Citation: Khalaf v. Aviva General Insurance, 2025 ONLAT 23-007890/AABS

Licence Appeal Tribunal File Number: 23-007890/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:

Amal Khalaf

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Mohammed Elbassiouni, Counsel

Kelisa Reyes, Paralegal

For the Respondent:

Maggie Morgan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Amal Khalaf, (the “applicant”) was involved in an automobile accident on January 14, 2018, 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 Aviva General Insurance (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:

1. Is the applicant entitled to $6,484.25 for physiotherapy services, proposed by Good Health Rehab Centre in a treatment plan/OCF-18 (“OCF-18”) submitted on June 14, 2021?

2. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by HAL Disability Management Inc., in a OCF-18 submitted on July 20, 2021?

3. Is the applicant entitled to $2,460.00 for an attendant care assessment, proposed by HAL Disability Management Inc., in a OCF-18 submitted on July 20, 2021?

4. Is the applicant entitled to $2,474.40 for chiropractic and massage services, proposed by Dun-Dix Healthcare Clinic in a OCF-18 submitted on November 26, 2021?

5. Is the applicant entitled to $5,285.00 for a neuropsychological assessment, proposed by HAL Disability Management Inc., in a OCF-18 submitted on August 30, 2021?

6. Is the applicant entitled to $1,337.20 for chiropractic and massage services, proposed by Dun-Dix Healthcare Clinic in a OCF-18 submitted on March 24, 2022?

7. Is the applicant entitled to $2,200.00 for a SPECT scan, proposed by Novo Medical Services Inc., in a OCF-18 submitted on July 29, 2022?

8. Is the applicant entitled to $2,400.00 for a neurological assessment, proposed by Novo Medical Services Inc., in a OCF-18 submitted on July 29, 2022?

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

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

11. Is the respondent liable to pay costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023, (the “Rules”)?

2I note that in the Case Conference Report and Order (“CCRO”), released on March 1, 2024, it was noted that issue one was in relation to chiropractic services. However, upon review of the OCF-18, I note that it is in relation to physiotherapy services. Also, I note that in the CCRO, for issues four and six, it was noted that the OCF-18s was in relation to chiropractic services. However upon review of the OCF-18s, the services pertain to both chiropractic and massage services, As such, issues one, four and six have been reflected above, that the OCF-18s pertains to physiotherapy, chiropractic, and massage services.

RESULT

3I find that:

i. The applicant is entitled to the OCF-18 in the amount of $2,460.00 for an attendant care assessment, submitted on July 20, 2021, plus interest.

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

iii. The respondent is not liable to pay an award and costs.

PROCEDURAL ISSUES

The respondent’s motion to exclude the applicant’s evidence

4On October 3, 2024, the respondent filed a Notice of Motion to exclude the following evidence enclosed in the applicant’s submissions because it argued that she was non-compliant with the CCRO.

i. OHIP Summary and Decoded List of Services from July 24, 2019 to April 15, 2024;

ii. Clinical Notes and Records (“CNRs”) of Dr. David Glenn Beard, otolaryngologist, from January 14, 2017 to April 17, 2024;

iii. CNRs of Dr. Manu Mehidratta, neurologist, from January 14, 2017 to March 26, 2024;

iv. CNRs of Credit Valley Hospital from July 29, 2019 to August 28, 2022;

v. BrainScope Testing Report by Dr. Dominic Rosso, radiologist, dated February 27, 2019; and

vi. Chronic Pain Assessment Report by Dr. Tajedin Y. Getahun, orthopaedic surgeon, dated July 15, 2019.

5The respondent argues that the applicant was non-compliant with the CCRO since the deadline was on April 14, 2024, and the applicant did not serve the evidence until September 11, 2024 with her written submissions. It further argues that it has been prejudiced as a result because it has been denied an opportunity to obtain necessary addendum reports and make full and fair submissions.

6The applicant argues that the majority of the evidence has been submitted previously to the respondent. Specifically, the applicant argues that she served the CNRs of Credit Valley Hospital, OHIP Summary and Decoded List of Services (from July 24, 2019 to June 10, 2022), a partial copy of the CNRs of Dr. Beard, a partial copy of the CNRs of Dr. Mehidratta, the BrainScope Testing Report by Dr. Rosso, and the Chronic Pain Assessment Report by Dr. Getahun on June 28, 2023, July 4, 2023, and March 21, 2024. The applicant also concedes that she was non-compliant with the CCRO as the full records from Dr. Beard, the OHIP Summary and Decoded List of Services, and CNRs of Dr. Mehidratta were not served until September 11, 2024.

7Rule 9.3 of the Rules provides that if a party fails to comply with any Rule, direction, or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal. Rule 9.3 further provides direction on the submissions a party may make and the factors the Tribunal might consider in respect of such a request for permission for a document to be relied on as evidence.

8I find that the applicant was compliant with the CCRO for the majority of the evidence noted at paragraph 4 with the exception that she only provided partial copies of the OHIP Summary, and the CNRs of Dr. Beard and Dr. Mehidratta. The applicant has produced evidence that she sent a vast majority of the evidence and the respondent has not provided any responding motion submissions to contest this. Moreover, the applicant concedes that she did not serve the full copies of the OHIP Summary, and the CNRs of Dr. Beard and Dr. Mehidratta until September 11, 2024. The applicant has provided no reason for why these documents were not disclosed in time.

9In any event, I find that the probative value of the OHIP Summary, and the CNRs of Dr. Beard and Dr. Mehidratta outweigh the prejudice to the respondent if any. The respondent has not provided me with any particulars on why an addendum report would be required for an OHIP Summary from June 11, 2022 to April 15, 2024, and for a partial copy of the CNRs of Dr. Beard and Dr. Mehidratta. Indeed, the respondent was already in possession of approximately 42 pages (out of 134 pages) of the CNRs of Dr. Mehidratta and five pages of the CNRs of Dr. Beard (out of 11 pages). Also, the respondent was provided an opportunity to address this evidence in its submissions, which it did so for the CNRs of Dr. Beard and Dr. Mehidratta.

10In short, I deny the respondent’s request to exclude the applicant’s evidence.

New Preliminary Issue being raised

11The respondent in its submissions argues that the applicant filed a previous application with the Tribunal, and that a decision was released on January 15, 2024, where it was found that the applicant is not entitled to the OCF-18s, interest or an award. However, the respondent does not identify which OCF-18s it is referring to or how they are similar to the ones before me. The respondent also provided no clarification on whether it was arguing that the doctrine of res judicata was applicable.

12The applicant argues that the respondent did not raise any preliminary issues with respect to this issue.

13Again, it is unclear by the respondent’s submissions if is attempting to argue that the doctrine of res judicata is applicable or if it wants to highlight that the applicant was unsuccessful in a previous application. In the event, that the respondent is seeking to add the issue of res judicata, I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue. This is because I have not been referred to evidence that it attempted to add it as an issue in dispute at the Case Conference, or that it advised the applicant that it would be addressing this issue in its submissions.

14Considering the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issue raised by the respondent. In these circumstances, I find that it is unfair to the applicant who had a fairly short time to consider and respond to the new issues. I find that it would be procedurally unfair to require the applicant to defend against an issue that was not listed in the Order.

15Further, the respondent’s submissions are sparse on this issue because it did not identify what OCF-18s in the previous decision are subject to res judicata, lay out the test for res judicata, or provide any submissions on how the doctrine is applicable.

16In conclusion, I will not be considering the issue of whether this application is subject to the doctrine of res judicata.

ANALYSIS

17To receive payment for a treatment and assessment plan under ss. 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.

The applicant is not entitled to the OCF-18 in the amount of $6,484.25 for physiotherapy services

18I find that the applicant has not established that the respondent was non-compliant with s. 38(8) and therefore the consequences under s. 38(11) are not triggered. I find that the applicant has not established on a balance of probabilities that the proposed physiotherapy services are reasonable and necessary.

19The goals of the OCF-18 are pain reduction, increased range of motion, return to activities of normal living, and return to modified work activities.

20Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

21The applicant argues that the denial letter dated July 27, 2021 is non-compliant with s. 38(8) of the Schedule because the respondent did not identify which insurer’s examination they were referring to.

22The respondent argues that it denied the OCF-18 within the timelines set out in s. 38.

23I find that the July 27, 2021, denial notice was compliant with s. 38(8) of the Schedule, because it was clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. I agree with the applicant that the respondent did not identify which insurer’s examination they were relying on, however the respondent provided ample medical reasons and all of the other reasons for denying the OCF-18. This included the fact that the previous assessor found that the physical examination failed to demonstrate any objective signs of an accident-related musculoskeletal impairment, and that the assessor requested the production of an MRI report of the upper extremity. The respondent also identified information about the applicant’s condition that it did not have but required: such as the CNRs of Dr. Arvin Kapoor, family physician, updated OHIP Summary and Decoded List of Services, and the MRI report of the left shoulder.

24I find that these reasons 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. Reasons should enable a claimant to make an informed decision about whether to challenge the insurer’s determination and pursue her claim, which was done here.

25As the respondent was compliant with s. 38(8), the consequences under s. 38(11) are not triggered, and I now turn to whether the OCF-18 is reasonable and necessary.

26In this regard, the applicant argues that pain relief is a valid and legitimate treatment goal. To this end, the applicant relies upon the CNRs of Dr. Minassian, Iscope, Dr. Mehdiratta, Credit Valley Family Health Team, and the Rivlin Medical Group.

27The respondent argues that the applicant has not tendered a copy of the CNRs of Good Health Rehab Centre, her treating clinic, and therefore there is no evidence of the efficacy of previous similar treatment.

28I find that the applicant has not established that the proposed physiotherapy services are reasonable and necessary for the following reasons.

29First, the applicant has not referred me to contemporaneous medical evidence from a treating practitioner that recommended the proposed physiotherapy services. Rather, nearly three years before the submission of the OCF-18, Dr. Minassian recommended physiotherapy treatment on August 29, 2018. I place little weight on this recommendation as it is not contemporaneous to the submission of the OCF-18.

30Second, I further acknowledge that pain relief can be a legitimate goal for treatment, however it does not follow that payment is automatically reasonable and necessary when there is no contemporaneous medical evidence supporting pain relief. Indeed, the last time, the applicant reported improvement with the proposed treatment was on August 20, 2020 (nearly 10 months before the submission of this OCF-18) where she reported to Dr. Pasupathy that she experienced less dizziness after physiotherapy.

31I am alive to the applicant’s position that there is contemporaneous medical evidence of improvement in her condition, I do not concur. This is because on September 14, 2021, Dr. Shivani Patel, physician at Credit Valley Family Health Team noted that the applicant found rehab therapy helpful, however there is no indication of what rehab therapy encompasses, or whether it includes physiotherapy services. Further, Dr. Patel did not recommend physiotherapy services for the applicant’s ongoing headaches or anxiety.

32Finally, I note that to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. Therefore, I acknowledge that the applicant has been diagnosed with chronic pain, however I concur with the respondent that without the treatment records from Good Health Rehab Centre, I am unable to assess the efficacy of treatment, and whether the stated goals of the plans will be met to a reasonable degree. Especially here, where there is no contemporaneous recommendation for physiotherapy from a treating physician, nor is there contemporaneous evidence that the applicant received pain relief or her range of motion improved after physiotherapy treatment, and increased her participation in her daily or work activities.

33For all these reasons, the applicant has not met her burden to establish entitlement to physiotherapy services.

The applicant is not entitled to the OCF-18 in the amount of $2,460.00 for an orthopedic assessment

34For the reasons outlined below, I find that the applicant is not entitled to the cost of an orthopaedic assessment.

35In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect she has the condition for which she seeks the assessment.

36The applicant argues that the proposed orthopaedic assessment is not duplicative to the previous chronic pain assessment conducted by Dr. Getahun because it has different goals and the previous chronic pain assessment evaluated psychological signs of chronic pain. Meanwhile, she argues that the orthopaedic assessment is intended to explore and diagnose injuries of the skeletal system, muscles, ligaments, and joints. She further argues that she was diagnosed with a rotator cuff tendinosis and a potential full thickness supraspinatus tear in a left shoulder ultrasound, dated January 21, 2019, and therefore the orthopaedic assessment is reasonable and necessary.

37First, the applicant has not referred me to evidence from any physician that recommended the proposed orthopaedic assessment for the applicant’s injuries. Indeed, Dr. Getahun who will be conducting the orthopaedic assessment did not even recommend the proposed assessment in his own chronic pain assessment report of July 15, 2019. I have also not been referred to a subsequent opinion from Dr. Getahun recommending this assessment, and the OCF 18 isn’t evidence in support of itself.

38Second, Dr. Getahun already reviewed the left shoulder ultrasound dated January 21, 2019, in his chronic pain report and concluded that it revealed that she had a left shoulder rotator cuff tear. Therefore, it is unclear to me why an orthopaedic assessment would be required to review the same left shoulder ultrasound.

39Third, I find that the proposed orthopaedic assessment is similar to the chronic pain assessment which was already completed because it will be conducted by the same assessor (Dr. Getahun), and it has similar goals, being to determine the applicant’s functional ability, and how to treat her injuries. I am alive to the applicant’s position that the orthopaedic assessment and chronic pain assessments are different because the chronic pain assessment also addressed the psychological component to pain. However, I disagree because in the chronic pain assessment, Dr. Getahun did not explore the psychological and psychosocial signs that can occur with chronic pain, and how to treat same, and instead noted a psychological diagnosis by a different practitioner. In short, I find that the applicant is not entitled to the cost of an orthopaedic assessment.

The applicant is entitled to the OCF-18 in the amount of $2,460.00 for an attendant care assessment

40I find that the applicant has established that the proposed attendant care assessment is reasonable and necessary.

41The applicant argues that there is ample evidence that shows she has difficulty with her activities of daily living as a result of her psychological and physical impairments. To this end she relies upon the s. 44 psychological assessment reports of Dr. Shahriar Moshiri, psychologist, and Dr. Rakesh Ratti, psychologist, dated October 3, 2018 and March 8, 2021, and the CNRs of Trillium Brain Spine Institute, Iscope and Trillium Mississauga Hospital.

42The respondent argues that there is no compelling medical evidence to support that the applicant has an ongoing inability to perform self-care tasks from either a physical or psychological perspective and that the applicant returned to work.

43I find that there is consistent and contemporaneous evidence before me that the applicant has reported to Drs. Moshiri, Ratti, Mehdiratta, Tuteja, Pasupathy, and Andre Gene Douen, neurologist, that as a result of her physical pain, she is unable to do any of her pre-accident housekeeping tasks such as laundry, cleaning, dishwashing, grocery shopping, cooking and gardening, and that she required her husband/daughter’s assistance with bathing, dressing and hair grooming. I place significant weight on this self-reporting where the applicant has been consistent and Dr. Ratti (s. 44 assessor) noted that based on the applicant’s presentation and responses to the testing, her report can be regarded as a credible, valid representation of the applicant’s functioning at that time. Therefore, against the respondent’s position there is ample evidence before me to support that an attendant care assessment is warranted to investigate how the applicant’s injuries impact her ability to perform her self-care and housekeeping tasks.

44I also find that there is abundant evidence that the applicant has chronic pain. Indeed, Drs. Minassian, Bard, and Getahun and the CNRs of Trillium Health Centre and Credit Valley all support that the applicant has been diagnosed with chronic pain and chronic pain syndrome. I acknowledge the respondent’s argument that Dr. Sennik on September 9, 2019 noted that consideration should be given for rheumatologic causes of her myofascial pain and that she did not undergo nerve block injections. However, I note that Dr. Sennik also diagnosed the applicant with left shoulder pain, lower back pain and neck pain and prescribed a chronic pain program, such as nerve block injections, chiropractic treatment, meditation/lifestyle changes, psychological counselling, a structured cognitive behavioral therapeutic plan, and a graded exercise program. I further note that Dr. Sennik considered that blood work might be conducted to screen for rheumatologic causes for the myofascial pain. In other words, Dr. Sennik did not conclusively opine that the applicant’s pain was due to rheumatologic causes but rather it could be investigated and prescribed a chronic pain program for her pain. Further, I concur that the applicant advised Dr. Sennik that she wanted to try other options at that time instead of doing nerve block injections, however I also note that in several CNRs from Credit Valley, she advised numerous family physicians that she was undergoing injections with Dr. Rosso due to her pain.

45Finally, I am not persuaded by the respondent’s argument that because the applicant returned to work this equates to a finding that the proposed attendant care assessment is not reasonable and necessary. In my view, the fact that the applicant may work is irrelevant to the issue of whether it is reasonable and necessary to investigate whether her injuries affect her housekeeping and personal care tasks. To summarize, I find that the cost of an attendant care assessment is reasonable and necessary where the applicant has consistently reported difficulties with her housekeeping and personal care tasks, she has been diagnosed with chronic pain by several practitioners and her ability to work is irrelevant.

The applicant is not entitled to an OCF-18 in the amount of $2,474.40 for chiropractic and massage services

The applicant is not entitled to an OCF-18 in the amount of $1,337.20 for chiropractic and massage services

46I find that the respondent’s denial letters of December 7, 2021 and May 31, 2022 were compliant with s. 38(8), and therefore the consequences under s. 38(11) are not engaged. I also find that the applicant has not established on a balance of probabilities that the OCF-18s proposing chiropractic and massage services are reasonable and necessary.

47The goals of the OCF-18s are: pain reduction, increased strength, increased range of motion, provide increased self-care strategies, reassurance, and active care to increase applicant’s mobility and independence, and for the applicant to return to her activities of normal living.

48The applicant argues that the denial letters, dated December 7, 2021 and May 31, 2022 were non-compliant with s. 38(8) because the respondent did not provide identifying details regarding the insurer’s examination and by quoting the results of the assessment the respondent did not actually determine eligibility for the treatment plan.

49I find that the denial letter, dated December 7, 2021, was compliant with s. 38(8) because it was clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. While the respondent did not identify the exact insurer’s examination it was relying upon, it clearly advised the applicant the conclusion of the assessor that there were no objective signs of an accident-related musculoskeletal impairment and that the assessor had requested an MRI report of the upper extremity, which had still not been provided to date. Moreover, the respondent identified information about the applicant’s condition that it did not have but required such as the CNRs of Dr. Arvin Kapoor, an OHIP Summary, and the left shoulder MRI report.

50In a similar vein, I find that the May 31, 2022 letter was also compliant with s. 38(8) because again the respondent advised the applicant that an insurer’s examination conducted on September 29, 2020 found no accident related musculoskeletal impairment and that the assessor requested the applicant to obtain an MRI of the left shoulder. I am alive to the applicant’s position that the respondent should have reviewed the other medical evidence she provided, and not relied solely on the insurer’s examination, however she has not advised when these productions were sent.

51The applicant also relies on the Tribunal decision G.P. v. Wawanesa Mutual Insurance Company, 2022 CanLII 45306 (“G.P.”) to argue that simply quoting the results of an assessment is not an adequate denial, and that while a s. 44 assessment can be one of the reasons for a denial, it cannot be the only one.

52I am not persuaded by the applicant’s argument. The case cited is not binding upon me and I decline to adopt the reasoning in it. I further find that by summarizing the assessor’s conclusion and identifying information it required from the applicant, the respondent provided a clear and unequivocal denial with straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. As such, I find that the applicant has not established that the respondent was non-compliant with s. 38(8) of the Schedule, or that the OCF-18 is payable by virtue of s. 38(11).

53I now turn to the parties’ submissions on the reasonableness and necessity of the proposed services.

54The applicant argues that the proposed services are reasonable and necessary because an OHIP summary shows that she visited Dr. Sennik her pain injection doctor on 13 occasions for injections and that on September 9, 2019, Dr. Sennik noted that physiotherapy was helping. She further argues that the CNRs of Credit Valley Family Health Team and Iscope demonstrate that she has ongoing injuries.

55I find that the applicant has not established that the proposed chiropractic and massage services are reasonable and necessary for the following reasons.

56In order to establish the reasonableness and necessity of proposed treatment, it is not sufficient to lead evidence of a physical impairment or ongoing pain. Rather, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. I find that the OHIP Summary which demonstrates that the applicant met with Dr. Sennik on 13 occasions has little probative value because other than the September 9, 2019 CNR, I have not been provided with the remaining CNRs. Therefore, I am unable to determine whether Dr. Sennik recommended chiropractic and massage treatment for the applicant’s pain or whether the treatment goals will be met to a reasonable degree.

57The applicant has also not produced contemporaneous medical records from either Credit Valley Family Health Team or Iscope which support the reasonableness and necessity of the proposed treatment. I place little weight on the CNR of Dr. Sennik dated September 9, 2019, where he recommended a trial of chiropractic manipulations because this recommendation was made two to three years before the submission of the OCF-18s. I also place little weight on the CNRs of Credit Valley Family Health Team and Iscope because while the applicant reported ongoing pain, she did not advise whether the proposed treatment provided pain relief nor did her physicians recommend these services.

58In a similar vein, the applicant has not referred me to specific entries from her treating clinic, Dun-Dix Healthcare Clinic Inc., that supports she found the previous chiropractic treatment helpful or her progress with respect to same.

59For all these reasons, I find that the applicant has not met her burden.

The applicant is not entitled to an OCF-18 in the amount of $5,285.00 for a neuropsychological assessment

The applicant is not entitled to $2,400.00 for a neurological assessment

60I find that the respondent’s denial letter of August 9, 2022 was compliant with s. 38(8), and therefore the consequences under s. 38(11) are not engaged. Also, based on the totality of the evidence before me, I find that the applicant has not established entitlement to the neuropsychological assessment and a neurological assessment.

61The applicant argues that the respondent chose to rely solely on the opinion of their assessors and did not evaluate the OCF-18 for a neurological assessment in relation to the totality of the medical evidence before it. Thus, she argues that the respondent was non-compliant with s. 38(8).

62I find that the denial letter, dated August 9, 2022, was compliant with s. 38(8) because it was clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. Indeed, the respondent advised that the OCF-18 for a neurological assessment was not reasonable and necessary because an insurer’s examination dated June 17, 2022 revealed no anatomical pattern to her sensory loss, and there were no objective neurological deficits.

63I am alive to the applicant’s position that the respondent did not review this OCF-18 in relation to the totality of the medical evidence before it. However, she did not identify what medical evidence was not reviewed by the respondent and when this was provided to the respondent. Thus, I find that the respondent was compliant with s. 38(8) and that the OCF-18 is not payable by virtue of s. 38(11). I now turn to whether the proposed OCF-18s are reasonable and necessary.

64The applicant relies upon the CNRs of Dr. Mehdiratta, Dr. Ivswarya Mani Bhaskar, neurologist, Dr. Mohamed Abunaji, neurologist, Ms. Linda C. Johnson, nurse practitioner, Dr. Beard and Dr. M. Kis, neurosurgeon.

65I find that the applicant has not provided sufficient evidence to suspect that she has a neurological impairment, which would warrant investigation. First, I place very little weight on Dr. Mehdiratta Dr. Ivswarya Mani Bhaskar, neurologist, Dr. Mohamed Abunaji, neurologist and Ms. Linda C. Johnson, nurse practitioner, diagnoses of post-concussion syndrome, chronic migraines, head injury, post traumatic vestibulopathy, loss of smell and taste, head injury and mood and sleep disturbance because they relied heavily on the applicant’s self-reporting and were unaware that the applicant was inconsistent about losing consciousness following the accident. I find that the applicant was inconsistent with her self-reported loss of consciousness because in the evidence most contemporaneous to the date of the accident, she reported no loss of consciousness. Indeed, in both the ambulance call report and CNR of March 20, 2018 of Dr. Spencer, the applicant reported no loss of consciousness, and the first time the applicant reported that she loss consciousness from the accident was not until November 7, 2018 (11 months following the accident) to Dr. Abunaji.

66Second, the results of the objective neurological examinations conducted by Dr. Mehdiratta, Dr. Abunaji and Ms. Johnson were normal with the exception that Dr. Abunjai noted the applicant could not smell the coffee in either nostril.

67Third, both Dr. Douen, and s. 44 assessor, Dr. Galit Kleiner, neurologist, have concluded that the applicant’s headaches are caused by cervicogenic/musculoskeletal headaches, migraine, and medication overuse.

68Further, I find that Dr. Beard’s CNR of November 28, 2018 holds little weight where he relied upon the applicant’s inconsistent self-reporting of losing consciousness following the accident to conclude that he suspected that her anosmia (loss of smell) was due to a head injury. Similarly, I am not persuaded by the CNR of Dr. Kis of August 12, 2022 where he noted that the applicant had suffered a closed head injury, and subsequent loss of olfaction because it is unclear how he arrived at these diagnoses when no neurological testing was conducted. Thus, I find that the applicant has not established entitlement to the cost of a neuropsychological assessment or a neurological assessment.

The applicant is not entitled to an OCF-18 in the amount of $2,200.00 for a SPECT scan

69I find that the respondent’s denial letter of August 9, 2022 was compliant with s. 38(8), and therefore the consequences under s. 38(11) are not engaged. Additionally, based on a balance of probabilities, I find that the applicant is not entitled to the OCF-18 proposing a SPECT Scan.

70The applicant argues that the respondent was non-compliant with s. 38(8) for the same reasons as outlined at paragraph 61 above.

71I find that the denial letter, dated August 9, 2022, was compliant with s. 38(8) because it was clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. Notably, the respondent advised the applicant that the OCF-18 for a SPECT scan was not reasonable and necessary because an insurer’s examination dated June 17, 2022 revealed no anatomical pattern to her sensory loss, and there were no objective neurological deficits. Again, the applicant has not identified what specific medical evidence the respondent did not consider, and when it was provided to the respondent. For these reasons, I find that the respondent was compliant with s. 38(8).

72The applicant provided no specific submissions on why a SPECT Scan is reasonable and necessary and instead summarized the CNRs of Dr. Abunaji, Dr. Beard, Trillium Brain Spine Institute and Iscope to support she has a number of neurological injuries.

73I find that the applicant has fallen well short of establishing that a SPECT scan is reasonable and necessary. First, she made no specific submissions on why so. Second none of her treating neurologists have recommended a SPECT Scan. Third, the previous MRIs and brain imaging tests conducted have been unremarkable with the exception of parasaggital meningioma which was likely incidental.

The applicant is entitled to Interest with respect to the attendant care assessment

74Pursuant to section 51 of the Schedule, the applicant is entitled to interest for the attendant care assessment.

The respondent is not liable to pay an Award

75I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the treatment plan for the cost of the attendant care assessment.

76Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

77The applicant argues that the respondent has “cherry-picked” the evidence presented by the applicant throughout the claim and that the respondent chose to ignore over 1000 pages of medical evidence and instead blindly relied on a recommendation by a s. 44 assessor, Dr. Isa Mohammed, physician for an MRI of the left shoulder to be completed.

78The respondent argues that it reviewed all the evidence, and therefore the applicant has not established it failed to consider the medical evidence.

79The applicant did not direct me to which medical information and documentation was not considered by the respondent or which documentation was “cherry-picked” by the respondent. Moreover, the respondent retained s. 44 assessor Dr. Mohammed, who reviewed a substantial amount of medical records, including the ultrasound of the left shoulder, dated January 21, 2019. Dr. Mohammed also provided a rationale on why an MRI of the left shoulder was recommended which was to clarify her left shoulder injury more specifically because on informal observations, the applicant appeared to make left arm and hand movements relatively fluidly and fully with no obvious signs of impairment or weakness. Therefore, I find that the applicant has not established that the respondent’s conduct rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

80I also note that as per the CCRO, the cost of the catastrophic impairment assessments were in dispute, which was withdrawn by the applicant in her submissions. However, the applicant provided no specific submissions on why she would be entitled to an award for this withdrawn issue, nor did she tender evidence to support such a position. Thus, I find that the applicant has not established that she is entitled to an award with respect to the withdrawn issue.

The respondent is not liable to pay costs

81I find that the applicant has not established costs are warranted.

82According to the provisions of s. 19 of the Rules, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.

83The applicant is seeking costs in the amount of $500 because the respondent brought a motion despite having possession of the majority of the documents it alleged was late served and that it brought a similar motion in a previous application. The applicant argues that this behavior by the respondent amounts to being frivolous and vexatious and it has wasted the Tribunal’s resources.

84I find that the applicant has not established that the high threshold for costs has been met. The applicant has not established that the respondent’s behavior was unreasonable, vexatious, frivolous, or bad faith conduct because of the motion especially where she was non-compliant with the CCRO for three productions. Also, in my view bringing a similar motion in a previous application does not automatically warrant costs when the Tribunal also concluded that the applicant was non-compliant with the production of two records. To sum up, I decline to award costs to the applicant.

ORDER

85For the reasons outlined above, I find that:

i. The applicant is entitled to the OCF-18 in the amount of $2,460.00 for an attendant care assessment, submitted on July 20, 2021, plus interest.

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

iii. The respondent is not liable to pay an award and costs.