Licence Appeal Tribunal File Number: 24-006357/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:
Renato Calado
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Arvinder Ahlowalia, Paralegal
For the Respondent:
Ken Yip, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Renato Calado, the applicant, was involved in an automobile accident on October 15, 2021, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 16, 2022 to February 5, 2023?
iii. Is the applicant entitled to $1,289.62 for a concussion assessment, proposed by Dr. Joel Dixon, chiropractor, at Sports Rehab and Wellness, in a treatment plan/OCF-18 (“plan”) dated April 25, 2022?
iv. Is the applicant entitled to $2,344.94 for a driving evaluation, proposed by All Health Medical Centre, in a plan dated June 18, 2022?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by All Health Medical Centre, in a plan dated February 8, 2022?
vi. Is the applicant entitled to a concussion assessment proposed by All Health Medical Centre, in a plan dated April 5, 2024?
vii. Is the applicant entitled to a neurological assessment proposed by All Health Medical Centre, in a plan dated April 5, 2024?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ix. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is removed from the MIG as he has met the burden and demonstrated, on a balance of probabilities, that his injuries fall outside the definition of a “minor injury” as defined in section 3 of the Schedule.
4The applicant is not entitled to an IRB in the amount of $400.00 per week from March 16, 2022 to February 5, 2023.
5The applicant is entitled to $252.62 for a concussion assessment in a plan dated April 25, 2022, and a neurological assessment in a plan dated April 5, 2024, plus interest.
6The applicant is not entitled to the remaining treatment plans: a driving evaluation, a psychological assessment, and a concussion assessment.
7No award is payable.
PROCEDURAL ISSUES
Applicant’s submissions exceed page limits
8The respondent submits that the applicant exceeded the page limit as mandated in the Case Conference and Report Order (“CCRO”), dated September 27, 2025 and any submissions beyond page 10 of the applicant’s submissions should not be considered. The respondent submits that this has significantly prejudiced the respondent because they were not provided excess pages to address the issues in dispute.
9The applicant submits in reply that the first two pages and half of the last page are “application identifiers” and there is roughly three pages of evidence embedded in the submission, and that this is exclusive of the page limits. The applicant argues the page count is under the 10-page limit set in the CCRO.
10I will not exclude the applicant’s submissions beyond page 10 as requested by the respondent as it would prevent the applicant from addressing the income replacement benefit, medical benefits, and award which would significantly prejudice the applicant. In weighing the relative prejudice, I find that the respondent has not demonstrated how the applicant’s submissions exceed the page limits. However, I remind the applicant that non-compliance with Tribunal Orders, such as page limits noted in the CCRO, is strongly discouraged.
Section 44 Insurer’s examinations
11In its written submissions and its reply, the applicant requested the section 44 insurer’s examinations prepared by Dr. Zubina Ladak, psychologist, and Dr. Michale Ko, physiatrist, not be included in the evidentiary record because they were not secured in accordance with the Schedule. The applicant relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”) (para 19 – 27).
12The respondent submits the insurer’s examination notices are valid and refer to insurer’s examination with medical reasons. The respondent relies on Saab v. Economical Mutual Insurance Company, 2023 CanLII 98426 (ON LAT) (21-012807/AABS) and Gryschuk v. CAA, 2024 CanLII 28820 (ON LAT). The respondent asserts that the applicant, for the first time in his submissions, raised any challenges to expert reports, without adhering to the procedure outlined in Rule 10.4 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”) Rule 10.4.
13The applicant relies on the Tribunal decision of Taksali. Taksali is not binding on me, and I do not agree with the reasoning in that decision. Taksali erroneously concluded that a non-compliant notice of an insurer’s examination caused the resulting examination report to be void ab initio. The conclusion in Taksali did not consider that the remedy for an insufficient insurer’s examination notice is that the applicant is not obliged to attend the examination.
14Here, according to the evidence I reviewed, the applicant attended and participated in the insurer’s examination without any protest or non-compliance. Having attended and participated in the examinations, accordingly the reports have not been excluded from the evidentiary record.
Section 25 medical reports
15In its written submissions, the respondent requested the section 25 neurological report dated November 5, 2024 by Dr. Neilank Jha, neurosurgeon, and the concussion assessments dated November 9, 2024 prepared by Dr. Mikhail Shteynberg, chiropractor, be excluded. It submits these reports were produced two weeks past the November 16, 2024 production deadline set out in the CCRO. The respondent did not provide evidence of the date the report was provided; however, it was able to substantively address the report in its submissions. The respondent did not identify what, if any, prejudice would occur if these reports are allowed.
16The applicant submits in reply that the section 25 reports were delivered by email on December 2, 2024, in accordance with the CCRO para [16] that states “By no later than 90 calendar days after the case conference, the parties shall exchange any additional documents or things responsive to documents or things that have already been exchanged or produced that they intend to rely on as evidence at the hearing.”
17I find the applicant would suffer greater prejudice if the reports were excluded from this hearing, as the evidentiary onus rests with him to demonstrate entitlement to the issues in dispute. I accordingly decline the respondent’s request to exclude the reports from the hearing.
Accident Benefit file
18In its written reply, the applicant requested the accident benefit file be excluded because it was submitted past the deadline in violation of the CCRO. The applicant relies on the email dated February 25, 2025 to the respondent that notes, “We have not received a copy of the AB file and adjuster’s notes either.”
19The applicant did not identify, what, if any, prejudice would occur if the accident benefit file is allowed into evidence and did not identify which part of the file is to be excluded, or what part of the respondent’s submissions refers to the file. Accordingly, I decline the applicant’s request to exclude the file.
Adverse Inference
20Pursuant to the CCRO, the applicant was required to produce the complete employment file from Power Take Off and AGFA no later than 30 calendar days from the case conference.
21The respondent submits that the applicant’s employment file has not been provided to date and an adverse inference should be drawn from this.
22The applicant submits in reply that the respondent’s direct correspondence by email dated January 18, 2022 to February 3, 2022 with the employer is sufficient. The applicant did not submit an explanation for the failure to provide material evidence that is highly relevant to the issue before me, and I will infer that the evidence would have been unfavourable to his case if produced.
ANALYSIS
Application of the Minor Injury Guideline
23Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
24The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
25The applicant submits he should be removed from the MIG because he suffered a hairline fracture of the left wrist, a concussion, and psychological injuries as a result of the accident.
26The respondent submits the applicant’s psychological injuries do not meet the criteria for a formal DSM 5 diagnosis, and his accident-related injuries are soft tissue injuries only.
Did the applicant sustain a concussion as a result of the accident?
27I find the applicant has demonstrated that he sustained a concussion because of the accident, and therefore, should be removed from the MIG.
28The applicant submits he sustained a concussion as a result of the accident and as a result he should be removed from MIG. The applicant relies on the clinical notes and records (CNRs) St. Mary’s Emergency Hospital; the CNRs of Onyx Urgent Care Clinic prepared by Dr. Ameet Karaul, physician; portions of the section 44 neurology assessment dated March 7, 2022, prepared by Dr. Jamsheed Desai, neurologist; the Post Injury Assessment dated April 20, 2022, prepared by Joel Dixon, chiropractor; the section 25 neurological assessment dated November 5, 2024, prepared by Dr. Neilank Jha, neurosurgeon; the section 25 mild traumatic brain injury/concussion assessment dated November 9, 2024, prepared by Dr. Mikhail Shteynberg, chiropractor; and the OCF-18/Disability Certificates dated October 22, 2021 and February 8, 2022 prepared by Ravikumar Pandya, physiotherapist.
29The respondent submits the applicant’s injuries are predominantly minor and relies on the section 44 neurology report dated March 7, 2022, prepared by Dr. Jamsheed Desai, the section 44 psychology report dated March 7, 2022 prepared by Dr. Zubina Ladak, psychologist, the physical medicine report dated March 7, 2022, prepared by Dr. Michael Ko, physician.
30I find that the evidence consistently indicates that the applicant has an accident-related concussion. The CNRs of St. Mary’s Hospital, dated October 16, 2021, signed by Dr. Baljit Kaliraj, emergency physician indicated that while attending the Emergency Department the applicant complained of body pain, feeling lightheaded, and photosensitivity one day after the accident. Dr. Kaliraj ordered a Head CT and notes a diagnosis of “brain concussion” and “soft tissue injury.” While the Head CT performed on the same visit, prepared by Dr. Michelle Perillo, physician, notes “No intercranial bleed or space-occupying lesion. No CT evidence of acute or evolving infarct. No hydrocephalus. No calvarial fracture.” The emergency records indicate the applicant was diagnosed with a concussion.
31Similarly, the CNRs of Dr. Karaul, physician, with the Onyx Urgent Care Clinic dated January 5 and January 24, 2022 and Dr. Karaul indicate the applicant complained of ongoing symptoms of headaches, dizziness, mood swings, play sensitivity, and blurred vision since the date of the accident. I place weight on these CNRs because they indicate that the applicant continued to complain of concussion symptoms within three months of the accident and the complaints are consistent with the Emergency Department notes.
32My conclusion is further supported by the section 44 neurology assessment, dated March 7, 2022, prepared by Dr. Jamsheed Desai, neurologist. The report notes that the applicant self-reported daily headaches after the accident and “photophobia, phonophobia, and occasional nausea/vomiting (about once per week)” and the applicant “has likely sustained low-grade concussion.” In my view, Dr. Desai’s diagnosis, five months after the accident, is consistent with the applicant’s ongoing complaints of headaches, dizziness, mood swings, and blurred vision that were noted shortly after the accident in the CNRs of Dr. Karaul.
33The respondent’s submission suggests that the applicant’s injuries were less severe because the section 44 psychology report prepared by Dr. Ladak, psychologist, dated March 7, 2022, notes “some over-reporting” of symptoms by the applicant. Similarly, the section 44 physical medicine and rehabilitation assessment report, prepared by Dr. Michael Ko, physiatrist, also notes “pain amplification behaviours”. The reports note the applicant’s self-reporting with regards to concussion symptoms, however, the question before me in relation to the MIG is whether the applicant has a non-minor injury, not the extent of his related symptomology or pain more than six months later. I find that the preponderance of this evidence, as set out above, supports that the applicant sustained an accident-related concussion.
34In sum, I am not persuaded by the respondent’s submissions. I find that because more than one medical professional has noted concussion-related symptoms or possible concussion, I favour the evidence put forward by the applicant and find that it satisfies the applicant’s onus on a balance of probabilities.
35Having found on a balance of probabilities that the medical evidence indicates that the applicant sustained concussion related injuries as a result of the accident, it is unnecessary to address the other exclusion criteria (e.g. left wrist fracture and psychological injuries) that he is claiming. The applicant is removed from the MIG.
Income Replacement Benefit
36To receive payment for an IRB under section 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 his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
37The applicant submits he is entitled to an income replacement benefit in the amount of $400.00 per week from March 16, 2022 to February 5, 2023. The applicant relies on the OCF-2/Employer’s Confirmation Form dated November 29, 2021 from his employer Power Take Off, and the OCF-3/Disability Certificate dated December 22, 2021.
38The respondent submits that the quantum of IRB is not in dispute and the applicant has not met his onus to demonstrate entitlement. The respondent argues that the applicant returned to work on November 1, 2021 and resigned on January 28, 2022 due to problems with his work permit, and not because of accident-related injuries or impairments. It relies on the letter of employment dated September 23, 2021, the OCF-2 dated November 29, 2021, the OCF-2 dated February 4, 2022, and an email from Power Take Off dated February 3, 2022.
39The OCF-3 prepared by Ravikumar Pandya, physiotherapist, notes the applicant’s injuries include concussion, postconcussional syndrome, headache, dizziness, abnormalities of gait, whiplash associated disorder two with neck and lower back, wrist and foot pains. In Part 6 Disability Tests and Information Mr. Pandya indicates the applicant suffers a complete inability to carry on a normal life, he is unable to perform the essential tasks of his employment and notes the applicant has returned to work November 1, 2021.
40The OCF-2 prepared by Paul Carter, Director of Software Development, dated November 29, 2021 notes in Part 6 Employment Details “Desk job using a computer”. However, the applicant provided no submissions on what the essential tasks of his employment are, how or whether he was substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident, or why he suffers a complete inability to perform this employment.
41I am not persuaded by the applicant’s submissions because he has not detailed the essential tasks of his employment, whether he is substantially unable to perform the essential tasks, or why he suffers a complete inability to perform in his employment. I find that the applicant has not met his onus of proving, on a balance of probabilities, that he is entitled to IRB in the amount of $400.00 per week for the period of March 16, 2022 to February 23, 2023.
Section 36(4) of the Schedule
42I find that the applicant has not established that the IRB is payable due to non-compliance with section 36(4) of the Schedule.
43Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3/Disability Certificate, the respondent shall pay the benefit, give the applicant a notice of the medical and any other reasons why it will not pay the benefit, or request additional information pursuant to section 33(1) or 33(2) of the Schedule.
44The applicant argues that the respondent’s explanation of benefits dated March 9, 2022 fails to provide detailed medical and other reasons for the denial of the IRB.
45The respondent submits that the March 9, 2022 letter provides sufficient reasons for the denial and the letters are valid.
46I find the explanation of benefits dated March 9, 2022 and March 29, 2022 fulfills the requirements of section 36(4)(c). The letters clearly state, “your [income replacement] benefit will be stopped effective March 15, 2022.” The letter goes on to state that all of the section 44 assessors, including Dr. Ko, Dr. Ladak, and Dr. Desai, note the applicant “does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a software developer.” In my view, this letter provides a clear medical explanation in that it refers to the opinions of Dr. Ko, Dr. Desai, and Dr. Ladak for why the benefit will not be paid.
47As such, I find the applicant has not met his burden to prove that the IRB in the amount of $400.00 per week for the period of March 16, 2022 to February 23, 2023 is payable under section 36.
48To receive treatment for an OCF-18 under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
49The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Is the applicant is entitled to $1,289.62 for a concussion assessment proposed by Dr. Joel Dixon?
50I find the applicant has demonstrated on a balance of probabilities that the concussion assessment is reasonable and necessary.
51The plan was dated April 25, 2022 for a concussion assessment proposed by Dr. Joel Dixon, chiropractor. The plan proposes 2 sessions for an assessment for a total of $225.62, with goals of pain reduction, increased range of motion, post-concussion symptom scale, return to activities of normal living, return to pre-accident work activities, return to modified work activities with progress to be evaluated using the post-concussion symptom scale, visual-vestibular assessment through saccade analytics, VR eye tracking technology, and neurocognitive assessment through defense automated neurocognitive assessment. The remaining items in the treatment plan include the session for “disability, pre-104 weeks”, ten sessions for physical rehabilitation, and ten sessions for exercise, that are not part of the concussion assessment.
52The applicant submits that he sustained a low-grade concussion as a result of the accident and relies on the section 25 post-injury assessment and the CNRs of Dr. Natarajan and Dr. Karaul dated January 5, 2022 and January 24, 2022.
53The respondent submits the applicant has not met his onus and he has not provided medical evidence to show the assessment is reasonable and necessary.
54I have already removed the applicant from the MIG based on his diagnosed concussion based on the medical evidence outlined above. In my view, this evidence, including Dr. Natarajan and Dr. Karaul’s CNRs and the CNRs of St. Mary’s Emergency Department, support a finding that the applicant has concussion related symptoms that warrant further investigation.
55I find the applicant has made persuasive submissions with respect to why the concussion assessment part of the plan is partially reasonable and necessary, especially in light of the fact that the plan is dated within three months of the referral from the doctor’s visit, and within six months after the accident. The plan specifies how the proposed goals would be met to a reasonable degree and the concussion assessment costs of achieving the goal are reasonable.
56I find on a balance of probabilities that the applicant is entitled to a concussion assessment in amount of $225.62. The remaining session for “disability, pre-104 weeks”, ten sessions for physical rehabilitation, and ten sessions for exercise, that are not part of the concussion assessment is denied.
Is the applicant entitled to $2,344.94 for a driving evaluation proposed by All Health Medical Centre?
57I find that the applicant has not demonstrated on a balance of probabilities that the plan for a driving evaluation is reasonable and necessary.
58The plan was dated June 18, 2022 for a driving evaluation proposed by Shankari Sivarajasingam, occupational therapist with All Health Medical Centre. The plan includes preparation services, one session for assessment, transportation to treatment, provider mileage, mental health and addictions test, documentation, and support activity totalling $2,344.94. The goals of the plan are pain reduction, return to pre-accident level of psychological functioning, and return to activities of daily living. Progress will be monitored by performance of psychological testing.
59The applicant submits the plan was denied by the insurer in a letter dated June 28, 2022, based on the opinion of the section 44 prepared by Dr. Ladak, psychologist. The applicant makes no other submissions and does not point me to any corroborating evidence to demonstrate this plan is reasonable and necessary.
60The respondent submits the applicant has not met his onus to demonstrate the treatment plan is reasonable and necessary and provided no evidence in support of the assessment. The respondent relies on the section 44 insurer’s examinations.
61I find that the applicant has not met his onus with respect to why the plan for a driving evaluation is reasonable and necessary, especially in light of the fact that the plan is dated eight months after the accident and the applicant has not directed me to evidence in support of a driving evaluation being reasonable and necessary.
Is the applicant entitled to $2,200.00 for a psychological assessment proposed by All Health Medical Centre?
62I find that the applicant has not demonstrated on a balance of probabilities that the plan for a psychological assessment is reasonable and necessary.
63The plan dated February 8, 2022 for a psychological assessment was proposed by Madalina Prostean, occupational therapist. The plan proposes one assessment and one session of documentation support activity totalling $2,200.00. The goals of the plan are pain reduction, return to pre-accident level of psychological functioning, return to activities of normal living. The plan notes progress will be evaluated by performance on psychological testing.
64The applicant submits he has mild adjustment difficulties and relies on Dr. Jha’s section 25 neurological assessment dated November 5, 2024 and portions of Dr. Ladak’s section 44 report.
65Dr. Jha’s section 25 report notes it “may be beneficial to monitor and influence behaviour due to the psychological findings”. However, I place less weight on Dr. Jha’s section 25 report because the report is based on the applicant’s self-reporting, it is out of scope for a neurologist to provide a psychological diagnosis, the report is three years after the accident, and the findings are not corroborated by other medical evidence.
66The respondent submits the applicant has not met his onus to demonstrate the treatment plan is reasonable and necessary and provided no medical evidence in support of the assessment.
67I find the applicant has not met his onus with respect to why the plan for a psychological assessment is reasonable and necessary. I conclude on a balance of probabilities that the treatment plan is not reasonable and necessary.
Is the applicant entitled to $2,280.00 for a concussion assessment proposed by All Health Medical Centre?
68I find that the applicant has not demonstrated on a balance of probabilities that the plan for a second concussion assessment is reasonable and necessary.
69The plan dated April 5, 2024 for a concussion assessment was proposed by Dr. Mikhail Shteynberg, chiropractor. The plan proposes one assessment, one session of documentation support activity, and claimant transportation. The goal of the plan is to determine the extent of impairment and return to activities of normal living. The plan states the evaluation of the goals is “n/a”.
70The applicant relies on the section 25 neurological assessment prepared by Dr. Jha and the concussion assessment prepared by Dr. Shteynberg. Dr. Jha’s and Dr. Shteynberg’s reports note the applicant sustained a mild traumatic brain injury. However, the applicant has not directed me to evidence that an additional concussion assessment is required.
71I place less weight on the section 25 reports because I was not directed to contemporaneous objective medical evidence in support of an additional concussion assessment.
72The respondent submits the applicant has not met his onus to demonstrate the treatment plan is reasonable and necessary and argues the applicant provided no medical evidence in support of the assessment. The respondent argues the applicant has not sought any medical treatment since January 2022 and relies on the section 44 reports prepared by Mr. Bullard, Dr. Ko, Dr. Ladak, and Dr. Desai.
73The plan is dated some 30 months after the accident. The applicant has not established that a second concussion assessment 30 months after the accident is reasonable and necessary. I find therefore that the applicant has not met his onus on a balance of probabilities with respect to why the plan for a second concussion assessment is reasonable and necessary.
Is the applicant entitled to $2,570.00 for a neurological assessment proposed by All Health Medical Centre?
74I find the applicant has demonstrated on a balance of probabilities that the plan for a neurological assessment is reasonable and necessary.
75The plan dated April 5, 2024 for a neurological assessment was proposed by Dr. Vincenzo Basile, neurologist. The plan proposes one assessment, preparation services, documentation support activity, and documentation support activity for claim form, and claimant transportation to treatment. The goals of the plan include pain reduction, increased range of motion, increase in strength, treatment recommendations and will be evaluated by return to activities of normal living and identifying impairments and help achieve maximum recovery.
76I am directed to Dr. Jha’s section 25 neurological assessment that notes the applicant’s cognitive reserve has declined and Dr. Shteynberg’s section 25 concussion assessment. In my view, the applicant has displayed symptoms and deficits in the areas of balance, motor processing and memory that are related to the accident-related concussion.
77The respondent relies on Dr. Desai’s section 44 neurology assessment that included a review of the applicant’s diagnostic imaging, current symptoms, and in-person physical examination. Dr. Desai recommends the applicant use amitriptyline for three months complemented with over-the-counter magnesium and riboflavin. I find it is reasonable to assume the applicant’s low-grade concussion and possible musculoskeletal injuries are accident-related injuries that require further investigation.
78In my view, the applicant has established on a balance of probabilities that a neurological assessment is reasonable and necessary.
Interest
79Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the April 25, 2022, OCF-18 for the concussion assessment and the April 5, 2024, OCF-18 for the neurological assessment is payable, interest is payable on these benefits.
Award
80The 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. 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 threshold.
81The applicant submits the respondent has failed to continually adjust the file, failed to account for medical evidence that did not align with their position, and maintained the untenable position of keeping the applicant in the MIG.
82The respondent submits that its conduct in this case does not give rise to a special award and relies on S.M. v. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT). The respondent argues the denials are based on valid reasons and medical reports.
83It is well settled that insurers are not held to a standard of perfection in their adjusting decisions and that a section 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment.
84I find the respondent’s behaviour does not amount to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate because the respondent conducted multiple insurer’s examinations to re-evaluate the applicant’s medical status under the MIG during the claim, which I find does not support the applicant’s claim that the respondent failed to continually adjust the file. Therefore, I find the applicant is not entitled to an award.
ORDER
85For the reasons above, I find that:
i. The applicant’s injuries warrant removal from the MIG.
ii. The applicant is not entitled to an IRB.
iii. The applicant is entitled to $252.62 for the concussion assessment in a plan dated April 25, 2022, and the neurological assessment in a plan dated April 5, 2024, plus interest.
iv. The applicant is not entitled to the remaining treatment plans.
v. No award is payable.
Released: February 10, 2026
Aric Bhargava
Adjudicator