Elfimova v. Sonnet Insurance Company
Licence Appeal Tribunal File Number: 24-003484/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:
Svetlana Elfimova
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Christopher Yan
APPEARANCES:
For the Applicant:
Galina Bajenova, Counsel
For the Respondent:
Sunjay Mistry, Paralegal
HEARD by Videoconference:
February 10-11, 2025
OVERVIEW
1Svetlana Elfimova, the applicant, was involved in an automobile accident on February 25, 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, Sonnet 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 25, 2022 to February 25, 2024?
iii. Is the applicant entitled to $2,764.36 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) submitted April 4, 2022?
iv. Is the applicant entitled to $2,152.71 for physiotherapy services, proposed by 101 Physio in a plan submitted October 18, 2022?
v. Is the applicant entitled to $221.91 ($1,298.79 less $1,076.88 approved) for physiotherapy services, proposed by 101 Physio in a plan submitted August 2, 2022?
vi. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments in a plan submitted February 12, 2024?
vii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan submitted May 2, 2022?
viii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Assessments in a plan submitted February 20, 2024?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
xi. Is the applicant entitled to costs of this proceeding?
RESULT
3I grant the application in part:
i. The applicant has established an injury that warrants removal from the MIG.
ii. The applicant is not entitled to a non-earner benefit.
iii. The applicant is not entitled to $2,764.36 for physiotherapy services.
iv. The applicant is entitled to $221.01 for physiotherapy services and $2,152.71 for physiotherapy services.
v. The applicant is not entitled to $2,460.00 for a psychological assessment.
vi. The applicant is entitled to $3,790.70 for psychological services.
vii. The applicant is entitled to $2,460.00 for a chronic pain assessment.
viii. Interest is payable on the overdue amounts in accordance with section 51 of the Schedule.
ix. The applicant is not entitled to costs of this proceeding.
PROCEDURAL ISSUES
Motion to exclude respondent’s evidence
4At the outset of the hearing, the applicant brought a motion to exclude all evidence the respondent intended to rely upon, arguing that the respondent failed to comply with the Case Conference Report and Order (“CCRO”) by not providing its productions until January 6, 2025, and only after the applicant indicated an intention to file a motion. The applicant argued that the late disclosure significantly prejudiced their ability to adequately prepare for the hearing, including the preparation of submissions regarding a special award. The applicant relied on Rule 9.4 of the Common Rules of Practice and Procedure1 (“Rules”) for this relief, asserting that compliance with the disclosure obligations in the CCRO did not require reminders or further follow-up by the applicant.
5The respondent opposed the motion, submitting that it provided its log notes and expert CVs on January 6, 2025 and the witness list and expert duty acknowledgment forms on January 13, 2025. The respondent argued that there was no specific prejudice demonstrated by the applicant resulting from the late disclosure and noted that the applicant did not request additional time to review these documents prior to bringing the motion. Further, the respondent argued that excluding all evidence was disproportionate, as the disclosures occurred over a month before the hearing and included relevant expert evidence addressing the central issue of whether the applicant’s injuries were minor under the MIG.
6In reply, the applicant requested, alternatively, that less weight be assigned to the respondent’s expert evidence due to the respondent’s late disclosures and the applicant’s limited ability to cross-examine effectively, particularly concerning raw test data which was not provided.
7After hearing the submissions, I denied the applicant’s request made at the outset of the hearing to exclude all of the respondent’s documents. I found the motion to be premature, as it was not yet clear which specific documents the respondent intended to rely upon and seek to mark as exhibits. I determined that it would be more appropriate to address any issues of admissibility or weight concerning individual documents as the respondent sought to introduce them during the course of the hearing.
Submissions Regarding Weight of Respondent’s Expert Reports
8At the end of the first day, the applicant made submissions requesting that less weight be assigned to certain of the respondent’s expert reports, particularly the s. 44 report of Dr. Waiser. The applicant argued that Dr. Waiser’s report was late-served and, crucially, that the respondent did not produce the raw test data associated with Dr. Waiser’s examination. The applicant submitted this prejudiced their ability to prepare, as their expert, Dr. Papazoglou, did not have access to Dr. Waiser’s raw data to properly review and respond to the opinions, even if authorizations had been promptly addressed after the late disclosure. The applicant also raised general concerns about late disclosure of other respondent expert reports impacting their ability to effectively cross-examine. The applicant acknowledged a potential “miscommunication” regarding authorizations for the raw data that were not provided by the applicant to retrieve the raw data.
9The respondent opposed assigning diminished weight. Regarding Dr. Waiser’s raw data, they argued the applicant had not provided the necessary authorizations for its release, rendering any prejudice on that specific point hypothetical. The respondent emphasized the importance of their expert reports, including Dr. Waiser’s, who conducted an in-person examination, submitting these reports could provide crucial insights and address inconsistencies in the applicant’s evidence. It also noted that the applicant had themselves late-served expert reports (from Dr. Chow) which the respondent did not seek to diminish in weight, advocating for the inclusion and fair consideration of all evidence for a procedurally fair and accurate proceeding. It maintained their experts, including Dr. Waiser, would be available for thorough cross-examination.
10After considering these submissions, I reiterated that the issues raised by the applicant – namely the timing of disclosure, the circumstances surrounding the non-production of Dr. Waiser’s raw test data (including the matter of authorizations), and the alleged impact on the applicant’s ability to prepare and cross-examine – would be taken into careful consideration when assessing the appropriate weight to be given to each of the respondent’s expert reports, including Dr. Waiser’s, in my final decision after hearing the evidence.
Motion to exclude addendum report of Dr. Stewart
11On the second day of the hearing, the applicant brought a motion to exclude the GP Paper Review IE Addendum Report of Dr. James Kenneth Stewart, dated November 14, 2024 (“Addendum Report”). The applicant argued that the Addendum Report was never properly served on their current counsel of record, as it was emailed to a former representative of their firm who had departed in early 2023. Furthermore, they argued its production was outside the timelines established by the CCRO. The applicant stated they first became aware of this specific Addendum Report upon receiving the respondent’s hearing brief shortly before the hearing.
12The respondent opposed the motion, submitting that it had made two attempts to serve the Addendum Report. They stated it had been emailed in late November 2024 and again in early December 2024 to email addresses they believed to be correct based on previous communications, which included an address for previous counsel and the applicant’s personal email address. The respondent further submitted that attempts to fax the report to the applicant’s representative had been unsuccessful due to technical issues. The respondent argued the applicant was not prejudiced, asserting that the report had been provided to individuals associated with the applicant’s representation and to the applicant herself over three months before the hearing, allowing sufficient time for review.
13After considering the submissions, I found that the Addendum Report was not properly served on the applicant’s current counsel of record and was, in any event, produced outside the disclosure timelines mandated by the CCRO. The applicant argued they were significantly prejudiced by this, as their counsel did not have the report in time to provide it to their own experts for review and potential rebuttal, nor could they adequately prepare for cross-examination on its specific contents. Consequently, I granted the applicant’s motion and excluded the GP Paper Review IE Addendum Report of Dr. Stewart from evidence.
14Notwithstanding the exclusion of the Addendum Report, I permitted the respondent to put the applicant’s clinical notes and records to Dr. Stewart during his testimony. This was allowed on the basis that Dr. Stewart, as a qualified expert, could still offer opinions on those underlying medical records (which were reviewed for his report and were properly disclosed), and the applicant would have a full opportunity to cross-examine him on any such opinions, minimizing any prejudice to the applicant. This permission was granted with the strict proviso that no reference be made by any party to the excluded Addendum Report itself or its specific conclusions.
ANALYSIS
Minor Injury Guideline
15Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
16An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
17The applicant submits that she developed or experienced a significant aggravation of anxiety and depressive symptoms following the accident. She relies primarily on the psychological assessment of Dr. Papazoglou, who diagnosed her with Adjustment Disorder with anxiety and Major Depressive Disorder (recurrent, moderate). In that report, the applicant’s symptoms include ongoing low mood, disturbed sleep, intrusive memories, fear of re-injury, and avoidance of certain driving routes. The applicant also acknowledges that she did not receive consistent formal therapy before the accident but argues that the lack of pre-accident treatment is not a bar to removal from the MIG.
18The respondent submits that the applicant’s psychological complaints are minimal, transient, and within the MIG framework as clinically associated sequelae. The respondent relies on Dr. Waiser’s psychological IE report dated January 9, 2023, which found no clinically significant psychological impairment, noting her continued employment, absence of psychotropic medication, and lack of formal therapy. The respondent emphasizes that the applicant’s emotional distress predates the accident by many years without any recent documented intervention, arguing that this history diminishes the likelihood of a significant accident-related psychological impairment.
19I find the applicant has established that they should be removed from the MIG on the basis of her psychological impairment. I prefer Dr. Papazoglou’s evidence over Dr. Waiser’s because Dr. Papazoglou provided detailed psychometric testing and thoroughly considered the connection between the accident and the applicant’s unresolved trauma related to her daughter’s death. I find that Dr. Waiser’s assessment, by contrast, insufficiently explored this critical context. In my view, he concluded that her emotional distress related solely to her pre-existing grief, without adequately investigating how the accident may have reactivated or intensified these emotional difficulties. I also accept Dr. Papazoglou’s testimony that a lack of recent therapy or medication does not negate the presence or severity of depressive and anxiety symptoms.
20As I am preferring Dr. Papazoglou’s evidence for these substantive reasons, I do not need to make a specific determination on the applicant’s submissions regarding the weight that should be assigned to Dr. Waiser’s report as a result of its late disclosure and the non-production of raw testing data from Dr. Waiser.
21I acknowledge the respondent’s argument that the applicant did not seek significant psychological treatment before or after the accident. However, as noted by Dr. Papazoglou, intermittent or delayed formal treatment does not preclude a valid diagnosis of anxiety or depression, nor does it eliminate the possibility that a traumatic event such as an accident could exacerbate previously manageable symptoms.
22I find on a balance of probabilities that the applicant has established that she should be removed from the MIG on the basis of her psychological injuries. Having made this determination, it is not necessary for me to consider the applicant’s alternative arguments for removal from the MIG based on an alleged pre-existing condition under s. 18(2) of the Schedule, or on the basis of chronic pain.
Non-Earner Benefit
23I find that the applicant has not established entitlement to a non-earner benefit (“NEB”).
24Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
25The applicant argues she meets the “complete inability” standard because the accident significantly diminished her overall quality of life. She highlights that, despite continuing to work as a bookkeeper, her job performance and daily routines were severely impacted by ongoing pain and emotional distress. She states that prior to the accident, she managed all household responsibilities independently, participated regularly in structured yoga classes, swimming, attended social engagements, and enjoyed leisure activities. Following the accident, she moved in with her daughter temporarily, required her husband’s assistance for heavier chores, and stopped participating in yoga, swimming, and social events due to pain and emotional limitations. The applicant submits that the significant reduction in these activities demonstrates her complete inability to engage in substantially all of her pre-accident life.
26The respondent submits that the applicant falls short of meeting the high threshold required for NEB entitlement. The respondent notes the applicant returned to her full-time sedentary job, performing bookkeeping duties without significant documented accident-related restrictions or interruptions. Although the applicant occasionally needed short breaks, the respondent highlights her testimony that pain interference at work was minimal (rated approximately 3 out of 10). The respondent further emphasizes the absence of documented medical evidence clearly attributing her eventual departure from work in August 2024 to accident-related impairments. Additionally, while the applicant claims limitations in heavier housekeeping tasks, the respondent points out that no documented evidence of incurred expenses for assistance or significant functional limitations has been provided.
27Having considered the evidence, I find that the applicant has not established that she meets the test for NEBs which requires continuous prevention from engaging in substantially all pre-accident activities. Although the applicant had physical and emotional challenges following the accident, and returning to work does not automatically disentitle her to NEBs, I find the applicant has not demonstrated how her impairments substantially prevented her from participating in substantially all her pre-accident activities.
28Specifically, I find that the applicant remained functionally independent in most personal care and some lighter household tasks, continued driving short distances, maintained familial relationships, and engaged in home-based stretching exercises despite discontinuing formal yoga classes.
29Of significance, I note that the applicant herself testified that her pain-related interference at work was manageable and that she continued working until August 2024, without substantial modifications. Although the applicant indicated in her testimony that she stopped working in 2024 because her health had not improved and she wanted to focus on her recovery, there was no evidence or submissions advanced that her decision to leave work was tied to the accident.
30Although I acknowledge the applicant has faced some challenges after the accident, I find she has not met the “complete inability” standard required by section 12(1). For these reasons, I find, on a balance of probabilities, that the applicant has not established that entitlement to a non-earner benefit.
31To receive payment for a treatment and assessment plan under sections 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 treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Physiotherapy Treatment Plan dated April 4, 2022 ($2,764.36)
32I find that the applicant has not met the burden of proof to establish that this specific treatment plan, submitted on April 4, 2022, was reasonable and necessary at the time of its submission. While the applicant testified generally about the benefits of physiotherapy, to approve a treatment plan, there must be sufficient contemporaneous medical evidence supporting its necessity at its inception.
33This treatment plan proposed physical rehabilitation, manual therapy, acupuncture, and pain relief modalities. The stated treatment goals were pain reduction, increased range of motion (ROM), and a return to activities of daily living (ADLs).
34The primary support for this plan appears to be the OCF-18 completed by the proposing physiotherapy clinic itself. The applicant referenced a visit to her family doctor on March 28, 2022, from OHIP records, suggesting she was advised to seek physiotherapy. However, the clinical note and record from this specific family doctor visit, which could have corroborated this advice and provided a medical rationale for initiating physiotherapy at that time, was not produced in evidence. Without such contemporaneous, independent medical evidence recommending or supporting the need for physiotherapy when this plan was first proposed, I cannot conclude that this treatment plan is payable.
Physiotherapy Treatment Plans dated August 2, 2022 ($221.91) and dated October 18, 2022 ($2,152.71)
35The treatment plan dated August 2, 2022, proposed physical rehabilitation, manual therapy, exercise equipment, assessment, and acupuncture, with goals of pain reduction, increased ROM, increased strength, return to ADLs, and return to pre-accident work activities. The treatment plan dated October 18, 2022, proposed similar services and had largely the same goals.
36I find that these two later treatment plans are reasonable and necessary as a result of the accident. The applicant testified that during the periods she actively attended physiotherapy at 101 Physio, her symptoms improved significantly, her pain was reduced, and her functional abilities, including ROM, increased. She further testified that once these treatments ceased, her pain gradually returned and worsened, and that home-based exercises alone were insufficient to sustain the improvements achieved through professional physiotherapy. This testimony is supported by the clinical notes and records from 101 Physio for these treatment periods, which document the applicant’s participation and reported improvements.
37The respondent relied on Dr. Stewart’s IE reports dated January 9, 2023, and June 20, 2024. In these reports, Dr. Stewart concluded that the applicant had sustained only minor injuries with no ongoing accident-related musculoskeletal impairments. He specifically found the treatment plan proposing eight weeks of treatment and a body pillow, totaling $2,152.71 (the October 18, 2022 plan), was not reasonable or necessary from his perspective at the time of his later assessments.
38However, I give Dr. Stewart’s conclusions on these specific physiotherapy plans less weight for several reasons. Firstly, his June 20, 2024 report did acknowledge some residual trapezius pain rated at 5/10. When cross-examined, Dr. Stewart clarified this trapezius pain was distinct from the primary left shoulder injury but did not provide a clear explanation as to whether physiotherapy treatment could alleviate this residual pain. Secondly, as the applicant submitted, Dr. Stewart did not directly comment on the earlier August 2, 2022 plan, nor did he fully address whether the ongoing shoulder complaints, which prompted these treatment plans, were indicative of a chronic pain condition that might benefit from such interventions. While Dr. Stewart noted limited ROM and tenderness in his January 9, 2023 report, his inability to correlate all left shoulder complaints directly to the accident does not negate the applicant’s reported experience of pain and functional limitation, and the documented benefits from physiotherapy during the periods these plans were active.
39The applicant’s direct testimony regarding the efficacy of these specific physiotherapy interventions in reducing her pain and improving her function, corroborated by the clinic’s records for these periods, satisfies the test under sections 15 and 16 of the Schedule. The goals of pain reduction and improvement in functional capacity are legitimate, and the evidence shows these goals were being met, at least temporarily, justifying these continued courses of treatment.
40With respect to the partial approval from the August 2, 2022 treatment plan, the previously unapproved portion amounting to $221.91 requires specific consideration. This sum is understood to comprise $80.00 for exercise equipment and $141.91 for an additional hour of physical rehabilitation and an additional hour of therapy addressing multiple body sites. The necessity for the exercise equipment is supported by the treatment plan itself, which proposed "exercise equipment", and by the applicant’s testimony. She testified that she was prescribed and diligently performed home exercises, including home-based yoga as recommended by 101 Physio, for which such equipment would be integral. This aligns with her evidence that home-based exercises were part of the strategy to manage her symptoms, particularly when active physiotherapy ceased. The charge for therapy addressing "multiple body sites" is also justified. The applicant consistently reported symptoms impacting more than one area to various assessors, and the clinical notes from 101 Physio document treatment for these widespread complaints. The applicant’s reported significant improvement during periods of active physiotherapy indicates that these specific components – the equipment for home maintenance and the comprehensive therapy addressing all affected areas – were reasonable and necessary elements of an effective treatment approach during that time.
41Accordingly, the physiotherapy treatment plan dated August 2, 2022, for the outstanding amount of $221.91, and the treatment plan dated October 18, 2022, for $2,152.71, are payable.
Psychological Assessment Treatment Plan, dated May 2, 2022 ($2,460.00)
42The applicant submits that this assessment was necessary to understand the nature and extent of her psychological sequelae from the accident, which ultimately led to Dr. Papazoglou’s diagnoses of Adjustment Disorder and Major Depressive Disorder (recurrent, moderate).
43The respondent argues that there was insufficient evidence of a significant psychological impairment or need for an assessment at the time this plan was submitted. It emphasizes the absence of prescription medications, absence of reporting of psychological symptoms to other medical professionals prior to this OCF-18, and the absence of documented referrals from other healthcare providers recommending such an assessment.
44I find that the applicant has not met the burden to establish that this psychological assessment plan, submitted on May 2, 2022, was reasonable and necessary at the time of its submission. To approve a treatment plan, including a plan for an assessment, there must be sufficient contemporaneous medical evidence supporting its necessity at its inception. In this instance, similar to my findings regarding the initial physiotherapy plan, the primary support for initiating this psychological assessment appears to be the plan completed by the proposing assessment facility itself. The evidence before me does not demonstrate that, as of May 2, 2022, the applicant had reported significant psychological issues to another treating physician or assessor who then recommended a formal psychological assessment, nor was there other compelling contemporaneous medical documentation establishing the need for this specific assessment at that particular time.
45While Dr. Papazoglou’s subsequent report did indeed identify significant psychological conditions, the test for approving a plan is based on the information and justification available at the time the plan was submitted. Without contemporaneous, independent medical evidence supporting the need for the assessment at that juncture, I cannot find that its reasonableness and necessity at the time of submission have been established. Therefore, the psychological assessment plan dated May 2, 2022, is not payable.
Psychological Services Treatment Plan, dated February 20, 2024 ($3,790.70)
46This treatment plan, dated February 12, 2024, proposes a course of psychological therapy. The stated goals of this plan included pain reduction, reduction of depressive symptomatology, improvement of emotional status, and a return to activities of daily living (ADLs). By the time this plan was submitted, Dr. Papazoglou had conducted his comprehensive psychological assessment and provided his report diagnosing the applicant with Adjustment Disorder and Major Depressive Disorder (recurrent, moderate), which I have accepted. His report also contained recommendations for psychological treatment.
47I find that the psychological services outlined in the treatment plan dated February 12, 2024, are reasonable and necessary. This plan is directly supported by Dr. Papazoglou’s comprehensive assessment, his diagnoses (which I have accepted), and his explicit recommendations for psychological treatment. The applicant’s testimony regarding her ongoing struggles and the insufficiency of self-management further supports the need for professional therapy. The goals outlined in the plan are appropriate for addressing the diagnosed conditions.
48The applicant relies on Dr. Papazoglou’s report and diagnoses, and her ongoing symptoms, to support this treatment plan. She testified that although she initially believed she could manage her psychological symptoms herself, she found these methods insufficient over time, necessitating professional intervention as recommended.
49The respondent maintains its position that there is insufficient evidence of a significant psychological impairment related to the accident warranting this extent of treatment, reiterating the absence of prescription medications and minimal early reporting of symptoms. They rely on Dr. Waiser’s psychological IE report, which characterized the applicant’s psychological symptoms as mild.
50While I acknowledge Dr. Waiser’s opinion, I have previously preferred Dr. Papazoglou’s evidence regarding his findings in relation to the applicant’s psychological state. Dr. Papazoglou’s detailed assessment and consideration of the applicant’s trauma provide a compelling basis for the recommended treatment. Furthermore, the applicant’s statements to Dr. Waiser about wishing to engage counselling with a Russian-speaking therapist, even if understated, corroborate a need and desire for psychological support. The timing of this treatment plan, well after Dr. Papazoglou’s formal diagnosis and recommendations, aligns with a properly sequenced approach to care.
51Accordingly, the psychological services treatment plan dated February 12, 2024, for $3,790.70 is payable.
Chronic Pain Assessment Treatment Plan, dated February 20, 2024 ($2,460.00)
52I find that the chronic pain assessment proposed in the plan submitted by 101 Assessments on February 20, 2024, is reasonable and necessary as a result of the accident.
53The applicant submits that, given the chronicity of her pain and unsuccessful attempts at conservative therapy, a chronic pain assessment is required. She argues that the presence of symptoms and functional limitations, including dependency on family members for daily activities, difficulty with heavier chores, reduced social engagement, decreased participation in yoga and swimming, and psychosomatic symptoms described in Dr. Papazoglou’s report, justify the need for a comprehensive chronic pain evaluation.
54The respondent argues that the applicant has not provided sufficient evidence to support a chronic pain diagnosis and has not met the AMA guidelines’ criteria necessary for chronic pain. The respondent argues that Dr. Chow, an acupuncturist, is not qualified to diagnose chronic pain and that there is no compelling medical documentation supporting the need for an assessment related to chronic pain.
55While I acknowledge that a chronic pain diagnosis has not yet been formally established, the threshold for approving an assessment is lower than the threshold for establishing a diagnosis. I accept the applicant’s testimony regarding ongoing pain lasting more than six months post-accident, her dependence on family members for assistance, and some level of reduced functionality in heavier household chores and recreational activities. I also accept the applicant’s reports of trapezius pain to Dr. Stewart. These factors collectively indicate that an investigation into chronic pain is both reasonable and necessary.
56Given these considerations, I conclude that the proposed chronic pain assessment is payable, as the assessment reasonably aligns with her ongoing symptoms and functional limitations, justifying further investigation.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to payment for certain benefits, interest will apply to those amounts that remain overdue, starting from the date they became payable until the date of payment.
Award
58The 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.
59The applicant submits that the respondent unreasonably delayed funding for treatments related to her ongoing chronic neck and shoulder pain, as well as persisting anxiety and depression. She argues that these delays exacerbated her injuries and undermined her prognosis for recovery. She submits the respondent’s reliance on section 44 assessments was improper, claiming the reports were inconsistent or selectively omissive.
60Although the respondent did not explicitly address the award in its submissions, based on the evidence before me, I find it did not unreasonably withhold or delay payment of benefits. The respondent reasonably relied upon section 44 assessments to determine whether treatment plans exceeded MIG limits. This reliance represented a legitimate and reasonable difference in professional medical opinion rather than unreasonable conduct.
Costs
61Regarding costs, the applicant submits that she engaged in no frivolous, vexatious, or bad faith conduct and, on this basis, claims entitlement to costs. However, the applicant made no submissions alleging such conduct by the respondent, which is the relevant consideration for entitlement to costs. I find no indication that either party engaged in any frivolous, vexatious, or bad faith behavior during these proceedings. Therefore, I conclude that no costs are warranted.
ORDER
62I grant the application in part, namely:
i. The applicant has established that her injuries warrant removal from the Minor Injury Guideline.
ii. The applicant is not entitled to a non-earner benefit of $185.00 per week from March 25, 2022, to February 25, 2024.
iii. The applicant is not entitled to $2,764.36 for physiotherapy services.
iv. The applicant is entitled to $2,152.71 for physiotherapy services, plus interest in accordance with section 51 of the Schedule.
v. The applicant is entitled to the remaining $221.91 balance ($1,298.79 less $1,076.88 approved) for physiotherapy services, plus interest in accordance with section 51 of the Schedule.
vi. The applicant is entitled to $3,790.70 for psychological services, plus interest in accordance with section 51 of the Schedule.
vii. The applicant is not entitled to $2,460.00 for a psychological assessment.
viii. The applicant is entitled to $2,460.00 for a chronic pain assessment plus interest in accordance with section 51 of the Schedule.
ix. The applicant is not entitled to an award under section 10 of Regulation 664.
x. The applicant is not entitled to costs.
Released: May 29, 2025
__________________________
Christopher Yan
Adjudicator