Citation: Hamel v. Primmum Insurance Company, 2025 CanLII 47342

Licence Appeal Tribunal File Number: 23-009500/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:

Tyler Hamel

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Christina Martin, Counsel

For the Respondent: Alanna Pink, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tyler Hamel, the applicant, was involved in an automobile accident on April 8, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Primmum Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to the treatment proposed by Propel Physiotherapy, as follows:

1. $2,444.41 for physiotherapy services, proposed in a treatment plan dated January 4, 2022;
2. $2,095.28 for physiotherapy services, proposed in a treatment plan dated May 16, 2022; and
3. $2,095.28 for physiotherapy services, proposed in a treatment plan, dated December 15, 2022?

ii. Is the applicant entitled to the assessments proposed by Complex Injury Rehab, as follows:

1. $1,567.00 ($3,777.00 less $2,210.00 approved) for social rehabilitation counselling, proposed in a treatment plan, dated August 17, 2021;
2. $1,700.00 for a functional abilities’ evaluation, proposed in a treatment plan, dated June 30, 2022;
3. $2,735.37 for an occupational therapy assessment, proposed in a treatment plan dated July 1, 2022;

iii. Is the applicant entitled to $2,000.00 for an optometrist assessment, proposed by NeuroVision Therapy, in a treatment plan, dated November 16, 2021?

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

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

3The applicant advised in his submissions that he was withdrawing the preliminary issue raised at the Case Conference. The preliminary issue was, “Is the applicant barred from proceeding to a hearing for physiotherapy services of $2,694.00, proposed by Propel Physiotherapy in a treatment plan, dated May 28, 2021, because the applicant failed to dispute their denial within the 2-year limitation period?” In addition, he withdrew the issue of “Is the applicant entitled to $2,694.00 for physiotherapy services, proposed by Propel Physiotherapy in a treatment plan dated May 28, 2021?”. Therefore, I have not included these issues in the issues in dispute.

4The Case Conference Report and Order (“CCRO”) lists issue 5 as, “Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Dr. MacDonald, in a treatment plan, dated December 6, 2021. The parties agree that this issue is resolved. Therefore, I have not included it in the issues in dispute.

RESULT

5I find that the applicant is entitled to the treatment plans for physiotherapy, a functional abilities’ evaluation, an occupational therapy assessment and an optometrist assessment, plus interest.

6I find that the applicant is not entitled to the balance of the treatment plan, for social rehabilitation counselling.

7I find that the respondent is not required to pay an award.

PROCEDURAL ISSUES

8The respondent’s request to exclude pages 13-15 of the applicant’s submissions is denied.

9The respondent filed a Notice of Motion, dated September 24, 2024, seeking an Order to exclude pages 13-15 of the applicant’s submissions, on the basis that the applicant has exceeded the 10-page limit as set out in the CCRO, dated April 4, 2024. The respondent submits that this non-compliance is a blatant disregard of the CCRO and could lead to further abuse of process through lengthy and arduous submissions. The respondent further submits that any prejudice borne by the applicant is due to his own failure of complying with the CCRO.

10The applicant submits that through oversight and inadvertence, his submissions were 12.5 pages in length. He submits that in a previous matter before the Tribunal, the CCRO, dated September 20, 2022, set out the applicant’s submissions limit to be 12-pages. Therefore, through inadvertence he believed that the page limit for the submissions in this matter was also 12 pages. There was no intention to flout the authority of the Tribunal. The applicant submits that granting the relief sought in this motion and excluding part of his submissions, would result in irreparable prejudice by preventing a full and fair hearing of the issues, as not all relevant evidence and arguments would be considered.

11I agree with the respondent that the applicant did not comply with the page limit set out in the CCRO. However, the respondent has failed to demonstrate any prejudice that it sustained as a result. When considering procedural fairness and any potential prejudice to the parties, I find that the applicant would be unfairly prejudiced if portions of his submissions were excluded. As a result, I will consider the complete submissions of the applicant.

ANALYSIS

The applicant is entitled to the treatment plans for physiotherapy

12I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plans for physiotherapy services.

13To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

14The applicant claims entitlement to three treatment plans proposed by Propel Physiotherapy as follows:

i. $2,444.41 for physiotherapy services, proposed in a treatment plan dated January 4, 2022; ii. $2,095.28 for physiotherapy services, proposed in a treatment plan dated May 16, 2022; and iii. $2,095.28 for physiotherapy services, proposed in a treatment plan, dated December 15, 2022?

15The treatment plans in dispute list the applicant’s injuries as follows: concussion; whiplash associated disorder (WAD 2) with complaints of neck pain with musculoskeletal signs; headaches; irritability and anger; effects of lighting and other symptoms and signs involving cognitive functions; and awareness. The applicant submits that the goals of the treatment in the denied treatment plans include pain reduction in multiple areas, increase in strength, improve posture, strengthen core/extremity muscles, improve activity/exercise tolerance, endurance and conditioning, help the applicant return to outdoor activities, complete projects and house maintenance without increased pain, and uninterrupted sleep.

16The applicant submits that the treatment plans in dispute are reasonable and necessary based on the recommendations by multiple assessors that the applicant receive physiotherapy treatment. The applicant submits that since the accident, the applicant continued to engage in physiotherapy treatment at Propel Physiotherapy. The applicant relies upon the reports of David Frieson, physiotherapist, dated May 28, 2021 and July 20, 2022; Dr. Christopher Mazza, emergentologist, dated July 10, 2021; Heather Stinson, occupational therapist, dated July 14, 2021; Colleen Worsley, social worker, dated August 17, 2021 and June 21, 2022; Richard Chui, occupational therapist, dated July 6, 2022; Dr. Shawn Gargoum, chiropractor, dated August 24, 2022; Dr. Dinesh Kumbhare, physiatrist, dated May 29, 2023; and Dr. Elaine McKinnon, neuropsychologist, dated August 24, 2023.

17The applicant further submits that the respondent subsequently approved a more recent treatment plan for physiotherapy dated January 24, 2024, which supports the need for physiotherapy that was incurred between August 10, 2021 and December 20, 2023.

18The respondent submits that the applicant’s physical injuries are soft tissue in nature and fall within the minor injury guidelines. The applicant was removed from the MIG on a psychological basis in 2023. The respondent relies upon the Insurer Examination (“IE”) report of Dr. Seung-Jun Lee, general practitioner, dated January 11, 2023, which concluded that the applicant had uncomplicated soft-tissue injuries predominantly to the axial spine and left shoulder, wrist and ankle, without any objective evidence of serious musculoskeletal trauma. These injuries are minor injuries. The respondent further relies on the IE report of Dr. Gary Moddel, neurologist, dated January 11, 2023, which concluded that although the applicant may have initially sustained a mild traumatic brain injury, at the time of the assessment, there was no evidence of any neurologic impairment. The respondent further submits that the clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Radinka Boskovic, do not support ongoing physical complaints and no records were provided beyond May 10, 2022. The respondent argues that the applicant was not referred for any therapies or follow-up treatments until April 2022, one-year post-accident. As such, the respondent submits that the treatment plans in dispute are not reasonable and necessary with respect to the applicant’s physical injuries.

19I find that the applicant has provided subjective evidence and objective evidence from qualified medical practitioners that he continued to suffer ongoing physical pain post-accident and required ongoing treatment of his injuries. Upon review of the multiple reports provided by the applicant in his submissions, I find that the applicant made physical complaints consistently post-accident and physical therapy treatment was recommended by multiple assessors.

20I find that Dr. Mazza, in his report dated July 10, 2021, makes several recommendations for ongoing treatment including physical therapy, to “progress beyond his current level of dysfunction and return to a productive and fulfilling role that encompasses both his work and his home life.” I find that Mr. Frieson, physiotherapist, notes in his initial physiotherapy assessment report, dated May 28, 2021, that treatment is recommended to address the applicant’s symptoms of concussion, whiplash and pain in multiple areas. Mr. Frieson’s progress report dated July 20, 2022, recommends ongoing physiotherapy with the goal of returning him to his pre-accident functional activities. I find that Mr. Chui, occupational therapist in his in-home assessment report, dated July 6, 2022, outlined the applicant’s current status, ongoing injuries and symptoms and ongoing functional limitations and recommended physiotherapy. I find that Dr. Kumbhare, physiatrist, in his report dated May 29, 2023, recommended a specific physiotherapy program to address the applicant’s overall level of fitness as well as deconditioning. I find that Dr. Mackinnon, neuropsychologist, in her report dated August 24, 2023, recommended continued participation in a physical training program to support better control over and management of his increased pain, fatigue, physical symptoms and headaches.

21I find that the treatment proposed is reasonable and necessary, because the applicant continued to experience ongoing physical symptoms and the CNRs support that the applicant had ongoing treatment needs. I find the CNRs of Propel Physiotherapy documenting the applicant’s treatment and progress, supports that the treatment goals on the plans are being met to a reasonable degree. I find the costs of the treatment plans to be reasonable in meeting their goals. I further give weight to the fact that the treatment plan, dated January 24, 2024 for physiotherapy, was approved by the respondent, which supports that ongoing treatment was found to be reasonable and necessary.

22I do not accept the respondent’s submissions that the applicant was not referred for any therapies or follow-up treatments until April 2022. There is medical documentation that supports the assessors that examined the applicant made recommendations for treatment as early as May 28, 2021, when an initial physiotherapy assessment was completed by Mr. Friesen, physiotherapist. There are CNRs as early as June 4, 2021, showing that the applicant received physiotherapy at Propel Physiotherapy.

23I do not give weight to the IE report of Dr. Lee, dated January 11, 2023. Dr. Lee concluded that there was no objective evidence of serious musculoskeletal trauma. I find that while medical documentation was provided to Dr. Lee for his review to support the applicant’s ongoing complaints and limitations, Dr. Lee did not comment or refer to this documentation in his report. I further find that Dr. Lee was not asked to assess the treatment plans in dispute and therefore did not provide an opinion about whether the treatment plans are reasonable and necessary.

24I further give little weight to the report of Dr. Moddel dated January 11, 2023, which concluded that the applicant may have initially sustained a mild traumatic brain injury, however there was no evidence of any neurologic impairment at the time of the assessment. I find that as the accident happened in April 2021, these findings may reflect the passage of time between the accident and the date of the assessment.

25In addition, I find that the respondent references the limited CNRs of Dr. Boskovic, family doctor, dated April 13, 15, and 26, 2021, to support that the applicant’s injuries are minor. The applicant provided additional CNRs from Dr. Boskovic in reply, that were not included in the respondent’s submissions. The CNR, dated September 27, 2022, notes continued physical complaints with respect to headaches, neck pain and poor sleep.

26For the reasons set out above, I find that the applicant has met his onus of proving on a balance of probabilities that the treatment plans for physiotherapy are reasonable and necessary as a result of the accident.

The applicant is not entitled to provider travel time

27I find that the applicant has not proven on a balance of probabilities that he is entitled to the unapproved balance of the treatment plan for provider travel time in the treatment plan dated August 17, 2021.

28Pursuant to s. 15(2)(c) of the Schedule, the insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. Section 3(1) of the Schedule, defines “authorized transportation expenses” as expenses related to transportation (a) that are authorized by, and calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the 50 kilometres of a trip.

29The applicant claims entitlement to $1,567.00 ($3,770.00 less $2,210.00 approved) for provider travel time, proposed by Complex Injury Rehab, in a treatment plan dated August 17, 2021.

30The applicant states that the full amount of the travel time is reasonable and necessary and ought to have been approved by the respondent.

31The respondent submits that provider travel time is not payable under the Schedule unless prior approval is provided, and it is determined to be reasonable and necessary. The respondent submits that no reasons were provided as to why provider travel time is reasonable and necessary, particularly given the social work assessments were conducted virtually.

32I find upon review of the treatment plan in dispute, that there are no particulars with respect to the request for payment of provider travel time. In addition, the applicant has not provided any further arguments or evidence to support that the provider travel time was required other than saying it was reasonable and necessary in the circumstances. I therefore find that the applicant has not established how the provider travel time is reasonable and necessary.

33For the reasons set out above, I find that the applicant has not met his onus of proving on a balance or probabilities that the request for travel provider time is reasonable and necessary as a result of the accident. The unapproved portion of the treatment plan is not payable as a result.

The applicant is entitled to a functional abilities evaluation

34I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plan for a functional abilities’ evaluation (“FAE”).

35The applicant claims entitlement to $1,700.00 for a FAE, proposed by Dr. Gargoum, chiropractor, at Complex Injury Rehab, in a treatment plan dated June 30, 2022.

36The goals of the assessment were to assess the applicant’s “current functional status, in order to better understand the impact that his MVA related injuries have on his tolerances for functional tasks, including but not limited to employment tasks” and to “identify MVA related injuries and the impact they continue to have on Mr. Hamel’s ability to perform his ADLs to make recommendations to increase his ability to perform functional tasks throughout his day”.

37The applicant submits that the treatment plan recommending a FAE is reasonable and necessary. The applicant submits that despite the denial of this assessment, Dr. Gargoum performed the assessment, and a report was prepared dated August 24, 2022. The applicant submits that Dr. Gargoum noted general deconditioning, poor movement mechanics, moderate to high levels of pain, high degrees of fatigue, and mental health distress. Dr. Gargoum made several treatment recommendations, including multi-modal physical rehabilitation including physiotherapy, chiropractic and massage therapy, psychological intervention, occupational therapy and ongoing education.

38The respondent submits that the treatment plan recommending a FAE is not reasonable and necessary. It submits that the applicant has not provided any objective evidence that his injuries have caused any decreases in his productivity or abilities to partake in his job. The respondent argues that the applicant is working full time and is able to complete his normal activities of daily life, within the home and socially as per the psychological IE report of Dr. Peter Cobrin, and the general practitioner IE report of Dr. Lee, dated January 11, 2023.

39The applicant submits that his mobility is constrained as a result of the accident, such that he experiences poor movement mechanism and has moderate to high levels of pain in the cervical spine, lumbar spine, left shoulder and left ankle, causing him to poorly perform many tasks that incorporate these bodily regions. These limitations are specified in the FAE report of Dr. Gargoum. In addition, the applicant submits that the purpose of the FAE was to address the applicant’s functional abilities across all activities of daily living, (“ADLs”), rather than being limited to work-related tasks. The applicant further submits that the findings in the FAE concerning the applicant’s reduced functional tolerances were documented by a number of other providers in their reports, specifically, Mr. Chui, occupational therapist, dated July 6, 2022, Ms. Worsley, social worker dated June 21, 2022, and Dr. Kumbhare, physiatrist, dated May 29, 2023.

40I find that the applicant has established that the treatment plan for a FAE is reasonable and necessary. I find that the medical documentation supports the applicant’s ongoing difficulties with his ADLs, social activities and employment. Additionally, I find that the goals of the assessment to be reasonable, specifically to assess the applicant’s functional status and to determine the impact of the accident on his tolerances to complete his ADLs, social activities and employment.

41I find that when assessing the medical documentation in support of the reasonableness and necessity of the treatment plan in dispute, it is important to give weight to contemporaneous medical records prepared around the time that the treatment plan was submitted.

42Upon review of the social work progress report of Ms. Worsley, dated June 21, 2022, I find that the findings support that the applicants physical and mental conditions were affecting both his work and ADLs. The report notes that,

He notes a marked decrease in the quality of his contribution within his work activities. He experiences daily exhaustion and escalated experiences of pain throughout the workday. Upon completion of a day’s work, he feels unwell and unable to participate in his pre-accident recreational and social activities. He reports he no longer contributes to home care tasks and household maintenance chores as he did pre-accident. He suffers from lack of initiation and lack of interest and stamina for social engagement.

43In addition, upon review of the occupational therapy in-home assessment report, prepared by Mr. Chui, dated July 6, 2022, I find the conclusions support the need for an FAE based on the applicant’s reported difficulties with his ADLs, social activities and work. Mr. Chui concluded that functionally, the applicant’s cognitive, physical and emotional limitations continue to impact his ability to independently return to personal care, housekeeping, leisure/social activities.

44I do not accept the respondent’s submission that the applicant’s job cannot be considered a modification because it was his intention pre-accident to transition to a new role. I find that the analysis should focus on the job the applicant is performing post-accident and the reported limitations that he is experiencing in that role. I find that the applicant has reported his limitations and modifications to his employment to multiple assessors.

45I afford limited weight to the January 11, 2023 IE reports of Dr. Cobrin, psychologist, or Dr. Lee, general practitioner, as the reports were prepared to review the reasonableness and necessity of a treatment plan for a social work assessment. Neither assessor addressed whether the treatment plan in dispute is reasonable and necessary or provides a detailed analysis or assessment of the applicant’s functional abilities in terms of his ADLs or employment.

46For the reasons set out above, I find that the applicant has met his onus of proving on a balance of probabilities that the treatment plan for a FAE is reasonable and necessary as a result of the accident and the costs are in line with s. 25 of the Schedule.

The applicant is entitled to an occupational therapy assessment

47I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plan for an occupational therapy assessment (“OT assessment”).

48The applicant claims entitlement to $2,735.37 for an OT assessment and treatment, proposed by Richard Chiu, of Complex Injury Rehab, in a treatment plan, dated July 1, 2022.

49The goals of the treatment plan were to “assess current functional status in order to determine the affect of ongoing MVA related impairments on Mr. Hamel’s ability to complete daily tasks, in order to determine whether he would benefit from any treatment in order to increase function.”

50The applicant submits that the treatment plan is reasonable and necessary and that an OT assessment and treatment were recommended by multiple assessors. The applicant relies upon the reports of Mr. Frieson, physiotherapist, dated May 28, 2021 and July 20, 2022; Dr. Mazza, emergentologist, dated July 10, 2021; Ms. Stinson, occupational therapist, dated July 14, 2021; Ms. Worsley, social worker, dated August 17, 2021 and June 21, 2022; Mr. Chui, occupational therapist, dated July 6, 2022; Dr. Gargoum, chiropractor, dated August 24, 2022; Dr. Kumbhare, physiatrist, dated May 29, 2023; and Dr. McKinnon, neuropsychologist, dated August 24, 2023.

51The respondent submits that the treatment plan is not reasonable or necessary because the applicant is working full time and is back to completing all of his ADLs. It relies on the IE reports of Dr. Lee, Dr. Moddel, and Dr. Cobrin dated January 11, 2023, who reported that the applicant had no current issues, physical, psychological or neurological. The respondent further notes that beyond the medical-legal assessments, the applicant has provided minimal CNRs to substantiate his complaints of continuing impairments.

52I find that the treatment plan for an OT assessment is reasonable and necessary. I find that the applicant has provided objective evidence that he continued to experience documented functional limitations, from both a physical and psychological perspective. I find that multiple assessors recommended an occupational therapy assessment and treatment contemporaneously with the submission of the treatment plan, including Mr. Friesen, physiotherapist in his progress report, dated July 20, 2022 and Ms. Worsely, social worker in her social work progress report, dated June 21, 2022. I find that the goals of the treatment plan would be met by assessing the applicant’s current status, ongoing injuries and symptoms, and ongoing functional limitations and making recommendations.

53I give little weight to the January 11, 2023 IE reports of Dr. Lee, Dr. Moddel and Dr. Cobrin. I find that Dr. Lee’s only comments about the applicant’s functional abilities is to state that the applicant reported that he resumed his household chores and that he is currently working 40 hours per week. I do not find that any further particulars about the applicant’s functional abilities was discussed in these reports. In addition, I find that the statement that the applicant has resumed his pre-accident household chores is contradicted in the medical documentation provided by applicant in multiple assessment reports. Specifically, the physiotherapy progress report, dated July 20, 2022, notes that the applicant presents with decreased overall physical strength and endurance which affects his ability to engage in housekeeping tasks and working around the house. The social work progress report, dated June 21, 2022, notes that he needs to rest when he returns home from work and when he needs to occasionally engage in needed home tasks, he experiences increased pain and headaches.

54For the reasons set out above, I find that the applicant has met his onus of proving on a balance of probabilities that the treatment plan for an OT assessment is reasonable and necessary as a result of the accident.

The applicant is entitled to an optometrist assessment

55I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plan for an optometrist assessment.

56The applicant claims entitlement to $2,000.00 for an optometrist assessment, proposed by Neurovision Therapy, in a treatment plan, dated November 16, 2021.

57The applicant submits that the assessment was to determine a treatment plan for therapeutic glasses and vision therapy. The applicant submits that the assessment was incurred and a neurovisual report was prepared by Dr. Lisa Chow, optometrist, dated April 6, 2023. Dr. Chow diagnosed the applicant with a neurovisual dysfunction that is consistent with Post-Trauma Vision Syndrome, secondary to brain injury. Dr. Chow recommended therapeutic glasses and weekly vision therapy. The applicant further submits that subsequent to Dr. Chow’s report, the respondent approved two optometric treatment plans for glasses and vision therapy, that were recommended in Dr. Chow’s report, despite denying the incurred assessment.

58The respondent submits that the treatment plan was denied based on the MIG being exhausted and the applicant’s failure to attend the scheduled IEs. The respondent submits that the applicant has not provided any supporting CNRs for any optometric attendances to substantiate any vision issues as a result of the accident. The respondent replies upon the neurological IE report of Dr. Moddel, dated January 11, 2023, which found no current neurological issues.

59Based on the medical evidence provided, I find that the treatment plan recommending an optometrist assessment is reasonable and necessary because it is clear that the applicant made complaints to multiple assessors that he was experiencing visual difficulties following the accident. The in-home OT assessment report, prepared by Ms. Stinson, dated July 14, 2021, specifically states that the applicant reported visual difficulties including eye pain, visual strain, headaches with prolonged focus, and recommended that the applicant’s vision be assessed. In addition, the social work progress report dated July 21, 2022, prepared by Ms. Wosley, recommended a vision assessment and therapy. Following these recommendations, the treatment plan recommending an optometry assessment was submitted on behalf of the applicant.

60I give weight to the report of Dr. Chow because she diagnosed the applicant with a neurovisual dysfunction that is consistent with post-trauma vision syndrome, secondary to a brain injury. Dr. Chow recommended therapeutic glasses and weekly vision therapy. The treatment plan recommending visual therapy dated June 20, 2023, was subsequently approved by the respondent.

61For the reasons set out above, I find that the applicant has met his onus of proving on a balance of probabilities that the treatment plan for an optometrist assessment is reasonable and necessary as a result of the accident.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the overdue benefits of the treatment plans for physiotherapy services, the FAE, the OT assessment and the optometrist assessment.

Award

63I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the treatment plans in dispute.

64Pursuant to section 10 of Regulation 664, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

65The applicant submits that the respondent has unreasonably withheld or delayed payment of the medical and rehabilitation benefits at issue in dispute. The applicant argues that the disputed denials amount to an unreasonable withholding or delay of reasonable and necessary medical and rehabilitation expenses, when the medical evidence supports the applicant’s need for the claimed expenses.

66The respondent submits that the applicant has not adduced any evidence that the respondent acted in a high handed or egregious manner. The respondent submits that it attempted to schedule IE assessments shortly after the accident and was hindered by the applicant’s refusal to attend. As a result, the respondent argues that the applicant prejudiced himself from having accurate time-based assessments completed. The respondent submits that as a result of the applicant’s own actions, treatment plans were not considered until nearly two years post-accident when the assessments were finally completed, and the applicant was removed from the MIG.

67I agree with the respondent that the applicant did not agree to attend any IE assessments until September 19, 2022, which substantially delayed the respondent from assessing the applicant’s injuries. I find that while the respondent denied the treatment plans in dispute, the applicant has not directed to me to any evidence that the respondent disregarded compelling evidence which resulted in the respondent unreasonably withholding or delaying payment of the disputed treatment plans.

68For the reasons set out above, I find that no award is payable.

ORDER

69For the reasons set out above, I find:

i. The applicant is entitled to the treatment plans for physiotherapy, a FAE, an OT assessment and an optometrist assessment; ii. The applicant is not entitled to the balance of the treatment plan for social rehabilitation counselling; iii. The applicant is entitled to interest on overdue payment of benefits; and iv. The respondent is not required to pay an award.