Alli v. Aviva Insurance Company of Canada, 2026 CanLII 4148

Citation: Alli v. Aviva Insurance Company of Canada, 2026 ONLAT 24-004989/AABS

Licence Appeal Tribunal File Number: 24-004989/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:

Amina Alli

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Milad Haghani, Counsel

For the Respondent:

Simran Walia, Counsel

HEARD:

In Writing

Overview

1Amina Alli, the applicant, was involved in an automobile accident on March 10, 2023, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Issues

2The issues to be decided are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit?
2. Is the applicant entitled to $210.81 ($1,300.04 less $1,089.23 approved) for chiropractic services, proposed by HealthMax-Etobicoke, in a treatment plan/OCF-18 (“plan”) submitted July 23, 2023?
3. Is the applicant entitled to $5,168.41 for chiropractic, physiotherapy and massage services, proposed by HealthMax-Etobicoke, in a plan submitted August 18, 2023?
4. Is the applicant entitled to $2,486.00 for psychological assessment, proposed by Pinnacle Health Network, in a plan submitted November 27, 2023?
5. Is the applicant entitled to $3,175.00 ($5,375.60 less $2,200.00 approved) for physiotherapy services proposed by HealthMax-Etobicoke, in a plan submitted April 24, 2023?
6. Is the applicant entitled to $4,959.57 for psychological services proposed by Pinnacle Health Network, in a plan submitted February 21, 2024?
7. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the applicant entitled to interest on any overdue payment of benefits?
9. Is the applicant entitled to Costs pursuant to Rule 19?

3The respondent submits that issues 4 and 5 above have been approved in full and are no longer in dispute. The applicant did not make reply submissions confirming or denying the approvals. I accept the respondent’s submissions and find these issues are no longer in dispute and will not be decided as part of this decision.

Result

4I have considered the parties submissions and the evidence to which I was directed, and I find the following.

1. The applicant is not subject to the Minor Injury Guideline limit for treatment.
2. The applicant is not entitled to the denied amount of $210.81 for chiropractic services.
3. The applicant is entitled to the amount of $3,006.69, which is a partial approval of the treatment plan submitted in the amount of $5,168.41 for chiropractic, physiotherapy and massage services.
4. The treatment plan in the amount of $2,486.00 for a psychological assessment has been approved and is no longer in dispute.
5. The treatment plan in the amount of $3,175.00 ($5,375.60 less $2,200.00 approved) for physiotherapy services has been approved and is no longer in dispute.
6. The applicant is entitled to the amount of $4,959.57 for psychological services.
7. The respondent is not liable to pay an award under s. 10 of Reg. 664.
8. The applicant is entitled to interest on any overdue payment of benefits.
9. The applicant is not entitled to Costs.

Procedural Issues

Challenge of Respondent’s Experts

5On May 9, 2025, the applicant filed a notice of motion to challenge the respondent’s expert witnesses, Dr. Heitzner, physiatrist, and Dr. Mandel, psychologist, pursuant to Rule 10.4 of the Licence Appeal Tribunal Rules, 2023, on the grounds that their reports are flawed, biased, and/or deficient in content and/or quality. The applicant sought relief of excluding the experts’ reports, or in the alternative, to assign them little weight.

6The respondent filed a response on May 23, 2025, seeking for the motion to be dismissed on the grounds that to exclude the reports would be prejudicial to the respondent, and that the applicant’s submissions are an attempt to add length to their submissions, circumventing the Case Conference Report and Order (CCRO) on length of submissions and causing prejudice to the respondent.

7I do agree with the respondent that the applicant’s motion does circumvent the CCRO in that the applicant’s motion submissions speak directly to the issues in dispute. However, the respondent had the opportunity to respond to the applicant’s motion, and for this reason, I find the additional submissions do not prejudice the respondent.

8I find that the applicant’s submissions do not challenge the credentials of the respondent’s experts, nor set out how the experts are biased or advocating. The applicant’s submissions focus on what evidence each expert relied, their conclusions, and that the respondent relied on the Insurer’s Examination reports instead of the reports provided by the applicant’s assessors. I find these arguments of what weight the Tribunal should assign evidence is not grounds to exclude the experts’ reports.

9The applicant’s motion to exclude the respondent’s experts’ reports is denied. I find the evidence will be considered on its strengths or weaknesses and weight assigned appropriately in due course of the hearing.

Motion to Exclude Late Served Records

10On May 23, 2025, the respondent filed a notice of motion to exclude the family doctor’s records dated July 2023 to November 2023 on the grounds that they were late served on April 21, 2025.

11The respondent submits the CCRO required the parties to exchange: all documents listed in the CCRO within 60 days of the case conference; all other documents upon which they intend to rely at the hearing, within 75 days of the case conference; and responsive documents within 90 days of the case conference. The family doctor’s records from July 2023 to November 2023 were served 130 days after the case conference. The respondent submits the print date on the records is November 7, 2024, well within the required CCRO timeline. Further, the applicant had served family doctor’s records with a date range of December 2023 to July 2024, on October 18, 2024, and no reason has been given as to why the July – November 2023 records were not served at that time. The respondent submits the late service is prejudicial to the respondent because the records were not available to provide to its experts in time for an addendum report.

12The applicant filed a response on May 29, 2025, submitting that the records were provided to the respondent on October 18, 2024. The applicant relies on an email dated October 18, 2024, which indicates the attached records of the family doctor cover the date range of March 10, 2021 to September 9, 2024.

13I note Dr. Raphael Obhiambo, family doctor’s complete clinical notes and records from two years pre-accident to the date of the case conference were listed in the CCRO. I find the email of October 18, 2024, does not prove that the July 2023 to November 2023 records were contained in the attachment. Further, the applicant did not explain why the records were sent to the respondent via email on April 17, 2025 (as per the date on the email), if they had purportedly been already sent on October 18, 2024. I am satisfied that the applicant was not in compliance with the CCRO, and I have not heard a persuasive reason as to why the documents were late served.

14I have also considered that in the s. 25 psychology assessment report to which I was directed, there are details of Dr. Obhiambo’s records dated July 4, 2023, and July 18, 2023, which are part of the late served documents. I note that the respondent had the s. 25 report for review and consideration. I also note that the s. 44 assessor was provided the s. 25 report for review, and could have asked for the records for his personal review. Therefore, I find the respondent had ample opportunity to identify the omission within the records, and ample opportunity to address the records with sufficient time to obtain them and provide them to the s. 44 assessors. I find that if the records are excluded, the accuracy of the references in the s. 25 report cannot be confirmed or denied.

15I find that the records are presumptively relevant to the issues in dispute.

16I find that to mitigate any prejudice against the respondent, the late service will be taken into consideration regarding the issues of the s. 10 award claim and Costs.

17I am denying the respondent’s motion to exclude the records.

Applicant seeking Costs

18In her reply submissions the applicant raises the issue of Costs.

19Rule 19 does provide for a party to request Costs at any time before the decision or order is released. For this reason, Costs have been added as an issue.

20I note the respondent has not made submissions on Costs. However, I have denied Costs for reasons that will follow and therefore submissions from the respondent are not necessary.

Analysis

Minor injury Guideline (MIG)

21I find the applicant is not subject to the MIG limit.

22Section 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.”

23An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of 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.

24The applicant submits that the respondent has paid more than the $3,500.00 limit in funding, and therefore the applicant is no longer subject to the MIG limit. In addition, the approval of a psychological assessment in which the applicant was diagnosed with psychological impairments, should collectively re-classify the applicant as no longer being subject to the MIG limit.

25The respondent submits the applicant did not complain of mental health symptoms until four months post accident, at which time she was referred to a mental health clinic. However, the applicant has not accessed these services, and the respondent submits she has not suffered from anything beyond mere psychological sequelae, which does not remove her from the MIG.

Psychological Impairment

26I find the applicant has a psychological condition as a result of the accident, which warrants the applicant being removed from the MIG limits.

27The applicant relies on the assessment report of Dr. Leon Steiner, psychologist, dated January 21, 2024. Dr. Steiner diagnosed the applicant with Post Traumatic Stress Syndrome (PTSD) and Major Depressive Disorder with Anxious Distress and Somatic Symptom Disorder. Further, the applicant submits that the family physician, Dr. Odhiambo’s records corroborate Dr. Steiner’s findings.

28The applicant submits that the respondent’s expert, Dr. Marc Mandel, psychologist, did not refer to, and therefore, did not consider Dr. Odhiambo’s records, or Dr. Steiner’s report. Nor did Dr. Mandel explain in his report why his findings contradict Dr. Steiner’s findings, or why his own opinion should be preferred. The applicant submits Dr. Mandel’s report contradicts the balance of the medical evidence regarding her functional impairment, does not take into consideration the language barrier, and does not engage with the DSM-5-TR. The applicant submits the s. 25 assessment completed by Dr. Steiner should be preferred because it is more credible and comprehensive, including eight psychometric tests, which provide a more accurate reflection of the applicant’s impairments.

29The respondent submits the applicant has only complained of anxiety three times post accident and has not accessed the outpatient mental health clinic to which she was referred by her family doctor. Further, she has not complained of any psychological issues since August 2023 which indicates that any psychological sequelae have resolved. The respondent also relies on the Insurer’s Examination assessment conducted on December 3, 2024, by Dr. Mandel, report dated December 16, 2024. Dr. Mandel opined that the applicant’s self-reporting is not corroborated by the psychometric testing, and she does not meet the DSM-5 threshold.

30I was directed to the clinical notes and records of the family physician, Dr. Odhiambo. I note that the first mention in Dr. Odhiambo’s records regarding the applicant’s mental health is on July 4, 2023, when she reported “feeling afraid when walking, scared of being knocked over”. Then on July 18, 2023, the applicant reported anxiety when she leaves home, and expressed a fear of cars. I was also directed to a referral letter from Dr. Odhiambo. The records evidence that the applicant was referred to the Humber River Hospital, Wilson Mental Health by her family physician on August 15, 2023, for “post traumatic anxiety disorder”.

31The applicant reported psychological symptoms to both Dr. Steiner and Dr. Mandel, but she had not attended for any mental health treatment, pre or post accident.

32I am not persuaded by Dr. Mandel’s assessment report because although during the assessment, the applicant is reporting ongoing fear of vehicles and avoidance of being a pedestrian, this information is largely disregarded. Dr. Mandel cites “a lack of consistent objective valid support for the self-reported symptoms of psychological disability”, as the reason he is unable to determine whether the applicant has a psychological condition. However, Dr. Mandel was provided the assessment report of Dr. Steiner who conducted 8 psychometric tests, but Dr. Mandel did not refer to any of the results in his report. Also, I note that Dr. Mandel was not provided the family doctor’s records for review and does not appear to have been aware that the family physician made a referral to an outpatient mental health clinic in August 2023. I find this lack of information weakens Dr. Mandel’s conclusions.

33I find Dr. Steiner’s assessment report to be detailed and extensive in the information on which he relied to make his conclusions. Dr. Steiner concluded that as a result of the accident the applicant suffers with 1) Major Depressive Disorder with Anxious Distress, 2) Post-Traumatic Stress Disorder (encapsulates Specific Phobia - in vehicular/pedestrian), 3) Somatic Symptom Disorder. These are psychological conditions that remove her from the MIG. Further, I find that Dr. Steiner’s diagnoses are supported by her family physician’s referral to the outpatient mental health clinic.

34I find the applicant has proven on a balance of probabilities that as a result of the accident, she has a psychological condition that does not fall within the definition of a minor injury, and should therefore not be subject to the MIG limit for treatment.

Technical Removal from MIG

35I find the applicant is not removed from the MIG under s. 18(5) or s. 38(8) of the Schedule.

36I do not agree with the applicant’s submissions that the cost of the Insurer’s Examinations under s. 44 are included in the MIG limit, nor that the applicant is removed from the MIG because an Insurer’s Examination was conducted. Section 18(5) identifies that assessments and examination and preparing reports are included in the MIG limit, however, these are the s. 25 assessments. Section 18(5)(a) identifies s. 44 examinations as exempt from the MIG limit.

37I agree with the applicant that the respondent did not comply with s. 38(8) in meeting the timeline of 10 business days to respond to the treatment plan for a psychological assessment proposed by Dr. Steiner on November 27, 2023. However, I do not agree with the applicant that because the respondent was not in compliance with s. 38(8) the applicant is removed from the MIG. Section 38(11) refers to the specific treatment plan in question and does not impose a permanent prohibition with respect to whether the impairment is covered by the MIG. Rather, as a result of the non-compliance, the applicant may incur the treatment or assessment starting on the 11th business day and ending on the day the insurer gives a s. 38(8) compliant notice. I find that the non-compliance with s. 38(3) does not remove the applicant from the MIG.

38To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Psychological TPs

Section 25 psychological assessment:

39I find that the applicant acknowledges that the treatment plan proposed by Dr. Steiner on November 27, 2023, for the psychological assessment in the amount of $2,486.00 was approved by the respondent. Where the treatment plan has been approved, I find this treatment plan is not in dispute.

Psychological services:

40I find the applicant is entitled to the treatment plan for psychological services.

41I have reviewed the treatment plan for psychological services proposed by Dr. Steiner at Pinnacle Health Network dated February 15, 2024, in the amount of $4,959.57 submitted February 21, 2024, and denied in full by the respondent on July 30, 2024.

42The treatment plan identifies pain reduction, a return to pre-accident level of physical and psychological functioning, and a return to activities of normal living as the goals of treatment. Evaluation will be conducted through the administration of psychological tests.

43The treatment plan identified that the counselling would be provided by Gilian Abdelaal, psychotherapist for a proposed 16 sessions of 1.25 hours each, at a rate of $187.01 per session, which equates to an hourly rate of $149.61. Also, listed are 16 preparation services of 0.25 hour each at a rate of $149.61 per hour. Dr. Steiner’s services are proposed to include one-hour planning would be conducted by Dr. Steiner at a rate of $149.61 per hour. Three hours of documentation and support activities, which is explained to be time for reassessment and a psychological progress report, as well as $200.00 for documentation support activity for the claim form. For a total cost of $4,959.57.

44The applicant submits the treatment plan of February 21, 2024, was not responded to until December 17, 2024. The letter of denial is deficient because it does not identify the Insurer’s Examination on which it relies, nor does it identify that the MIG applies to her impairments. The applicant relies on the opinion of Dr. Steiner to support that the treatment plan is reasonable and necessary.

45The respondent submits that the denial of the treatment plan was compliant with the Schedule, and that by the time the treatment plan was submitted the applicant’s psychological sequelae had resolved. The respondent relies on the opinion of Dr. Mandel, and therefore the treatment plan is not reasonable and necessary.

46I disagree with the applicant that the letter of denial does not identify the Insurer’s Examination on which it relies. I note that in its denial of this treatment plan, the respondent listed a singular reason for its denial, that being the opinion of Dr. Mandel: “There is a lack of consistent objective information present that would support the prior diagnosis or to suggest that you suffer clinically significant symptoms to indicate a substantial psychological impairment or disability as a direct result of the motor vehicle accident".

47I do agree with the applicant that the respondent has not cited MIG as a reason for the denial. For this reason, I find the notice of denial is not compliant with s. 38.

48Turning now to the question of whether the treatment plan is reasonable and necessary. For the reasons stated above, which removed the applicant from the MIG due to her psychological condition, I find the treatment of her psychological condition is reasonable and necessary. Further, I find the explanation of Dr. Steiner, found in the appendix of the treatment plan is persuasive, because it details the applicant’s condition, expounds on the goals of treatment and benefits of the proposed treatment.

49I find on a balance of probabilities the applicant has proven entitlement to the treatment plan for psychological services, which is reasonable and necessary.

Chiropractic TP

50I find the applicant is not entitled to the amount of $210.81 for chiropractic services.

51I have reviewed the treatment plan for chiropractic services proposed by Pinnacle Health Network in the amount of $1,300.04 proposed by HealthMax-Etobicoke in a plan submitted July 23, 2023, and partially approved in the amount of $1,089.23 on August 3, 2023.

52The treatment plan identifies the goals of pain reduction, increased strength, increased range of motion, and return to activities of normal living. Progress will be evaluated through active and passive range of motion, visual analog pain scale and daily clinical notes. The plan also references orthopaedic, neurological, and chiropractic examinations. The treatment is proposed as three 1-hour chiropractic sessions ($338.43), three 1-hour physiotherapy session ($299.25), two manual therapy sessions ($140.00), two laser treatment session ($300.00), one reassessment ($112.81), OCF-18 completion ($70.00), and pain relief gel ($35.00) for a total of $1,300.04 with applicable tax.

53The applicant submits the denial letter is deficient because the letter does not provide specific details about the applicant’s medical condition that forms the basis of the denial.

54The respondent submits that there is no contemporaneous evidence to support that this treatment plan is reasonable and necessary. The respondent relies on the physiatry assessment of Dr. Heitzner who opined the applicant sustained minor injuries. The treatment plan was approved within the MIG limits, and the remainder has been properly denied.

55I disagree with the applicant that the letter of denial is deficient. The letter clearly indicates which treatment plan is being denied, that there is no evidence of a pre-existing condition that would remove the applicant from the MIG, and that MIG is applicable. The letter also invites the applicant to submit medical documentation that supports removal from the MIG. The letter of denial provides reasons for the partial funding and indicates that the massage therapy will be funded at a rate of $58.19 as per the Professional Services Guideline, not the listed $70.00 per hour, which represents a decrease from $140.00 to $116.38, a difference of $23.62. Also, the laser treatment will be funded based on the Professional Services Guideline of the individual who preforms the treatment, either the chiropractor or the physiotherapist. I find the notice is compliant with s. 38 of the Schedule.

56Turning to whether the balance of the treatment plan is reasonable and necessary, I have not heard submissions from the applicant as to why the Professional Services Guideline rates should not apply.

57If the laser treatment is provided by the chiropractor the cost would be $56.41 per 30-minute session, or $112.81, which represents a $187.18 decrease from $300.00. If the laser treatment is provided by the physiotherapist the cost would be $49.88 per 30-minute session, or $99.76, which represents a $200.24 decrease from $300.00 as listed on the treatment plan. I find that these denials, based on the Professional Services Guideline rates are appropriate.

58I find the applicant has not proven on a balance of probabilities that she is entitled to the $210.81 denied in the treatment plan.

Physiotherapy TP

59I find the respondent has approved the remaining cost of the physiotherapy treatment plan dated April 24, 2023, in the amount of $3,175.00. The treatment plan was submitted in the amount of $5,375.60 and was partially approved in the amount of $2,200.00. Having been approved in full, this issue is no longer in dispute.

Combined TP

60I find the applicant is partially entitled to the treatment plan submitted in the amount of $5,168.41 for chiropractic, physiotherapy and massage services. I approve the amount of $3,006.69 for the reasons that follow.

61I have reviewed the treatment plan for chiropractic, physiotherapy and massage services, in the amount of $5,168.41 proposed by HealthMax-Etobicoke in a plan submitted August 18, 2023, and denied by the respondent on October 16, 2023.

62The treatment plan proposes pain reduction, increase in strength, increased range of motion, return to activities of normal living, and to improve overall function. Evaluation will be through active and passive range of motions, orthopaedic, neurological and chiropractic examinations, visual analog pain scale and daily clinical notes.

63The proposed costs of the treatment plan are as follows: ten one-hour sessions of chiropractic at a rate of $112.81 per hour; Ten one-hour sessions of physiotherapy at a rate of $99.75 per hour; Six sessions of manual (massage) therapy at a rate of $70.00; Six sessions of laser treatment at a rate of $150.00 (30 minutes per session); five sessions of shockwave therapy at a rate of $200.00 (30 minutes per session); Six sessions of acupuncture at a rate of $90.00 per session; re-assessment at a cost of $112.81; and completion of an OCF-18 at a cost of $70.00. An overall cost of $5,168.41.

64The applicant submits that Dr. Heitzner’s report implies that part of the treatment plan may be reasonable and necessary. Also, in determining that the treatment plan is excessive he fails to consider progression of her symptoms and objective findings in the medical records. The applicant relies on the family doctor’s records of June 26, 2023, July 4, 2023, and September 26, 2023, to which Dr. Heitzner indicates he did not have access to. The applicant submits Dr. Heitzner’s opinion is limited by the lack of objective medical records.

65The respondent submits that it properly relied on the Insurer’s Examination conducted by Dr. John Heitzner, physiatrist, report dated October 12, 2023. Dr. Heitzner opined that the applicant’s injuries are soft tissue in nature and would be defined under the Minor Injury Guideline. From a musculoskeletal point of view, she had self-restricted range of motion involving her neck, left shoulder, thoracic and lumbosacral spine and left upper extremity, with no objective neurological impairments. The treatment plan is excessive and therefore, the entirety of the plan is not reasonable or necessary.

66I have considered that on August 15, 2023, three days before the treatment plan was completed, the applicant’s family physician’s records indicate she is on medication for pain to help reduce discomfort, she is attending physio, she has recurrent arm and leg pains. On September 26, 2023, one day before Dr. Heitzner’s physiatry assessment, the family physician’s records indicate the applicant reported lower back pain that is worse when walking, and left shoulder pain. The family physician’s objective findings were lower back pain, and left shoulder pain when elevating to 90 degrees. Also, medication for pain was prescribed. I note that there was not a recommendation for therapy, however, the record indicates the applicant is attending therapy, thus a recommendation was not needed. The applicant’s reporting of back and body pain continue on April 23, 2024.

67I find that Dr. Heitzner’s assessment report primarily addresses whether the applicant’s injuries are within the MIG, and appears to opine that the treatment plan is not reasonable or necessary because of the MIG funding limit. Although he opines that the treatment plan is excessive, he does not provide an explanation as to what about it is excessive. Dr. Heitzner also acknowledges that he does not have medical or treatment records to review or consider. I find that without these records, Dr. Heitzner’s conclusions are less persuasive.

68I find that the records of the family doctor support that ongoing physical therapy is recommended, and therefore, physical treatment is reasonable and necessary.

69I find that the treatment plan in dispute has proposed modalities that would be administered in the course of treatment during a therapeutic session. To assign a cost to the modalities in addition to the treatment sessions is duplicitous. Therefore, I am denying six sessions of laser treatment at a rate of $150.00 per session ($900.00) and five sessions of shockwave therapy at a rate of $200.00 per session ($1,000.00); I am also applying the Professional Services Guideline amount to the six sessions of massage and acupuncture.

70I find the following portion of the treatment plan is reasonable and necessary: Ten one-hour chiropractic sessions at a rate of $112.81 ($1,128.10); Ten one-hour physiotherapy sessions at a rate of $99.75 ($997.50); Six one-hour sessions of massage therapy at a rate of $58.19 ($349.14); Six acupuncture sessions at a rate of $58.19 per hour ($349.14); One reassessment to be completed by the chiropractor at a rate of $112.81 per hour; and $70.00 for the completion of the OCF-18. A total cost of $3,006.69.

71I find the applicant has proven entitlement to $3,006.69 in physical treatment, on a balance of probabilities.

Interest

72Having found that the applicant is entitled to the treatment plans noted above, interest applies pursuant to s. 51 of the Schedule.

Award

73I find that the applicant is not entitled to a s. 10 award under Reg. 664.

74The 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.

75The CCRO indicates that an award is being sought. However, I have not received submissions from the applicant on this issue.

76I find the applicant has not met its onus to prove on a balance of probabilities that the respondent has unreasonably withheld or delayed the payment of benefits.

Costs

77I find the applicant is not entitled to costs.

78The applicant is seeking costs on the grounds that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith due to frequent alleged “errors” through the course of adjusting this claim. The applicant submits that an overview of the respondent’s conduct strongly suggests intent, and that a cost awarded would be a deterrent and penalty against improper behaviour.

79I have not received submission from the respondent on this issue, nor did I request submissions. I am not persuaded that the errors are intentional, and I find that mistakes do not rise to a level of having acted unreasonably, frivolously, vexatiously, or in bad faith.

Order

80For the reasons above, I find the following:

i. The applicant is not subject to the Minor Injury Guideline limit for treatment.

ii. The applicant is entitled to:

a) The amount of $4,959.57 for psychological services.

b) The amount of $3,006.69, which is a partial approval of the treatment plan submitted in the amount of $5,168.41 for chiropractic, physiotherapy and massage services.

c) Interest on any overdue payment of benefits.

iii. The applicant is not entitled to the denied amount of $210.81 for chiropractic services.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

v. The applicant is not entitled to Costs.

vi. These issues are not in dispute, and therefore not part of this decision:

a) The treatment plan in the amount of $2,486.00 for a psychological assessment has been approved.

b) The treatment plan in the amount of $3,175.00 ($5,375.60 less $2,200.00 previously approved) for physiotherapy services has been approved in full.