Citation: Dietrich v. CAA Insurance Company, 2025 ONLAT 23-000577/AABS

Licence Appeal Tribunal File Number: 23-000577/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:

Joy Dietrich

Applicant

and

CAA Insurance Company

Respondent

ADJUDICATOR: Tanjoyt Deol

For the Applicant: Ayub Shahzad, Counsel

For the Respondent: Jeffrey Pasternak, Counsel

HEARD: By way of written submissions

OVERVIEW

1Joy Dietrich, (the “applicant”), was involved in an automobile accident on November 18, 2020, 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 CAA Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

Is the applicant entitled to income replacement benefits (“IRBs”), and if so, in what amount per week from November 18, 2020, to date and ongoing?
Is the applicant entitled to the services proposed by Physiomed Roytec Road, as follows:

(i) $329.99 for chiropractic services, in a treatment plan (“OCF-18”) dated February 26, 2021; and

(ii) $2,486.41 for chiropractic services, in a OCF-18 dated December 20, 2021?

Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is not entitled to IRBs.

ii. The applicant is not entitled to the OCF-18s.

iii. The applicant is not entitled to interest.

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

v. The application is dismissed.

PROCEDURAL ISSUES

Late Submissions by the Applicant

4I deny the respondent’s request to omit the applicant’s submissions from the record.

5Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.

6The Case Conference Report and Order (“CCRO”), released on September 5, 2023, was clear that the deadline for the applicant’s initial submissions was 45 calendar days prior to the hearing, which was March 26, 2024.

7The respondent argues that the applicant served her submissions on March 29, 2024, which was a statutory holiday, and therefore her submissions are five days late. Thus, it requests that the Tribunal omit the applicant’s submissions from the record.

8In reply, the applicant argues that the respondent has raised a new issue, which is inappropriate, and it should have brought a motion. She further argues that she has been prejudiced because she has sacrificed a significant portion of her reply submissions to deal with the procedural issues raised by the respondent.

9The applicant further argues that the submissions were submitted late because her counsel had an illness.

10I find that the applicant’s submissions were late by six days. Rule 6.2(e) of the Licence Appeal Tribunal Rules, 2023, (“the Rules”), states that service will be deemed to have occurred the next day that is not a holiday if the email is sent after 5:00 PM. The applicant submitted her submissions by email on March 29, 2024, after 5:00 PM. Thus, the submissions are not deemed to be received until the next day that is not a holiday. In this case, that was April 2, 2024, as April 1, 2024 was a statutory holiday.

11The respondent has not directed me to evidence of prejudice that was caused by this slight delay. I find that the applicant would suffer significant prejudice if her submissions were excluded for the purposes of this hearing, as she has the burden of proof, and this would be disproportionate to her error. Moreover, I find that the respondent was able to respond to the applicant’s submissions in its submissions. The applicant has also provided an explanation for the delay, which is that her counsel had an illness, which in my view, is a reasonable explanation for the delay.

12In conclusion, I deny the respondent’s request to omit the applicant’s submissions from the record.

13With respect to the applicant’s submissions, I disagree that the respondent has raised a new issue. The respondent could have only raised this issue once it received the applicant’s submissions because the issue is whether the submissions were late or not. The applicant has not referred me to any Rule that supports that the respondent is obliged to bring a motion. I also disagree that there is prejudice to the applicant. The respondent is entitled to raise the issue and the applicant has the opportunity to reply. Furthermore, the applicant’s reply submissions are over the page limit set out in the CCRO and addressed both the procedural and substantive issues. Thus, I disagree that the respondent has improperly raised a new issue which has prejudiced the applicant.

Both parties exceeded the page limits

14The respondent argues that the CCRO limited the applicant’s submissions to 15 pages, however, she submitted 12 pages of submissions plus a chart as Exhibit R which contain a further eight pages of submissions. The respondent argues that the chart does not comply with the formatting required under the CCRO and the applicant’s total submissions are over the limit. Therefore, it argues that the chart should not be considered by the Tribunal.

15The applicant argues that the main body of her submissions are less than nine pages because endnotes are not included in the page limit. She further argues that the chart contained in Exhibit R is less than five pages once it is formatted in the matter described in the CCRO. Lastly, she argues that the respondent’s submissions contained no page numbering and were 16 pages in length. Thus, she argues that it would be appropriate to omit consideration of the response.

16I find that both parties are non-compliant with the CCRO. The CCRO was clear that the page limit for initial submissions for both parties was 15 pages and both parties filed submissions that do not comply with the CCRO. Neither party has addressed what prejudice has resulted from the non-compliance. I am exercising my discretion to consider the full length of each party’s written submissions because I find that neither party is prejudiced.

ANALYSIS

Income Replacement Benefit (“IRB”)

Higher Quantum of IRBs

17I find that the applicant has not met her burden of proof to establish that she is entitled to a higher quantum of IRB from November 26, 2020 to March 24, 2023. I also find that the applicant has not established on a balance of probabilities entitlement to post-104 IRB from March 24, 2023 to date and ongoing.

18Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)1(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of her employment or self-employment.

19Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

20In her submissions, the applicant states that her analysis is focused exclusively on ss. 36(4), 36(6), 44(1) and 44(5) of the Schedule. With respect to quantum of IRB, she argues that she is entitled to $330.66 per week based on the accounting report completed by S&T Accounting. The applicant has not provided submissions on her substantive entitlement to IRBs under ss. 5(1), 6(1), and 6(2) of the Schedule.

21The respondent argues that it paid IRBs from November 26, 2020 to December 31, 2020 at the weekly quantum of $141.00 per week and $132.00 per week from January 1, 2021 to March 24, 2023. It argues that this was based on the accounting report completed by BDO, and that the applicant did not dispute these findings in her submissions or provide any arguments on why the quantum should be different. It argues that BDO determined that S&T Accounting used the Canada Emergency Response Benefits (“CERB”) to quantify the applicant’s pre-accident income, which inflated the IRB quantum. It further argues that the applicant has not made a substantive argument on why she is entitled to IRB beyond the date of denial.

22I find that the applicant has fallen well short of establishing that she is entitled to a higher quantum of IRB from November 26, 2020 to March 24, 2023, because she did not provide submissions on this point. Rather, the applicant submitted that she was entitled to $330.66 per week and tendered a copy of the accounting report by S&T Accounting. However, the applicant did not provide arguments on why she is entitled to a higher quantum, why the S&T accounting report should be preferred, or whether the quantum was calculated correctly. As the onus is on the applicant to establish the quantum of IRB, and she has provided no submissions on this point, it follows that she is not entitled to a higher quantum.

23Similarly, I find that the applicant has not established that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. As noted above, the applicant provided no submissions on why she is entitled to post-104 IRB, nor did she point me to evidence that supports her entitlement to the claim. Thus, I find that she has not met her onus to establish entitlement to post-104 IRB.

24Finally, the applicant also argued that the respondent’s correspondence, dated February 28, 2022, did not advise her why it was inappropriate to use benefits received from CERB for calculating the quantum of IRBs. Significantly, she does not advise what relief she is seeking with respect to this or any provision in the Schedule that allows her to receive IRBs on this basis.

25In short, I find on a balance of probabilities that the applicant has not established that she is entitled to a higher quantum of IRB or entitlement to post-104 IRB.

s. 36(4) and s. 37 of the Schedule

26I find that the applicant has not established that IRBs are payable due to non-compliance with s. 36(4) of the Schedule.

27Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed disability certificate (“OCF-3”) for IRBs, the insurer shall:

i. Pay the specified benefit;

ii. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

iii. Send a request to the applicant under s. 33(1) or s. 33(2).

28If an insurer fails to comply with ss. 36(4) or (5) within the applicable time limit, s. 36(6) states that it must pay the specified benefit until a notice in accordance with s. 36(4)(b) is given.

29Section 37(1)(b) provides that if an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary, notify the insured person that the insurer requires an examination under section 44.

30The applicant argues that the denial notice, dated September 22, 2022, is non-compliant with s. 36(4) because it did not meet the requirement to provide the medical and any other reasons for denying the IRBs. She argues that the respondent provided a number of limited non-specific explanations. She further argues that the respondent incorrectly advised her at the pre-104 IRB mark that meeting that test was no longer sufficient, and that she had to meet the post-104 test. The applicant further argues that the denial notice was non-compliant because it advised the applicant that she did not meet the post-104 IRB test despite having the OCF-3, which certifies that she met the test.

31The respondent argues that s. 36(4) is not applicable to the letter, dated September 22, 2022, because it was not in response to an application and completed OCF-3. Rather, it argues that the letter was in accordance with s. 37(1)(b) because it advised the applicant that an Insurer’s Examinations (“IEs”) was required to determine if she was still entitled to IRBs. It further argues that it already provided a response to the OCF-3 on March 9, 2021.

32I agree with the respondent that s. 36(4) is not applicable to the letter, dated September 22, 2022, because this was not in response to the OCF-3 or application. Rather, the correspondence advised the applicant that there was a change in the eligibility requirements at the 104 week mark and that under s. 44 of the Schedule it required IEs to determine if the applicant met the post-104 IRB test. In my view, this falls under s. 37(1)(b) because the respondent advised the applicant that it required an s. 44 IEs to determine if she was still entitled to IRB. Moreover, the respondent tendered a copy of the letter, dated March 9, 2021, which was sent in response to the application and OCF-3. The applicant made no submissions on whether the March 9, 2021 letter was non-compliant with s. 36(4).

33I also disagree with the applicant that in the letter of September 22, 2022, the respondent advised her that meeting the pre-104 test was insufficient, and that she had to meet the post-104 IRB test instead. The letter clearly stated that the IRB test would change from pre-104 to post-104 on November 18, 2022. I also find that the letter did not state that it was insufficient to meet the pre-104 test. Again, the letter stated that the eligibility requirements would be changing on November 18, 2022, and based on the review of the file, and the upcoming change to the test, a s. 44 examination was required to determine if the applicant met the post-104 IRB test. The respondent also paid IRBs up until March 24, 2023, once it received the s. 44 IEs and denied the benefit, therefore the applicant was paid both pre-104 IRB and post-104 IRB.

34Moreover, I disagree with the applicant that the letter, dated September 22, 2022, was a denial notice. The respondent did not deny IRBs but rather advised the applicant that it wanted to schedule IEs to determine if the applicant was still entitled to IRB.

35The applicant further argues that the respondent did not include s. 37(1) in its letter, and that she as an unsophisticated insured person, thought this letter was a response under s. 36(4). I do not agree because I find the respondent’s letter dated March 9, 2021, clearly advised that it was responding under s. 36(4). The respondent also sent correspondence ranging from March 31, 2021 to February 2022 advising the applicant that it was requesting an Election of Benefits (“OCF-10”) form under s. 33, that it suspended the benefits because it had not received the OCF-10 form, and when the applicant did provide the OCF-10, the respondent calculated the IRB quantum and paid until March of 2023. As such, I find that the applicant was aware that the respondent had responded under s. 36(4) because the March 9, 2021 letter clearly stated that, and the respondent sent numerous correspondence which eventually led to the IRB being paid, with the exception of when the applicant was non-compliant under s. 33(6).

36I also disagree with the applicant’s position that the respondent had to insert s. 37(1) in its letter, dated September 22, 2022, or otherwise it was improperly given. First, the applicant has not referred me to a section of the Schedule that supports such an interpretation. Second, s. 37(1) of the Schedule does not state that a letter under this section has to include the section otherwise it is invalid. Third, there is no requirement to provide medical and any other reasons for a letter under s. 37(1). At s. 37(4) it states that if an insurer determines that an insured person is no longer entitled to receive IRB on any one or more grounds set out in s. 37(2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination. In my view, there is no such requirement under s. 37(1) because s. 37(4) states that it applies to s. 37(2), not (1).

37It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. In my opinion, had the legislature intended for insurers to be required to provide medical and any other reasons under s. 37(1), then it would have been reflected in the legislation, just like it was under s. 37(4). This was not done, and I must respect the legislature’s intent.

38The applicant further argues that ss. 36 and 37 need to be read together, and that the remedies under s. 36(6) are available if the respondent breaches the notice provisions. With respect, the letter, dated September 22, 2022 was not a denial of IRB where ss. 37(2) and (4) would be applicable. Instead, the respondent advised the applicant that it wanted to proceed under s. 44 and schedule IEs to determine if the applicant continued to be entitled to IRBs. As noted above, there is no requirement under s. 37(1) to provide medical and any other reasons, like there is under s. 37(4). Moreover, s. 36(6) is clear that an insurer shall pay if it fails to comply with s. 36(4) or (5). Again, if the legislature intended for insurers to be liable to pay for non-compliance with s. 37(1), it should have been clearly stated under s. 36(6), but it was not. While the Schedule is consumer protection, I cannot read into the Schedule a remedy that is not provided.

39The applicant further argues that the respondent’s IE notices, dated November 21, 2022, November 22, 2022, December 2, 2022, December 20, 2022, and January 20, 2023 were non-compliant with s. 36(4)(b). This is because she argues that under s. 36(4)(b) IEs may not be compelled unless the denial notice compliant with s. 36(4)(b) has been issued. I infer from these submissions, that the applicant is arguing that since the respondent did not provide medical and any other reasons in its notice, then it could not compel an IE. As such, she argues that since the respondent was non-compliant with s. 36(4), then it was not entitled to compel IEs under s. 44(5), and therefore is not entitled to the resulting IEs, and they therefore were void ab initio.

40I find that this issue is moot because I found that s. 36(4) is not applicable to the letter, dated September 22, 2022. Therefore, as the applicant has not established that the letter was non-compliant with s. 36(4), then these arguments are moot because they are premised on the basis that the respondent was non-compliant with s. 36(4)(b).

41In a similar vein, the applicant argues that since the respondent was non-compliant with ss. 36(4)(b) and 44(5), then the respondent cannot rely on this denial notice because it is relying upon IEs reports that were improperly procured. Again, I find this point is moot because as noted above, the applicant is premising her argument on the basis that the letter, dated September 22, 2022, was non-compliant with s. 36(4)(b), and therefore it cannot rely upon s. 44(5) to schedule IEs. Again, I have determined that s. 36(4) is not applicable to this letter.

42In the event I am wrong, and the issue is not moot, I note that the applicant relies heavily on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”) to support her position that if an insurer is non-compliant with s. 44(5), then the resulting IE reports become void ab initio. I am not bound by Taksali and in the Vice Chair in Taksali erroneously concluded that a non-compliant notice of an IE caused the resulting IE report to be void ab initio. The conclusion in Taksali failed to consider that the remedy for an insufficient IE notice is that the Applicant is not obligated to attend the examination.

43For all these reasons, I find that s. 36(4) is not applicable to the letter dated September 22, 2022, because it was not a response to the application or OCF-3, therefore the shall pay consequences under s. 36(6) are not triggered.

The applicant is not entitled to the OCF-18 for chiropractic services, in the amount of $329.99 dated February 26, 2021

44I find that the respondent’s denial letter April 23, 2021 was compliant with s. 38(8), and the applicant has not established that the remaining balance in the OCF-18 is reasonable and necessary.

45Where an insurer has not properly denied a treatment plan in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.

46The applicant argues that the denial letter, dated April 23, 2021, was non-compliant with s. 38(8) because it contains limited, non-specific explanations and that the OCF-18 is compelling evidence and since the denial letter stated that it had no compelling medical evidence, then the denial was non-compliant with s. 38(8).

47The respondent argues that the denial letter was sufficient and provided the medical and other evidence required to properly deny the OCF-18.

48In its April 23, 2021, denial letter, the respondent advised that it had received an OCF-18 in the amount of $4,393.02, and that it had partially approved it for $4,063.03. It provided the following reason for denying the remaining balance in the OCF-18:

Compelling medical evidence has not been provided to support the proposed shoulder support brace is required as a direct result of the accident that occurred on November 18, 2020. Should additional medical documentation be available, please have your health practitioner forward same to CAA Insurance and we may re evaluate our determination.

49I find that this denial letter was compliant with s. 38(8) because it identified information about the insured’s condition that the insurer does not have but requires. Indeed, the denial letter clearly states that compelling medical evidence has not been provided to support that the proposed shoulder support brace is required as a direct result of the accident. I find the denial provided clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial. Moreover, the applicant has not advised what compelling evidence (other than the OCF-18 itself, which will be addressed below) she has provided that supports the shoulder brace is required as a result of the accident.

50I disagree with the applicant that an OCF-18 by itself constitutes as compelling evidence, rather it is a form that is used to apply for treatment. As such, I disagree that the respondent’s denial is non-compliant with s. 38(8) because an OCF-18 alone is not compelling evidence.

51The applicant further argues that the OCF-18 has been certified by duly qualified medical professionals that the proposed treatment is reasonable and necessary. As such, the applicant argues that a rebuttable presumption has been created in favour of the treatment which has to be rebutted by the insurer.

52I do not agree with the applicant that a rebuttable presumption is created simply by the submission of an OCF-18. Moreover, when I review the denial letter provided by the respondent in response to the treatment plan, I find that it complies with s. 38(8) of the Schedule and the principles set out in 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ONLAT), cited by the applicant.

53Moreover, a contextual approach should be applied and if the reasoning offers a principled rationale based fairly on an insured’s file, then the requirements of s. 38(8) are met. Here, as noted above, this standard was met because the respondent advised that no compelling medical evidence has been received that supports that the shoulder support brace is required as a result of the accident, and the applicant has not made submissions on whether she provided any compelling evidence that supports entitlement. As noted above, I disagree that the OCF-18 itself creates a rebuttable presumption or that an OCF-18 itself is compelling evidence to support entitlement to treatment.

54As the respondent was compliant with s. 38(8), the applicant has to establish that the OCF-18 is reasonable and necessary under s. 15 of the Schedule. She made no submissions on the reasonableness and necessity of the OCF-18. Therefore it follows she is not entitled to the remaining balance.

55Accordingly, I find that the respondent was compliant with s. 38(8) and the applicant has not established on a balance of probabilities that the OCF-18 is reasonable and necessary.

The applicant is not entitled to an OCF-18 for chiropractic services in the amount of $2,486.41, dated December 20, 2021

56I find that the respondent’s denial letter was compliant with s. 38(8), and the applicant has not met her evidentiary onus to establish that the OCF-18 is reasonable and necessary.

57The applicant argues that the denial letter, dated January 6, 2022 was non-compliant with s. 38(8) because the OCF-18s themselves have been certified by duly qualified medical professionals that the proposed treatment is reasonable and necessary, and therefore the respondent’s position is “irrelevant”. She further argues that the respondent has provided limited non-specific explanations for the denial, and that it was unclear from the denial who completed the review, and if it was completed by a non-health practitioner, then it is not “credible”. Lastly, she argues that the respondent was obliged to wait for the compelling evidence to arrive, review same, and then proceed with IEs if required.

58The respondent argues that it was compliant with s. 38(8) of the Schedule.

59In its January 6, 2022, denial letter the respondent provided the following reason for denying the OCF-18 for chiropractic services:

We note it has now been over 1 year since the date of your motor vehicle accident and we have approved a total of $15,928.72 for physical modalities of therapy. Upon review of the medical documentation received to date, it appears that from a physical perspective soft tissue injuries were sustained to include sprain/strain of the cervical spine and shoulder joint, which compelling evidence has not been provided, such as progress reports, by your treating practitioner at Physiomed outlining your progress, treatment planning, goals and outcomes with respect to the noted accident-related injuries. Additionally, as per the clinical notes and records of your family physician, we have not received compelling medical evidence beyond May 2021 supporting an ongoing accident related impairment requiring additional physical therapy. As such, we are proceeding to a Section 44 Insurer's Examination to obtain a second medical opinion.

60I find that this denial letter is compliant with s. 38(8) because it provided medical reasons and all other reasons for the denial. Indeed, the respondent advised that it was denying the OCF-18 because it approved $15,928.72 in treatment already for soft tissue injuries, and the applicant had not provided compelling evidence from his treating practitioner at Physiomed. The respondent further advised that it had not received compelling evidence from the applicant’s family physician beyond May 2021 supporting an accident related impairment requiring additional physical therapy. Thus, it was also proceeding with a s. 44 IE. I find that the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision.

61I find that this reason satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond: See 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) at para 22. Reasons should enable a claimant to make an informed decision about whether to challenge the insurer’s determination and pursue her claim. Here, the respondent advised the applicant that she had undergone $15,982.72 worth of treatment already and that it had not received compelling evidence from the treating practitioner at Physiomed or updated records from the applicant’s family physician to support additional physical therapy.

62I am also not persuaded by the applicant’s argument that if the review was done by a non-health practitioner then the denial is not credible, as there is no such requirement in the Schedule or the prevailing case law. As noted by the Tribunal in 17-003774/AABS v. Aviva, to expect an adjuster to articulate something resembling a medical opinion would be naive and impractical.

63I also disagree with the applicant’s argument that the respondent is non-compliant with s. 38(8) because it did not wait for compelling evidence to arrive, review it, and then schedule an IE if required. I find that there is no such requirement under s. 44(1) of the Schedule. Rather, the insurer has to ensure that it is not scheduling IEs more often than is reasonably necessary. Here, the applicant made no submissions on whether previous IEs were scheduled for this OCF-18 or how this IE was scheduled more often than is reasonably necessary.

64In short, the applicant has not established that the respondent’s denial letter was non-compliant with s. 38(8), and therefore the consequences under s. 38(11) are not triggered.

65Again, the applicant made no submissions on why the OCF-18 is reasonable and necessary. As she has the onus to do so, I find on a balance of probabilities that she is not entitled to the OCF-18.

Interest is not payable

66Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.

The respondent is not liable to pay an award

67The applicant sought an award under section 10 of Reg. 664. Under section 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.

68Having concluded that the applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed and thus, no award is payable.

ORDER

69For the reasons outlined above, I find that: