Licence Appeal Tribunal File Number: 23-011802/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:
Dena Pitter
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Nisaa Khan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dena Pitter (“the Applicant”) was involved in an automobile accident on November 30, 2022, and sought benefits from BelairDirect Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
i. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from April 4, 2023 to November 30, 2024?
ii. Is the Applicant entitled to a medical benefit in the amount of $5,814.98, less $2,160.00 approved by the Respondent, for pharmaceutical therapy and cannabis management services, proposed by Apollo Applied research Inc. in a treatment plan/OCF-18 (“plan”) dated February 24, 2023?
iii. Is the Applicant entitled to a medical benefit in the amount of $1,575.46 for physiotherapy services, proposed by Physioworx Physiotherapy Clinic in a plan dated March 6, 2023?
iv. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for physiotherapy services, proposed by Physioworx Physiotherapy Clinic in a plan dated March 29, 2023?
v. Is the Applicant entitled to a medical benefit in the amount of $3,607.98 for biofeedback therapy services, proposed by Toronto Concussion Clinic. in a plan dated April 17, 2023?
vi. Is the Applicant entitled to a medical benefit in the amount of $5,828.00 for psychological services, proposed by Toronto Concussion Clinic in a plan dated April 17, 2023?
vii. Is the Applicant entitled to a medical benefit in the amount of $4,600.00 for cognitive assessment, proposed by Toronto Concussion Clinic. in a plan dated April 17, 2023?
viii. Is the Applicant entitled to a medical benefit in the amount of $4,959.75, less $2,100.07 approved by the Respondent, for psychological services, proposed by the Center for Psychological and Counselling Services Inc. in a plan dated June 20, 2023?
ix. Is the Applicant entitled to a medical benefit in the amount of $4,959.75, less $2,249.68 approved by the Respondent, for psychological services, proposed by Psychological and Counselling Services Inc. in a plan dated November 8, 2023?
x. Is the Applicant entitled to a medical benefit in the amount of $1,326.00, less $1,212.81 approved by the Respondent, for other goods and services, proposed by Complete Balance Health Centre in a plan dated August 12, 2023?
xi. Is the Applicant entitled to a medical benefit in the amount of $3,258.40, less $3,158.40 approved by the Respondent, for physiotherapy services, proposed by Physioworx Physiotherapy Clinic in a plan dated August 19, 2023?
xii. Is the Applicant entitled to a medical benefit in the amount of $2,249.25 for prescriptions and devices, submitted on a claim form (OCF-6) dated September 8, 2023?
xiii. Is the Applicant entitled to a medical benefit in the amount of $208.36 for prescriptions, submitted on an OCF-6 dated October 11, 2023?
xiv. Is the Applicant entitled to a medical benefit in the amount of $6,415.00 for vision training program, proposed by Tonic Eye Care & Vision Therapy in a plan dated October 18, 2023?
xv. Is the Applicant entitled to a medical benefit in the amount of $112.53, less $46.92 approved by the Respondent, for prescriptions, submitted on an OCF-6 dated October 18, 2023?
xvi. Is the Applicant entitled to a medical benefit in the amount of $112.53, less $46,92 approved by the Respondent, for other medical expenses, submitted on an OCF-6 dated November 2, 2023?
xvii. Is the Applicant entitled to a medical benefit in the amount of $165.00 for vitamin c, submitted on an OCF-6 dated November 6, 2023?
xviii. Is the Applicant entitled to a medical benefit in the amount of $1,043.67, less $956.48 approved by the Respondent, for chiropractic services, proposed by Complete Balance Health Centre in a plan dated November 11, 2023?
xix. Is the Applicant entitled to a medical benefit in the amount of $65.70 for prescriptions, submitted on an OCF-6 dated November 27, 2023?
xx. Is the Applicant entitled to a medical benefit in the amount of $220.31 less Is the Applicant entitled to a medical benefit in the amount of $147.55 for prescriptions, submitted on an OCF-6 dated December 7, 2023?
xxi. $220.31, less $47.92 approved by the Respondent, for prescriptions, submitted on an OCF-6 dated January 29, 2023?
xxii. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
xxiii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3Prior to the hearing, the following issues were either resolved or withdrawn and not subject to this hearing:
i. Issue iii, entitlement to a physiotherapy plan in the amount of $1,575.46, dated March 6, 2023;
ii. Issue vii, entitlement to a cognitive assessment plan in the amount of $4,600.00, dated April 17, 2023;
iii. Issue x, entitlement to other goods and services in the amount of $1,326.00, less $1,212.81 approved by the Respondent, dated August 12, 2023
iv. Issue xi, entitlement to a physiotherapy plan in the amount of $3,258.40, less $3,158.15 approved by the Respondent, dated August 19, 2023;
v. Issue xii, entitlement to a medical benefit in the amount of $2,249.25, submitted via OCF-6, dated September 8, 2023;
vi. Issue xiv, entitlement to a medical benefit in the amount of $6,415.00 for vision training, proposed by Tonic Eye Care & vision in a plan, dated October 18, 2023; and
vii. Issue xviii, entitlement to a chiropractic treatment plan in the amount of $1,043.67, less $956.48 approved by the Respondent, dated November 11, 2023.
4The Applicant has demonstrated that she is entitled to the following medical benefits, plus any interest on the overdue payment of the benefits:
i. Issue ii, entitlement to a cannabis plan in the amount of $5,814.98, less $2,160.00 approved by the Respondent, dated February 28, 2023; and
ii. Issue vi, entitlement to a psychological treatment plan dated April 17, 2023, in the amount of $5,828.00;
5The Applicant is not entitled to NEBs for any period (issue i).
6The Applicant has not demonstrated that the following medical benefits are reasonable and necessary as a result of the accident:
i. Issue iv, entitlement to a physiotherapy plan in the amount of $2,200.00, dated March 29, 2023
ii. Issue v, entitlement to a biofeedback therapy plan in the amount of $3,607.98, dated April 17, 2023;
iii. Issue viii, entitlement to a psychological treatment plan in the amount of $4,959.75, less $2,100.07 approved by the Respondent, dated, June 20, 2023;
iv. Issue ix, entitlement to a psychological treatment plan in the amount of $4,959.75, less $2,249.68 approved by the Respondent, dated November 8, 2023;
v. Issue xiii, entitlement to medical expenses totalling $208.36, submitted via OCF-6, dated October 11, 2023;
vi. Issue xv, entitlement to prescription expenses totalling 112.53, less $46.92 approved by the Respondent, submitted via OCF-6, dated November 2, 2023;
vii. Issue xvi, entitlement to prescription expenses totalling $112.53, less $49.92 approved by the Respondent, submitted on an OCF-6, dated November 2, 2023;
viii. Issue xvii, enticement to prescription expenses totalling $165.00, submitted on an OCF-6, dated November 6, 2023;
ix. Issue xix, entitlement to prescription expenses totalling $65.70, submitted on an OCF-6 dated November 27, 2023?
x. Issue xx, entitlement to prescription expenses in the amount of $147.55, submitted via OCF-6, dated December 7, 2023;
xi. Issue xxi, entitlement to prescription expenses in the amount of $220.31, less $46.92 approved by the Respondent, for prescriptions submitted via OCF-6, dated January 29, 2023?
7No award is payable.
BACKGROUND
8The Applicant was the driver of a vehicle which was struck on the passenger’s side by a bus attempting to merge lanes in busy traffic. She sought no medical attention at the scene of the accident and was able to continue her errand and return home. She had a telephone consultation with her family physician about five days later with complaints of increased anxiety, low mood, and body pains. The Applicant was referred for massage therapy, acupuncture, and chiropractic care. Therapeutic counselling was also suggested for the Applicant’s increased anxiety symptoms and a prescription for psychotherapy/mental health counselling was issued for the Applicant.
ANALYSIS
9The Applicant bears to onus of demonstrating entitlement to the benefits claimed. For non-earner benefits, she must show that she suffers a complete inability to carry on a normal life as a result of the accident. For the medical and rehabilitation benefits claimed, the Applicant must demonstrate that they are reasonable and necessary as a result of the accident.
10Alternatively, the Applicant can demonstrate entitlement to benefits from a statutory perspective. In such a situation, the Applicant must demonstrate how she is entitled to the benefit due to the Respondent’s failure to comply with the Schedule.
Non-earner benefits (“NEBs”)
11I find that the Applicant had not demonstrated that she is entitled to NEBs.
12Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.
13The Applicant’s seeks payment of NEBs on a statutory basis. She submits that the Respondent’s insurer’s examination (“IE”) notice failed to comply with the Schedule and that the notice following the IE failed to include a medical reason for the denial. Specifically, she notes that the IE notice referred to her injuries as being subject to the Minor Injury Guideline (“the MIG”) and the notice following the IE confirms that she is limited by her accident-related injuries but does not suffer a complete inability to carry on a normal life. To the Applicant, these reasons fail to provide the proper information for an unsophisticated claimant to decide whether to pursue the claim. As a result, she submits, the IE reports related to the improper notice ought to be struck from the record because they were improperly procured, in accordance with Taksali v Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”).
14The Applicant made no submissions with respect to whether she meets the eligibility test for NEBs.
15The Respondent disagrees that the notices are insufficient and submits that the notices are compliant, and that the Applicant does not meet the test for eligibility. It submits that it sought IEs to determine whether the Applicant suffers a complete inability to carry on a normal life because the information in its possession at the time supported that the Applicant sustained uncomplicated soft-tissue injuries that are subject to the MIG.
16I deny the Applicants request to strike the IE reports. I am not bound by Taksali and I find the reasoning in Taksali to be unpersuasive. I do not agree that an insured person can attend an IE, but later claim that the notice was improper and have the report struck from the record. I find that it would be wrong to permit an insured person to attend an IE and participate in the examination, but later claim that the report from the assessment is void due to improper notice.
8In any event, I find that the letter dated June 7, 2023, is a valid denial. In the letter, it expressly states that it determined that the Applicant continues to not be eligible for NEBs as she does not suffer a complete inability to carry on a normal life as a result of the accident. It enclosed the IE reports and specifically refers to the IE report of Dr. S. Bhaloo, psychologist, and states that “It is the assessor’s opinion that from a psychological perspective that while (the Applicant) has been limited by her mental health symptoms and pain, she does not suffer a complete inability to carry on a normal life as a result of the accident”. To me, this is a clear and unequivocal denial of NEBs. It states the Respondent’s refusal to pay and that the medical reason is based on the opinion of the IE assessor. To me, acknowledging that the Applicant’s accident-related impairments limit her does not detract from the overall message of the notice – that the Respondent refuses to pay NEBs because it determined that she does not suffer a complete inability to carry on a normal life as a result of the accident.
17Moreover, the Applicant made no submissions and, aside from her disability certificate, has not directed me to any evidence indicating that she suffers a complete inability to carry on a normal life as a result of the accident. As a result, I am unable to assess any change to the Applicant’s life following the accident because the Applicant has not indicated the activities which she is impaired from doing due to the accident.
18The evidence before me suggests that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident. Clinical notes and records (“CNRs”) from the Applicant’s family health team indicate that the Applicant remains independent with her self-care and continued with her post-secondary education studies following the accident (despite reducing her class load in the winter 2023 semester), and eventually started full-time employment in her chosen field. There is no indication in the family health team CNRs that the Applicant has ongoing accident-related impairments which prevent her from carrying on a normal life. In the IE report by Dr. S. Bhaloo, psychologist, dated June 28, 2023 it is concluded that the Applicant has no significant functional limitation from a psychological perspective. Similarly, in the IE report by J. Pataki, occupational therapist, dated May 29, 2023, found that the Applicant continues to drive, is independent with her self-care, and receives strong social support from her mother and stepfather. In the May 29, 2023 report by Dr. D. R. Krishna, physician, it was noted that the Applicant exhibited functional range of motion (“ROM”) throughout her body, but for self-limited ROM in her low back.
19Accordingly, I find that the Applicant has not demonstrated that she suffers a complete inability to carry on a normal life a as a result of the accident.
Cannabis plan dated, February 28, 2023 for $5,814.98, less $2,160.00 approved
20I find that the Applicant has demonstrated that the cannabis plan, dated February 28, 2023, is reasonable and necessary as a result of the accident.
21The Applicant’s submissions do not address whether the plan is reasonable and necessary. Instead, the Applicant addressed the admissibility and shortcomings of the IE reports. In particular, she submits that the IE assessor’s decision to recommend a two-month trial is unwarranted and arbitrary. The Respondent relies on the IE report, by Dr. A. Mocon, anesthesiologist, dated July 6, 2023, which provided that a two-month trial was reasonable to ascertain if the Applicant was achieving any long-term benefit from cannabis.
22I prefer the recommendation of Dr. Y. Lee, physician, in the plan, dated February 24, 2023, over the IE report of Dr. Mocon, dated July 6, 2023. Neither physician provided a rationale or authority for their proposed duration of the prescription. It boils down to a dispute between the recommending physician and their contemporary, with no reason to back up either position, or refute the others. Considering this, I prefer the recommendation of Dr. Yee, given that the Applicant’s treating physician would be in a better position to make recommendations on the Applicant’s care than a one-time assessor. Therefore, I find that the Applicant’s evidence must prevail on a balance of probabilities and conclude that the plan, dated February 28, 2023 is reasonable and necessary as a result of the accident.
$2,200.00 for a physiotherapy plan by Physioworx, dated March 29, 2023
23I find that the Applicant has not demonstrated entitlement to this plan.
24This plan was submitted via OCF-23 and seeks funding for goods and services proposed in the MIG. The Applicant submits that this plan was submitted because she changed treatment providers, and it should have been accepted in full. The Respondent submits that it previously approved and paid for the first block of the MIG with a separate clinic and that this OCF-23 is not payable pursuant to section 40(6) of the Schedule.
25I agree with the Respondent and find that a second OCF-23 is not payable. Section 40(5) of the Schedule permits the Applicant to change practitioners while she is subject to the MIG, provided she submits an amended treatment confirmation form. Section 40(6) of the Schedule provides that an insurer is liable to pay for all goods and services described in an amended treatment confirmation form only to the extent the goods and services have not already been provided in accordance with the MIG.
26In the Applicant’s case, she previously submitted and then incurred the goods and services outlined an OCF-23 completed by Dr. J. Fung, chiropractor, at Complete balance Health Centre, dated March 28, 2023. The March 28, 2023 plan was incurred over the period from February 21, 2023, the Applicant’s initial visit to the clinic, until August 12, 2023, when the discharge report was issued. This plan was invoiced to the Respondent on August 16, 2023. It would be contrary to section 40(6) of the Schedule to permit the Applicant to submit and incur a second OCF-23 in this situation.
27Accordingly, I find that the Applicant has not demonstrated that she is entitled the plan by Physioworx in the amount of $2,200.00, dated March 28, 2023.
Biofeedback therapy plan in the amount of $3,607.98, dated April 17, 2023
28I find that the Applicant has not demonstrated that this plan is reasonable and necessary as a result of the accident.
29The Applicant never addressed the merits of this plan. Instead, she submits that it is payable because the IE notice in response to it is not compliant with the Schedule. The Applicant’s position is that a denial that relies on an improperly procured IE report is a denial without medical reasons because an improperly procured IE report should be struck from the record, negating the denials that rely on that IE report. The Respondent contends that this plan was found not reasonable and necessary following an IE by Dr. Bhaloo, stating that biofeedback and post-concussion therapy would be redundant while the Applicant received treatment from her current psychologist. The Respondent also submits that, from a neurological perspective, the IE report dated June 30, 2023 by Dr. Desai concluded that the plan was not reasonable and necessary because the Applicant exhibited no functional limitations or deficits.
30I find that the Applicant is not entitled to the plan from a statutory perspective. I acknowledge the Applicant’s submissions on the admissibility of the IE reports referenced in the denial of this plan. As discussed above, I disagree that the remedy is to strike the report. Even if I were to strike the reports, which I am not, it remains the Applicant’s onus to demonstrate that the plan is reasonable and necessary. This is because an insurer is not required to issue an IE report for every denial and is permitted to err when providing its medical and other reasons. Further, there is nothing in the Schedule that entitles the Applicant to a plan if no IE report is procured in response to it.
31Otherwise, the Applicant has not addressed the goods and services proposed in this plan, nor how it would benefit her. The Applicant, in her submissions and evidence, has not explained the goods and services proposed, the goals of the plan, nor how the goods and services proposed will help her achieve those goals. She has not directed me to any evidence that demonstrates how or why the Applicant would benefit from biofeedback treatment. Accordingly, the Applicant has not met her onus to demonstrate that this plan is reasonable and necessary.
Psychological services plan in the amount of $5,828.00, dated April 17, 2023
32I find that the Applicant has demonstrated that she is entitled to this plan from a statutory perspective.
33The Applicant never addressed the merits of this plan and instead, tendered submissions that she is entitled to it because the Respondent failed to comply with the Schedule when it denied the plan. To paraphrase her, the Applicant submits that the reason for the denial is insufficient because it does not provide sufficient information for which she could make an informed choice as to whether she should further pursue the goods and services proposed in the plan. Additionally, she again submits that the denial of this plan is based on an improperly procured IE report. The Respondent submits that it issued compliant denials, and that the Applicant has led no submissions or evidence to indicate that this plan is reasonable and necessary as a result of the accident.
34I find that the Respondent failed to provide medical and other reasons to deny this plan. The Respondent has not cured the deficient notice to-date. Thus, the Applicant is entitled to the plan pursuant to the current jurisprudence.
35The denial dated April 28, 2023 is insufficient. The letter does not refer to the goods or services proposed in the plan. The denial refers to the minor injury determination to conclude that the plan is not reasonable and necessary and seeks an IE. This denial is insufficient because it does not advise the Applicant what injuries the Respondent understands the Applicant to have, nor does it list or describe the medical information it is relying on to determine that her injuries fall within the minor injury definition. Further, the denial does not describe or address the goods and services proposed in the plan, and whether it falls within the MIG.
36The subsequent denial, dated July 7, 2023, enclosing the IE report, dated June 30, 2023, is also insufficient. In the letter, the Respondent states that the IE assessor, Dr. Desai, concluded that the goods and services are not reasonable and necessary both from a medical and costing perspective, and refers the Applicant to the report. However, the report does not address the goods and services proposed in this, but instead addresses a different plan. While the Respondent is not held to a standard of perfection, it must still provide a medical reason for the denial that addresses the goods and services proposed in the plan. By failing to do so, the Respondent has given no reason for the denial.
37I find that the Applicant is entitled to this plan pursuant to the jurisprudence outlined in Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”). In Suarez, the Divisional Court found that where an insurer fails to provide a proper denial of a plan and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed plan. As such, I find the plan in the amount of $5,828.00, dated April 17, 2023, to be payable, with interest pursuant to section 51 of the Schedule, once incurred and properly invoiced by the applicant.
Psychological treatment plans in the amount of $4,959.75, less $2,100.07 approved by the Respondent, dated June 20, 2023 & $4,959.75, less $2,249.68 approved by the Respondent, dated November 8, 2023
38I find that the Applicant has not demonstrated that she is entitled to an enhanced hourly rate for her psychological services provider.
39For both plans, the Applicant claims entitlement to the unapproved balance on the basis that, according to her, the Respondent provided a boilerplate rationale for subjecting the service provider to an hourly rate of $58,19, instead of the hourly rate of $149.51 proposed in the plan. The Respondent contends that the service provider is a psychotherapist, which is a healthcare provider that is not listed in the Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”). Accordingly, it advised the Applicant that it approved the services at the hourly rate of an unregulated professional.
40I find that the Applicant has not demonstrated that she is entitled to the unapproved balance of these plans. Indeed, the Respondent is not liable to pay rates above what is suggested in the PSG. Moreover, as outlined in J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT), the Tribunal has found that an unregulated service provider, such as a psychotherapist, may be entitled to an enhanced hourly rate if the insured person can demonstrate that the service provider provides specialized services based on their experience and training. In the Applicant’s case, no information has been provided to justify an enhanced hour rate. Thus, I conclude that she has not met her onus to demonstrate that the unapproved goods and services proposed in the plans are reasonable and necessary as a result of the accident.
Expenses totalling $208.36, submitted via OCF-6, dated October 11, 2023
41I find that the Applicant has not met her onus to demonstrate that her prescriptions for Estrogel, Progesterone, and Florinef are reasonable and necessary as a result of the accident.
42The Applicant made no submissions on whether the expenses are reasonable and necessary as a result of the accident. Instead, she submits that the Respondent never provided a medical reason to deny this expense. The Applicant reiterates that the IE paper review report of Dr. D. R. Krishna, dated November 21, 2023, is inadmissible due to improper notice of the IE.
43The Respondent submits that a response to an expense submitted via OCF-6 does not engage the response requirements outlined in section 38(8) of the Schedule. It submits that it complied with the Schedule in the responses dated October 19, and November 2, 2023 requesting an IE, and the subsequent letter, dated November 30, 2023, which delivered the IE report and confirmed the denial.
44I find that the Applicant has not demonstrated that she is entitled to the expenses claimed. I agree with the Respondent that expense claims forms such as this one are not subject to the response requirements outlined in section 38(8) of the Schedule. Section 38(8) addresses the Respondent’s obligations to reply to a treatment and assessment plan, which indeed includes providing medical and any other reason for a denial. In this situation the Applicant never submitted a treatment and assessment plan. Instead, she submitted an expense claim form. There is nothing in the Schedule that provides any response requirements for when an insurer receives an expense claim form.
45Otherwise, the Applicant has not demonstrated that the expenses are reasonable and necessary as a result of the accident, pursuant to section 15 of the Schedule. The Applicant led no evidence indicating that the prescription medications were prescribed as a result of the accident. Additionally, the IE paper review report of Dr. Krishna, concluded that the prescriptions are not as a result of the accident and that they were prescribed prior to the accident.
Further expenses submitted via OCF-6
$112.53, less $46.92 approved, dated October 18, 2023
$112.53, less $49.92 approved, dated November 2, 2023;
$165.00, dated November 6, 2023;
$65.70, dated November 27, 2023
$147.55, dated December 7, 2023
$220.31, less $46.92 approved, dated January 29, 2024
46I find that the Applicant has not demonstrated that progesterone and thyroid hormone supplements are reasonable and necessary as a result of the accident.
47The Applicant claims entitlement to these expenses on the basis that they were denied without a medical reason, as outlined previously The Respondent maintains that the expenses are not as a result of the accident.
48I agree with the Respondent and find that the unapproved expenses are not reasonable and necessary as a result of the accident. As discussed previously, the Applicant is not entitled to the expenses from a statutory perspective because they are not treatment plans and are not subject to the response requirements outlined in section 38(8) of the Schedule. There is no evidence before me to suggest that progesterone, Cortef, and thyroid hormone supplements were prescribed as a result of the accident.
Interest
49Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to some of the benefits claimed, it follows that she is also entitled to interest on the overdue payment of those benefits.
Award
50The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
51The Applicant claims entitlement to an award on the basis that, according to her, the Respondent relied on IE reports that were procured incorrectly. She also highlights that more than $10,000.00 in benefits were approved prior to the hearing and that such a payment indicates that the earlier denials were not appropriate.
52The Respondent submits that it did not unreasonably withhold or delayed the payment of benefits. It submits that the Applicant provided “numerous” records after filing her application with the Tribunal, which it reviewed and adjusted the claim in good faith. The Respondent is critical that the Applicant never specified which documents she provided to the Respondent that were ignored. The Applicant made reply submissions, but never addressed the Respondent’s position on this issue.
53I find that the Applicant has not demonstrated that an award is warranted. Awards are rendered in instances where an insurer acts in a manner that can be characterized as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. In this case, the Applicant has not provided examples of such behaviour. At most, her submissions highlight that she would prefer better medical reasons from the Respondent for the reasons it seeks IEs. Such behaviour does not warrant an award because it does not exemplify unwanted behaviour that awards attempt to curb. Similarly, the Applicant does not specify when her medical documents were provided to the Respondent and has not demonstrated that the Respondent’s decision to rely on the advice of IE assessors in light of that information was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
54Accordingly, I find that the Applicant is not entitled to an award.
CONCLUSION AND ORDER
55The Applicant has demonstrated that she is entitled to the following medical benefits, plus any interest on the overdue payment of the benefits:
i. Issue ii, entitlement to a cannabis plan in the amount of $5,814.98, less $2,160.00 approved by the Respondent, dated February 28, 2023; and
ii. Issue vi, entitlement to a psychological treatment plan dated April 17, 2023, in the amount of $5,828.00;
56The Applicant is not entitled to NEBs for any period (issue i).
57The Applicant has not demonstrated that the following medical benefits are reasonable and necessary as a result of the accident:
i. Issue iv, entitlement to a physiotherapy plan in the amount of $2,200.00, dated March 29, 2023
ii. Issue v, entitlement to a biofeedback therapy plan in the amount of $3,607.98, dated April 17, 2023;
iii. Issue viii, entitlement to a psychological treatment plan in the amount of $4,959.75, less $2,100.07 approved by the Respondent, dated, June 20, 2023;
iv. Issue ix, entitlement to a psychological treatment plan in the amount of $4,959.75, less $2,249.68 approved by the Respondent, dated November 8, 2023;
v. Issue xiii, entitlement to medical expenses totalling $208.36, submitted via OCF-6, dated October 11, 2023;
vi. Issue xiv, entitlement to prescription expenses totalling 112.53, less $46.92 approved by the Respondent, submitted via OCF-6, dated November 2, 2023;
vii. Issue xix, entitlement to prescription expenses totalling $65.70, submitted on an OCF-6 dated November 27, 2023?
viii. Issue xx, entitlement to prescription expenses in the amount of $147.55, submitted via OCF-6, dated December 7, 2023;
ix. Issue xxi, entitlement to prescription expenses in the amount of $220.31, less $46.92 approved by the Respondent, for prescriptions submitted via OCF-6, dated January 29, 2023?
58No award is payable.
59The remaining benefits listed in dispute for this hearing were withdrawn by the Applicant and are not subject of the hearing.
Released: August 22, 2025
Brian Norris
Adjudicator