Citation: Ly v. Aviva General Insurance, 2025 ONLAT 20-012558/AABS

Licence Appeal Tribunal File Number: 20-012558/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:

Ngoc My Ly

Applicant

and

Aviva General Insurance

Respondent

DECISION

PANEL:

Jeremy A. Roberts

Jim Zotalis

APPEARANCES:

For the Applicant:

Ngoc My Ly, Applicant

Meghan Hull, Counsel

For the Respondent:

Natasha Vujovic, Adjuster

Jonathan B. White, Counsel

Interpreter:

Winnie Lai, Cantonese Language (Day 1)

Ben Ho, Cantonese Language (Day 2)

Court Reporter:

Caitlin Westerhout

HEARD by Videoconference:

November 4 to November 6, 2024

OVERVIEW

1Ngoc My Ly, the applicant, was involved in an automobile accident on October 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2A previous hearing on this matter was heard by way of videoconference and a decision was delivered on September 9, 2022. On June 12, 2023, the Associate Chair of the Tribunal sent a letter to the parties advising them that, pursuant to Rule 18.1 of the Common Rules of Practice and Procedure, Version I (October 2, 2017), she was initiating a reconsideration of the decision on the Tribunal's initiative.

3On March 15, 2024, the reconsideration decision was released cancelling the decision dated September 9, 2022 and ordering a rehearing of this matter because on the basis that there was a violation of the rules of procedural fairness and a reasonable apprehension of bias.

PRELIMINARY ISSUE

4The preliminary issue in dispute is as follows:

i. Is the applicant barred from proceeding to a hearing for an income replacement benefit ("IRB") because the applicant failed to attend an insurer's examination ("IE") under s.44 of the Schedule?

5We find the applicant is entitled to proceed to a hearing on IRB because we don't find that this is a proper preliminary issue given the timing of the IE request.

6On June 17, 2024, the insurer requested that the applicant attend three IEs in order to determine her eligibility to post-104-week IRBs:

i. A general practitioner examination on July 17, 2024;

ii. A neurocognitive assessment on September 24, 2024; and

iii. A neuropsychological assessment on September 24, 2024.

7Pursuant to the Case Conference Report & Order dated April 5, 2024, all documents which the parties intended to rely on at the hearing were to be produced by June 19, 2024, and all items responsive to documents previously produced were to be produced no later than July 4, 2024.

8Section 55(1)2 of the Schedule bars an applicant from applying to the Tribunal if the insurer provided them with notice in accordance with s. 44(5) that it required an IE under s. 44, but the applicant did not attend the IE. The onus is on the insured person to provide a reasonable explanation for non-attendance at an IE. Under s. 44 of the Schedule, the applicant is required to attend an IE if they are to be conducted not more often than is reasonably necessary and if the applicant is provided with the medical or any other reasons for the IE.

9The respondent argued that the applicant failed to comply with her obligation to attend properly scheduled IE assessments and has failed to provide a reasonable explanation for failing to attend. The respondent argued that the IEs were necessary based on the reports received from Drs. Lau, Valentin and Becker, in addition to the new social worker and family doctor's notes, which called into question the applicant's eligibility for post-104-week IRBs. These new records were received on April 18, 2024. The respondent takes the position the applicant should thus be barred from proceeding, pursuant to s. 55(1)2 of the Schedule. In the alternative, the respondent made arguments the Tribunal should adjourn the LAT hearing pending the applicant's attendance at the scheduled IEs.

10The applicant argued the respondent is entitled to an examination of the applicant that is reasonably necessary to respond to a claim. The applicant also argued the guiding criteria in assessing reasonableness of an IE assessment include: the timing of the insurer's request, the possible prejudice to both sides; and whether there are any new issues being raised in the applicant's claim that require evaluation. The applicant argued the request for an examination should be for the purpose of adjusting the claim, not solely to bolster a case for litigation. The applicant made arguments that the Notice of Examination was deficient in that the medical and other reasons provided did not mention the applicant's condition, nor did it identify information about the insured's condition that the respondent requires but does not have, therefore making the notice non-compliant pursuant to s.44(5) of the Schedule.

11We find that s. 55(1)2 does not apply in this case because, based on a plain language reading of the provision, the IE must be scheduled before the applicant applies to the LAT in order to bar an application. The specific provision states that "an insured person shall not apply to the LAT", which suggests that the subsequent restrictions apply only if the non-compliance occurred prior to the application. The applicant applied to the LAT on October 26, 2020, while the insurer only requested IEs on June 17, 2024—nearly four years later. Allowing an insurer to request IEs long after an LAT application has been filed and then use non-attendance as a basis to bar the proceeding would create an unfair procedural hurdle for applicants. This interpretation aligns with the purpose of s. 44 of the SABS, which ensures timely assessments within the claims process rather than as a post-filing tactic to prevent access to adjudication. Accepting the insurer's argument would undermine the applicant's right to dispute resolution by enabling insurers to delay IEs indefinitely and later invoke section 55(1)2 as a barrier to LAT proceedings. Accordingly, we reject the insurer's motion to bar the applicant from proceeding with a hearing.

SUBSTANTIVE ISSUES

12The substantive issues in dispute are as follows:

i. Is the applicant entitled to IRB of $331.05 per week from October 8, 2019 to date and ongoing?

ii. Is the applicant entitled to $2,400.00 for an occupational therapy ("OT") assessment, proposed by Galit, Liffshitz and Associates in a treatment plan/OCF-18 ("plan") dated November 1, 2019?

iii. Is the applicant entitled to the following treatment plans, proposed by North Toronto Rehab:

a. $3,698.44 for chiropractic services, in a treatment plan dated November 28, 2019?

b. $2,480.34 for physiotherapy services, in a treatment plan dated December 24, 2019?

c. $1,497.98 for chiropractic services, in a treatment plan dated July 16, 2020?

d. $1,192.48 for massage therapy services, in a treatment plan dated September 8, 2020?

e. $986.74 for chiropractic services, in a treatment plan dated October 14, 2020?

iv. Is the applicant entitled to $5,845.14 for OT services, provided by Functionability Rehab Services in a treatment plan dated May 11, 2020?

v. Is the applicant entitled to $1,295.01 ($2,994.89 less $1,699.88 approved) for social work services, proposed by Social Work Consulting Group in a treatment plan dated August 25, 2020?

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

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

13At the start of the hearing, the applicant withdrew the following issues: 2, 4, 5, 6, 9, 11, 16, 17, 18, 19 and 20 as listed in the Case Conference Report and Order.

RESULT

14The applicant is entitled to IRBs in the amount of $331.05 per week from October 8, 2019, to October 1, 2021.

15The applicant is entitled to the proposed OT assessment, treatment plans from North Toronto Rehab, and the OT services.

16The applicant is not entitled to the remaining amounts from the partially approved social work services treatment plan.

17The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.

18The applicant is not entitled to an award.

PROCEDURAL MOTION

The respondent was not allowed to admit as evidence the transcripts of the previous hearing

19The respondent argued that it should be allowed to introduce the transcripts of the previous hearing into evidence at this hearing, arguing that they could provide the opportunity to impeach a witness who gives evidence contrary to their previous testimony. It argued that while the decision of the previous hearing was cancelled, the proceeding was not.

20The applicant argued that it would be prejudicial to admit into evidence the transcripts of the previous hearing given that the decision in that hearing was cancelled because of a finding of a reasonable apprehension of bias.

21We find that the transcripts of the previous hearing would not be admissible as evidence because they were not relevant to the issues in dispute. The transcripts present only hypothetical usefulness to the Tribunal. We are interested in seeing medical and other evidence that supports the statutory tests for the benefits in dispute, which the transcripts do not.

ANALYSIS

The applicant is entitled to IRBs in the amount of $331.05 per week from October 8, 2019 to October 1, 2021

Background

22The applicant testified that she was employed as a cashier at a grocery store for approximately 7 years prior to the date of the accident. Her job duties included greeting/speaking to customers, standing and scanning/bagging groceries as well as providing change to customers and looking up codes for grocery items. The applicant applied for IRBs on October 14, 2019. On November 12, 2019, the insurer scheduled the applicant for an insurer's examination to determine eligibility for IRBs. On January 8, 2020 the insurer denied that applicant's claim for IRBs, based on the insurer's examination report of Dr. Dharamshi, physiatrist.

Pre-104 Period

23We find the applicant is entitled to IRBs for the pre-104-week period because she suffers a substantial inability to perform the essential tasks of her employment.

24To receive payment for an IRB for the pre-104-week period, the applicant must have been employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

25The applicant argued that she met the test for the pre-104-week period for IRB as she was diagnosed with adjustment disorder with mixed anxiety and depressed mood because of the accident, diagnosed in a report by Dr. Valentin, dated December 21, 2021. The applicant also argued that objective and standard cognitive and psychological testing noted changes in her processing speed, visual memory and attention, which demonstrates a substantial inability to perform the essential tasks of a cashier at a grocery store. Specifically, she argued that these limitations made it difficult for her to perform the essential tasks of her employment, including scanning groceries, looking up codes for groceries and providing change to customers.

26The respondent argued the applicant has not met her burden of meeting the test for pre-104-week period because the medical evidence does not support a physical or psychological impairment. The respondent also argued that an adjustment disorder does not prevent an individual from returning to their employment and should not in the case of the applicant, as there is a lack of contemporaneous medical records that support this type of impairment. It relied on the findings of Dr. Dharamshi, who found that, from a musculoskeletal perspective, "the claimant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment".

27We find the essential tasks of the applicant's pre-accident employment include scanning groceries, recalling grocery codes and providing change to customers.

28We agree with the applicant's position, because we find the report of Dr. Valentin to be persuasive evidence of the applicant's substantial inability to perform the tasks of her previous employment, given the findings of adjustment disorder with anxiety and depressed mood. The report demonstrates that the applicant's anxious and depressed symptomatology negatively affects her attention and memory. For example, the applicant testified that she has difficulty with her memory since the accident, which is one of the reasons she felt she could not return to work. This was substantiated by Dr. Valentin's report, which cites vocational functioning and the inability of the applicant to return to work post-accident due to issues with her short-term memory and an inability to handle money, a primary duty of her former position.

29We also rely on the report by Dr. Zakzanis, psychologist, dated September 13, 2022, in which he opined on the applicant's short-term memory when he stated, "...her cognition is primarily characterized by disturbed supervisory attentional processes that impede upon her information processing abilities and working memory (i.e., her short-term memory). In turn, difficulties with planning and foresight – aspects of executive function – are also compromised." We find the report by Dr. Zakzanis to be persuasive because the report includes objective, clinical testing in the form of psychometric examination findings of depression and anxiety and does not rely solely on subjective reports from the applicant. While the respondent argues that its assessors found primarily soft-tissue injuries and not psychological or cognitive impairments, we find that it did not convince us to disregard the objective evidence provided by Drs. Ratti, Valentin and Zakzanis, which all document that the applicant suffered from psychological impairment as a result of the accident which caused a substantially inability to perform the essential tasks of her employment.

30For the reasons stated above, we find the applicant has met her onus of demonstrating entitlement to IRBs for the pre-104-week period.

Post-104 Period

31We find that the applicant is not entitled to IRBs for the post-104 period.

32The legal test for the post-104-week IRB is that the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

33The applicant made submissions she meets the post-104-week IRB test to be entitled to benefits because of permanent disabilities suffered as a result of the accident. She relies on the report of Dr. Valentin dated December 7, 2023 to support this position. In that report, the doctor points to the applicant's somatization scores, suggesting physical work would be difficult for her, in combination with her significant mental health issues, lack of English language competency, and limited education.

34The respondent made submissions that the applicant does not meet the test for a post-104-week IRB and thus should be denied this claim. The respondent argued that the evidence of Dr. Dharamshi found that the applicant's injuries were primarily soft tissue in nature. Moreover, it argued that the there was not adequate medical evidence to suggest that the applicant satisfied the "complete inability" test. Specifically, it pointed to the fact that OT Lividas found that the applicant was largely independent in tasks around the home, which was also reported to Dr. Valentin. Furthermore, it pointed to surveillance evidence which showed the applicant walking, shopping, and carrying a green bin, all of which, it suggested, meant that she could complete at least some tasks of employment suitable to her education, training, or experience.

35We find the applicant's reasonably suited employment is that of general labourer given that the applicant testified she left Vietnam at 13 years of age before immigrating to Canada, has only basic education, and has worked for the past 9 to 10 years as a cashier in a grocery store, and has not undertaken any further skills training since working in that industry.

36We find the applicant is not entitled to a post-104-week IRB because she has not demonstrated she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. We are not persuaded that the report of Dr. Valentin, dated December 7, 2023, has established the applicant is entitled to a post-104-week IRB because the report does not explain with sufficient detail as to how the assessor concluded with respect to the applicant having suffered a complete inability to engage in any employment or self-employment for which she has education, training, or experience. Given the nature of her experience and past work history, matched with descriptions of her functionality by assessors, we find that her impairments do not rise to the level of a complete inability.

37We find the applicant has not demonstrated, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

Quantum

38We find the applicant is entitled to IRBs for the pre-104-week period in the amount of $331.05 per week.

39The applicant submits she is entitled to $331.05 per week, while the respondent submits the quantum to be $304.10 per week.

40To calculate quantum, the Schedule states that a claimant's weekly IRB entitlement for the pre-104-week period is to be calculated as:

"70 per cent of the amount, if any, by which the sum of the insured person's gross weekly employment income and weekly income from self-employment exceeds the amount of the insured person's weekly loss from self-employment, if the weekly income replacement benefit is for one of the first 104 weeks of disability." The weekly entitlement amount is the lesser of this amount or $400.00.

41The applicant made submissions that the amount of her weekly entitlement should be calculated based on her yearly gross pay of $22,590.32, including vacation pay of $1,047.32 and bonus pay of $954.51, for a total of $24,592.15. This amount would then be multiplied by 70%, for an amount of $331.05 per week.

42The respondent made submissions that the yearly gross income amount as indicated in the OCF-2, i.e., $22,590.32, when multiplied by 70%, is $304.10 per week. In other words, vacation and bonus pay would not be included in the calculation.

43According to the Schedule, gross employment income is defined as "salary, wages and other remuneration from employment, including fees and other remuneration for holding office, and any benefits received under the Employment Insurance Act (Canada), but excludes any retiring allowance within the meaning of the Income Tax Act (Canada) and severance pay that may be received."

44We agree with the applicant that the quantum is $331.05. Based on the above criteria, we find the quantum payable to the applicant to be $331.05 weekly, as the Schedule defines gross employment income to include salary, wages and other remuneration from employment. From this we find the applicant is entitled to include vacation and bonus pay, as these amounts are not specifically excluded from the definition of gross employment income in the Schedule. Therefore, the amounts as indicated on the OCF-2 submitted by the applicant shall govern the quantum of the IRBs payable to the applicant.

The applicant is entitled to the proposed OT assessment

45We find the applicant is entitled to the proposed OT assessment because she has demonstrated that it is reasonable and necessary.

46To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

47The goals of the treatment plan include a return to activities of normal living and to determine the current level of function and the applicant's attendant care needs. The cost of the proposed OT assessment is $2,400.00. Despite its denial, the applicant undertook this assessment, and the report was admitted into evidence.

48The applicant argued the OT assessment is reasonable and necessary because the applicant requires assistance with activities of daily living, such as personal grooming, meal preparation, hygiene for bathroom and bedroom, as well as basic supervisory care due to decreased tolerances, fatigue, pain and decreased cognitive capacity. The applicant also argued that she only needs to demonstrate a reasonable basis for further inquiry in order to be entitled to the proposed assessment, which she submits is present here.

49The respondent denied this assessment on the basis of an IE report from OT Livadas, who argued that "given the claimant's high level of functioning, it is my opinion that she is able to perform all of her personal care or attendant care tasks and therefore a formal assessment is not necessary at this time and was not necessary at the time it was written". This was reinforced, it argued, by Dr. Dharamshi, physiatrist, noted in his reports that the applicant managed her personal care tasks without any significant difficulties based on his assessments.

50We find the applicant is entitled to the assessment, because the applicant has demonstrated a reasonable basis for further inquiry into her functional status related to her pre-accident essential activities of daily living. The applicant testified that, as a result of the accident, she requires physical assistance with bathing, walking and meal preparation, and her spouse has taken over most of the housekeeping duties and has been her attendant post-accident. As noted above, the applicant went ahead and incurred with OCF-18 despite the denial. As such, we have the benefit of the OT Functional Assessment Report, prepared by Cindy Huang, Occupational Therapist, dated December 13, 2019. We find this report helpful in demonstrating the need for supervisory care due to the applicant's decreased cognitive capacity, fatigue, pain and safety concerns at home. We note the practitioner had an opportunity to directly observe the applicant close in time to the accident, as the assessment took place on November 19, 2019, approximately 6 weeks post-accident and find the report compelling because it includes clinical observations and physical assessment of the applicant near the time of the accident. We did not find defects in this report and some of the findings here differed from those of the IE assessment providing insights that may help the applicant determine effective treatment options going forward.

51For the reasons state above, we find the applicant is entitled to the OT assessment.

The applicant is entitled to the proposed treatment plans from North Toronto Rehab

52We find the applicant is entitled to the proposed treatment plans from North Toronto Rehab ("NTR") for chiropractic, physiotherapy, and massage treatments.

53The test for entitlement is the same as above.

54The applicant submitted treatment plans in the following modalities: chiropractic, physiotherapy, and massage therapy. All treatment plans listed goals of pain reduction, increase in range of motion and strength and were submitted by Dr. Ian Kai, chiropractor. The treatment plans ranged in length from 4 to 12 weeks in duration and were listed as follows: chiropractic services for $3,698.44, dated November 28, 2019; physiotherapy services for $2,480.34, dated December 24, 2019; chiropractic services for $1,497.98, dated July 16, 2020; massage therapy for $1,192.48, dated September 8, 2020; and chiropractic services for $986.74, dated October 14, 2020.

55The applicant argued that the treatment plans are reasonable and necessary based on the medical evidence that she was unable to continue with her daily activities of living post-accident, and that treatment is required because of her physical pain. The applicant also argued her improvement with respect to completing activities of daily living and her physical functioning are the result of the therapy treatments she received at this provider and is evidence that the treatments have been working. The applicant also pointed to CNRs of NTR on June 8, 2020, we stated that her lower back pain was increasing "due to lack of treatment", suggesting ongoing benefit to physical treatment for her pain symptoms.

56The respondent made submissions that the applicant suffered only soft tissue injuries, and that the applicant did not suffer any post-accident impairments that warrant any further physical treatment thus making these treatments not reasonable and necessary. It relied on the report of Dr. Moddel, who opined on the applicant's physical injuries being soft tissue in nature.

57We find that treatment is reasonable and necessary, because the applicant continues to experience physical symptoms and the previous treatment was assisting the applicant. We find the CNRs from NTR on January 28, 2020, which notes the "patient is improving"; as well on February 18, 2020, that notes "neck pain has improved"; and "neck and back are improving" on March 3, 2020, as evidence that the treatment goals on the plan are being met to a reasonable degree. We agree with the applicant that, with treatment, the applicant's symptoms showed improvement while without treatment, the applicant complained of recurring pain symptoms. We find the costs for these treatment plans to be reasonable in meeting their goals.

58For the reasons stated above, we find the treatment plans submitted by NTR are reasonable and necessary.

The applicant is entitled to the proposed OT services treatment plan

59We find that the applicant is entitled to the proposed OT treatment plan because the plan is reasonable and necessary.

60The test for entitlement is the same as above.

61The applicant made submissions that the treatment plan is reasonable and necessary based on the medical evidence. The applicant also submitted that she was unable to continue with her activities of daily living post-accident. The applicant testified that, since the accident, she has been limited in her ability to undertake housekeeping tasks, as these have been carried out by her spouse and family. Under part 6 of the plan, the provider submits the applicant has suffered a concussion, which she argues is supported by the family doctor records. The OT-related treatment goals include: increase basic home safety, improve functional skills and provide education and cognitive training. The proposed OCF-18 for OT treatment proposes completion of the claim form, telehealth sessions (24) at 1.5 hours duration each, in person sessions (2) at 1.5 hours duration each, travel time for in home sessions, documentation, brokerage/service fees and the cost of protective personal equipment.

62The respondent submits the plan is neither reasonable nor necessary. The respondent relied on the assessment of OT Livadas in denying this treatment plan. OT Livadas found that given the applicant's physical tolerances, lack of issues related to executive functioning, and high-level of functioning, the applicant is "able to perform all of her personal care tasks and pre-accident activities of daily living", meaning that the proposed treatment plan "is not necessary at this time". The respondent further argues that there has never been a formal testing of the applicant to warrant a diagnosis of concussion or chronic pain. Given that the applicant has not been formally diagnosed with a concussion, the respondent argues there is no medical evidence the applicant can direct the Tribunal to substantiate this claim for OT treatment.

63We agree with the applicant. Post-accident, the applicant continued to be limited with her daily activities and testified she required assistance with certain aspects of personal care, such as toenail care and bathing. This was substantiated in the report of OT Huang, who found that the applicant required assistance due to mobility impairments (e.g. she found that the applicant required assistance with "reaching above shoulder and lower body" as well as toenail care, cooking meals, and other hygiene care.) She also testified she continued to experience headaches, upset mood and blurred vision, which was also noted by the OT. We find the applicant has also experienced safety concerns around her home such as falling, and her accident avoidance and fear of injury resulting from the accident confirm this treatment plan is necessary. The plan speaks to the necessity of safety education (e.g., to avoid injury in the home), service coordination (e.g., to educate the applicant on accessing services on her behalf) and to increase cognitive training and improving familial relationship (e.g., decreasing stress among family members). Based on her testimony and the findings of OT Huang, we find that the goals and cost of this treatment plan are reasonable and necessary.

64We find the applicant is entitled to the treatment plan for OT services for the reasons stated above.

The applicant is not entitled to the remaining amount for the proposed social work treatment plan

65We find that the applicant is not entitled to the remaining amount of the partially approved social work treatment plan, because the amounts are not reasonable and necessary.

66The test for entitlement is the same as above.

67The applicant did not make submissions as to why the remaining amount in dispute, i.e., $1,295.01, was reasonable and necessary.

68The respondent argued the remaining amount was not reasonable and necessary because its denial letter, dated September 2, 2020, states the insurer is agreeable to funding this plan to a cost not exceeding $1,699.88, as follows:

i. treatment plan fee at $200.00;

ii. 6 social work sessions at $100.00 (maximum fee payable for social workers);

iii. travel 6 x $83.33 (distance between applicant's home and clinic is 25 minutes);

iv. 1 report x $400.00 (4 hours at the $100.00 maximum amount); and

v. The insurer was not willing to fund the planning and service fee and the personal protective equipment fee.

69We are unaware of any submissions by the applicant directing us to consider, for example, the professional services guideline, and any maximum fee payable for social workers other than the $100.00 per session approved by the respondent. For similar reasons, as we have not had submissions from the applicant with specific reasons to consider reversing the decision to decline lines 5 and 6 of the plan (the planning and service as well as the personal protective equipment), we find the disputed amounts are not reasonable and necessary.

70For the reasons stated above, we decline to approve the remaining amounts in the partially approved treatment plans submitted by Social Work Consulting Group.

Interest

71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

72We find the applicant is entitled to payment of interest on overdue benefits as the treatment plans that were incurred are deemed to be overdue.

Award

73The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

74We find the applicant is not entitled to an award for the following reasons.

75The applicant has the onus to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments. We find that the applicant has not met her onus given that she did not point us to any evidence with respect to the respondent acting unreasonably in withholding or delaying payments. We find an award is not merited in these circumstances.

ORDER

76We order the following:

i. The applicant is entitled to an IRB payment in the amount of $331.04 per week from October 8, 2019, to October 1, 2021;

ii. The applicant is entitled to $2,400.00 for the proposed OT assessment, proposed by Galit, Liffshitz & Associates;

iii. The applicant is entitled to the following treatment plans proposed by North Toronto Rehab:

i. $3,698.44 for chiropractic services;

ii. $2,480.34 for physiotherapy services;

iii. $1,497.98 for chiropractic services;

iv. $1,192.48 for massage therapy services; and

v. $968.74 for chiropractic services.

iv. The applicant is entitled to $5,845.14 for OT services proposed by Functionability Rehab Services;

v. The applicant is not entitled to the remaining amounts of the partially approved social work treatment plan proposed by Social Work Consulting Group;

vi. The applicant is entitled to interest on overdue benefits; and

vii. The applicant is not entitled to an award.