Licence Appeal Tribunal File Number: 24-000692/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:
Dorothy Allwood
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Filipe Santos, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
Heard:
By Review of the Transcripts and Exhibits from the Videoconference Hearing Held on January 6 and 7, 2025
OVERVIEW
1Dorothy Allwood, the applicant, was involved in an automobile accident on January 18, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2For reasons outside of the Tribunal’s control, the member who chaired the two-day videoconference hearing of the application, which took place on January 6 and 7, 2025, was unable to write the decision. The parties were given the option of participating in a new hearing or having a new member decide the application on the basis of the transcripts and records that were made exhibits. The parties chose the second option.
3Therefore, my decision is based on my review of the transcripts from the hearing of January 6 and 7, 2025 and the documents that the parties marked as exhibits during the hearing.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 31, 2022 to date and ongoing?
ii. Is the applicant entitled to $2,764.36 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated February 3, 2022?
iii. Is the applicant entitled to $1,298.79 for physiotherapy services, proposed by 101 Physio in a treatment plan dated September 1, 2022?
iv. Is the applicant entitled to the assessments proposed by 101 Assessments, as follows:
a) $2,460.00 for a Psychological Assessment, in a treatment plan dated March 29, 2022;
b) $2,460.00 for a Chronic Pain Assessment, in a treatment plan dated August 29, 2022; and
c) $2,460.00 for a Neurological Assessment, in a treatment plan dated December 12, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that:
i. The applicant is entitled to an IRB from December 31, 2022 to May 18, 2023;
ii. The applicant is entitled to the two treatment plans for physiotherapy services;
iii. The applicant is entitled to the treatment plan for a psychological assessment;
iv. The applicant is entitled to the treatment plan for a chronic pain assessment;
v. The applicant is entitled to payment of the treatment plan for a neurological assessment, once incurred and properly invoiced;
vi. The respondent is not liable to pay an award; and
vii. The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Applicant’s request to rely on the adjuster’s log notes
6On the first day of the hearing, the applicant sought an order permitting her to rely on the adjuster’s log notes, which, the applicant submitted, were not included in her document brief because they were produced by the respondent only about two weeks prior to the hearing, on about December 19, 2024. The applicant further submitted that the respondent provided no document confirming the timely production of the log notes.
7The respondent submitted that it produced the adjuster’s log notes to the applicant’s former representative on July 23 and July 24, 2024, pursuant to the deadlines set out in the Case Conference Report and Order. The respondent further submitted that the applicant should have brought a motion earlier if she truly intended to rely on the adjuster’s log notes.
8The adjudicator who chaired the hearing denied the motion, finding that the applicant should have brought the application earlier and that it was not an efficient and proportional use of Tribunal resources to allow the applicant to rely on the adjuster’s log notes at this late date.
Applicant’s request for production of entire s. 44 files
9The applicant also sought an order that the respondent produce the entire s. 44 insurer examination (“IE”) files, as ordered in the Case Conference Report and Order. The applicant submitted that despite the Case Conference Report and Order, only the reports from the IE assessors were produced.
10The respondent submitted that the applicant did not provide it with a signed authorization, which is required in order to enable it to obtain the remainder of the IE files. The respondent further submitted that the applicant did not bring her motion in a timely manner.
11The adjudicator who chaired the hearing denied the motion, finding that it was not an efficient and proportional use of Tribunal resources to delay the hearing to order productions, particularly as the applicant could have brought her motion earlier.
ANALYSIS
The applicant is entitled to an IRB
12I find that the applicant has demonstrated that she is entitled to an IRB from December 31, 2022 to May 18, 2023.
13To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
14The applicant was 67 years old at the time of the accident. The applicant submits that she is entitled to an IRB because the pain in her shoulders, lower back and knees, which she claims was caused by the accident, forced her to retire from her job on December 31, 2022 instead of May 18, 2023, which was her planned retirement date. The applicant’s submissions addressed her entitlement to IRB for the period of December 31, 2022 to May 18, 2023 only. The applicant relies on her own testimony, the testimony and clinical notes and records (“CNRs”) of Dr. Dennis Kim, her family doctor and the CNRs of 101 Physio.
15The respondent submits that the applicant retired in December 2022 due to pain in her right shoulder, which was an injury that was not caused by the accident. It further submits that no healthcare provider ever advised the applicant that she could not work due to the accident, which is supported by the fact that the applicant returned to work three days after the accident and worked for nearly a year before she retired. In support of its submissions, the respondent relies on the file review report of Dr. Yong-Kyong Michael Ko, physiatrist, dated April 27, 2023, the CNRs of Dr. Kim, the testimony and file review report of Dr. Sadiq Hasan, psychiatrist, dated April 27, 2023 and the Employer’s Confirmation Form (“OCF-2”), dated February 2, 2022.
16The applicant testified that at the time of the accident she was employed as a team lead for a company that registered discharges of mortgages on behalf of banks. She described the essential tasks of her employment as: assigning tasks to the six to eight workers on her team; using her hands at the computer, especially keyboarding; answering phone calls; sitting at the computer for prolonged periods; interacting with co-workers and customers; preparing reports and presentations; and training new hires. I find that the essential tasks of the applicant’s employment include working at a computer for prolonged periods, and interacting with co-workers and customers, both in person and over the phone.
17The applicant testified that while she felt no pain immediately following the accident, within four to seven days after the accident, she was feeling pain in her shoulders, knees and lower back. She testified that her shoulder pain interfered with her ability to use the keyboard and that her lower back pain interfered with her ability to sit at a desk for prolonged periods. She further testified that when she got up to walk around to relieve her back pain, severe knee pain resulted. She testified that while she returned to work three days after the accident and had planned to retire on her birthday, on May 18, 2023, she eventually decided to retire earlier, on December 31, 2022, because of the intense pain. She testified that she was not financially prepared to retire at this time.
18I find that the testimony and CNRs of Dr. Kim corroborate the applicant’s testimony. While initial x-rays and ultrasound imaging of the applicant’s knees in February 2022 and June 2023 revealed osteoarthritis and degenerative changes that Dr. Kim testified were most likely chronic conditions, MRIs of the applicant’s knees in December 2023 revealed signs of physical trauma. The left knee had a partial tear or “chondral defect” and the right knee had a full thickness tear or “chondral defect.” Dr. Kim testified that these defects were most likely the result of trauma and would not have shown up on the earlier x-rays or ultrasound imaging. The respondent alleged that the applicant’s knee pain was a pre-existing injury. While the applicant acknowledged having some knee pain prior to the accident, which is confirmed by Dr. Kim’s CNRs, she testified that the pain was much worse after the accident. Due to the results of the MRI, in conjunction with Dr. Kim’s testimony and the timing of the applicant’s reports of severe knee pain immediately following the accident, which are documented by the CNRs, I find that the applicant’s knee defects were caused by the accident.
19Dr. Kim testified about the results of shoulder imaging from July 2021, which was six months before the accident and which showed only some tendon inflammation. He compared this to the applicant’s September 2022 imaging, which showed partial thickness tears of the rotator cuff muscles in both shoulders. Dr. Kim testified that tears of this nature were most likely the result of trauma. As a result of the shoulder imaging results, Dr. Kim’s testimony and the timing of the applicant’s reports of shoulder pain, as documented in Dr. Kim’s CNRs, I find that the applicant’s torn rotator cuff injuries were also caused by the accident.
20I further find that the CNRs of 101 Physio, where the applicant was treated after the accident, corroborate her testimony. The respondent submits that the fact that the applicant did not report shoulder pain to Dr. Kim until September 2022 indicates that her shoulder pain was not related to the accident. However, I find that the applicant did report shoulder pain to her physiotherapist immediately after the accident, beginning on January 24, 2022, and continued to report shoulder pain to her physiotherapist until August 2024. In addition, the applicant reported lower back pain and right knee pain to the physiotherapist as of January 24, 2022.
21Dr. Ko opined that the applicant suffered soft tissue injuries in her shoulders and soft tissue injury in her knee, which exacerbated the pre-existing osteoarthritis in her knee. He opined that she did not suffer a substantial inability to perform the essential tasks of her employment because she did not suffer from a significant musculoskeletal impairment. I find that despite the applicant reporting her decision to retire early to this assessor because of ongoing shoulder pain, Dr. Ko gave no consideration to the applicant’s pain levels when forming his opinion. Because Dr. Ko did not take the applicant’s pain into consideration, despite the applicant reporting to him that she retired in December 2022 due to the pain in her shoulders, I give less weight to his report.
22As a result of the above, I find that the applicant has proven, on a balance of probabilities, that the pain she experienced after the accident, particularly the pain in her shoulders, rendered her substantially unable to complete the essential tasks of her employment after December 31, 2022. Specifically, I find that the pain in her shoulders prevented her from using the computer for prolonged periods. In addition, I find that her back pain and knee pain prevented the applicant from sitting at a desk for prolonged periods and from walking around to relieve the stress of sitting. Based on the applicant’s testimony that she intended to retire on May 18, 2023, I find that the applicant is entitled to an IRB from December 31, 2022 to May 18, 2023.
Liability for payment of IRB pursuant to s. 33 of the Schedule
23I find that the respondent has not established that it is not liable to pay IRBs during the period of entitlement due to the applicant’s failure to provide information requested under s. 33 of the Schedule.
24Section 33(1) of the Schedule requires the insured person to provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit, within 10 days of the request. Section 33(6) provides that the insurer is not liable to pay a benefit in respect of any period during which the person fails to comply with the request for information.
25The respondent relies on the OCF-2, dated February 2, 2022, as evidence that the applicant had access to short-term and long-term disability benefits through her employer. The respondent submits that it requested current and past claims records respecting the applicant’s short-term disability benefits by way of a letter dated October 14, 2022, pursuant to s. 33 of the Schedule. The respondent submits that the applicant never complied with its request, and it subsequently suspended payment of IRBs.
26The applicant agreed in her closing submissions that any short-term disability benefits that she received, would be properly deducted from an IRB. However, she submits that she did not receive any short-term disability benefits at any time after the accident. She submits that the respondent has no evidence proving that she was eligible to receive a short-term disability benefit at any time after the accident.
27The parties agreed that a record of short-term benefits received by the applicant would be relevant to the calculation of an IRB. However, the applicant testified that she returned to work three days after the accident and continued to work until December 31, 2022, when she retired. She submits that she never received short-term disability benefits. The respondent did not direct me to any evidence that the applicant received short-term benefits after the accident. Therefore, I find that the respondent has not established, on a balance of probabilities, that the applicant failed to produce information, specifically statements related to her receipt of short-term disability benefits after the accident, which were reasonably required to calculate the IRB. I find that the respondent remains liable for payment of the IRB during the period of entitlement.
The applicant is entitled to the physiotherapy services treatment plans
28I find that the applicant has established that she is entitled to the treatment plans for physiotherapy services dated February 3, 2022 and September 1, 2022. The parties made their submissions respecting both physiotherapy services treatment plans together, so I have addressed the two plans together.
29To receive payment for a treatment and assessment plan under s. 15 and s. 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.
30The treatment plan dated February 3, 2022 was completed by Dr. Bill Nikols, chiropractor, of 101 Physio, and sought funding in the amount of $2,764.36 for physiotherapy, which included chiropractic therapy, massage therapy and acupuncture. The goals of the treatment plan are pain reduction, increased range of motion, and return to activities of normal living.
31The treatment plan dated September 1, 2022 was completed by Dr. Wayne Coghlan, chiropractor, of 101 Physio, and sought funding in the amount of $1,298.79 for physiotherapy, which again included chiropractic therapy, massage therapy and acupuncture. The goals of the treatment plan are pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to pre-accident work activities.
32The applicant submits that the treatment plans are reasonable and necessary as a result of her accident-related knee, shoulder and back pain. She relies on her own testimony, the testimony and CNRs of Dr. Kim and the CNRs of 101 Physio.
33The respondent submits that the applicant’s knee pain was the result of her pre-existing osteoarthritis and that her shoulder pain was not caused by the accident. In support of its position, it relies on the February 13, 2023 physiatry assessment report of Dr. Ko.
34I find that, despite the applicant’s pre-existing osteoarthritis, the applicant’s right knee pain, shoulder pain and lower back pain were caused by the accident because the pre- and post-accident imaging shows physical trauma in the applicant’s knees and shoulders after the accident that was not present before the accident and the applicant reports that the pain started shortly after the accident and continued up to the time of the hearing. Therefore I find that but for the accident, the applicant would not have suffered knee, shoulder and back pain to the extent that she did.
35The applicant testified that she underwent physiotherapy treatment despite the respondent’s denial of funding. She testified that she found it helpful, that it temporarily relieved her pain, made her pain less intense and allowed her to continue working as long as she did.
36The August 31, 2022 CNR of 101 Physio shows that the applicant reported a 60% improvement in her pain levels at that time and that she was experiencing pain less often. I find that this is indicative that the first course of physiotherapy was effective at meeting the goal of pain relief.
37Dr. Kim testified that he recommended physiotherapy to treat the applicant’s shoulder injuries in September 2022, after reviewing the applicant’s shoulder imaging results. He testified that physiotherapy and pain management are the proper treatment for partial tears of the rotator cuff muscles. I give significant weight to the testimony of Dr. Kim because he was the applicant’s long-time treating physician and his recommendations were based on the applicant’s imaging results. Dr. Kim’s CNRs confirm that he recommended physiotherapy to the applicant on September 23, 2022, which is contemporaneous with the treatment plans.
38I give less weight to Dr. Ko’s report because the report was prepared in the context of assessing whether the applicant’s injuries fell within the Minor Injury Guideline (“MIG”). Dr. Ko does not address the applicant’s September 2022 shoulder imaging results in his report, and he does not provide an opinion as to whether physiotherapy might be reasonable or necessary to treat the applicant’s soft tissue injuries. Rather, Dr. Ko only addresses whether the applicant’s injuries fall within the MIG.
39Therefore, I find that the applicant has proven, on a balance of probabilities, that the treatment plans are reasonable and necessary because of her accident-related injuries. Further, the records of 101 Physio support the applicant’s claim that the physiotherapy was effective. I find that the progress she made during the first round of physiotherapy confirms the reasonableness of the second treatment plan. She is entitled to the treatment plans for physiotherapy.
The applicant is entitled to the treatment plan for a psychological assessment
40I find that the applicant has established that she is entitled to the treatment plan for a psychological assessment.
41To receive payment for an assessment proposed in a plan, the applicant has the onus to prove there are reasonable grounds to believe that a condition exists, at around the treatment plan is submitted, that would warrant further investigation.
42The treatment plan in question was completed by Dr. Konstantinos Papazoglou, psychologist. It was submitted on February 24, 2022, and it sought funding in the amount of $2,460.00 for a psychological assessment. The goals of the treatment plan are: to assess the applicant’s psychological condition and recommend possible psychological treatment, if required; and to help the applicant function effectively in her social, occupational, and other important areas of functioning.
43The applicant submits that she suffered from psychological injuries as a result of the accident and that a psychological assessment was reasonable and necessary as a result. The applicant relies on the psychological pre-screen of Dr. Papazoglou, dated February 23, 2022, the psychological assessment report of Dr. Papazoglou, dated July 14, 2022, and the testimony of Dr. Papazoglou.
44The respondent submits that the applicant suffered no psychological injuries as a result of the accident. It relies on the testimony of Dr. Hasan, psychiatrist, as well as his February 13, 2023, psychiatry assessment report and April 27, 2023 file review report.
45Dr. Papazoglou provisionally diagnosed the applicant with adjustment disorder and specific (isolated) phobia on February 23, 2022. I gave weight to the pre-screen report because it was based on an assessment of the applicant approximately one month after the accident and was contemporaneous with the submission of the treatment plan. Dr. Papazoglou performed a complete assessment of the applicant on June 27, 2022 and he diagnosed her with adjustment disorder (with anxiety), based on her psychometric test results and a clinical interview.
46In contrast, Dr. Hasan assessed the applicant on January 17, 2023, a full year after the accident. Dr. Hasan opined in his report and in his testimony that the applicant’s psychological symptoms at the time of his assessment were not significant enough to warrant a diagnosis as a result of the accident. Dr. Hasan testified that the difference between his findings and Dr. Papazoglou’s findings could be as a result of the time that had elapsed between their respective assessments. The applicant confirmed in her testimony that she did not continue to suffer from psychological symptoms at the time of the hearing. I agree with Dr. Hasan’s opinion and find that the applicant recovered from her psychological injuries by the time of Dr. Hasan’s assessment. As a result, I give Dr. Hasan’s opinion less weight than Dr. Papazoglou’s opinion, which was based on an assessment done closer to the submission of the treatment plan.
47Therefore, I find that the applicant has established that there were reasonable grounds to believe that a psychological condition existed as of the date of the treatment plan, which warranted further investigation. I find that the applicant is entitled to the treatment plan for a psychological assessment.
The applicant is entitled to the treatment plan for a chronic pain assessment
48I find that the applicant has established that she is entitled to the treatment plan for a chronic pain assessment.
49The treatment plan in questions was submitted by Dr. Grigory Karmy, physician, on August 29, 2022. It sought funding in the amount of $2,460.00 for a chronic pain assessment. The goals of the treatment plan are: pain reduction; to restore functional tolerance and endurance; and a return to activities of normal living.
50The applicant submits that she suffers from chronic pain as a result of her accident-related soft tissue injuries to her knee, shoulders and lower back and that the assessment was reasonable and necessary as a result. She relies on her own testimony, the testimony of Dr. Kim and the CNRs of 101 Physio.
51The respondent submits that the applicant sustained no accident-related injuries that would warrant a chronic pain assessment. It relies on Dr. Ko’s physiatry assessment report of February 13, 2023. The respondent further submits that Dr. Kim’s testimony and CNRs do not establish that the applicant meets the test for chronic pain.
52The applicant testified that she experienced pain in her right knee, shoulders and lower back within a few days after the accident and that she continued to experience that pain at the time of the hearing.
53I find that, at the time the treatment plan was submitted, the applicant continued to experience pain. Dr. Kim’s CNRs show that the applicant had imaging done on her shoulders and neck in September 2022 due to complaints of pain. I find that the CNRs of 101 Physio show that the applicant continued to report pain in her knee, shoulders and lower back to her physiotherapist between January 2022 and October 2022.
54Dr. Ko opines that the applicant suffered soft tissue injuries to her right knee and trapezii as a result of the accident, which exacerbated her pre-existing osteoarthritis. While Dr. Ko did not assess the applicant for chronic pain, his report does specify that the applicant complained of bilateral shoulder pain, worse on the right side, and exacerbation of pre-existing knee pain. She also reported intermittent lower back pain to Dr. Ko. Therefore, I find that Dr. Ko’s report confirms that the applicant continued to experience pain at the time the treatment plan was submitted.
55Dr. Kim testified that chronic pain is diagnosed when pain continues after a certain amount of time and a certain amount of treatment. He testified that he would have expected a patient with the applicant’s rotator cuff tears to show improvement, with physiotherapy, after three to six months.
56I find that the applicant continued to complain of pain in her shoulders, knee and lower back to her treatment providers after six months, during which time she was receiving physiotherapy treatment. As a result, I find that the applicant has proven, on a balance of probabilities, that there were reasonable grounds to believe that the applicant suffered from chronic pain and that an assessment was warranted.
57Therefore, the applicant is entitled to the treatment plan for a chronic pain assessment.
The applicant is entitled to payment of the treatment plan for a neurological assessment.
58I find that the applicant has established that she is entitled to payment of the treatment plan for a neurological assessment, once incurred and properly invoiced, pursuant to s. 38(11) of the Schedule.
59The treatment plan in question was submitted on December 12, 2022 and sought funding in the amount of $2,460.00 for a neurological assessment.
60The applicant did not make any submissions as to the reasonableness and necessity of the treatment plan for a neurological assessment. Instead, the applicant limited her submissions to the alleged non-compliance of the respondent’s denial with s. 38(8) of the Schedule. The applicant submits that the respondent’s denial of the treatment plan does not comply with s. 38(8).
61Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.
62If an insurer fails to comply with s. 38(8), the consequences from s. 38(11) are:
i. The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and
ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
63Although I am not bound by prior Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:
(i) Include specific details about the insured’s condition that formed the basis for the insurer’s decision or identify information about the insured’s condition that the insurer does not have but requires; and
(ii) Should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.
64The respondent submits that its denial of the treatment plan, dated December 15, 2022 contained the required medical reasons and was compliant with s. 38(8).
65The denial letter states as follows:
We regret to inform you that we are unable to approve the treatment plan on the basis that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline…To date we have received no further information, despite our s.33 request for clinical notes and records, that the proposed goods and services are reasonable, necessary and/or essential to your recovery from your accident related impairments.
66I find that the denial letter in question refers only to “an impairment” and “your accident related impairments.” It does not provide any detail respecting the conditions or impairments that the respondent believes fall under the MIG. Nor does it refer to specific information that it is missing with respect to the applicant’s impairments. Therefore, I find that the denial letter does not comply with s. 38(8) of the Schedule.
67I have not been referred to a subsequent letter that complies with s. 38(8) of the Schedule. In Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), the Divisional Court held that where the insurer does not provide a denial that complies with s. 38(8), and it does not cure the deficiency before the Tribunal adjudicates the dispute in favour of the insured, the insured can proceed to incur the items listed in the subject treatment plan and the insurer is liable to pay for them once properly invoiced.
68Therefore, I find that the applicant is entitled to payment of the benefits set out in the treatment plan, once incurred and properly invoiced, pursuant to s. 38(11).
Interest
69Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.
Award
70The applicant sought an award under s. 10 of Reg. 664. Under s. 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. 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 this criteria.
71In support of her claim for an award, the applicant submits that the delay in receiving funding for the treatment plans caused an exacerbation of her accident-related injuries. The applicant further submits that the respondent improperly adjusted her file by relying on the IE assessment reports, which were inconsistent and selectively omissive, over Dr. Kim’s records and the applicant’s expert medical reports.
72The respondent submits that the applicant has not proven that it acted unreasonably in delaying or withholding benefits.
73I find that the applicant has not directed me to any conduct on the part of the respondent that qualifies as unreasonable. I find that, in these circumstances, the respondent’s decision to rely on its IE assessment reports over certain documents provided by the applicant was not unreasonable.
74As a result, I find that the applicant has not proven, on a balance of probabilities, that the respondent is liable to pay an award.
ORDER
75I find that:
i. The applicant is entitled to an IRB from December 31, 2022 to May 18, 2023;
ii. The applicant is entitled to the two treatment plans for physiotherapy services;
iii. The applicant is entitled to the treatment plan for a psychological assessment;
iv. The applicant is entitled to the treatment plan for a chronic pain assessment;
v. The applicant is entitled to payment of the treatment plan for a neurological assessment, once incurred and properly invoiced;
vi. The respondent is not liable to pay an award; and
vii. The applicant is entitled to interest on any overdue payment of benefits.
Released: September 11, 2025
__________________________
Caley Howard
Adjudicator```