Licence Appeal Tribunal File Number: 23-008356/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:
Kofi Kwakye
Applicant
And
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Dianna Morello, Counsel
For the Respondent:
Jonathan White, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kofi Kwakye, the applicant, was involved in an automobile accident on November 8, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2I have been asked to decide the following issues:
Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,231.55 per month from February 21, 2023, to date and on-going?
Is the applicant entitled to the following treatment plans (“OCF-18s”) for medical benefits and examination expenses proposed by Iscope Concussion and Pain Centre (“Iscope”):
i. $1,550.00 for pharmacotherapy services (botox injections) dated April 28, 2023;
ii. $2,200.00 for an occupational therapy assessment dated April 28, 2023; and
iii. $700.00 for an optometric assessment dated April 28, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3After reviewing both parties’ submissions and all the evidence I find as follows:
The applicant has established entitlement to an ACB in the amount of $686.92 per month. However, he is not entitled to payment of same from February 21, 2023, to date because the benefit has not been incurred.
The applicant is entitled to the OCF-18 in the amount of $700.00 plus interest recommended by Iscope for the optometry assessment. The applicant has not established entitlement to the remaining OCF-18s.
The respondent is liable to pay an award in the amount of $3,473.20, plus interest in accordance with the regulation.
BACKGROUND
4On November 8, 2022, the applicant, who is now 67 years old, was involved in an accident when he was a pedestrian crossing at a traffic light when he was hit by a vehicle making a right-hand turn. The vehicle made contact with his left side, and he fell to the ground striking his head on the pavement. The applicant went to the hospital where he was diagnosed with a muscular injury. He followed up with his family doctor who diagnosed him with soft tissue injuries and a concussion.
5The respondent took the position that the applicant sustained a minor injury as a result of the accident and that his treatment was subject to the $3,500 cap in the Minor Injury Guideline (“MIG”) limit. On May 31, 2024, the respondent removed him from the MIG based on the s. 25 report of Dr. Bodenstein, psychologist, who diagnosed him with accident-related psychological impairments. The respondent then approved five OCF-18s for various treatment that it had previously denied based on its position on the MIG.
6The applicant is seeking an award for the respondent’s delay in removing him from the MIG and approval of those OCF-18s. He is also seeking an award for the respondent’s denial of the remaining OCF-18s in dispute.
ANALYSIS
Entitlement to ACBs
7I find the applicant has established that he is eligible for an ACB in the amount of $686.92 per month. However, I find that he is not entitled to payment of same from February 21, 2023 to date because he has not proven that the benefit has been incurred.
8Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an occupational therapist (“OT”) sets out the services and amount of care an individual requires as well as the monthly amount payable. The maximum payable to an insured who has not sustained a catastrophic impairment is $3,000.00 per month.
9The parties disagree that the applicant requires ACBs because of his accident- related impairments. The applicant relies on the attendant care assessment report and Form 1 prepared by Powan Chopra (“OT Chopra”) dated August 21, 2023, who determined that that he requires $3,231.55 per month in ACBs, which I note is over the $3,000 maximum payable for non-catastrophic claimants.
10The respondent relies on the insurer examination (“IE”) attendant care assessment report and Form 1 prepared by Atul Kaul (“OT Kaul”) and Dr. Rusen, orthopedic surgeon, who determined that the applicant does not have any functional limitations which require ACBs. Further, the respondent argues that the applicant is not entitled to payment of ACBs because he has not submitted proof that the benefit has been incurred pursuant to s. 3(7)(e) of the Schedule. It maintains that proof of incurred expenses is essential to a finding of entitlement to the attendant care benefit.
11The assessments throughout this claim note that pre-accident the applicant was employed as a factory worker which was physical and required heavy lifting. Following the accident, he has not returned to his employment and according to the adjuster’s log notes the respondent is paying him an income replacement benefit. Further, the reports consistently support that pre-accident the applicant was independent in carrying out his self care and daily activities. The pre-accident medical record establishes that the applicant had issues with his right shoulder and degenerative changes in his lumbar spine. However, I find that there is no mention of any pain complaints or functional limitations regarding his left shoulder. Following the accident, I find that the applicant has consistently reported ongoing pain and functional limitations in his left shoulder to his family doctor, Dr. Halman, his treating orthopaedic surgeon, and the IE assessors.
12While I note that the IE assessors determined that the applicant sustained a soft tissue injury to his left shoulder, I find that their reports support that it had an impact on his function. The following are some examples:
i. The IE report of Dr. Nesterenko, physician, dated June 9, 2023, notes that the doctor’s physical examination of the applicant’s left shoulder revealed limitations in range of motion. Dr. Nesterenko was of the opinion that the applicant would have limitations with overhead activities with his left upper extremity or heavier lifting and carrying. The doctor requested that the applicant undergo an MRI to determine the cause. After receiving the MRI, Dr. Nesterenko determined that the applicant sustained a sprain and strain impairment of the left shoulder on top of degenerative changes.
ii. The IE ACB report of Dr. Rusen, orthopaedic surgeon, dated November 15, 2023, indicated that the applicant is able to shower but has difficulty using his left arm to wash and uses his right arm only. He is also independent with grooming, dressing, and undressing using his right arm. However, the applicant reported that he is unable to cook, wash dishes, mop, sweep, vacuum, deep clean, do laundry and is limited to light grocery shopping such as picking up bread and milk. The doctor noted that the applicant demonstrated a moderate degree of pain focused behavior including frequent grimacing and groaning as well as guarding of the left shoulder during physical testing. Further, range of motion testing of the left shoulder was limited by pain and guarding, and all special testing of the left shoulder was equivocal due to pain with any range of motion of the left shoulder.
iii. OT Kaul’s IE ACB report dated November 15, 2023, noted that the applicant was reluctant to use his left shoulder but was capable of raising his shoulder to 120 degrees of flexion and 100 degrees of abduction with reported complaints of pain. However, the OT conducted ROM testing of the applicant’s left shoulder which indicated that the extension, abduction, internal and external rotation of his left shoulder were all below functional levels. The results of the ROM testing in OT Chopra’s report also revealed moderate to severe restrictions in the applicant’s left shoulder.
13I find the above-noted reports support that the applicant has functional limitations because of his left shoulder impairment. Further, I find these functional limitations would interfere with his ability to carry out some of his self-care and activities of daily living. Moreover, I find the report of OT Kaul internally inconsistent because the ROM testing supported that the applicant’s left shoulder was below functional levels in extension, abduction, internal and external rotation. However, the OT does not provide any explanation for how this might impact the applicant’s function, other than rendering the conclusion that the applicant is independent in carrying out all of his activities of daily living because he is right hand dominant. I find this opinion unpersuasive which will be discussed further below.
14Although I do not accept all of the findings in OT Chopra’s report and Form 1, I prefer some of the OT’s recommendations because the applicant was observed to have difficulty pushing, pulling, reaching, and carrying anything heavy. I find OT Chopra’s observations regarding the applicant’s limitations regarding these activities consistent with the ROM testing completed by both parties’ OTs, as a result of ongoing pain to the applicant’s left shoulder. However, I find OT Chopra’s observations regarding the applicant’s inability to stand and walk for prolonged periods unsupported by the medical record and the applicant’s performance in other assessments. OT Chopra also made several recommendations because the applicant reported having four falls because of dizziness. Although I accept that the applicant sustained a concussion which I will discuss below, there is insufficient evidence before me to support that the applicant is unable to walk unsupervised due to problems with dizziness, balance or falls. I will now discuss my findings regarding the recommendations on OT Chopra’s Form 1 which I find to be reasonable and necessary.
Level 1
15OT Chopra recommended 40 minutes x 7 days a week to assist the applicant with dressing and undressing his upper and lower extremities. I find that dressing and undressing requires the use of both arms. Therefore, I find the applicant requires assistance with this task because he is limited in using his left arm for overhead reaching. However, I find 40 minutes per day excessive and find 20 minutes per day sufficient to assist the applicant with this task. I reject OT Kaul’s opinion that the applicant does not need assistance because he is right hand dominant.
16OT Chopra proposed 10 minutes x 7 days a week for assistance with shaving, 10 minutes x 7 days a week for styling his hair, and 20 minutes a week for assistance with finger and toenail nail care. I do not accept OT Chopra’s recommendations that the applicant requires assistance with shaving, styling his hair or fingernail care because I find the applicant can manage this task using his right arm because there is no overhead reaching and both arms are not typically required for these tasks. I also note that the OT Chopra indicated not applicable regarding hair care in her report, so I find assistance with this task was not justified by the OT in her report. I accept the 10 minutes recommended for toenail care because reaching and bilateral arm movement would be required to complete this task.
17OT Chopra proposed 30 minutes x 7 days a week for assistance with meal preparation for a total of 210 minutes per week. Although OT Kaul’s report notes that the applicant’s landlady is responsible for meal preparation, I find this does not establish that the applicant does not require assistance with this task. I find the applicant requires assistance with cooking and meal preparation because it requires bilateral arm movement to reach into cupboards to lift pots and pans and cutting food. For these reasons, I reject OT Kaul’s opinion that the applicant can carry out these tasks because he is right hand dominant. Consequently, I find 210 minutes per week for assistance with this task recommended by OT Chopra to be reasonable.
18OT Chopra recommended 120 minutes x 7 days a week for assistance with walking for a total of 840 minutes per week. As highlighted above, I find that there is insufficient medical evidence before me to support that the applicant requires this level of supervision for walking because of mobility issues or dizziness resulting in falls.
19For the above-noted reasons, I find the applicant requires 360 minutes per week in ACBs, which when calculated in accordance with the formula on the Form 1 is $384.82 per month.
Level 2
20OT Chopra recommended 10 minutes x 7 days a week for assistance with cleaning the shower and tub, 20 minutes x 1 a week for changing the applicant’s bedding. I find these amounts reasonable and necessary because changing bedding and cleaning the tub, shower and toilet would require reaching and bilateral arm movement. OT Kaul stated that the applicant has the adequate ability to flush the toilet and rinse the shower. Further, he has the ability to make his bed and straighten his bedding because he is right hand dominant. I find OT Kaul took an overly simplistic view of these tasks which would require the applicant to clean (not rinse and flush) the tub and toilet which he shares with his landlady. Further, OT Kaul fails to explain how the applicant can change his sheets or make the bed with the use of one arm.
21I do not accept OT Chopra’s recommendation that the applicant requires 420 minutes per week to ensure comfort and safety in the bedroom environment as the OT does not justify the need for it in their report. I find the medical evidence does not support that the applicant requires this type of assistance. Likewise, I find that the applicant does not require assistance in preparing his daily apparel and hanging clothes. Finally, I have not been directed to any evidence to support that the applicant is unable to coordinate his ACBs so I reject that he requires 60 minutes per week for assistance with this task.
22I find the applicant requires 90 minutes per week for Level 2 ACBs, which when calculated in accordance with the formula on the Form 1 is $90.30 per month.
Level 3
23OT Chopra recommended that the applicant requires 6 minutes x 7 days a week for assistance with exercising for a total of 420 minutes per week. As highlighted above, I find this recommendation is not supported by the medical evidence because I find the evidence regarding any limitations with mobility inconsistent and unsupported by the medical record. OT Chopra also proposed 5 minutes x 7 times a week for administration of medication and 15 minutes per week for maintaining medical supply. I find there is no evidence before me to support that the applicant is incapable of taking or maintaining the supply of his medication.
24OT Chopra recommended 20 minutes x 7 days a week for assistance with bathing and drying the applicant and applying lotions and creams. I find that these tasks would require the use of both arms and find that this recommendation is supported. Again, I reject OT Kaul’s opinion that the applicant can complete this task independently because he is right hand dominant.
25OT Chopra recommended 30 minutes per week for maintenance of supplies. I do not find this recommendation is supported in the report.
26I find the applicant requires 140 minutes per week for Level 3 ACBs, which when calculated in accordance with the formula on the Form 1 is $211.80 per month.
27When the amounts I have determined to be reasonable and necessary under Level 1 ($384.82), Level 2 ($90.30) and Level 3 ($211.80) are added up, I find the applicant is entitled to a monthly ACB in the amount of $686.92 per month.
The applicant did not incur the ACBs
28The applicant has not incurred the ACBs. Consequently, I find he is not entitled to payment of same during the disputed time period.
29Under subsection 3(7)(e) of the Schedule, in order for the applicant to receive payment for ACBs, there must be evidence that the expense was incurred. An incurred expense requires that the following conditions be met:
i. The applicant received the service to which the expense relates;
ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and
iii. The person who provided the service did so:
a. in the course of their employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or
b. sustained an economic loss as a result of providing the goods or services to the insured person.
30Section 3(8) of the Schedule provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
31The applicant argues that given that the respondent conceded that the assessment of attendant care needs and numerous assistive devices were reasonable and necessary on May 31, 2024, it is fair that the assessed attendant care be deemed payable.
32The respondent asserts that the applicant is not entitled to payment of ACBs because he has not submitted any evidence that the expense has been incurred pursuant to s. 3(7) (e) of the Schedule. As highlighted above, it submits that proof of incurred expenses is not a mere technicality but is essential to the Tribunal making a finding of entitlement to the attendant care benefit.
33Although I have determined that the applicant is eligible to receive a monthly ACB in the amount of $686.92 per month, I find that he is not entitled to payment of same for the disputed time-period because he has not provided any evidence to support that he received the service to which the expense relates, nor was I provided with any evidence that the applicant paid or promised to pay the expense and there is no evidence that anyone provided any services. Moreover, I find the fact that the respondent approved the attendant care assessment and OCF-18 for assistive devices does not mean that the respondent unreasonably withheld the benefit and that ACBs should be deemed payable. I find the applicant’s submissions insufficient in support of his position that ACBs be deemed incurred pursuant to s. 3(8) of the Schedule.
34In this case, although I have determined that the applicant has established some entitlement to ACBs, I found many of the recommendations of OT Chopra exaggerated or unsupported by the medical evidence. For this reason, I do not fault the respondent for relying on the reports of its IE assessors and decline to deem the benefit incurred even though I do not accept their overall opinions. As a result, I find that the applicant is not entitled to payment of an ACB in the amount of $686.92 per month from February 21, 2023 to date because the benefit has not been incurred. Having said that, this does not preclude the applicant from receiving an ACB in the future, upon proof that the benefit has been incurred pursuant to s. 3(7) (e) of the Schedule.
Entitlement to the OCF-18s in Dispute
35Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.
36Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.
37The applicant argues that the three OCF-18s remaining in dispute should have been approved when the applicant was removed from the MIG because the only basis for the respondent’s denial was no longer valid. He submits that the respondent issued a new explanation of benefits (“EOBs”) dated May 31, 2024, denying the OCF-18s based on new reasons. He submits that the respondent cannot cite new reasons for denying the benefit one-year later.
38The respondent submits that the applicant has not met his onus in proving entitlement to the three OCF-18s in dispute. It submits that other than producing the OCF-18s, the applicant has not provided any analysis directing the Tribunal to the evidence to support that the benefits are reasonable and necessary.
39I agree with the respondent that the fact that the applicant was removed from the MIG does not automatically entitle him to all of the OCF-18s which were denied even if they were denied based on the MIG. The applicant still has the onus to prove that the OCF-18s are reasonable and necessary. However, I disagree with the respondent that the applicant only relied on the OCF-18s in support of his position. In fact, the applicant relied on the report of Linda Johnston, registered nurse, who recommended the treatment plans to treat the applicant’s post-concussion syndrome. I will now address whether I find each OCF-18 to be reasonable and necessary.
OCF-18 for Pharmacotherapy (Botox Injections)
40The OCF-18 dated April 28, 2023, was completed by Ms. Johnston and recommended 155 Botox injections at a cost of $1,150.00; $175 for preparation of the injections, $25.00 for gloves, gown, and goggles and $200.00 for completion of the OCF-18, for a total cost of $1,550.00. Part 8 of the OCF-18 notes that the patient continues to experience physical and functional concerns, neck, low back pain, dizziness, headaches, vision problems, sleep, phonophobia, balance and cognitive issues. The goal of the OCF-18 was pain reduction and to return the applicant to his activities of daily living. Under the additional comments section, it noted that the patient has been referred for mild traumatic brain injury early intervention program and that treatment was being recommended for chronic migraines and it attached a neurology consultation note completed by Ms. Johnston.
41The consultation note of Ms. Johnston dated April 26, 2023, notes that since the accident the applicant reported daily headaches, accompanied by phonophobia, neck pain, short term memory problems and difficulty concentrating. He also reported dizziness with reduced balance, and blurred vision. The nurse conducted a physical examination and diagnosed the applicant with a mild traumatic brain injury, post-concussion syndrome, chronic migraines, and post-traumatic vision syndrome.
42The respondent sent the applicant an EOB dated May 9, 2023, denying the OCF-18 on the basis that the MIG applied. Following the applicant’s removal from the MIG it sent the applicant an EOB dated May 31, 2024, indicating that the OCF-18 was not reasonable and necessary because the applicant’s family doctor prescribed Tylenol and naproxen – not Botox injections.
43Although I find that the applicant sustained a concussion, I find the applicant did not meet his onus in proving that the OCF-18 for Botox injections is reasonable and necessary because his submissions did not address what this OCF-18 was for. I note that he addressed what the OCF-18 was for in his reply submissions which was not proper reply as he should have addressed it at first instance. However, I find there to be insufficient evidence before me to support that he had severe daily migraines which would require Botox injections to treat. In addition, I find that the applicant reported to assessors that his headaches were treated appropriately with Tylenol and Naproxen. Consequently, I find that the applicant has not proven on a balance of probabilities that the overall cost of Botox injections in achieving pain reduction is reasonable and necessary.
OCF-18 for Optometry Assessment
44The OCF-18 dated April 28, 2023, was authored by Manbir Randhawa, optometrist, and recommended an optometric assessment in the amount of $500.00 and $200.00 for completion of the OCF-18, for a total cost of $700.00. The goal of the OCF-18 was to complete a post traumatic vision syndrome assessment to evaluate the ocular motor status and identify any specific post-trauma visual deficiencies. Under the additional comments section, the plan referred to the consult note of Ms. Johnston.
45The respondent sent the applicant an EOB dated May 9, 2023, denying the OCF-18 on the basis that the MIG applied, and that the hospital emergency record made no mention of a head injury. On May 31, 2024, the respondent sent the applicant a second EOB denying the OCF-18 on the basis that the family doctors’ CNRs did not make any reference to changes in vision or an accident-related vision impairment.
46I find the OCF-18 recommending an optometry assessment to be reasonable and necessary because the applicant has reported problems with vision post-accident on more than one occasion. Further, I accept that the applicant sustained a concussion as a result of the accident. As highlighted above, Ms. Johnston recommended the OCF-18 for an optometry assessment to assess whether the applicant has post-traumatic vision syndrome and to recommend treatment. Therefore, I find the applicant has met his onus in proving on a balance of probabilities that the OCF-18 recommending an optometry assessment is reasonable and necessary. Further, I find the cost of same to be reasonable.
OCF-18 for OT Assessment
47The OCF-18 dated April 28, 2023, authored by Gabriel Paudyn, OT, recommended an OT assessment for a total cost of $2,200.00. The goal of the OCF-18 was to complete a comprehensive OT assessment to promote activity reintegration and enhance quality of life. Under the additional comments section, it indicated that based on the initial assessment completed by the nurse practitioner, an OT assessment is recommended to assess ongoing OT performance.
48The respondent sent the applicant an EOB dated May 9, 2023, denying the OCF-18 because the MIG limit had been exhausted. On May 31, 2024, it sent the applicant a second EOB denying the OCF-18 because it approved the OT assessment dated February 21, 2023, and stated that a second OT assessment would be a duplication of services. The respondent submits that the applicant has provided no submissions for why a second OT assessment was required.
49I agree with the respondent that the disputed OCF-18 is a duplication of services. The report of OT Chopra addressed the applicant’s entitlement to attendant care, recommended various assistive devices and recommended OT treatment. The applicant did not make any submissions to support that a second OT assessment is reasonable and necessary or was needed for some other purpose. Therefore, I find that the applicant has not proven on a balance of probabilities that the OCF-18 for an OT assessment is reasonable and necessary.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18 for an optometry assessment which I find to be reasonable and necessary.
Award
51The 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.
52In analyzing whether an insurer’s conduct in withholding or denying a benefit warrants an award an insurer’s behaviour must be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for an award is high and the case law is well established that an award is not meant to punish the unsuccessful party at a hearing or penalize an insurer for getting it wrong.
53The applicant argues that he is entitled to an award because the respondent unreasonably held him in the MIG despite having medical evidence to the contrary. Further, this resulted in an 18-month delay in him receiving medical benefits that he required which resulted in a deterioration of his psychological condition and prolonged suffering. He asserts that the respondent ignored medical records which supported MIG removal and adjusted its accident benefit file contingent on hoping its IE assessor would render an opinion against its insured. It also maintained a stubborn, inflexible, and unyielding position by continuing to keep him in the MIG when it had medical evidence which supported MIG removal. He relies on the medical evidence; the adjuster’s log notes and correspondence between his representative and the insurer in support of his position.
54The respondent submits that the applicant has not established that an award is warranted. It maintains that the pre and post-accident medical records support that the applicant had age related arthritic pain in his cervical spine, back and hips. It argues that its decision to keep the applicant in the MIG was consistent with the clinical notes and records of the family doctor, Dr. Nesterenko, and Dr. Rusen, who all diagnosed soft-tissue injuries.
55I find that the respondent’s conduct in maintaining its position on the MIG until May 31, 2024, to be stubborn, unyielding, and unreasonable, for the following reasons.
56First, I disagree with the respondent’s submission that the applicant has not produced any evidence that he sustained a concussion as a result of the accident. Although the hospital emergency record from the date of the accident diagnosed the applicant with a muscular injury it also noted that the applicant fell and hit his head on the pavement. Further, the disability certificate (OCF-3) competed by Dr. Quansah, the applicant’s family doctor, noted a concussion on the list of injuries sustained in the accident. I also disagree with the respondent’s position that the applicant’s self-reports to assessors about how the accident occurred was inconsistent. With the exception of Dr. Rusen, who documented that the applicant was hit on the right side, I find the applicant consistently reported to the assessors how the accident happened and that he hit his head on the pavement.
57I also find that the applicant reported symptoms of headaches, dizziness and blurred vision to his family doctor and assessors. Consequently, I accept that he sustained a concussion as a result of the accident. Moreover, it is unclear to me why the respondent disregarded the consult note of Ms. Johnston, who diagnosed the applicant with a mild traumatic brain injury and post-concussion syndrome. The respondent has not provided any explanation for why it did not consider this report in maintaining its position on the MIG or the denial of the OCF-18 for an optometry assessment in light of the other evidence.
58Second, I find the respondent had enough medical evidence to remove the applicant from the MIG based on the IE reports of Dr. Nesterenko who noted in their June 9, 2023 IE that the applicant had limited ROM in his left shoulder resulting in functional limitations. Dr. Nesterenko states in the report that there was “documented evidence of degenerative changes in the cervical and lumbar spine, which, within all reasonable medical certainty, was exacerbated by the subject motor vehicle accident and is expected to delay healing of the initially sustained physical injuries in the subject motor vehicle accident.” Dr. Nesterenko requested that the applicant undergo additional imaging to determine the etiology and deferred rendering an opinion on the applicant’s IRB and MIG determination.
59I find that additional MRIs were not required to remove the applicant from the MIG based on Dr. Nesterenko’s opinion. In my view, the respondent should have given the applicant the benefit of the doubt and removed him from the MIG based on this opinion. Further, Dr. Nesterenko issued an addendum report dated December 8, 2023, after receiving the MRI of the left shoulder, and noted that the applicant sustained a shoulder sprain/strain impairment of the left shoulder on the background of degenerative changes and the applicant should be referred to a shoulder specialist for cortisone injections should it persist. Again, I think Dr. Nesterenko’s second opinion was enough to remove the applicant from the MIG, because he was suffering from ongoing pain and functional impairment. I find that the adjuster did not deal with the applicant’s file in good faith because rather than giving the applicant the benefit of the doubt they sought additional reasons to hold the applicant in the MIG which resulted in unnecessary delays in his ability to access important benefits.
60Finally, I find that the respondent maintained a stubborn and unyielding position when it ignored counsel for the applicant’s multiple requests to reconsider its position on the MIG prior to May 31, 2024. Consequently, I find that the respondent is liable to pay an award.
Quantum - Factors affecting the amount of the award
61The applicant seeks a 50% award on the amount of $7,983.01, which represents the OCF-18s that the respondent unreasonably withheld and delayed payment of. The applicant relies on this Tribunal’s decision in Applicant v. Aviva, 2018 CanLII 81949 (ON LAT) (“Applicant v. Aviva”) where the adjudicator ordered an award payable on benefits that were resolved prior to the hearing. The applicant submits that the circumstances in this case are similar to the facts in this decision.
62The respondent did not address the quantum of the award but submits that the Tribunal’s decision in Applicant v. Aviva does not apply to this matter because the adjudicator determined that the insurer took inordinate amounts of time to respond to OCF-18s and delayed payment of approved treatment plans. It posits that no such evidence of this type of conduct exists in this case.
63I adopt the following factors that this Tribunal routinely applies in considering the quantum of an award:
i. the blameworthiness of the insurer's conduct;
ii. the vulnerability of the insured person;
iii. the harm or potential harm directed at the insured person;
iv. the need for deterrence;
v. the advantage wrongfully gained by the insurer from the misconduct; and
vi. take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.
64I note that the length of the delay is often another consideration considered by the Tribunal which is also included in the wording of the regulation.
Blameworthiness of the insurer's conduct;
65The respondent is a sophisticated party and was represented by counsel when it continued to maintain its position on the MIG. I find the respondent is fully responsible for its decision because this is not a situation where the insured did not provide any medical records. The adjuster log notes support that the respondent had the medical records in its possession which supported MIG removal, yet instead it maintained a stubborn and unyielding position. In my view, it should have reviewed all of the medical evidence including the findings of its own IE assessors which supported MIG removal. For these reasons, I find the respondent is fully to blame for its decision to keep the applicant in the MIG.
Vulnerability of the insured person
66The applicant is particularly vulnerable. He is 67-years-old with a history of arthritis and degenerative changes. The applicant was unable to return to work in his factory job post-accident. The adjuster’s log notes support that it has been paying him an income replacement benefit which provides the applicant with very limited financial means to live and pay for medical treatment. These factors should have prompted the respondent to pay the utmost care and due diligence in handling his file, which did not happen.
The need for deterrence
67There is a clear power balance between an insurance company and its insured and the respondent’s conduct in this case needs to be deterred so that it adjusts its files in good faith in the future.
The advantage wrongfully gained by the insurer from the misconduct
68The applicant did not address any advantage wrongfully gained by the respondent. However, I acknowledge that the advantage to the respondent is that it did not have to pay for any benefits for 18 months.
Harm or potential harm directed at the insured person
69I find the evidence before me supports that the applicant’s psychological condition deteriorated post-accident because there was a 16-month delay in removing him from the MIG which prevented him from receiving treatment he needed to function, such as physiotherapy. This is supported by the fact that the applicant was removed from the MIG based on the findings of his s. 25 assessor. There is no evidence before me that the applicant had any psychological impairments prior to the accident. Further, the delay in removing him from the MIG resulted in a delay in him accessing other benefits such as attendant care. As per my findings above, I find the applicant requires ACBs to assist him in carrying out his activities of daily living.
70I have considered the amount of the benefits that the respondent unreasonably withheld from the applicant and the length of time that payment of those benefits has been withheld. I have taken into account the applicant’s age and the importance of providing him with services. I considered that he was forced to stop receiving treatment even though his treating physician recommended continuing with it.
71After considering the above factors, I am ordering a lump sum award in the amount of $3,473.20 which is 40% of $8,683.01, which represents $7,983.01 for the delay in approving the OCF-18s based on the position it took on the MIG and $700 for the unreasonable denial of the optometry assessment. I have given a 10% reduction to the maximum award payable because the respondent reconsidered its denials once it removed the applicant from the MIG. Further, I find that this case is distinguishable from AP v. Aviva in which the adjustment of the file was much sloppier. I find the applicant is not entitled to an award on the respondent’s denial of the ACBs because the benefit has not been incurred. Further, I find many of the recommendations made by OT Chopra to be inflated and unsupported by the medical record. Consequently, I do not fault the respondent for not accepting OT Chopra’s opinion.
ORDER
72For the above-noted reasons, I order as follows:
The applicant has established entitlement to an ACB in the amount of $686.92 per month. However, he is not entitled to payment of same from February 21, 2023, to date because the benefit has not been incurred.
The applicant is entitled to the OCF-18 in the amount of $700.00 plus interest recommended by Iscope for the optometry assessment. The applicant has not established entitlement to the remaining OCF-18s.
The respondent is liable to pay an award in the amount of $3,473.20, plus interest in accordance with the regulation.
Released: May 5, 2025
Rebecca Hines
Adjudicator