Stroop v. Allstate Insurance, 2025 CanLII 58807

Stroop v. Allstate Insurance

Citation: Stroop v. Allstate Insurance, 2025 ONLAT 23-004264/AABS Licence Appeal Tribunal File Number: 23-004264/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: Corinna Stroop (Applicant) and Allstate Insurance (Respondent)

DECISION

ADJUDICATOR: Christopher Yan

APPEARANCES: For the Applicant: Michael Ferrante, Paralegal For the Respondent: Thulasi Kandiah, Counsel

HEARD: By way of written submissions

OVERVIEW

1Corinna Stroop, the applicant, was involved in an automobile accident on May 7, 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, Allstate Insurance, 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? Note: The parties agreed the MIG limits have been exhausted.

ii. Is the applicant entitled to medical services proposed by Upper James Wellness, as follows: (i) $3,164.96 for physiotherapy services, in a treatment plan/OCF-18 (“plan”) submitted October 28, 2022; and (ii) $2,533.72 for chiropractic services, in a plan submitted March 1, 2023?

iii. Is the applicant entitled to the assessments proposed by Princeton Hill Medical Assessments, as follows: (i) $2,200.00 for a psychological assessment, in a plan submitted February 1, 2023; and (ii) $2,260.00 for a chronic pain assessment, in a plan submitted March 23, 2023?

iv. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $350.97 per week from May 14, 2022 to date and ongoing?

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

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

RESULT

3The applicant’s injuries are predominantly minor injuries as defined in s.3 of the Schedule and subject to treatment within the MIG.

4The applicant is not entitled to the disputed plans.

5The applicant is entitled to income replacement benefits in amounts ranging from $2.78 to $261.37 per week from August 15, 2022, to May 7, 2024, with no entitlement during periods where her post-accident income exceeded her pre-accident income, as outlined in this decision plus interest on these amounts.

6The applicant is not entitled to an award under s.10 of Reg. 664.

PROCEDURAL ISSUE

Admissibility of Late-Served Updated Accounting Report

7The respondent’s request to admit a late-served updated accounting report is granted.

8The respondent seeks to include an updated accounting report by Davis Martindale dated June 12, 2024, as evidence in this hearing. The respondent explains that delays in the applicant’s production of documents, including her Employment Insurance (“EI”) file, social assistance file, employment file, and income tax returns, impacted its ability to finalize the report earlier. As a result, the report was prepared and served well after the 120-day deadline for exchange of productions outlined in the Case Conference Report and Order (CCRO) following the case conference on November 21, 2023.

9The CCRO required the applicant to disclose all production items within 90 calendar days, with responsive productions from either party due by March 20, 2024. The respondent asserts that the applicant failed to meet these deadlines: the employment file and income tax returns were served two days late on March 22, 2024, the EI file was not produced until June 4, 2024, and the social assistance file remains outstanding. These delays, the respondent submits, necessitated the late preparation and service of its updated accounting report.

10The applicant’s submissions do not expressly oppose the inclusion of the respondent’s accounting report, but the applicant submits that she produced documents on a best-efforts basis and argues that the respondent has not been prejudiced by the late production. The applicant also notes that the respondent did not bring a motion or seek production orders to address the alleged delays.

11After reviewing the parties’ submissions, I find it appropriate to admit the respondent’s accounting report dated June 12, 2024. While the applicant has explained the late production, the respondent has demonstrated that these delays affected its ability to prepare the report within the required timelines, causing prejudice to its ability to fully present its case regarding the income replacement benefit calculation. Further, I find that the updated accounting report is directly relevant to determining the quantum of the applicant’s entitlement to income replacement benefits, a central issue in dispute. Given the report’s relevance and the prejudice the respondent would suffer if it were excluded, and considering the applicant has not expressly opposed the report’s inclusion, I am satisfied that its admission will not prejudice the applicant. Therefore, the report is admitted as evidence in this proceeding.

ANALYSIS

Minor Injury Guideline

12I find that the applicant’s impairments are predominantly minor injuries as defined in s. 3(1) of the Schedule.

13Section 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.”

14An 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.

15The applicant submits that she should be removed from the MIG on two primary medical grounds:

i. A diagnosis of Carpal Tunnel Syndrome (“CTS”), which she argues is not a “minor injury” as defined. She relies on the interpretation of a nerve conduction study from Hamilton Health Sciences, Juravinski Hospital diagnosing “mild carpal tunnel syndrome” and the report of Dr. O’Malley noting the onset of pain and numbness after the accident.

ii. Psychological factors. The applicant’s submissions refer both to being removed from the MIG based on a psychological impairment and at the same time also refers to psychological impairment suggests generally that a psychological condition falls outside the MIG definition, and also argues more specifically, relying on s. 18(2) of the Schedule, that a documented pre-existing psychological condition prevents her maximal recovery if she remains subject to the MIG limit.

a) Carpal Tunnel Syndrome

16I am not persuaded that the applicant’s diagnosis of CTS warrants the applicant’s removal from the MIG in this case.

17The applicant argues that because CTS is not explicitly listed as a “minor injury” in s. 3(1), its diagnosis automatically removes her from the MIG. The applicant was diagnosed with “mild carpal tunnel syndrome” via nerve conduction study at Juravinski Hospital and this was noted by Dr. O’Malley in October 2023. The applicant relies on Dr. O’Malley’s note that symptoms began after the May 2022 MVA to establish causation.

18The definition of “minor injury” expressly includes “any clinically associated sequelae” to the listed injuries (sprains, strains, etc.). The burden remains on the applicant to provide compelling evidence demonstrating that this specific CTS diagnosis is not clinically associated sequelae to her other accident-related injuries, which the respondent’s s.44 examiner, Dr. Zdravkovic, characterized as soft tissue injuries falling within the MIG).

19The applicant has not met her burden on this issue for two reasons. First, she has not provided compelling medical evidence establishing causation. While she relies on Dr. O’Malley’s note regarding the post-accident onset of symptoms, this temporal correlation alone is insufficient, particularly in the absence of a formal medical opinion on causation and in the presence of evidence of pre-existing epicondylitis and paresthesia. Second, even if causation were established, the applicant has not provided any medical opinion explaining why the diagnosed mild CTS should be considered a distinct injury rather than clinically associated sequelae to the initial soft tissue trauma or resulting inflammation. Simply stating CTS is not listed in s. 3(1) is insufficient. Without medical evidence differentiating this mild CTS from the types of impairments or sequelae contemplated by the MIG framework, the applicant has not met her onus.

b) Psychological Condition (Including Pre-Existing Factors)

20I find the applicant has not met her burden to establish that psychological factors warrant her removal from the MIG. She raises two separate arguments: that a pre-existing psychological condition prevents her recovery under s. 18(2), and that she sustained a psychological impairment as a direct result of the accident. She has not proven her case on either ground.

Pre-Existing Condition under s. 18(2)

21The applicant first argues for removal under s. 18(2) of the Schedule. This section requires an applicant to prove two things: (1) that they have a documented pre-existing condition, and (2) that they have compelling evidence from a health practitioner that this condition will prevent them from achieving maximal recovery from the minor injury if they remain in the MIG.

22The applicant has successfully documented a pre-existing condition as required by the first part of the test. She relies on Dr. Blew’s clinical notes, which detail a pre-existing psychological condition involving low mood, stress, a history of depression, and a referral for mental health counselling made prior to the accident. An initial assessment dated April 20, 2022, also documented contemporaneous symptoms of depression and anxiety.

23However, the applicant has failed to satisfy the second part of the s. 18(2) test. She has not provided the required compelling evidence from a health practitioner demonstrating that her pre-existing psychological condition prevents her from achieving maximal recovery from her accident-related minor injuries within the $3,500 MIG limit. While Dr. Blew’s notes document the condition, the applicant has not pointed to any specific opinion from Dr. Blew, or any other practitioner, providing this necessary explanatory medical link.

Psychological Impairment Caused by the Accident

24The applicant also argues, more generally, that she should be removed from the MIG due to a psychological impairment caused by the accident itself. On this point, she has provided insufficient evidence. The record shows that the applicant reported “feeling great” to Dr. Blew approximately two months post-accident (note of July 6, 2022). Subsequent counselling notes from October 2022 and January 2023 attribute her distress to other significant life events, namely her father’s death and issues with her partner. There are no documented reports linking psychological trauma specifically to the accident, nor is there a psychological diagnosis causally linked by evidence to the accident.

25Finally, the applicant argues that the respondent failed to arrange a psychological insurer’s examination despite Dr. Zdravkovic noting psychological issues. However, the respondent’s decision not to arrange an assessment does not discharge the applicant’s burden to provide positive, compelling evidence supporting her claim for removal from the MIG.

26Accordingly, based on the evidence presented regarding both the CTS and psychological factors, I find that the applicant has not met her burden of proof to demonstrate, on a balance of probabilities, that her impairments fall outside the definition of “minor injury” or that the s. 18(2) exception for pre-existing conditions applies. Her impairments are therefore found to be predominantly minor injuries subject to the MIG limit.

Disputed Treatment Plans

27The November 21, 2023, Case Conference Report and Order notes that the MIG limits have been exhausted. As such, having found that the applicant has not established a basis for removal from the MIG, an analysis of whether the disputed treatment plans are reasonable and necessary on their merits is not required unless the applicant succeeds on her procedural argument regarding s. 38(11).

28The applicant claims entitlement to the disputed treatment plans based on the respondent’s alleged failure to comply with the notice requirements under s. 38(8) of the Schedule.

29Section 38(8) of the Schedule requires an insurer, within 10 business days of receiving a treatment and assessment plan, to provide notice to the insured person. The notice must provide the medical reasons and all other reasons why the insurer considers the proposed goods, services, or costs not reasonable or necessary.

30Section 38(11) of the Schedule imposes consequences for non-compliance with s. 38(8), including prohibiting the insurer from relying on the MIG and requiring payment for the disputed plan until proper notice is given.

31I find that the respondent’s denial letters are compliant with section 38(8) of the Schedule.

32The applicant submits that the respondent’s denial letters are non-compliant because they use “boilerplate” language and fail to provide sufficient medical reasons. In support, the applicant cites several Tribunal decisions, including Syrovy v. Aviva and B.S. v. Aviva, where insurer notices were found to be non-compliant. However, the applicant’s submissions do not point to any specific deficiencies in the denial letters at issue in this case. Instead, they rely on the general findings in the cited cases without explaining how the respondent’s reasoning here is similarly flawed.

33The respondent submits that its denial letters comply with s. 38(8) because they provide adequate medical reasons, including references to the applicant’s injuries being predominantly minor, a review of the relevant medical evidence, and the absence of compelling evidence supporting removal from the MIG.

34I have reviewed the denial letters for each disputed plan. While there is some recurring language related to the MIG framework, each letter contains specific elements that, when read as a whole, provide sufficient medical and other reasons to comply with s. 38(8).

OCF-18 dated October 28, 2022 (Physiotherapy Services - $3,164.96) - Denied November 14, 2022

35I find the denial notice dated November 11, 2022, is compliant with s. 38(8).

36The notice provides a clear non-medical reason for the denial: the $3,500 MIG limit has been exhausted. It also provides a medical reason by stating that upon review of the applicant’s claim and the OCF-18, it determined her injuries are “predominantly minor soft tissue injuries” treatable within the MIG. Finally, it informs the applicant of the next step by stating that an IE will be scheduled. I find that these components, taken together, satisfy the requirements of s. 38(8).

OCF-18 dated March 1, 2023 (Chiropractic Services - $2,533.72) - Denied March 7, 2023

37I find the denial notice dated March 6, 2023, is compliant with s. 38(8).

38The notice mirrors the reasoning of the previous denial, which remains valid for this new plan. It provides the same non-medical reason (MIG limit exhausted) and medical reason (injuries determined to be minor upon review of this specific plan). Although the language is similar, I find that the denial notice constitutes valid notice for a new plan and provides sufficient reasons for the denial.

OCF-18 dated February 1, 2023 (Psychological Assessment - $2,200) - Denied March 7, 2023

39I find the denial notice dated March 6, 2023, is compliant with s. 38(8).

40This notice provides a medical reason tailored to the proposed assessment. It states there is no “compelling medical evidence to support a finding that [the applicant] suffer[s] from a psychological impairment” that would warrant removal from the MIG. I accept that this is a specific medical reason directly addressing why a psychological assessment is not being approved based on the available information.

OCF-18 dated March 23, 2023 (Chronic Pain Assessment - $2,260.00) - Denied April 12, 2023

41I find the denial notice dated April 11, 2023, is compliant with s. 38(8).

42The notice provides a specific and sophisticated medical reason by listing the diagnostic criteria for chronic pain from the American Medical Association’s Guides. By outlining this recognized medical standard, the insurer communicates its reason for denial: the available evidence does not demonstrate that these criteria have been met. The notice also informs the applicant that an IE will be scheduled to further assess the claim. This is a sufficient medical reason under s. 38(8).

Conclusion on s. 38(8) Compliance

43Therefore, I find that the respondent’s notices for all four disputed OCF-18s are compliant with section 38(8) of the Schedule. As the notices meet the statutory requirements, the consequences outlined in section 38(11) do not apply. The respondent is not precluded by s. 38(11) from asserting that the applicant’s impairments fall within the MIG, and the applicant is not automatically entitled to payment for these plans based on this procedural argument.

Income replacement benefit

Pre-104 Week IRB

44I find that the applicant is entitled to pre-104 IRB ranging from $2.78 to $261.37 per week for the period August 15, 2022, to May 7, 2024. However, the quantum of her entitlement is reduced to $0.00 for periods where her post-accident income exceeded her calculated pre-accident income, as detailed below.

45To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test. However, entitlement is not in dispute, as the respondent states in para. 39 of its submissions that it “does not dispute the applicant’s eligibility to pre-104 IRB”.

Entitlement to Pre-104 IRBs

46I find that the applicant has met the test for entitlement to pre-104 IRBs. This finding is primarily based on the respondent’s own section 44 physiatry examination report dated August 23, 2023, authored by Dr. Zdravkovic, which explicitly concludes that the applicant “does suffer a substantial inability to perform the essential tasks of her landscaping employment as a result of the accident.” I also accept the applicant’s submission that no subsequent medical evidence refutes this finding of ongoing disability within the 104-week period.

47Moreover, the respondent does not dispute the applicant’s entitlement to pre-104 IRB. Therefore, for the period up to 104 weeks post-accident, the disputed issues are the correct start date and the quantum (weekly amount) of the IRBs.

Time Period for Pre-104 IRB Payments

48The applicant seeks IRBs from May 14, 2022 (one-week post-accident) onwards. The respondent submits that IRBs are only payable from August 15, 2022, the date the OCF-3 Disability Certificate was received by the insurer. The respondent correctly argues that IRBs are generally not payable until both the OCF-1 Application for Accident Benefits and the OCF-3 Disability Certificate are submitted.

49Section 36(3) of the Schedule stipulates that an applicant is not entitled to specified benefits, including IRBs, for any period before submitting a completed disability certificate. The evidence includes the OCF-3 dated May 11, 2022, but the accompanying fax cover confirms its submission to the respondent occurred on August 15, 2022. The applicant did not dispute this submission date or provide evidence to the contrary, nor did she address this specific point in her reply submissions. Therefore, I find that any entitlement to IRBs commences on August 15, 2022.

Quantum of Pre-104 IRB

50The parties presented conflicting calculations regarding the applicant’s pre-accident income and resulting IRB quantum. The applicant relies primarily on an accounting report from Great Oak dated January 3, 2023, and her own calculations, suggesting an IRB of approximately $301.12 to $350.97 per week. The respondent relies on two accounting reports from Davis Martindale dated May 30, 2023, and June 12, 2024, which calculate the IRB entitlement as $0.00 per week.

51After careful review, I place greater weight on the calculations presented in the Davis Martindale Reports (specifically the updated June 12, 2024 report, as adjusted below) over the Great Oak Report and the applicant’s calculations, for the following reasons:

i. The Great Oak Report significantly pre-dates the applicant’s documented post-accident employment income from Buist Landscaping (April 24, 2023, to November 17, 2023) and therefore fails to account for this substantial income. The Great Oak report also appears to omit or miscalculate other post-accident income sources identified by Davis Martindale, such as post-accident EI benefits and income from Administrative Services (November 5-18, 2022).

ii. The applicant’s own calculations contain demonstrable discrepancies. For instance, the applicant claims her pre-accident EI benefits within the 52-week window totaled $10,887.00. However, the Davis Martindale reports, which I find more reliable based on their comprehensive review of the provided EI records, calculate this figure as $10,397.00.

iii. While the applicant states in her submissions that she accounted for post-accident income (specifically from Buist), she did not provide updated calculations or detailed evidence demonstrating how this income was factored in, nor did she clearly refute the specific post-accident income figures (from CSL, Administrative Services, EI) identified in the Davis Martindale reports. This lack of clear substantiation weakens her proposed quantum.

iv. The June 12, 2024, Davis Martindale Report corrects certain omissions from the earlier May 30, 2023 report, notably including previously unrecognized pre-accident EI earnings and earnings from Aspire Lifestyle Services Ltd. This comprehensive approach enhances its reliability.

52There is a difference in the base period used for calculating pre-accident income. The applicant used her 2021 fiscal year income, arguing this is permitted under s. 4(2)(3) of the Schedule if self-employed for at least one year pre-accident. However, the applicant did not provide clear evidence establishing the start date of her self-employment to confirm she met the one-year requirement. The June 12, 2024, Davis Martindale Report uses the standard 52-week period immediately preceding the accident (May 7, 2021, to May 6, 2022). Absent proof supporting the use of the fiscal year, I find the 52-week methodology used by Davis Martindale to be the appropriate approach under the Schedule, as it reflects the applicant’s more recent financial circumstances leading up to the accident.

53Despite placing greater weight on the June 12, 2024 Davis Martindale Report, I find two of its assumptions require adjustment:

i. The report treats approximately $17,788.00 in “unknown deposits” into the applicant’s bank account as post-accident earned income. The applicant explained these funds were financial support from friends and family. The respondent provided no evidence to contradict this explanation. The respondent did not make any submissions identifying which specific deposits it alleges are earned income or why, offering no analysis of the date, nature, or amounts of the transfers to rebut the applicant’s position. Classifying these deposits as earned income without evidence, analysis or submissions to characterize the existing evidence is speculative. Furthermore, the report problematically extrapolated these deposits forward beyond the period for which bank records were provided. Therefore, I exclude these $17,788.00 in deposits and the projected income from the calculation of the applicant’s post-accident income.

ii. The report assumes the applicant continued earning income from Buist Landscaping at the same rate after November 18, 2023. This is contradicted by the Record of Employment from Buist, which confirms her employment ended November 17, 2023, and by statements in both parties’ submissions and the EI file indicating she left this employment. It is unreasonable to assume continued earnings from this source beyond November 18, 2023.

54Having weighed the conflicting evidence and calculation methodologies presented by both parties regarding pre-accident income (as detailed in paragraphs [64] and [65]), I find the approach and data utilized in the June 12, 2024, Davis Martindale Report to be the most reliable and appropriate under the Schedule. Specifically, I accept its use of the 52-week pre-accident period and its calculation based on the identified income sources (including the corrected EI figure of $10,397.00 and income from Aspire). Therefore, I determine the applicant’s weekly pre-accident income (Gross Employment Income for IRB Calculation) to be $373.38.

55In determining the post-accident income figures, I have made the adjustments outlined in paragraph [53] above: specifically, excluding the $17,788.00 in unsubstantiated “unknown deposits” and recognizing the cessation of the applicant’s employment income from Buist Landscaping as of November 18, 2023. Based on this, I find the applicant’s IRB entitlement is as follows:

Time Period	Pre-Accident Weekly Income	Post-Accident Weekly Income	Calculation	Weekly IRB Payable	Notes
August 15, 2022 to October 22, 2022	$373.38	$226.00	($373.38 - $226.00) × 70% = $103.17	$103.17	Post-accident income primarily from EI
October 23, 2022 to November 4, 2022	$373.38	$0.00	$373.38 × 70% = $261.37	$261.37	No post-accident income identified for this period
November 5, 2022 to November 18, 2022	$373.38	$121.00	($373.38 - $121.00) × 70% = $176.67	$176.67	Post-accident income from Administrative Services identified by Davis Martindale
November 19, 2022 to April 23, 2023	$373.38	$0.00	$373.38 × 70% = $261.37	$261.37	No post-accident income identified for this period
April 24, 2023 to November 4, 2023	$373.38	> $373.38	N/A	$0.00	Post-accident income from Buist exceeds pre-accident income
November 5, 2023 to November 11, 2023	$373.38	$369.41	($373.38 - $369.41) × 70% = $2.78	$2.78	Reduced earnings from Buist in final weeks
November 12, 2023 to November 18, 2023	$373.38	> $373.38	N/A	$0.00	Post-accident income from Buist exceeds pre-accident income
November 19, 2023 to May 7, 2024	$373.38	$0.00	$373.38 × 70% = $261.37	$261.37	Employment ended; no valid post-accident income identified

Post-104 Week IRB

56I find that the applicant has not established entitlement to post-104-week income replacement benefits under s. 6 of the Schedule.

57To receive payment for a post-104-week IRB, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

58The applicant relies on the section 44 report of Dr. Zdravkovic. While this report concluded the applicant was substantially unable to perform her landscaping duties as of April 11, 2023, thereby supporting pre-104 week entitlement based on her own occupation, it does not contain an analysis of the applicant’s broader education, training, or experience, or address her capacity to engage in other forms of employment potentially suitable for her. Dr. Zdravkovic’s report does not assess her functional capacity in relation to these other areas of education, training, or experience. The recommendation for a Functional Abilities Evaluation (FAE) to determine future work abilities highlights this gap, but no FAE results are before me.

59The applicant argues that the respondent’s failure to arrange a further insurer examination or FAE should weigh in her favour. However, the burden of proof for post-104 entitlement lies with the applicant. She must provide positive evidence demonstrating that her accident-related impairments cause a complete inability across all forms of suitable employment considering her education, training, or experience. The lack of further assessments by the respondent does not satisfy this burden.

60Furthermore, the evidence regarding the applicant’s post-accident activities raises concerns. The respondent notes, and the applicant acknowledges, that she worked at Buist Landscaping from approximately April 24, 2023, to November 17, 2023. Engaging in landscaping work for approximately seven months post-accident appears inconsistent with a complete inability stemming from the accident. Significantly, the applicant has not directed me to evidence explaining how her accident-related impairments prevent her from engaging in any of the other employment types identified in her education, training, or experience, such as administrative or client service roles. While the applicant states she has been unable to work since November 18, 2023, she has not provided medical evidence establishing that this ongoing inability is: a) complete across all suitable roles, and b) causally linked to the May 7, 2022 accident, particularly in light of the respondent’s submission that she left Buist for reasons unrelated to the accident.

61Considering the evidence as a whole, the applicant has not provided sufficient evidence regarding her education, training, or experience and her functional capacity or engage in compelling analysis of the suitability of these roles. Therefore, I find that the applicant has not met her burden of proving, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience as a result of the accident. Accordingly, I find that she is not entitled to post-104-week IRBs.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

63As outlined in paragraph [55] of this decision above, the applicant is entitled to pre-104-week income replacement benefits for specific periods. Accordingly, interest is payable on any overdue amounts calculated from the dates those benefits became payable.

Award

64I find that the applicant has not demonstrated entitlement to an award under s.10 of Regulation 664.

65The applicant seeks an award under s. 10 of Regulation 664, which allows the Tribunal to grant an award of up to 50% of the total benefits payable if it finds that the insurer unreasonably withheld or delayed the payment of benefits.

66The applicant’s primary argument for an award stems from the respondent producing the adjuster log notes on June 4, 2024, significantly after the deadline set out in the CCRO. The respondent concedes this production was late due to counsel error. However, s. 10 of Regulation 664 targets the unreasonable withholding or delay of benefit payments, not procedural non-compliance in disclosure, unless that non-compliance is shown to have directly caused a delay or withholding of benefits. The applicant has not established how the late disclosure of the adjuster log notes, in itself, resulted in an unreasonable delay or withholding of any benefit payment. The applicant did not substantively pursue this connection in her reply submissions after receiving the log notes. Therefore, this procedural delay alone does not meet the threshold for an award under s. 10.

67Furthermore, assessing the reasonableness of the respondent’s handling of benefit payments, particularly the IRB, requires consideration of the full context. Concurrently with the respondent’s delay in producing log notes, there were significant delays attributable to the applicant in providing documents essential for the respondent to calculate the IRB entitlement accurately. Specifically, the applicant’s pre-accident employment file and income tax returns were served late on March 22, 2024, and the crucial EI file, needed to verify pre- and post-accident earnings, was not produced until June 4, 2024. The social assistance file remains outstanding. These delays directly impacted the respondent’s ability to perform a timely and complete IRB calculation, providing necessary context for why the final IRB quantum was determined late in the process.

68Section 10 of Regulation 664 requires a finding that the insurer’s conduct in relation to the payment of benefits was unreasonable. Considering the high threshold for an award, and weighing the respondent’s procedural failure regarding the log notes against the applicant’s significant delays in providing information critical to the IRB calculation, I do not find the respondent’s overall conduct regarding benefit payments meets the standard of unreasonableness required for an award. The evidence indicates the respondent required the late-provided documentation to finalize the IRB calculation and addressed this aspect of the claim once the materials were available. The applicant has not established that the respondent unreasonably withheld or delayed payment of the pre-104-week IRB ultimately found owing.

69Accordingly, I find that no award is warranted under section 10 of Regulation 664.

ORDER

70The applicant’s injuries are predominantly minor injuries as defined in s. 3 of the Schedule and are subject to the MIG.

71The applicant is not entitled to the disputed treatment and assessment plans.

72The applicant is entitled to IRBs as follows:

i. August 15, 2022 to October 22, 2022: $103.17 per week; ii. October 23, 2022 to November 4, 2022: $261.37 per week; iii. November 5, 2022 to November 18, 2022: $176.67 per week; iv. November 19, 2022 to April 23, 2023: $261.37 per week; v. April 24, 2023 to November 4, 2023: $0.00 per week; vi. November 5, 2023 to November 11, 2023: $2.78 per week; vii. November 12, 2023 to November 18, 2023: $0.00 per week; and viii. November 19, 2023 to May 7, 2024: $261.37 per week;

73Interest is payable on any overdue IRBs in accordance with s. 51 of the Schedule.

74The applicant is not entitled to an award under section 10 of Regulation 664.