Citation: Cruz v. Co-operators General Insurance Company, 2026 ONLAT 24-014629/AABS

Licence Appeal Tribunal File Number: 24-014629/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:

Teri-Ann Cruz

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Meghan Fyall, Counsel

For the Respondent:

Eric K. Grossman, Counsel

Rebecca J. Brown Greer, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1Teri-Ann Cruz, the applicant, was involved in an automobile accident on October 2, 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, Co-Operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue in dispute is:

1. Is the applicant barred from proceeding to a hearing for the substantive issue 1(i) because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?

SUBSTANTIVE ISSUES

3The issues in dispute are:

1. Is the applicant entitled to the treatments proposed by Innovative Occupational Therapy Services, as follows:

i. $6,033.60 for occupational therapy services, in a treatment plan (“OCF-18”) dated April 24, 2024;

ii. $7,073.12 for occupational therapy services, in an OCF-18 dated January 6, 2025.

2. Is the applicant entitled to the assessments proposed by Critical Trauma Therapy, as follows:

i. $4,892.00 for a mental health driving assessment, in an OCF-18 dated January 17, 2025; and

ii. $2,225.00 for a dietician assessment, in an OCF-18 submitted January 17, 2025?

3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

4. Is the applicant entitled to interest on any overdue payment of benefits?

4The applicant confirmed in her submissions that issues 1, 2(ii), and 3(i), as listed on the Case Conference Report and Order, dated March 12, 2025 (“CCRO”), have been withdrawn.

PROCEDURAL ISSUE

5The applicant submits that given issue 1 and 2(ii), as listed on the CCRO have been withdrawn, there is no longer a preliminary issue to be heard.

6The respondent submits that there is still a preliminary issue with respect to issue 2(i) as listed on the CCRO. The respondent also submits that where issue 2(ii) and (iii) are the exact same OCF-18, albeit with different dates, the preliminary issue for this OCF-18 also remains.

7The CCRO identified the following issues in dispute:

Preliminary Issue:

1. Is the applicant barred from proceeding to a hearing for the following benefits: Issues 1, 2(i) and 2(ii) because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

Substantive Issues:

1. Is the applicant entitled to attendant care benefits in the amount of $1,431.76 per month from June 24, 2024, and ongoing?

2. Is the applicant entitled to the treatments proposed by Innovative Occupational Therapy Services, as follows:

i. $6,033.60 for occupational therapy services, in a treatment plan/OCF-18 dated April 24, 2024;

ii. $7,073.12 for occupational therapy services, in a treatment plan/OCF-18 dated June 24, 2024; and,

iii. $7,073.12 for occupational therapy services, in a treatment plan/OCF-18 dated January 6, 2025.

3. Is the applicant entitled to the assessments proposed by Critical Trauma Therapy, as follows:

i. $2,621.60 ($5,107.60 less $2,486.00 approved), for a psychological assessment, in a treatment plan/OCF-18 dated August 26, 2024;

ii. $4,892.00 for a mental health driving assessment, in a treatment plan/OCF-18 dated January 17, 2025; and

iii. $2,225.00 for a dietician assessment, in a treatment plan/OCF-18 submitted January 17, 2025.

4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

5. Is the applicant entitled to interest on any overdue payment of benefits?

8I have reviewed the CCRO and submissions of the parties, and I find that issue 2(i), and OCF-18 for occupational therapy services dated April 24, 2024, in the amount of $6,033,60, as listed on CCRO (issue 1(i) to the within hearing), is still in dispute. Therefore, the preliminary issue with respect to issue 1(i) remains live.

9However, despite the respondent’s assertion that the OCF-18s with respect to issue 2(ii) and (iii) as listed on the CCRO are the same, I find that the OCF-18s were completed by different practitioners and dated in different years. I also find that the applicant did not have notice of this preliminary issue given that it was not listed on the CCRO as a preliminary issue in dispute. As such, I find that there is no active preliminary issue with respect to substantive issue 1(ii) to the within hearing, nor will I add a preliminary issue with respect to issue 1(ii) to this hearing.

RESULT

Preliminary Issue

10The applicant is statute-barred from proceeding to a hearing for the substantive issue 1(i), occupational therapy services in the amount of $6,033.60, dated April 24, 2024, as she failed to attend a properly scheduled s. 44 IE.

Substantive Issues

11The applicant is entitled to the treatment plans for a mental health driving assessment, dated January 17, 2025, in the amount of $4,892.00, and a dietician assessment, dated January 17, 2025, in the amount of $2,225.00, and partially entitled to the treatment plan for occupational therapy services dated January 6, 2025, plus interest.

12The applicant is not entitled to an award.

PRELIMINARY ISSUE ANALYSIS

Is the applicant barred from proceeding to a hearing for issue 1(i)?

13I find that the applicant is statute-barred from proceeding with issue 1(i).

14Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which the application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

15The requirements for a Notice of Examination (“NOE”) are set out in s. 44(5) of the Schedule:

1. If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out:

i. The medical and other reasons for the examination;

ii. Whether the attendance of the insured person is required at the examination;

iii. The name of the person or persons who will be conducting the examination, any regulated health profession to which they belong and their titles, designations indicating their specialization, if any, in their professions; and

iv. If the attendance of the insured person is required at the examination, the day, time, and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

16Section 44(6) stipulates that the respondent must give no less than five business days notice before the examination.

17Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied with its request for attendance.

18The respondent submits that the NOE, dated July 11, 2024, complied with s. 44(5) and (6) of the Schedule. The respondent submits that the two denial letters dated May 3, 2024 and June 27, 2024, as well as the NOE, gave detailed medical and other reasons for the examination.

19The applicant submits the respondent failed to acknowledge that this treatment plan was submitted on December 13, 2022, and denied based on being within the Minor Injury Guideline (“MIG”). The applicant submits that the respondent cannot deny a treatment plan based on the MIG, remove the applicant from the MIG, sit on the improper denial for over a year, ignore correspondences sent to them, and then claim a non-attendance for an insurer’s examination that was not requested for nearly two years following the submission of the plan. The applicant submits that it is unfair and prejudicial for an insurer to not request an IE when denying a plan, let the applicant incur the benefit based on the denial and then nineteen months later, request an IE, to justify improperly denying the benefit. The applicant submits the preliminary issue ought to be dismissed.

20I find that upon review of the evidence, the respondent sent letter correspondence to the applicant on July 11, 2024, indicating that it required she undergo an IE with occupational therapist, Mr. Tony Jung on July 30, 2024. Further details of the IE were provided in the attached NOE.

21The NOE dated July 11, 2024, indicates that the IE with Mr. Jung, was scheduled for July 30, 2024, to assess the applicant’s entitlement to the treatment plan dated December 12, 2022 in the amount of $6,033.60, an additional treatment plan for occupational therapy in the amount of $7,073.12 (date unclear), and to address the Form 1 dated May 30, 2024.

22Although the applicant did not reference or refer to this letter, the respondent points me to letter correspondence dated July 26, 2024, from the applicant’s representative to the respondent that states:

“We confirm Ms. Cruz intends on attending all scheduled assessments provided that you grant her meaningful responses to the questions and concerns raised in this correspondence.

With respect, your reasons are vague and boilerplate, and do not address why Ms. Cruz is reasonably required to attend the examination.

The Cooperator’s are flagrantly non-compliant with section 44(5)(a) of the SABS as a result of its failure to give any meaningful reasons, for requiring Ms. Cruz to attend the scheduled examination.”

23The respondent sent letter correspondence to the applicant’s representative in response on July 29, 2024, indicating that it had satisfied all conditions outlined in s. 44 of the Schedule, and asked that the applicant confirm attendance for the occupational therapy IE scheduled with Mr. Jung on July 30, 2024. The respondent also indicated in its letter dated July 29, 2024, that failure to attend, among other things, may result in the denial of the benefit for which the IE relates.

24I am satisfied that Confirmation of No Show, dated July 31, 2024, confirms that the applicant did not attend the scheduled IE for July 30, 2024.

25I find that the NOE provided by the respondent was proper and that the applicant’s failure to attend this assessment bars her from proceeding with her claim for the treatment plan submitted on April 24, 2024, for the following reasons.

26First, I am satisfied that the NOE provided comprehensive reasons for the assessments which satisfy the requirements of the Schedule. While I will not include the entirety of the lengthy explanation, I extract three passages of significance:

“The medicals from Citrus Medical Centre did not appear to have supporting medical documentation of the full physical or cognitive impairments as listed in the OT submission letter, the submitted (OCF-18) or the statutory declaration including left jaw, ear pain, bilateral shoulder pain, visual disturbances, balance impairments, sleep disturbances, dizziness, changes in hearing (ringing of ears) fatigue & nausea/vomiting, headaches. Further to that, there did not appear to be a diagnosis of a concussion after the accident in the records provided from Citrus Medical Centre. The physical injuries that were noted in the records from Citrus Medical Centre on January 24, 2023 were chronic pain in hip, neck and back, no recommendations or referrals from a physical perspective were provided before or after that date for these injuries aside from noting physiotherapy and no updates on your current physical status were indicated after January 24, 2023.

Based on the information on file it is not clear that (OCF 18) for Occupational Therapy would have been reasonably required as a result of injuries sustained in the motor vehicle accident as there is no medical documentation supporting the physical or cognitive impairments noted in the OT Initial Submission Letter dated December 14, 2022 completed by Sheila Don, Occupational Therapist or on the submitted (OCF 18).

Given the lack of medical evidence presented to explain and support the conclusions for Occupational Therapy treatment recommendations, we require further information on this point and would like to obtain an opinion from a qualified health practitioner to determine if the treatment plan from Innovative Occupational Therapy Services is medically reasonable and/or necessary for your recovery and why.”

27The applicant may choose to not agree with the reasons provided by the respondent, but that does not unilaterally render the NOE non-complaint with s. 44(5) of the Schedule. I find the NOE to be clear, including a particularly detailed account of the applicant’s medical record as it would relate to the requested treatment plan and the reasons why the respondent required the IE.

28Second, the applicant did not make submissions with respect to her non-attendance. As I have stated above, the letter correspondence from the applicant’s representative to the respondent dated July 26, 2024 was provided by the respondent. The applicant does not reference this letter in her submissions, nor does the applicant restate any of its contents in her submissions in support of her non-attendance to the IE. Moreover, the applicant does not provide submissions or evidence of a reasonable explanation for the non-attendance. The purpose of s. 44(5)(a) of the Schedule, is to protect an insured from unreasonable or unnecessary assessments, not to provide a shield for an applicant not to attend.

29Third, I find that the respondent’s timing for the request for the IE to be reasonable. I have summarised a brief timeline of the submissions and denial of the subject OCF-18 as follows:

1. On December 13, 2022, the treatment plan for occupational therapy services, dated December 12, 2022, was submitted to the respondent for consideration.

2. On December 19, 2022, the respondent denied the OCF-18 for occupational therapy services citing the applicant’s injuries were predominantly minor and therefore subject to the MIG.

3. On February 22, 2023, the respondent sent letter correspondence to the applicant indicating that the applicant was removed from the MIG due to “significant anxiety”.

4. On April 4, 2024, the applicant’s representative sent email correspondence to the respondent asking it to reverse various denials for “OT assessment and treatment” given that the applicant was removed from the MIG.

5. On April 23, 2024, the respondent sent a revised denial letter to the applicant for the December 12, 2022 treatment plan.

6. On April 24, 2024, the applicant resubmitted the December 12, 2022 treatment plan for occupational therapy services.

7. On May 3, 2024, the respondent denied the OCF-18 submitted on April 24, 2024, however, requested further medical information.

8. On June 20, 2024, the applicant sent email correspondence to the respondent enclosing clinical notes and records from Citrus Medical Centre, to support that the OCF-18 for occupational therapy services should be approved.

9. On June 27, 2024, the respondent sent letter correspondence to the applicant indicating that the medical information provided did not support the recommendation for occupational therapy treatment, and as such, advised it would be arranging an IE to address the submitted OCF-18.

10. On July 11, 2024, the NOE was sent to the applicant directly and copied to the applicant’s representative.

30Based on the timeline above, I find that the respondent acted within a reasonable amount of time to schedule the IE. Despite the OCF-18 originally being submitted in December 2022, the applicant was not removed from the MIG until 2023. Even then, the evidence supports that it wasn’t until April 2024 that the applicant notified the respondent of her desire to have the denial of the OCF-18 reversed. The applicant resubmitted the OCF-18 on April 24, 2024, to which the respondent replied on May 3, 2024, and within the timeline prescribed under s. 38(8) of the Schedule. Moreover, the IE was subsequently scheduled for the end of July 2024 after the medical documentation the respondent requested was provided by the applicant in late June 2024. Therefore, I am not persuaded by the applicant’s arguments that the respondent “sat on an improper denial” for over a year, ignored correspondence, or failed to request an IE for “nearly two years” following the submission of the plan.

31The applicant did not provide an explanation for her failure to attend the scheduled IEs, other than the fact that she believed that the respondent’s request was improper. The onus rests with the applicant to provide a reasonable explanation for her non-attendance. Therefore, the respondent has established the applicant’s non-attendance at reasonably necessary IEs, without reasonable explanation.

32For the reasons outlined above, I find that the applicant is statute barred from proceeding with her application before the Tribunal with respect to the treatment plans dated April 24, 2024, pursuant to s. 55(1)(2) of the Schedule.

SUBSTANTIVE ISSUE ANALYSIS

The OCF-18 for occupational therapy services, dated January 6, 2025

The denial letter, dated January 9, 2025, is compliant with s. 38(8) of the Schedule

33The applicant submits that the treatment plan was improperly denied because the respondent has not provided any medical or other reasons for the denial.

34Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and all of the other reasons why it considered any of the goods and services to not be reasonable and necessary.

35If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. 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).

36The denial letter dated, January 9, 2025, for the occupational therapy services dated January 6, 2025, states:

“On July 11, 2024, you were notified that an appointment had been made for you to attend an Insurer Examination under Section 44 of the Statutory Accident Benefits Schedule (SABS) on July 30, 2024 with Mr. Tony Jung, Occupational Therapist. The assessment was related to Attendant Care Benefits and the submitted Form 1 dated May 30, 2024 for $1431.76, the (OCF 18) submitted by Innovative Occupational Therapy Services for $6033.60 dated December 12, 2022 and the (OCF-18) from Innovative Occupational Therapy Services Inc. dated June 11, 2024 in the amount of $7073.12. We understand that you did not attend the examination with Mr. Tony Jung on July 30, 2024. As we advised in our notice letter on July 11, 2024, failure to attend or cooperate with the assessment can affect your entitlement to the listed benefits above.”

37If find that the denial letter dated January 9, 2025, is compliant with s. 38(8) of the Schedule. Section 38(8) states that the respondent shall provide the medical and other reasons for its denial. If an insurer is relying on a non-medical ground to deny the applicant of their benefits, then the provision requires only that the insurer provide notice of the non-medical reason for its denial: Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78. In the present case, the respondent’s denial letter is clear that the treatment plan was denied because the applicant failed to attend an insurer examination. I note that the respondent had properly requested the IE in order to determine the applicant’s entitlement to a treatment plan for occupational therapy services and in the NOE had specified that failure to attend could affect entitlement to the benefit. The applicant may disagree with the stated reasons for the denial, but that does not render the denial invalid.

The treatment plan is partially reasonable and necessary

38I find that the treatment plan for occupational therapy services is reasonable and necessary, in part.

39The OCF-18 completed by occupational therapist, Sheila Don, submitted on January 6, 2025, sought funding in the amount of $7,073.12 for the following:

Item

Description

Quantity

Cost

Total

Training, motor and living skills

12

$229.43

$2,753.16

Provider travel time, provider treatment

12

$149.63

$1,795.56

Provider milage to treatment

12

$27.45

$329.40

Planning, service

12

$99.75

$1,197.00

Preparation, service

12

$99.75

$199.50

Documentation, support activity

1

$598.50

$598.50

Documentation, support activity for claim form

1

$200.00

$200.00

40The goals of the treatment plan are to maximize functional restoration and address barriers impeding normal daily function and to return to activities of normal living.

41The applicant submits that the occupational therapy has been recommended by multiple medical practitioners, including two occupational therapists and a psychologist. The applicant also submits that the hourly cost of $99.75 per hour is reasonable and in line with the Professional Services Guideline (“Guidelines”)

42The respondent submits that there must be objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment. The respondent submits that the goals of the treatment plan are not reasonable and necessary because the applicant has continued to run her own business, care for her young children, and has only attended her family practitioner’s office once since the accident.

43I find that it is more probable than not that occupational therapy services are reasonable and necessary. I am persuaded by the Occupational Therapy In Home Assessment report of Ms. Kaitlyn Donnelly, dated May 31, 2024 wherein Ms. Donnelly reported that the applicant’s daily activities had been impacted by her physical, cognitive, and psycho-emotional symptoms and limitations. Ms. Donnelly opined that the applicant required support to enable engagement in activities of daily living, recommending the following occupational therapy services: emotional support, relaxation strategies, participation in meaningful activities, equipment recommendations, cognitive rehabilitation, structuring routines, and sleep hygiene. I find that the psychological assessment report of Dr. Hadi Bahiraei, psychologist, dated November 26, 2024, and psychiatry assessment report of Dr. Kehinde Aladetoyinbo, dated June 17, 2025, also corroborate this assertion. Both Dr. Bahiraei and Dr. Aladetoyinbo recommended the applicant undergo occupational therapy to adapt to daily activities, promote independence, and re-engage in meaningful tasks.

44I am also not persuaded by the surveillance summary of Mr. John McCowan, dated February 5, 2025. While I acknowledge that the applicant is observed to be snow tubing with her children, the occupational therapy services, in addition to the applicant’s reported physical complaints, are recommended due to her psycho-emotional and cognitive functioning. I do not find surveillance to be persuasive with respect to the applicant’s limitations in this regard because the surveillance does not evidence or speak to the applicant’s psycho-emotional or cognitive affect.

45However, I agree with the respondent in that I do not find the totality of the OCF-18, dated January 6, 2025, to be reasonable and necessary.

46The respondent submits that the amount recommended is contrary to the Guidelines and previous Tribunal decisions. The respondent submits that Line 2: provider travel time and Line 3: Provider milage to treatment are not payable as they are not authorized transportation expenses. The respondent submits that Line 4: planning service and Line 5: preparation service are not payable as these line items are administrative and overhead costs which have the result of increasing the effective hourly rates beyond what is permitted under the Guidelines. The respondent further submits that documentation support activity is not a required component of treatment where the provider is required to document services provided and no progress report is requested. While the respondent notes the documentation support activity for a progress report is Line 7, I find that the treatment plan supports it is Line 6, as listed in the table above.

47The applicant does not make submissions with respect to the reasonableness and necessity of items listed as Line 2 through 6, above. I am not pointed to evidence that supports these line items, and whether their costs, are reasonable and necessary. As such, I find that the applicant has not met her onus to establish that these goods or services are reasonable and necessary.

48In light of same, I find that the treatment plan for occupational therapy services dated January 6, 2025, is partially reasonable and necessary. I find that the applicant is entitled to Line 1: treatment, motor, and living skills in the amount of $2,753.16, and Line 7: documentation support activity for claim form in the amount of $200.00. However, I find that Line 2: provider travel time, Line 3: provider milage, Line 4: planning, service, Line 5: preparation service, and Line 6: documentation support activity, to not be reasonable and necessary.

The OCF-18s for a Driving Assessment and Dietician Assessment

49I find that the respondent is liable to liable to pay all expenses that were incurred by the applicant under the treatment plan for a driving assessment, dated January 17, 2025, and the treatment plan for a dietician assessment, dated January 17, 2025.

50The respondent concedes in its submissions that “by inadvertence” the EOBs for the OCF-18s dated January 17, 2025 were not provided. The respondent states in its submissions that it accepts that it is deemed to have approved these OCF-18s but argues that the deemed acceptance cannot be above the amounts permissible as outlined in the Guidelines and caselaw.

51Whether the requested goods or services are in line with what is prescribed by the Guidelines or have been found reasonable and necessary in prior Tribunal decisions, it is mandatory that the insurer pay for all goods, services, assessment and examinations described in the treatment plan, if the provisions of s. 38(11) are triggered, see: Kyrylenko v. Aviva Insurance Canada, 2021 ONSC 4929 (“Kyrylenko”). In other words, to determine whether the hourly rate for the treatment providers or services listed on the OCF-18, are reasonable and necessary in the circumstances, would be in contravention of the mandatory consequences of s. 38(11), as confirmed by binding authority in Kyrylenko.

52Given the foregoing, I find that the respondent’s concession confirms that it was not compliant with s. 38(8) of the Schedule. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under the treatment plan for a driving assessment, dated January 17, 2025, and the treatment plan for a dietician assessment, dated January 17, 2025, between the 11th business day after the plan was submitted until the day the respondent cured its deficient notice. If the respondent did not cure its deficient notice prior to this hearing, the applicant may incur these expenses, and provided they are properly invoiced, the respondent is thereafter liable to pay these expenses. To be clear, it is no longer open to the respondent to cure the denials that I have found to be deficient, see: Aviva v Suarez, 2021 ONSC 6200 at paras. 35-36.

Interest

53The applicant is entitled to interest for any overdue benefits pursuant to s. 51 of the Schedule.

Award

54The 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.

55The applicant submits that the respondent denied issue 1(ii) based on a non-attendance at an IE for a different treatment plan and a treatment plan cannot be denied based on non-attendance at an IE for a different plan. The applicant also submits that an EOB was never provided for issue 2 (i) and (ii), and there is no mention of these plans in the adjuster log notes. The applicant submits that the denial of these OCF-18s without proper reasons or any reasons at all is inexcusable.

56The respondent submits that the applicant’s failure to attend the IE in relation to issue 1(ii) was appropriate because the OCF-18 was a duplicate of a treatment plan submitted on June 24, 2024. The respondent submits that it did not provide an EOB for issues 2(i) and (ii) because of an inadvertence rather than “imprudent, stubborn, inflexible, unyielding or immoderate” adjusting.

57I am not persuaded that the respondent’s conduct was the “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate” conduct that I would deem to warrant an award. As I have found above, while the applicant can disagree with the reasons the respondent denied a treatment plan, it does not render the respondent’s denial as improper, nor does it mean their conduct was in bad faith. I also find that the respondent’s inadvertence with respect to the EOBs for issues 2(i) and (ii) was an error in adjusting the file rather than conduct that would rise to a level that would substantiate an award.

58As such, the applicant is not entitled to an award.

ORDER

59I find that:

1. The applicant is statute-barred from proceeding to a hearing for the substantive issue 1(i), as she failed to attend a properly scheduled s. 44 IE;

2. The applicant is partially entitled to the treatment plan for occupational therapy services, dated January 6, 2025, plus interest;

3. The applicant is entitled to the treatment plan for a mental health driving assessment, dated January 17, 2025, plus interest;

4. The applicant is entitled to the treatment plan for a dietician assessment, dated January 17, 2025, plus interest; and

5. The respondent is not liable to pay an award.