

Applicant’s request to exclude respondent’s insurer’s examination reports

10In his submissions, the applicant requested that the Tribunal exclude all of the respondent’s s. 44 insurer’s examination (“IE”) reports as a result of the respondent’s failure to provide an acknowledgement of expert’s duty, as required by Rule 10.2 of the Common Rules. He argues that the only way to qualify experts is by the completion of the acknowledgement and that without this form, their reports should be excluded from the hearing. The applicant also raises the alternate argument that certain reports should be excluded since the respondent’s Notices of Examinations (“NOEs”) were non-compliant with s. 44(5) of the Schedule, in that they did not provide “medical and any other reasons” for the various assessments.

11The applicant’s request to exclude the respondent’s IE reports is denied.

12I agree with the applicant that it appears that the respondent’s assessors have not filed acknowledgements with their IE reports, which is non-compliant with Rule 10.3 of the Common Rules. However, the applicant has not established that allowing in the reports would be prejudicial, or how the lack of an acknowledgment of duty form diminishes the probative value of the reports. The applicant has not led any evidence that the assessors were not qualified to provide expert evidence in this matter.

13I find that excluding all of the respondent’s IE reports would result in significant prejudice to the respondent because it would not be able to rely on the reports which contain evidence that is relevant to the issues in dispute. Excluding this evidence would impair my efforts to ensure a fair and proportional determination of the merits of this case, which Rule 3.1 requires me to do. Pursuant to Rule 9.4 the Tribunal is permitted to admit evidence that might otherwise be excluded for non-compliance with disclosure rules. Although the reports are not being excluded due to the lack of filing an acknowledgement under Rule 10.3 of the Common Rules, the respondent’s failure to comply with Rule 10 will go to the weight I assign to these expert reports.

14I further am not persuaded by the applicant’s argument that certain IE reports should be excluded due to the inadequacy of the NOEs. I agree with the decision cited by the respondent, S. V. v. Aviva Insurance Canada, 2020 CanLII 40332 (ONLAT) that the remedy for an insufficient IE notice is that the applicant is not obligated to attend the examination, not that that the report obtained from the examination should be excluded as evidence.

ANALYSIS

Causation

15The respondent raises the issue of causation with respect to the applicant’s pain and weakness in his lower extremities.

16The applicant submits that he has sustained serious physical and psychological impairments as a result of the accident, which ultimately resulted in the applicant’s assessors determining that he was catastrophically impaired under Criterion 8. With respect to his pain and weakness in his lower back and legs, the applicant concedes that he had a pre-existing medical history which included spasm in his lower extremities (lumbar spine and low back pain) and a spinal cord cyst. The spinal cord cyst had been treated by surgery on February 16, 2016 (approximately seven months before the accident). The applicant submits that he had been recovering well from his surgery, but that his pre-accident back and leg symptoms were significantly aggravated leading to worsening symptoms.

17The applicant relies on the clinical notes and records (“CNRs”) of his treating physicians and his orthopedic catastrophic (“CAT”) assessment. In the CAT assessment report, the applicant reported that after the accident his back pain increased by 80%, he was forced to restart using a walker, his bilateral leg pain and weakness also substantially increased leading to balance issues and subsequent falls. This has led to significant restrictions in sitting, standing and walking. The applicant further cites the August 22, 2017 report of Dr. Farhad Pirouzmand, neurosurgeon, who noted that the applicant had “worsened after a car accident”.

18The respondent submits that the accident did not cause or impact the applicant’s pain and weakness in the lower extremities. It argues that pre-accident the applicant had suffered from spondylolytic spondylolisthesis of the lumbar spine and a spinal cyst of the thoracic spine. He had reported progressive worsening pain in both legs with weakness, ataxia, poor balance and an abnormal gait in January 2016. Post-surgery, but before the accident, the applicant continued to report persistent pain and weakness in his lower limbs and back and continued to use pain medication. The respondent submits that multiple treating specialists have found that the applicant’s ongoing neurological issues in his lower extremities were not caused by the subject accident. The applicant’s treating physiatrist, Dr. Czok, had stated in her March 23, 2017 letter that his neurological findings were likely unrelated to the accident, and referred the applicant for a repeated MRI of the thoracic spine.

19It also relies on the s. 44 orthopaedic assessment reports of Dr. Stephen Halman dated April 28, 2017, September 18, 2017 and October 6, 2017. Dr. Halman considered the applicant’s pre-accident spastic paresis in the lower extremity as a result of a mid-thoracic spinal cord tumor and the February 2016 thoracic laminectomy and removal of spinal cord cystic mass. Dr. Halman agreed with Dr. Czok that the applicant’s ongoing symptoms were most consistent with his pre-accident history of spastic paresis of the lower extremity, and that any reduction in functioning was more consistent with post-operative changes, as opposed to being causally related to the accident.

20With respect to causation, the applicant is required to demonstrate that his lower extremity pain and neurological symptoms would not have occurred but for the accident. He is not required to demonstrate that the accident was the sole cause of his injuries. In situations where multiple independent causes may bring about a single harm, the applicant must establish that there is a material contribution, see: Sabadash v. State Farm, et al., 2019 ONSC 1121, Monks v. ING Insurance Company of Canada, 2008 ONCA 269, and Walker Estate v. York Finch General Hospital, 2001 SCC 23.

21I find that the applicant has not met his onus to prove that his lower extremity neurological symptoms and pain were caused by the accident.

22The applicant does not dispute that in the years leading up to the accident he suffered severe pain in his lower back radiating into his legs requiring prescription pain medication, weakness in the lower limbs, gait impairment and poor balance. On February 16, 2016 he had surgery to remove a spinal cord cyst. Although he submits that he was improving after the surgery until the accident, the CNRs from his family physician Dr. Kofi Wudom show continued, severe symptoms. On March 2, 2016 he was ambulating with a walker, reported being unable to sleep due to the pain, and requested new pain medication. On March 16, 2016, April 13, 2016 and May 13, 2016 he reported that his back pain was not improving. On July 19th and 29th, 2016 the applicant was using a cane and continued to have an unstable gait. In the last visit prior to the accident, on September 23, 2016, although the applicant did not use a cane, his gait was slow and antalgic and he reported persistent pain and weakness in his lower limbs.

23The applicant argues that his neurosurgeon Dr. Pirouzmand confirmed in his August 22, 2017 report that the applicant had “worsened after a car accident”. As such, he argues that causation has been established. However, I agree with the respondent that Dr. Pirouzmand did not make conclusions about whether the accident was the cause of his worsening symptoms. Further, the applicant was subsequently assessed by another neurologist, Dr. Robert Yufe on June 20 2018. Dr. Yufe recommended further investigation, stating that he wanted to do another MRI of the thoracic spine, to look for an expanding syrinx, arachnoiditis or other pathology. The applicant has not directed me to evidence of subsequent MRIs or neurologic reports.

24In addition, even the applicant’s CAT assessor queried causation with respect to his neurological lower limb symptoms. In his orthopedic CAT assessment report dated August 10, 2023, Dr. Tajedin Getahun stated that he could not explain the applicant’s deterioration from an orthopaedic perspective upon reviewing his MRIs. He recommended an updated MRI to see if the applicant was developing a syrinx and expressly stated that with respect to causation, he would recommend a neurologic opinion as to whether the accident was responsible for his lower extremity impairments. The applicant has not provided any evidence that such a subsequent neurologic opinion and updated MRIs were obtained.

25As previously noted, I have ascribed less weight to the respondent’s s. 44 reports from Dr. Halman, given that the acknowledgement of expert’s duty was not provided. However, even discounting Dr. Hamlan’s reports, based on the medical record before me, I find that the applicant has not established that his lower extremity neurological symptoms and pain were caused by the accident.

Non-Earner Benefit (“NEB”)

26I find that the applicant has established entitlement to NEBs.

27The parties agree that a prior version of the Schedule, the Statutory Accident Benefits Schedule - Effective September 1, 2010, applies in the present matter. Under this version of the Schedule, pursuant to s. 12 and s. 3(7)(a) an insurer shall pay an NEB to an insured that suffers “a complete inability to carry on a normal life” as a result of and within 104 weeks after the accident, that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The NEB is not payable for the first 26 weeks after the onset of the complete inability and the $185 weekly rate increases to $320 after the first 104 weeks from the onset of the disability.

28The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

29The applicant submits that he meets the test for entitlement to NEBs, since as a result of the accident he has suffered severe restrictions in his activities of daily living. He submits that his treating physicians have confirmed that his mobility is significantly restricted, and that he is at a high risk for falls. His occupational therapy (“OT”), orthopedic and psychiatric CAT assessors have all found severe restrictions in the applicant’s ability to meet his personal care needs, recreational pursuits, social activities, and family and home responsibilities. Given that his assessors have found that he is catastrophically impaired, the applicant argues that he should be found to have met the NEB test. In the alternative, the applicant argues that the respondent’s denial notice was non-compliant with s. 36(4) of the Schedule, and as such NEBs should be payable.

30The respondent argues that the applicant has not met the test for entitlement to NEBs. With respect to the applicant’s argument that NEBs must be found to be payable because he is catastrophically impaired, the respondent submits that its assessors have concluded that the applicant is not catastrophically impaired. It further argues that to establish his claim to NEBs, the applicant relies on various occupational therapy assessment reports, but that different occupational therapists have provided conflicting opinions as to the level of care the applicant requires. Rather, the respondent’s orthopedic and OT assessors both found that the applicant did not meet the test for entitlement. Finally, the respondent raises the issue of causation with respect to the applicant’s lower limb impairment.

31I find that the applicant has met his burden to prove, on a balance of probabilities, that he suffers from a complete inability to lead a normal life as a result of the accident.

32Although I agree with the respondent that the applicant has not established that his lower limb impairments were caused by the accident, the medical evidence supports the applicant’s claim to significant accident-related impairments. In addition to his lower limb pain and neurological symptoms, the applicant consistently reported significant neck, shoulder pain and headaches to his treating physicians and assessors. Dr. Czok, the applicant’s treating physiatrist, found that his neck, shoulder pain and headaches were due to cervical strain/sprains from the accident. The respondent’s orthopedic assessor Dr. Halman also found in 2017 that the applicant’s soft tissue injuries to the cervical and lumbar spine were causally related to the accident.

33The applicant was consistently diagnosed with Somatic Symptom Disorder, stemming from his ongoing pain complaints. In 2017 his treating psychiatrist Dr. Slyfield diagnosed him with Somatic Symptom Disorder and increased his Cymbalta dosage. From Dr. Slyfield’s records, it does not appear that the somatic symptoms complaints related solely to lower limb pain, but rather, also stemmed from his ongoing headaches, and pain in the neck and shoulders which was not getting better, despite injections in the neck and shoulders. The Somatic Symptom Disorder diagnosis was reiterated in 2019 by his s. 25 assessor Dr. Peter Waxer and in 2023 as part of his psychiatric CAT assessment, with the additional diagnoses of Specific Phobia (vehicular), and Major Depressive Disorder, with anxious distress. As part of his CAT assessment the applicant reported pain in his head, neck and entire body.

34The respondent’s psychological assessor Dr. Rakesh Ratti initially diagnosed the applicant in January 2017 with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident. However, in September and October 2017, the respondent’s assessor included the diagnosis of Somatic Symptom Disorder and a differential diagnosis of Major Depressive Disorder with anxious distress. All assessors appear to agree that the applicant did not have mental health diagnoses prior to the accident.

35As such, I am persuaded by the applicant’s evidence that even discounting his lower limb impairments, his ongoing pain in the head, neck, shoulders and psychological impairments have prevented him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Even the respondent’s psychological assessor, Dr. Kerry Lawson, confirmed in September 2017 that the applicant’s psychological distress has likely contributed to “some degree of impairment” in his family/home responsibilities, recreational pursuits, social activities, self-care tasks and life support activities.

36While the applicant concedes that pre-accident he suffered from lower back and leg pain and neurological symptoms, he asserts that he was still independent in his personal care, helped with chores such as cooking, cleaning and driving as needed, attended church, read the Bible and socialized with family, friends and in community groups.

37The applicant’s OT and psychiatric CAT assessments establish that he now is unable to complete most of his pre-accident activities. The applicant reported being unable to complete shopping tasks and meal preparation, attend church or family outings, not just due to pain but also due to low mood and decreased motivation. He limits his time driving due to residual anxiety and fear in vehicles, and stated that he rarely seeks the company of others, avoids answering phone calls, leaving the home or engaging with his hobbies, due to his low mood and reduced motivation. He also reported forgetting appointments and to return calls from friends. Dr. Gavett-Liu, the applicant’s psychiatric CAT assessor, found that he suffered from marked impairments in the areas of activities of daily living, social functioning and adaptation, and a moderate impairment in the domain of concentration, persistence and pace.

38Although the respondent submits that its assessors found that the applicant was not catastrophically impaired, it has not provided copies of its CAT assessment reports as evidence. With respect to psychological assessments, the most recent reports submitted by the respondent were from September and October 2017. As such, particularly with respect to psychological impairments, the respondent has provided limited evidence to refute the findings of the applicant’s CAT assessors.

39As such, I find that the applicant has met his onus to prove, on a balance of probabilities, that his ongoing psychological impairments and pain have led to a complete inability to carry on a normal life.

Attendant Care Benefits (“ACBs”)

40I find that the applicant has not established entitlement to attendant care benefits.

41The respondent submits that pursuant to s. 20 of the applicable version of the Schedule, attendant care benefits for non-catastrophically impaired individuals are only available for up to 104 weeks post-accident. As such, it argues that any ACBs would only be limited to September 26, 2018. The respondent further argues that the benefit must have been incurred in order to be payable, and that the applicant has led no evidence that the provision of ACBs has been incurred. The only evidence the applicant has provided in this regard was a copy of a College Diploma for Ms. Jacqueline Manu Boadu.

42The applicant submits that ACBs have been incurred. He relies on s. 3(7)(e)(ii) of the Schedule and the Ontario Court of Appeal decision Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, to argue that an expense has been incurred when there has been a promise to pay the expense or the person is otherwise legally obligated to pay the expense. The applicant submits that ACBs were provided in accordance with s. 3(7)(e)(ii).

43I find that the applicant has not provided sufficient evidence to establish that he has promised to pay Ms. Boadu or is otherwise legally obligated to pay the ACB expense. I agree with the respondent that the only evidence tendered by the applicant on this point was a copy of Ms. Boadu’s college diploma. Although the applicant provides a general submission that Ms. Boadu provided ACB services “in accordance with s. 3(7)(e)(ii)”, no details were provided to clarify this statement. The applicant has not provided any invoices for treatment, a copy of a promissory note, or any details of services provided, the dates, rate of payment or level of care. As such, the applicant has not established that he has promised to pay the ACB expense or is otherwise legally obligated to pay it.

44Accordingly, the applicant has not demonstrated that ACBs are payable for the period in dispute.

45Sections 14 and 15 of the Schedule set out that an insurer is liable to pay medical benefits that shall cover all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

The applicant has not established entitlement to the treatment plans in dispute

46The applicant has provided limited submissions on the twelve treatment plans (“OCF-18s”) in dispute. He argues that all of the OCF-18s are payable pursuant to s. 38(11) of the Schedule since the respondent’s notices failed to articulate “medical and all of the other reasons” for the denials. In the alternative, the applicant submits that the treatment plans are reasonable and necessary for his rehabilitation.

47The respondent submits that the applicant has only provided general submissions that the denial notices were not valid and that the treatment plans were reasonable and necessary, without any evidence in support of this claim. It argues that six of the treatment plans (items listed in paras 3(iii), (iv), (v), (vi), (vii), and (ix) above) were denied on the basis of its s. 44 assessor Dr. Halman’s conclusions that further chiropractic and occupational therapy was not reasonable and necessary. It further submits that three of the treatment plans (items listed in paras 3(x), (xii) and (xiii) above) had been approved. With respect to the psychological assessment in the amount of $2,000.00, the respondent submits this was denied on the basis of it being a duplication of services and that the orthopedic assessment was denied as the applicant was already under the care of a treating specialist. It submits that all of its denial notices were compliant with s. 38(8) of the Schedule, and that the proposed treatment was not reasonable and necessary.

48With respect to the issue of s. 38(8) non-compliance, I find that the applicant has not established that the respondent’s denial notices failed to provide medical “and all of the other reasons” for the various denials. The respondent has submitted eleven denial notices for the OCF-18s in dispute. From my review of the correspondence, the respondent denied the various plans on the basis of its IE assessors’ findings that the proposed treatment was not reasonable and necessary, or that it was duplicative. The applicant does not direct me to any specific correspondence or provide submissions on how the language was non-compliant.

49I find that the respondent provided clear and unequivocal denials with straightforward and clear language, sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Without specific submissions from the applicant as to how or which of the notices are deficient, I find that the applicant has not established that the respondent was non-compliant with s. 38(8) of the Schedule, or that the OCF-18s are payable by virtue of s. 38(11).

50To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant must 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 applicant has not provided any specific submissions on the twelve treatment plans. He has not identified the proposed treatment or stated goals or referred me to evidence in support of the reasonableness and necessity of the treatment or assessments.

51The Tribunal cannot connect the dots and make the applicant’s case. Doing so inappropriately places the Tribunal in the role of advocate. It is up to the applicant to make specific citations with reference to the evidence and explain why it supports entitlement to a specific benefit. Without any specific submissions on the treatment plans, I find that the applicant has not established, on a balance of probabilities, that the OCF-18s in dispute are reasonable and necessary.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding NEB payments.

Award

53The applicant sought an award under s. 10 of Regulation 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.

54I find that the applicant has not established a basis for an award. Although the applicant makes the general statement that the respondent improperly denied NEBs, ACBs, and treatment plans, he does not provide particulars of any specific action or direct me to any evidence of unreasonable withholding of benefits. As such, the respondent is not liable to pay an award.

ORDER

55I find that:

i. The applicant is entitled to NEBs for the period in dispute, plus interest;

ii. The applicant has not established entitlement to attendant care or the OCF-18s in dispute; and

iii. The respondent is not liable to pay an award.