Tagoe v. The Personal Insurance Company, 2025 CanLII 86538

Citation: Tagoe v. The Personal Insurance Company, 2025 ONLAT 21-001365/AABS

Licence Appeal Tribunal File Number: 21-001365/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:

Samuel Tagoe

Applicant

and

The Personal Insurance Company

Respondent

DECISION

PANEL: Rebecca Hines Tami Cogan

APPEARANCES:

For the Applicant: David Kapanadze, Counsel

For the Respondent: Patrick Baker, Counsel Rosemary Book, Counsel

Hearing Reporter: Marcia Gardner, Victory Verbatim

Heard by Videoconference: June 9, 10, 11, and 13, 2025

OVERVIEW

1Samuel Tagoe, the applicant, was involved in an automobile accident on April 28, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2At a case conference on May 25, 2021, the Tribunal ordered that the preliminary issue would be heard separately from the substantive issues to address whether the applicant's claim for an income replacement benefit ("IRB") was statute barred. The Tribunal issued a preliminary issue decision finding that the applicant's claim for an IRB was statute barred. The applicant requested reconsideration of that decision which was denied. The applicant appealed the decision to the Divisional Court who remitted the matter back to the Tribunal for a new hearing. The respondent appealed the Divisional Court's decision to the Court of Appeal which upheld the Divisional Court's decision. Both parties confirmed at the outset of the hearing that the preliminary issue is no longer in dispute.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are:

1. Has the applicant sustained a catastrophic ("CAT") impairment as defined by the Schedule?
2. Is the applicant entitled to an IRB in the amount of $400.00 per week from May 5, 2016, to date?
3. Is the applicant entitled to $2,542.17 for chiropractic services proposed by Brampton Civic Care Centre in a treatment plan/OCF-18 ("plan") dated November 30, 2020?
4. Is the applicant entitled to $28,700.00 for catastrophic impairment assessments, proposed by Alliance Diagnostics in a plan dated July 30, 2018?
5. Is the applicant entitled to $2,000.00 for file review, proposed by Alliance Diagnostics in a plan dated October 1, 2018?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4After considering the testimony of all witnesses and reviewing the evidence, we find:

1. The applicant has not sustained a CAT impairment as defined by the Schedule.
2. The applicant is not entitled to an IRB in the amount of $400.00 per week from May 5, 2016, to date.
3. The applicant is not entitled to $2,542.17 for chiropractic services proposed by Brampton Civic Care Centre in a plan dated November 30, 2020.
4. The applicant is not entitled to $28,700.00 for CAT impairment assessments, proposed by Alliance Diagnostics in a plan dated July 30, 2018.
5. The applicant is not entitled to $2,000.00 for file review, proposed by Alliance Diagnostics in a plan dated October 1, 2018.
6. The respondent is not liable to pay an award under s. 10 of Reg. 664.
7. The applicant is not entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

Respondent's Motion to exclude portions of the applicant's document brief is denied.

5At the outset of the hearing the respondent brought a motion to have portions of the applicant's document brief excluded on the grounds that it was filed less than 21 days before the hearing, pursuant to Rule 9.4.3 of the Licence Appeal Tribunal Rules 2023. The documents included the particulars of the s. 10 award claim, case law and case conference summaries.

6The applicant submits that both parties filed materials in the same timeframe, the filing was in accordance with the case conference report and order ("CCRO") which required the materials to be filed no later than 10 days prior to the hearing, and the respondent is not prejudiced by any of the documents it has requested to be excluded.

7We find that since this application was filed on February 3, 2021, and the first case conference was held on May 25, 2021, the Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission Common Rules of Practice and Procedure, (October 2, 2017), (the "Common Rules") apply in this matter. Further the CCRO required the parties' documents to be filed no later than 10 days before the hearing. We find the applicant's materials were filed in accordance with the Rules and the CCRO, and therefore will be accepted. Furthermore, we find the respondent received the particulars of the s. 10 award claim with sufficient time to be aware of the case against it, and we were not persuaded of any prejudice. Ultimately, the case conference summaries were not referred to by either party as evidence, so we find it unnecessary to address this issue further. Finally, the Rules do not provide any deadlines for the exchange of case law, and we find that the respondent received sufficient time to review same.

ANALYSIS

Has the applicant sustained a catastrophic impairment as defined by the Schedule?

8We find that the applicant has not sustained a CAT impairment as a result of the accident.

9On January 18, 2019, the applicant applied to the respondent for a determination that his accident-related impairments meet the definition of a CAT impairment under the Schedule. The current dispute involves whether he sustained a CAT impairment pursuant to Criterion 7 and Criterion 8. We will first discuss whether the applicant qualifies under Criterion 7.

Criterion 7

10In order to qualify for CAT under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole person impairment ("WPI") threshold as outlined in Chapter 4 of the American Medical Association's Guides to the Evaluation of Permanent Impairment (the "Guides").

11The applicant submits he has an overall WPI of 57% under Criterion 7, which exceeds the 55% threshold for CAT impairment. He relies on the executive summary report and functional abilities evaluation report of Dr. Maano, dated July 12, 2020; orthopaedic report of Dr. Getahun, orthopaedic surgeon, dated July 10, 2020; occupational therapy assessment and situational assessment reports of Varun Madan, occupational therapist, dated August 15, 2020; neurological report of Dr. Gomez-Vargas, neurologist, dated September 10, 2020; and psychiatric report of Dr. Shahmalak, dated December 8, 2020. The applicant's assessors determined that the applicant had a physical impairment rating of 38% WPI, a neurological impairment rating of 9% WPI, and a mental/behavioural converted score of 30% WPI, for an overall rating of 57% WPI.

12The respondent submits that the applicant does not meet the test for CAT impairment under Criterion 7. It relies on the multi-disciplinary CAT impairment assessments dated August 12, 2019, completed by Dr. Boucher, Executive Summary, Dr. Esmail, neurologist, Dr. Dessouki, physiatrist, Dr. West, psychologist, and Jeff Ford, occupational therapist. The respondent's assessors determined that the applicant had a physical impairment rating of 2% WPI, a neurology impairment rating of 9% WPI, and a mental/behavioural converted score of 7% WPI, for an overall rating of 15% WPI. Further, the respondent submits that many of the impairments the applicant does have, were not caused by the accident.

13The following chart summarizes the WPI% ratings assigned by each parties' assessors under Criterion 7.

AMA Guides 4th Ed.	Applicant's CAT Summary	Respondent's CAT Summary
Physical Impairments
Lower Extremity Impairment Table 64, Section 3.2i	20%	2%
Scarring Table 11, Section 13.5	3%	0%
Lumbosacral Spine Impairment Table 64, Section 3.3g	5%	0%
Cervicothoracic Spine Impairment Table 73, Section 3.3h	5%	0%
Sleep Impairment Table 6, Section 4.1e	9%	9%
Lack of Treatment Section 2.2	3%	0%
Total WPI Combined Values Chart:	38%	11%
Mental/behavioural Impairments	30%	7%
TOTAL CRITERION 7 COMBINED RATING Total WPI Criterion 7 Combined Values Chart:	57%	15%

14The applicant's claim is complicated by his pre-existing medical conditions, which include right hip osteoarthritis and leg length discrepancy. Further, the applicant sustained a stroke post accident in April 2018. In order to determine if the applicant suffered an impairment as a result of the accident, we must first determine if the accident was a necessary cause of the impairments the applicant puts forth as the basis for his CAT application and his claim for IRBs.

15It is well established law that the appropriate test to determine causation in accident benefit cases is the "but for" test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that "but for" the accident he would not have suffered the impairments which form the basis for his application for CAT status. In Sabadash, the Court sets out that pre-existing medical issues do not negate an insurer's liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. The Court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.

16Overall, we find that the accident was not a necessary cause of many of the physical and psychological impairments the applicant puts forth in support of his application for a CAT determination which is discussed in further detail below.

LOWER EXTREMITY IMPAIRMENT AND SCARRING

17Dr. Getahun diagnosed the applicant with right hip osteoarthritis aggravation and opined that the accident rendered his asymptomatic right hip degenerative changes symptomatic and resulted in him having to have total hip replacement surgery on August 8, 2017. For this, he assigned a WPI% rating of 20%. Dr. Getahun also assigned 3% for scarring following the hip replacement surgery.

18The respondent submits that the applicant's need to have hip replacement surgery was not as a result of the accident. Instead, it was because he lost his licence following a stroke on June 2, 2016, which resulted in increased physical activity which led to the deterioration in his condition.

19We reject Dr. Getahun's 20% WPI rating for the lower extremity impairment because we find the accident was not the cause of the aggravation of the applicant's pre-existing osteoarthritis and need for hip replacement surgery. The evidence supports that the applicant had a twenty-year history of right hip osteoarthritis and his right leg was shorter than his left. As noted above, the applicant had a stroke on June 2, 2016, which resulted in his driver's licence being suspended. Both parties agree that the stroke was not caused by the accident and the applicant's assessor was of the view that the stroke may have caused the accident. We also find that the applicant reported to Dr. Yu, his family doctor on November 22, 2016, that he had hip pain for over one year. Consequently, we do not accept Dr. Getahun's opinion that the applicant's hip issues were asymptomatic prior to the accident.

20On March 31, 2017, the applicant reported to Dr. Yu that after losing his driver's licence he had began taking public transportation to work and complained that the additional walking was aggravating his hip pain. On examination Dr. Yu recorded that the applicant's right quadricep is atrophied compared to the left and associates the cause to the applicant's uneven leg length. We find the loss of his driver's licence resulted in an increase in walking, which in turn caused the degradation of the applicant's osteoarthritis in his hip. Further, we find the clinical notes and records ("CNRs") and testimony of Dr. Yu, did not support that the accident made the applicant's end-stage-osteoarthritis worse or resulted in the need to have hip replacement surgery.

21We find on a balance of probabilities that the restriction of the driver's licence because of the stroke led to the aggravation of the applicant's pre-existing osteoarthritis in his right hip which in turn led to him requiring hip replacement surgery not the accident.

22We find that the accident is not a necessary cause of the applicant's hip osteoarthritis and subsequent right hip arthroplasty. Further, we find the medical evidence does not support that the applicant continues to have physical limitations from his hip which the applicant reported to Mr. Madan during his occupational therapy CAT assessment. For the same reasons, we do not accept Dr. Getahun's 3% rating for scarring resulting from hip replacement surgery.

23Dr. Dessouki opined that the accident exacerbated the applicant's pre-existing right hip osteoarthritis and deferred the WPI rating to Dr. Boucher, the doctor completing the executive summary who assigned a 2% WPI. Dr. Dessouki testified that he agreed with the WPI% rating assigned by Dr. Boucher. Ultimately, we find Dr. Dessouki's report unhelpful because we agree with the applicant that the assessor responsible for completing the assessment should be assigning the WPI % not the doctor completing the executive summary. However, in light of our findings regarding causation we accept the 2% WPI and find it unnecessary to address Dr. Dessouki's report further.

CERVICAL AND LUMBOSACRAL SPINE

24Dr. Getahun assigned a WPI rating of 5% each for the applicant's cervicothoracic and lumbosacral spine.

25The respondent submits that this rating is not supported by the medical evidence because there was no reference to any injuries to the cervicothoracic and lumbosacral spine in the medical records. Its assessors assigned zero for these impairments.

26We accept Dr. Getahun's WPI ratings for the cervicothoracic and lumbosacral spine because we find that there was evidence of these impairments in the post-accident medical records. For example, an OCF-3 dated May 6, 2016, noted strain and sprain of the lumbar spine. Further, on May 14, 2016, the applicant reported neck and back pain to Dr. Yu. Additionally, cervical and lumbar sprain and strain is again mentioned in the IE report of Dr. Campbell dated November 16, 2016. Consequently, we accept Dr. Getahun's ratings of 5% WPI for the cervical and lumbar spine in accordance with Tables 72 and 73 of the Guides.

SLEEP

27Both parties' neurological assessors assigned a 9% WPI for sleep disorder. Since both assessors agree we find no reason to interfere.

28Even if we accepted the 3% assigned by Dr. Getahun for the effects of lack of treatment the applicant's total WPI from a physical perspective is [9+5+5+3+2] which equals 22%. However, we find that the applicant does not meet the 55% WPI CAT threshold under Criterion 7, because we find that the accident was not a necessary cause his psychological impairment which will be discussed next.

PSYCHOLOGICAL IMPAIRMENT

29We do not find that the accident was a necessary cause of the applicant's psychological impairment which form the basis for his application for a CAT determination.

30The applicant relies on the CAT psychiatric assessment conducted on November 23, 2020, by Dr. Shahmalak who provided a WPI rating of 30%. Dr. Shahmalak opined that the accident was the cause of the applicant's psychological impairments.

31The respondent relies on the CAT IE assessor conducted by Dr. West who provided a 7% WPI rating. The respondent argues that the accident was not the cause of the applicant's psychological impairments. Therefore, we should prefer the lower WPI rating assigned by Dr. West.

32We do not accept Dr. Shahmalak's rating of 30% WPI. Dr. Shahmalak testified that his diagnosis of Major Depressive Disorder is related to the applicant's presentation during the assessment, and not related to a particular event, yet he concluded that the accident was the cause. We place little weight on Dr. Shahmalak's ratings and diagnosis because he did not see the applicant between the time of the accident and the 2018 stroke, and the records do not support the applicant presented with mental health issues between the time of the accident and the 2018 stroke which was admitted by Dr. Shahmalak during cross-examination. Therefore, we find Dr. Shahmalak's conclusion that the accident is the cause of the applicant's psychological impairments was unsubstantiated. Nor was Dr. Shahmalak's opinion supported by the testimony and CNRs of Dr. Yu.

33For example, Dr. Yu's CNRs and testimony demonstrate that the applicant suffered a second stroke on April 7, 2018, for which he was hospitalized. He followed up with Dr. Yu who assessed him for depression as part of post-stroke care on June 7, 2018. Dr. Yu testified that depression is not uncommon after a stroke and monitoring mental health is a good practice for stroke patients. We note, this is the first indication of psychological symptoms in the applicant's medical records. The applicant next reported to Dr. Yu on January 14, 2021, that he had symptoms for depression for the past two months. The applicant requested counselling but refused medication. He next made complaints about psychological symptoms in May 2022, and Dr. Yu made a psychiatric referral to Dr. Memon, psychiatrist.

34In the same vein, we find Dr. Memon's records do not support that the applicant's psychological symptoms and/or impairment were as a result of the accident. The notes indicate that the applicant reported anxiety for the past two months and do not mention the accident. The applicant confirmed in his testimony that he had some difficulty adjusting to Canada, as well as financial challenges and relationship issues with his children. We note that these issues are all mentioned in Dr. Memon's notes, however the accident is not. The only evidence of psychological treatment to which we were referred are the notes of Dr. Memon. We also note there is no mention of the applicant having limitations or any impairment as a result of depression or anxiety. Further, we find that the evidence supports that any psychological symptoms the applicant has, is as a result of his 2018 stroke, and not a result of the accident.

35During cross-examination, Dr. Shahmalak conceded that there was no persistent psychological symptoms reported by the applicant to his family doctor or anyone else between the date of the accident and his 2018 stroke, yet the doctor maintained his position regarding causation. We do not find Dr. Shahmalak's opinion regarding causation persuasive. In contrast, Dr. West found little evidence of any accident-related psychological impairment. However, Dr. West gave the applicant the benefit of the doubt and provided a WPI of 7% to account for any mild psychological symptoms associated with the accident. We prefer Dr. West's opinion because it is more consistent with the totality of the medical evidence before us. When the applicant's physical and psychological WPIs% that we accept are combined the total WPI is 27% which does not meet the CAT threshold.

36For the above-noted reasons, we find the applicant has not established that the accident was a necessary cause of the psychological impairment, he has put forth as the basis for his application for CAT impairment.

37Since we have determined that the causation test has not been met, we find it unnecessary to address whether the applicant has a marked impairment under Criterion 8.

Is the applicant entitled to an IRB in the amount of $400.00 per week from May 5, 2016, to date?

38We find that the applicant is not entitled to an IRB for the time period claimed.

39Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were 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. To receive payment for post-104-IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

40The applicant testified that prior to the accident he was employed full-time (9:00 to 6:30 p.m. Monday to Friday) with a Toronto IT company as a technical support specialist. His duties included taking calls from customers, troubleshooting technical issues and driving out to client's homes. This job required mental acuity. The applicant has a degree in electrical engineering from Russia and a certificate in Microsoft technology.

41The applicant argues that he is unable to work because of his accident-related impairments, which is supported by his receiving Canada Pension Plan Disability Benefits ("CPP-D"), which has a more stringent legal test. The applicant submits that he provided all the requested documentation to the respondent. In addition, he did not make an election for Non-Earner Benefits ("NEB") under s.5(2), and the alleged payment of NEB was at the discretion of the handling adjuster. Therefore, any payment of NEB, if any, does not preclude him from claiming an IRB.

42The respondent's position is that the applicant continued to work until the time of his hip replacement surgery. It submits that the accident was not the cause or reason for the applicant's inability to work. Instead, the onset of the applicant's disability was in July 2017 which necessitated his hip replacement surgery in August 2017. In addition, it maintains that the applicant's application and approval for CPP benefits was due to his 2018 stroke not the accident. This is supported on the application for CPP benefits and confirmed by Dr. Yu during her testimony.

43We find that the applicant has not proven entitlement to either pre or post-104 IRBs for the following reasons.

44First, the applicant spent little time at the hearing explaining what the essential tasks of his employment were and what accident-related impairment resulted in a substantial inability to perform the essential tasks of that employment. Nor did he address the post-104 IRB test at all or direct us to the medical evidence in support of his position that he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. These are the disability tests which must be met in order to prove entitlement to the benefit.

45Second, we find the totality of the medical evidence supports that the accident was not a necessary cause of his inability to work. The applicant testified that he returned to work the day following the accident and continued to work until July 31, 2017. His hip replacement surgery was scheduled for August 8, 2017, with an anticipated recovery time of six months. He stated that he was planning on returning to work post surgery but was unable to due to having a stroke.

46We find that the applicant's testimony, Dr. Yu's CNRs and the occupational therapy assessment report of Varun Madan dated August 15, 2020, support that he continued to work fulltime hours until July 31, 2017. During the occupational therapy assessment with Jeff Ford on June 30, 2019, the applicant reported that he had only missed one day of work after the accident and continued in his pre-accident employment until preparing for hip surgery in July 2017. Further, the recovery period for his surgery was six months and the employer would not hold his position. None of these medical records support that the applicant was unable to work because of any accident-related impairments. As already explained above, we have found that the accident was not a necessary cause of the applicant's hip condition.

47Third, we find the applicant's stroke on April 8, 2018, resulted in his current disability and his inability to return to work. The applicant applied for and is now receiving CPP-D. His family doctor testified that she completed the medical report for CPP-D on the basis that the applicant had suffered a stroke in 2018. The accident was not mentioned in these records.

48For the above-noted reasons, we find that the cause of the applicant's ongoing inability to work is not due to an impairment that resulted from the accident. Rather, his inability to work is due to the hip replacement surgery in 2017, and subsequent stroke on April 8, 2018. For these reasons, the applicant is not entitled to IRB.

49In addition to the issue of causation, the applicant has also not established on a balance of probabilities that he meets the disability test for entitlement to either pre or post IRBs. Therefore, it is not necessary for an analysis to be completed regarding whether the applicant did or did not apply for IRB, or whether the payment of NEB precludes the applicant's entitlement to IRB.

50Neither party spent much time addressing the other benefits in dispute at the hearing or directing us to the evidence in support of same.

51Section 15 of the Schedule supports that an insurer shall pay for all reasonable and necessary medical benefits. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan is reasonable and necessary. To do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

Is the applicant entitled to $2,542.17 for chiropractic services proposed by Brampton Civic Care Centre in a plan dated November 30, 2020?

52We find the applicant is not entitled to the treatment plan in the amount of $2,542.17 for chiropractic services.

53The applicant argues that the plan for chiropractic treatment is reasonable and necessary because past treatment has resulted in reduced pain which has allowed him to manage his daily activities. The respondent denied the plan on the basis that it had been 4 years post-accident and it requested that the applicant submit updated clinical notes in records in order for it to assess whether the plan was reasonable and necessary. The status of which is unknown.

54We have reviewed the goals of the treatment plan completed by Roger Singh, chiropractor which are pain reduction, increase range of motion, increase in strength and to improve muscular strength and endurance and prevent chronicity of injuries. The functional goals are to return the applicant to activities of normal living, return to pre-accident work activities and return to modified work activities. The course of treatment proposed over 8-weeks includes a total body assessment, 16 – 30-minute sessions of therapy, 16–20-minute sessions of exercise, 16 sessions of physical manipulation, and exercise equipment ($56.40) for a total cost of $2,542.17.

55We find the applicant has not met his onus in proving that this plan for chiropractic treatment is reasonable and necessary because we have not been directed to any medical evidence in support that it is reasonable and necessary. Nor has the applicant directed us to any evidence which supports that past treatment has resulted in reduced pain or increased function. It is well established that a treatment plan must be supported by medical recommendation or documentation, in addition to that of the provider of the treatment. In the absence of supporting evidence, we find the applicant has not proven that this plan is reasonable and necessary.

Is the applicant entitled to $28,700.00 for catastrophic impairment assessments, proposed by Alliance Diagnostics in a plan dated July 30, 2018, and $2,000.00 for file review, proposed by Alliance Diagnostics in a plan dated October 1, 2018?

56We find the applicant is not entitled to the denied portion of $16,300.00, for the catastrophic impairment assessments or the $2,000.00 for a file review.

57Section 25(1) 5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a CAT impairment, including any assessment or examination necessary for that purpose. This is to be read in combination with s. 25(5)(a), which limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that each item in an OCF-18 is reasonable and necessary for the purpose of applying for a CAT determination under s. 45.

58The applicant submits that the balance of this plan is reasonable and necessary because without the denied assessments his assessors would not have been able to carry out a comprehensive CAT assessment to support his case.

59The respondent's position is that the denials were based on the Financial Services Commission of Ontario's Professional Services Guidelines and the $2,000 cap applies as per s. 25(5) (a) of the Schedule.

60We find that the applicant has not met his onus in proving that the balance of this assessment is reasonable and necessary. For example, he did not address what assessments were denied and why they are reasonable and necessary. Nor has he directed us to evidence or argument to support that any of the assessments or examinations are exempt from s.25(5)(a) of the Schedule and would therefore be entitled to a cost above $2,000.00 limit. It is not up to the trier fact to make the applicant's case for him.

61Further, the applicant has not directed us to evidence that the treatment plan for a file review at a cost of $2,000.00 is not duplicative of the catastrophic determination assessment plan already approved as part of the catastrophic impairment assessments.

62The applicant has not met his burden of proof on a balance of probabilities that he is entitled to the full submitted amount of $28,700.00 for catastrophic impairment assessments, or $2000.00 for a file review. Therefore, he is not entitled to the costs of these treatment plans.

Award

63Under s. 10 of O. Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

64Since we have found that no benefits are payable, it follows that the respondent has not unreasonably withheld or delayed payment. No award is payable.

Interest

65As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

66For the above-noted reasons, we make the following order:

1. The applicant has not sustained a CAT impairment as defined by the Schedule.
2. The applicant is not entitled to an IRB in the amount of $400.00 per week from May 5, 2016, to date.
3. The applicant is not entitled to $2,542.17 for chiropractic services proposed by Brampton Civic Care Centre in a plan dated November 30, 2020.
4. The applicant is not entitled to $28,700.00 for CAT impairment assessments, proposed by Alliance Diagnostics in a plan dated July 30, 2018.
5. The applicant is not entitled to $2,000.00 for file review, proposed by Alliance Diagnostics in a plan dated October 1, 2018.
6. The respondent is not liable to pay an award under s. 10 of Reg. 664.
7. The applicant is not entitled to interest on any overdue payment of benefits.