LAT Hearing and PsycIME — December 17, 2021

Tribunals Ontario

Licence Appeal Tribunal


Tribunaux décisionnels Ontario

Tribunal d’appel en matière de permis


Citation: G.P. v. Wawanesa Mutual Insurance Company, 2022 ONLAT 18- 010583/AABS

Licence Appeal Tribunal File Number: 18-010583/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.


Glenda Primo



Wawanesa Mutual Insurance Company



VICE-CHAIR: Chloe Lester


For the Applicant: Glenda Primo, Applicant

Mohamed Elbassiouni, Counsel

For the Respondent: Alex Amigud, Representative

Jason H Goodman, Counsel

Nicole Dowling, Counsel

Court Reporter: Guido Riccioni

Heard by videoconference on: November 29–December 3, 13 and 17, 2021 with  written submissions following the hearing






[1] The applicant, Ms. Glenda Primo, was involved in an automobile accident on  September 4, 2015, and sought benefits pursuant to the Statutory Accident  Benefits Schedule – Effective September 1, 2010 (“Schedule”). Ms. Primo was denied certain benefits by the respondent, Wawanesa Insurance Company  (“Wawanesa”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).


[2] Ms. Primo requested that her additional psychological medical records from  Barton Medical be admitted into evidence. The medical records cover a missing  time period from the already disclosed records. The documents were disclosed to  Wawanesa one business day prior to the hearing. Wawanesa opposes the  introduction of the new documents because it did not have enough time to review  them.

[3] I denied Ms. Primo’s request. The original hearing was scheduled for November  2020, and this information would not have been available had the hearing  proceeded at that time. Already in evidence are the Barton Medical records from  before and after the missing time period. There is enough information contained  in the records to demonstrate Ms. Primo’s mental state.


[4] Did Ms. Primo sustain a catastrophic impairment as defined under the Schedule?

[5] Is Ms. Primo entitled to an income replacement benefit (IRB) in the amount of  $400.00 per week from January 9, 2017 onward?

[6] Is Ms. Primo entitled to $26,971.50 (less amounts approved) for catastrophic  determination assessments recommended by Novo Medical Services submitted  on April 15, 2019?

[7] Is Ms. Primo entitled to 7 treatment plans for various assessments?

[8] Is Ms. Primo entitled to 5 treatment plans for various physical and psychological  medical benefits?



[9] Is Wawanesa liable to pay an award under Regulation 664 because it  unreasonably withheld or delayed payments to Ms. Primo?

[10] Is Ms. Primo entitled to interest on any overdue payment of benefits?



[11] Ms. Primo is catastrophically impaired.

[12] Ms. Primo is entitled to a pre-104 IRB and a post-104 IRB in the amount of  $400.001 from January 9, 2017, ongoing, less any post-accident income/deductions, if applicable.

[13] The following treatment plans are payable in accordance with s. 38 (11) of the  Schedule because Wawanesa failed to provide proper notice under s. 38 (8):

  1. $26,971.50 (less amounts approved) for a catastrophic assessment, b. $13,566.81 for a chronic pain treatment program,
  2. $2,260.00 for a chronic pain assessment, and
  3. $1,808.00 for a functional abilities evaluation.

[14] Ms. Primo has not met her onus regarding the following treatment plans and are  not considered reasonable and necessary:

  1. $3,341.87 (less amounts approved) for psychological treatment, b. $2,200.00 for an occupational therapy in-home assessment,
  2. $2,200.00 for an occupational therapy situational assessment, and d. $1,808.00 for a worksite assessment.

[15] Ms. Primo is entitled to an award and interest.


[16] Ms. Primo argues that she meets the definition of being catastrophically  impaired. She states that most of the assessors agreed she had a somatic  symptom disorder, predominant pain, some agreed she had major depression  and others an adjustment disorder. Ms. Primo argues that according to the AMA

1 Joint Brief Part 2 Tab 156


Guides2 the severity of the psychological diagnosis is not determinative of the  degree of impairment in any of the four spheres. So, even if there is a finding that  Ms. Primo has adjustment disorder or major depression, there still can be a  finding that she has a marked impairment. Ms. Primo relies on her psychiatrist,  Dr. Patel’s report to support her belief that she meets a marked impairment in the  areas of concentration, persistence and pace, and adaptation.

[17] Wawanesa argues that Ms. Primo does not meet this high bar of being  catastrophically impaired. It relies on its reports conducted by a psychiatrist, Dr.  Kirsch, and occupational therapist, Ronald Findlay. Wawanesa asserts that the  reports and testimony of Ms. Primo were inconsistent, as her reports of panic  attacks have not been witnessed, she continues to drive, she failed to report her  pre-accident medical history consistently to assessors, and there are concerns  regarding symptom magnification and overreporting.

[18] At the time of the accident and in accordance with the Schedule, Ms. Primo must  demonstrate that she meets one (1) class 4 impairment (marked impairment) or  one (1) class 5 impairment (extreme impairment) in one or more areas of function  due to a mental or behavioural disorder and in accordance with the AMA Guides  4th Edition.3

[19] More specifically, Ms. Primo argues that she has a marked impairment in  adaptation and concentration, persistence, and pace and therefore meets the  definition of being catastrophically impaired.

[20] Adaptation refers to a “Deterioration or decompensation in work or work-like  settings refers to repeated failure to adapt to stressful circumstances. In the face  of such circumstances the individual may withdraw from the situation or  experience exacerbation of signs and symptoms of a mental disorder; that is,  decompensate and have difficulty maintaining activities of daily living, continuing  social relationships and completing tasks. Stresses common to the work  environment include attendance, making decisions, scheduling, completing  tasks, and interacting with supervisors and peers…”.

[21] Concentration, persistence, and pace refers to the ability to sustain focused  attention long enough to permit the timely completion of tasks commonly found in  work settings.4

2 American Medical Association Guides to the Evaluation of Permanent Impairment 4th edition (“AMA  Guides”)

3 Section 3(1) (2) (f) of the Schedule

4 AMA Guides Page 294



[22] In weighing the evidence, I prefer the reports of Ms. Primo’s assessors, Dr. Patel  and Mr. Amchislavsky, over Wawanesa’s reports. I find the reports by  Wawanesa’s assessors support Dr. Patel’s conclusions.

[23] I find Dr. Patel’s assessment extremely thorough. He had built a rapport with Ms.  Primo and it appeared she was more open with him during the assessment. His  assessment diagnosed her with a somatic disorder with predominant pain,  persistent, and major depressive disorder. Dr. Patel’s assessment found Ms.  Primo to be catastrophically impaired in the areas of concentration, persistence  and pace, and adaptation.

[24] I also find Dr. Patel’s conclusions in line with Ms. Primo’s treating practitioners’  records and testimony. Ms. Primo’s family doctor, Dr. Soto De Machat, referred  Ms. Primo to a psychiatrist at Oakville Hospital, and his conclusions were that  she suffered from major depressive disorder with anxious distress secondary to chronic pain.5 Her psychiatrist, Dr. El-Saidi, diagnosed Ms. Primo with depressive  disorder due to chronic pain. At that time Ms. Primo was experiencing 1-2 panic  attacks per week.6 Dr. Harris, psychologist (a s. 25 assessor), diagnosed Ms.  Primo with somatic symptom disorder with predominant pain persistent, severe;  major depressive disorder severe, and post-traumatic stress disorder chronic.7

[25] I also find Dr. Patel’s conclusions in line with the testimony of Ms. Primo and her  son. Ms. Primo testified that when she attempted to return to work as a Personal  Support Worker (“PSW”) in 2018, her thoughts were preoccupied with whether  she had turned off the client’s stove, whether she cleaned the dishes or left the  TV on. She expressed that she felt so overwhelmed to the point where she yelled  at one of her clients who was suffering from dementia. Ms. Primo son testified  and explained how he accompanies her to the grocery store and sometimes she  just looks confused. She will be looking for an item but then pass it ten times. Mr.  Primo recalled a time when they went to the store and the worker asked Ms.  Primo for her email address and she couldn’t figure out how to enter it on the  screen. Mr. Primo testified that he had to do it for her. He told us how Ms. Primo  got so frustrated that she wanted to walk out of the store and Mr. Primo reminder  her that they could not leave yet because they had not paid for the items. All of  these are examples of how Ms. Primo failed to adapt, she attempted to withdraw  from the situation or experienced an exacerbation in her symptoms. A clear  indication of how she deteriorates or decompensates when faced with a stressful  circumstance. She also exhibited an inability to sustain focused attention long

5 Joint Brief page 272- consultation report of Dr. Shah September 21, 2017

6 Joint Brief page 783 – report of Dr. El-Saidi December 19, 2018.

7 Joint Brief page 808-809 report of Dr. Harris February 5, 2016


enough to permit the timely completion of tasks, an indication of a failure to  maintain concentration, persistence and pace.

[26] I find the s.44 reports of Dr. Kirsch, psychiatrist, and Ronald Findlay,  occupational therapist supportive of Dr. Patel’s conclusions. Throughout the  report, it is clear that Ms. Primo was decompensating, failed to adapt to the  stress of the assessment, and experienced an exacerbation of her psychological  symptoms. It was noted in Dr. Kirsch’s report that Ms. Primo looked  uncomfortable, was breathing heavily, had feelings of being overwhelmed, and  hyperventilating. Dr. Kirsch had concerns about whether she would pass out. Dr.  Kirsch observed a restricted range of emotional expression and at times, she  was in tears. Her exacerbated symptoms were so intrusive that Dr. Kirsch  ceased the assessment and rescheduled it for another day.

[27] During Mr. Findlay’s assessment, she got quite emotional and cried various times  throughout the assessment. He testified that from an emotional perspective she  did quite well in the beginning, but halfway through she began to get emotional,  and he gave her time to calm down. During the last task, Ms. Primo forgot the  stove on, she openly began to sob and was very emotional. At this point, Mr.  Findlay terminated the assessment, and it resume the next day. On the second  day, Mr. Findlay testified that Ms. Primo presented more agitated, needed more  breaks, and began sobbing. During the assessment, Ms. Primo expressed that  she wanted to be left alone and sought less interaction.

[28] Again, in both assessments, Ms. Primo showed a failure to adapt to various  stressful circumstances, which resulted in an exacerbation of her symptoms, an  inability to complete tasks and a reaction to withdraw from the scenarios.

[29] According to Dr. Kirsch, there were 3 main areas of concern which resulted in the  diagnosis and impairment rating that he gave her. He found there were issues  with her validity scores and evidence of potential malingering. He found Ms.  Primo’s clinical presentation unusual and assumed it must have been a part of  her normal characteristics, and lastly, he felt that her psychological symptoms did  not coincide with what he believed as a “simple motor vehicle accident”. Dr.  Kirsch did not conduct a collateral interview to confirm his conclusions. Had Dr.  Kirsch conducted a collateral interview he would have found that both Ms.  Primo’s son, Nathaniel Primo, and her family doctor, Dr. Soto De Machat, would  have confirmed that her unusual presentation was not present prior to the  accident. Dr. Soto De Machat testified that Ms. Primo’s slowness in her speech  had begun after the accident and had been ongoing for the last few years. Umair  Malik, Ms. Primo’s psychotherapist, testified that when Ms. Primo gets a


headache, she responds slowly and her mood begins to appear sad. He testified  that when she gets anxious, she begins to hyperventilate. He stated that during  an anxiety attack she either quits or freezes in the moment. Umair Malik testified  that being slow is one of the symptoms of severe depression, along with  decreased concentration, diminished interest in activities of daily life, and/or loss  of appetite and overeating. These are all symptoms that Ms. Primo has  complained of to various assessors over the years. Also, I find there was no  explanation of why Ms. Primo could not have the psychological reactions she did  in the face of what Dr. Kirsch viewed as “a simple accident”. From the medical  records, it is clear that her emotional state did not begin that way. The physical  injuries turned into chronic pain, the psychiatric injuries began to appear, then the  symptoms began to amplify as time went on and the claim progressed. The  records show a lot of distress after the IRBs were terminated and her financial  problems increased.

[30] During the s. 44 assessments there were continuous examples of where Ms.  Primo failed to adapt to the scenarios she was presented with, yet Dr. Kirsch  provided no reasonable explanation for how her clinical reactions rendered her  moderately impaired. I also find that Dr. Kirsch failed to conduct a thorough  examination in consideration of the perceived discrepancies in her clinical  presentation.

[31] I find Ms. Primo has shown repeated examples of a marked impairment  concerning adaptation, and concentration, persistence, and pace. Ms. Primo is  catastrophically impaired.


[32] As a result of the accident, Ms. Primo suffered from impairments that prevented  her from returning to work. Based on its initial assessment, Wawanesa paid  IRB’s until it re-assessed the benefits in January 2017. Based on a series of s. 44  assessments, Wawanesa terminated the benefit on January 9, 2017.

[33] Ms. Primo argues that her physical and psychological impairments prevent her  from completing her work tasks and are supported by her family doctor.

[34] Based on Wawanesa’s s. 44 assessments, it determined that Ms. Primo had no  limitations or restrictions that prevented her from returning to work. Wawanesa  argues that Ms. Primo had several inconsistencies between the assessments  and throughout the functional testing, that she either refused to take part in the  testing or applied sub-maximal effort.


[35] In order to be entitled to an IRB within the first 104 weeks of the accident, Ms.  Primo must prove that based on the accident-related impairments, she has a  substantial inability to perform the essential tasks of her employment.8 This test  is consistently referred to as the pre-104 IRB test.

[36] At the time of the accident, Ms. Primo worked as a Support Service Attendant for  two different companies. Her duties involved similar tasks of a personal support  worker. Ms. Primo would assist clients with their activities of daily living in their  personal homes. This would include feeding, bathing, dressing, changing  diapers, grooming, laundry, washing dishes, preparing meals, using a Hoyer Lift,  and helping with medications. Ms. Primo would have anywhere from 1 to 8  clients per day and would drive to their homes. Ms. Primo’s jobs were classified  in the medium strength category.9

[37] When assessed by Wawanesa, the functional abilities evaluation report dated  December 19, 2016, revealed that Ms. Primo did not meet the essential physical  demands of her pre-accident occupation.10 The neuropsychologist, Dr. Watson,  concluded that despite some mildly elevated concerns from the validity testing,  the results would be regarded as somewhat reliable as a confirmatory source of  information with respect to her current psychological state. Dr. Watson diagnosed  Ms. Primo with an adjustment disorder with mixed anxiety and depressed mood;  and a somatic symptom disorder with predominant pain persistent and moderate.  Dr. Watson felt Ms. Primo’s depressive and somatic symptomology impair her  ability to perform her activities of normal living but not at a level of a disability. At  that time, Ms. Primo had not yet started to attend therapy for her psychological  impairments. Dr. Watson felt that from a psychological perspective Ms. Primo  could return to work.11 Lastly, a physiatry assessment was conducted by Dr.  Newell. He opined that Ms. Primo suffered from cervical, shoulder, and upper  thoracic strains and sprains. He reported that Ms. Primo’s complaints of lumbar  pain and leg symptoms are unrelated to the accident as there were no reports of  injuries to this area by her family doctor after the accident.12 Based on his  assessment, Dr. Newell indicated Ms. Primo could return to work with no  functional limitations.

8 Section 5(1)1 i of the Schedule

9 Joint Brief Page 1557 Angela Bertolo, OT, s. 44 assessment Physical Demands Analysis Report dated  December 12, 2016

10 Joint Brief page 1570 Angela Bertolo, OT, s. 44 assessment Functional Abilities Evaluation dated  December 19 , 2016

11 Joint Brief page 1586 Dr. Watson s. 44 psychological assessment report dated December 19, 2016 12 Joint Brief page 1603 Dr. Newell s. 44 Physiatry assessment report dated December 23, 2016


[38] In a review of the evidence, I find that Ms. Primo has a substantial inability to  perform the essential tasks of her employment and is entitled to a pre-104 IRB.  Ms. Primo was not in a good state. She was constantly suffering from, not only  pain, but also psychological impairments. The records indicate that she was  regularly seeing her family doctor and complaining of the same impairments  resulting from the accident. Her family doctor was constantly counselling her for  long periods of time during these appointments because of the impact it was  having on her life.13

[39] I find Dr. Watson’s report confusing as he opined that “symptomology impairs her  ability to perform her activities of normal living” but then finds Ms. Primo could go  back to work to perform activities of normal living for disabled or sickly  individuals. At that time, Dr. Watson wanted to confirm Ms. Primo’s reports with a  collateral interview, yet he never reached out to anyone to conduct it. Ms. Primo,  in Dr. Watson’s report, complains of pain issues but also, irritability, slowed  cognition, feelings of frustration and being overwhelmed, feelings of  hopelessness and helplessness and worthlessness. She confirmed that she is  also having nightmares. At that point, since Ms. Primo had not had any  meaningful counselling, I find that she would not have been able to return to work  considering her symptoms and lack of treatment.

[40] Although the s. 44 assessors were concerned about the possibility of symptom  exaggeration or the lack of effort put forth during the assessments, I find that Ms.  Primo’s reports are consistent and mimic the same complaints that were  proffered to her family doctor. I also give the reports less weight since the s. 44  assessment did not have the complete records of Ms. Primo’s family doctor and  did not conduct collateral interviews. If they had, it may have impacted their  assessment of her and their impressions of the validity testing.

[41] I also find there are no issues regarding Ms. Primo’s credibility. Wawanesa’s  main concern is whether she fully participated in the functional assessment. In  the report, I note that the reason for Ms. Primo not continuing with the majority of  the tests was because of the pain she was feeling. I find her reports credible,  considering the assessor noted and observed: “frequent and numerous signs of  discomfort”.14 The records of Ms. Primo’s family doctor indicate that her lumbar  spine was affected as a result of the accident.15 Ms. Primo had been seeing a  chronic pain specialist16 for injections to various areas, which appeared to only

13 Joint Brief page 416-417 records from Dr. Soto De Machat

14 Joint Brief Part 2 Functional Ability Evaluation page 1569

15 Joint Brief page 1031 physiotherapy referral of Dr. Soto De Machat September 8, 2015 16 Joint Brief Part 2 Page 1429-1431 – MRI report and Chronic pain clinic initial report


provide temporary relief and she was experiencing a substantial amount of  pain.17 Dr. Soto De Machat was supportive of Ms. Primo remaining off work  because of her physical and psychological problems.18

[42] After the first 104 weeks after the accident, the IRB test changes. In order to be  entitled to continued IRBs, Ms. Primo must prove that she now suffers a  complete inability to engage in any employment for which she is reasonably  suited by education, training, or experience.19 This test is referred to as the post 104 IRB test.

[43] I find that Ms. Primo’s previous experience, training or education, makes her  reasonably suited for PSW work and office manager work. She had held previous  office manager jobs when she lived in Guyana, and since moving to Canada, she  has held PSW jobs.20

[44] Ms. Primo argues that she meets the test for post-104 IRB because she had  worsening physical and psychological impairments that prevented her from  working, including chronic pain, panic attacks, decompensation in stress-like  scenarios, depression and avoidance.

[45] Because Wawanesa felt Ms. Primo had not met the pre-104 IRB test, it had not  conducted any assessments to determine her post-104 entitlement. Wawanesa  argues that Ms. Primo does not meet the post-104 IRB test and her assessor’s  opinions should not be relied upon because they did not understand the full  scope of her pre-accident work history and education.

[46] I agree with Wawanesa that it is not up to an assessor to determine whether  someone meets a legal test. It is the medical assessor’s job to render an opinion  on, to name a few, diagnosis’, impairments, whether the mechanism of injury  supports the impairments, and/or limitations and restrictions. It is Wawanesa’s  job to determine policy eligibility and entitlement to a benefit. Wawanesa must  look at the totality of the medical documentation on the file, and information  regarding pre-accident employment or education, to determine eligibility for the  benefit and adjust the policy accordingly. When there is a dispute, the onus is on  the applicant to prove entitlement to the benefit.

[47] Ms. Primo reached the post-104 time period in September 2017. This is when it  ought to have been determined whether she met a post-104 entitlement. It was at

17 Joint Brief Part 2 page 1563 and 1564

18 Joint Brief page 464-471 records from Dr. Soto De Machat

19 Section 6(1)(2)(b) of the Schedule

20 Joint Brief page 2374-2375 Glenda Primo’s Resume


this time, that Ms. Primo was referred by her family doctor to a psychiatrist for a  consultation at Oakville Memorial Hospital. He diagnosed her with major  depressive disorder with anxious distress secondary to chronic pain and  struggles with her insurance claim. He recommended learning ongoing coping  strategies, psychotherapy, and possible future pharmacological intervention. Ms.  Primo was still suffering from her chronic pain issues.21 Also, within the year of  the IRB’s being terminated, Ms. Primo had been prescribed anxiety medication  and an antidepressant.22

[48] I find that Ms. Primo meets the post-104 test for IRBs. It is abundantly clear Ms.  Primo cannot work in any capacity, at any job, considering she was still receiving ongoing pain injections, she had a referral to a new pain clinic, was diagnosed  with major depressive disorder, and suffering from physical and psychological  symptoms that required pharmacological interventions.23

[49] It was not long thereafter that Ms. Primo and Wawanesa conducted their  catastrophic assessments. All reports support an inability to return to work in any  capacity. Ms. Primo was found to have a marked impairment in adaptation, and  concentration, persistence, and pace. Adaptation has a direct correlation to one’s  ability to function in the workplace. Although Wawanesa disagrees with the  findings of Ms. Primo’s catastrophic assessors, Wawanesa’s catastrophic reports  alone would preclude Ms. Primo from working. The s. 44 reports found that she  had a moderate impairment in social functioning, which determines one’s  capacity to interact appropriately, communicate effectively, as well as one’s  ability to get along with others. Ms. Primo was found to have a moderate  impairment in concentration, persistence and pace, which assesses the ability to  sustain focused attention long enough to permit the timely completion of tasks  commonly found in a work setting or activities of daily living. She was also found  to have a moderate impairment in adaptation, which determines one’s ability to  adapt to challenges, to be able to manage attendance, schedule activities, make  decisions, complete tasks and interact with supervisors and peers. All of these  combined would inhibit Ms. Primo to work effectively in a PSW and an office  manager role.

[50] For the reasons set out above, Ms. Primo meets both a pre-104 and a post-104  IRB test.

21 Joint Brief part 1 page 271-273- consultation report of Dr. Shah

22 Joint Brief part 1 page 471 and 481 clinical records of Dr. Soto De Machat

23 Joint Brief part 1 page 471 to 481 clinical records of Dr. Soto De Machat



[51] Since Ms. Primo is found to be catastrophically impaired, Wawanesa agrees to  pay for the following treatment plans:

  1. a) $2,200.00 for a psycho-vocational assessment24
  2. b) $2,200.00 for a chronic pain assessment25
  3. c) $2,593.75 (less amounts approved) for psychological treatment.26

[52] I also do not need to decide on the issues of an invoice for $402.21 for  physiotherapy, and a treatment plan for $3,042.59 (partially approved for  $1,696.10) because Ms. Primo and Wawanesa have come to an agreement on  them.

[53] Ms. Primo argues that for the following treatment plans Wawanesa failed to  provide a notice that complies with s. 38(8) of the Schedule, and therefore s.  38(11)2 applies:

  1. $26,971.50 (less amounts approved) for catastrophic assessments.27 Ms. Primo argues that the notice does not indicate the assessments Wawanesa would pay for, the assessments it would not pay for, or the medical and other reasons why it did not agree to pay for them.

Wawanesa did not give me any submissions on whether its notice  complied with the Schedule. I agree with Ms. Primo and find the notice  regarding the catastrophic assessments deficient and it did not comply  with s. 38(8) of the Schedule. The Schedule is clear that a notice

approving or denying a treatment plan must contain a certain amount of  information; what the insurance company agrees to pay for; what it does  not agree to pay for; and the medical and other reasons for why it

considers the treatment plan not reasonable and necessary. In this  case, the treatment plan proposed 12 assessments and a file review to  determine whether Ms. Primo is catastrophically impaired. The notice  indicated that Wawanesa would pay for $12,000 worth of assessments  but did not indicate which ones would be approved and which ones it denied. The notice generically indicated that it would pay for 1 physiatry  or orthopaedic surgeon assessment, an executive summary, a file

24 Treatment Plan dated May 30, 2019

25 Treatment Plan dated June 3, 2019

26 Treatment Plan dated April 11, 2018

27 Joint Brief Part 1 Tab 80- Treatment plan dated April 8, 2019



review, 1 psychological or psychiatry assessment, 1 in-home

assessment and 1 situational assessment. The medical and other

reasons for why it did not agree to pay for the remaining assessments  was because the assessor “found the number of assessments proposed  on the Treatment and Assessment Plan (OCF-18) to be excessive.” The  notice then asks Ms. Primo to review the report in its entirety for the  complete results.28 In no way did this notice provide Ms. Primo with a  proper indication of what assessments it specifically agreed to pay for,  which ones it did not agree to pay for or the reasons why. Finding

something excessive is not a medical reason (and other reason) for a  denial. Also, by simply quoting the results of the assessment,

Wawanesa did not actually determine eligibility for the treatment plan,  which also should involve a complete review of the documents it had on  file. The results of a s.44 assessment could be one of the reasons for a  denial, but not the only one. There was no explanation as to why the  assessments were found to be excessive. Asking Ms. Primo to read the  assessment on her own as the reasons for the denial is also

inappropriate. The notice should have had a complete and detailed  account of why the other assessments were not approved in a clear  format so that it would be easily understood by Ms. Primo. I find the  notice deficient and payable under s.38(11)2.

  1. $13,566.81 for a chronic pain treatment program.29 Ms. Primo argues the notice is deficient because it did not outline the goods and services Wawanesa did not agree to pay for. Wawanesa provided no arguments  regarding how the notice complied with s.38(8). I find that the notice did  not specify which goods and services Wawanesa did not agree to pay  for. It noted that Wawanesa would not pay for the entire treatment plan  that was proposed on June 6, 2017. The notice should detail the amount  of the treatment plan, the goods, services or assessments being

proposed and any other information to assist Ms. Primo in

understanding what was being requested and what was being denied.  Also, the notice did not provide the medical and other reasons for

denying it. Again, Wawanesa refers Ms. Primo to a s.44 assessment  report that had been completed 7 months earlier that indicated no further  facility-based treatment was required.30 There was no explanation of  why the assessment conducted by Dr. Newell on another benefit applied  to this treatment plan that requested a chronic pain treatment program.

28 Joint Brief Part 2 Tab 177

29 Joint Brief Part 1 – Tab 50- Treatment Plan dated June 18, 2017

30 Joint Brief Part 2 – Tab 119 Dr. Newell S. 44 assessment



Again, the notice should have had a complete and detailed account of  why the treatment plan was not approved in simple terms so that it  would be easily understood by Ms. Primo. I find the notice deficient and  payable under s.38(11)2.

  1. $2,260.00 for a chronic pain assessment.31 Ms. Primo argues that the notice did not indicate the goods and services Wawanesa did not agree to pay for. Wawanesa did not provide any submissions regarding

whether its notice complied with s.38(8). I find the notice deficient. It did not detail the goods and services Wawanesa did not agree to pay for.  The treatment plan was for a chronic pain assessment, yet the letter  indicated that Wawanesa would not pay for an orthopedic assessment.  The notice also failed to provide the medical reasons for why Wawanesa  did not agree to pay for it. The notice stated that Wawanesa would not  pay for it because it had already conducted a s.44 physiatry

assessment, a request for a s. 25 orthopedic assessment would be  considered a duplicate of services. This is not a medical reason. Under  the Schedule, Ms. Primo is entitled to conduct her own assessment,  even if Wawanesa had conducted its own. I find the notice deficient and  payable under s.38(11)2.

  1. $1,808.00 for a Functional Abilities Evaluation.32 Ms. Primo argues that the notice did not indicate the goods and services Wawanesa did not agree to pay for and failed to comply with s.38(8) of the Schedule.

Wawanesa did not submit arguments regarding how its notice complied  with the Schedule. I agree with Ms. Primo. I find the notice for this

treatment plan deficient. The notice does not detail the amount and  assessment Wawanesa does not agree to pay for. The notice indicates  that Wawanesa would not approve a second functional abilities

evaluation, since Wawanesa had conducted its own. Again, this is not a  medical reason. Under the Schedule, Ms. Primo would be entitled to  conduct her own assessment, even if Wawanesa had conducted its  own. I find the notice deficient and payable under s.38(11)2.

[54] In accordance with s.38(11)2 of the Schedule, Wawanesa is obligated to pay for  the treatment and assessments described in the treatment plan beginning on  the 11th day until proper notice is given. Since the proper notice was never given

31 Joint Brief Part 1- Tab 55 Treatment Plan dated November 2, 2016

32 Joint Brief Part 1 -Tab 59 Treatment Plan dated April 20, 2017


and the treatment period described has elapsed, Wawanesa shall pay for the  entirety of the treatment plans.33

[55] Ms. Primo failed to provide submissions on why the following treatment plans  should be considered reasonable and necessary and therefore I find she has not  met her onus for entitlement to them:

  1. $3,341.87 (less amounts approved) for psychological treatment; b. $$2,200.00 for an occupational therapy in-home assessment;
  2. $2,200.00 for an occupational therapy situational assessment; and d. $1,808.00 for a worksite assessment.


[56] An award may be granted where an insurance company unreasonably withholds  or delays benefits that are owed to an insured.34

[57] Ms. Primo argues an award is warranted because Wawanesa unreasonably  withheld the IRB’s. She claims that Wawanesa failed its duty to provide its  assessors with the necessary information relevant to Ms. Primo’s medical  condition and entitlement to IRB’s. Ms. Primo also argues that Wawanesa failed  to reconsider its position or seek addendum reports once it received new medical  records. She also argues that Wawanesa failed to decide on the post-104 IRBs  despite numerous s. 25 assessments that determined she was eligible for it.

[58] Ms. Primo also argues that Wawanesa failed to determine her entitlement for a  psychovocational assessment and neuropsychological assessment. Lastly, she  claims that the adjuster’s log notes demonstrate that Wawanesa requested that  its assessor “alter” his report.

[59] Wawanesa submits that Ms. Primo failed to meet her burden that an award is  warranted and that it did not unreasonably deny any of the submitted treatment  plans submitted on behalf of Ms. Primo but rather relied on the opinions of its  qualified medical assessors as it is entitled to do. It relies on the decision 17- 001627 and Certas Direct Insurance Company35, where Adjudicator Sapin held  that the denial of benefits in accordance with the conclusions of the s.44  assessors does not warrant an award. Wawanesa argues that an award is not

33 N P vs Wawanesa Mutual Insurance Company 2020 CanLII 19563 (ON LAT), 18-010628/AABS 34 Section 10 of Regulation 664

35 17-001627 v Certas Direct Insurance Company, 2017 CanLII 99139 (ON LAT)


akin to punitive damages but should only be considered in cases where an  insurer’s actions are extreme, excessive, imprudent, stubborn, inflexible,  unyielding, or immoderate, which has not been proven here.

[60] In this case, it is clear that Wawanesa blindly followed the conclusions of its  assessors without adjusting the claim and taking into account the totality of the  medical records.

[61] The s. 44 assessments for the IRB did not consider the full clinical records from  the treating practitioners. Once Wawanesa received the records it did not submit  them to its assessors for an addendum or review them itself to determine  potential entitlement for any of the benefits. It is clear Ms. Primo’s condition  continued to deteriorate to the point where she was being assessed for  catastrophic impairment and again no consideration was given to whether she  could possibly meet the test for IRBs.

[62] In the adjuster’s testimony, she stated that an adjuster must consider all medical  records, yet the letter from Wawanesa deciding the IRB or various treatment  plans clearly did not. The notices simply quote the s.44 assessments and denied the benefits. Adjusting the file would ensure taking into consideration all the  medical records in assessing entitlement for a benefit. Further, I find the adjuster  did not objectively look at the s.44 assessor’s reports and determine whether the  conclusions were in line with the complaints and medical information in the file. Also, the adjuster must look at the contrary opinions and determine how they  may affect the accuracy of the s. 44 reports. The adjuster testified that she is not  a medical doctor and therefore cannot opine for herself. The adjuster was  questioned about the preponderance of the evidence that supported an inability  to work and what Wawanesa did with it once it was received. The adjuster  testified that either she was not the adjuster on the file at that time, she is not a  medical doctor, or it would not have been fair to send medical records to an  assessor who conducted the pre-104 test 4 years earlier.

[63] I find that none of the adjusters took into account the medical records from the  treating practitioners or the opinions of the s.25 assessors. I agree that the  adjuster is not a doctor and cannot render a medical opinion. The adjuster’s role  is to adjust the file. To fairly decide whether someone is entitled to a benefit is a  contractual obligation between Wawanesa and its client, in this case, Ms. Primo.  The notices from Wawanesa should be clear on why it denied the benefit, why it  agrees with the conclusion in a report, and if there are contradicting opinions,  why it prefers one over the other. Continuously adjusting the file would mean as  new medical records are submitted, it is the adjuster’s responsibility to look at


them or refer them for an addendum to determine whether it changes any  previously denied benefits. It is evident that this was not done. Not only did the  family doctor’s records support an inability to return to work, but so did Ms.  Primo’s assessments. It is clear that none of the adjusters gave consideration to  the records for the previously denied benefits.


[64] In accordance with s. 10 of Regulation 664:36 an adjudicator “may award a lump  sum of up to 50 per cent of the amount to which the person was entitled at the  time of the award together with interest on all amounts then owing to the insured  (including unpaid interest) at the rate of 2 per cent per month, compounded  monthly, from the time the benefits first became payable under the Schedule.”

[65] Ms. Primo has not submitted any arguments regarding the quantum I should  award. I elect to award a value of 30% of the owed IRB’s, treatment plans, and  interest for the mishandling of this file, blindly following the results of the s.44  assessors without considering the totality of the evidence and Wawanesa’s  failure to continuously adjust the file. I find the 30% reasonable considering Ms.  Primo suffered financial hardships as a result of benefits being terminated,  including a need to apply to Ontario Works, borrowing money from family and  having to “cut back on her diet and spending”37, and the lack of treatment. She  was also deemed catastrophically impaired, which puts her in a vulnerable class  of society.

[66] I deny giving an award for the denial of the neuropsychological and  psychovocational assessments. I do not have any submissions that explain how  Wawanesa unreasonably withheld or delayed the benefits, other than it did not  approve the assessments. Because Wawanesa failed to issue a proper denial  notice, does not mean that it unreasonably withheld or delayed benefits.  Wawanesa is entitled to make mistakes and it should not be held to a standard of  perfection. I also deny giving an award for the “alleged” attempt to alter the  assessment of Dr. Marino.38 I find that the adjuster was simply clarifying  something with the doctor and the doctor responded that it did not change his  opinion.

36 R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE

37 Testimony of Ms. Primo

38 Joint Brief Part 2 log notes May 23, 2018 page 2326



[67] Ms. Primo is found to be catastrophically impaired. She is entitled to a pre-104  and post-104 IRB and interest.

[68] The following treatment plans are payable in accordance with s.38(11)2 of the  Schedule because Wawanesa failed to provide proper notice under s.38(8):

  1. $26,971.50 (less amounts approved) for a catastrophic assessment, b. $13,566.81 for a chronic pain treatment program,
  2. $2,260.00 for a chronic pain assessment, and
  3. $1,808.00 for a functional abilities evaluation.

[69] Ms. Primo is entitled to interest on the benefits that have been incurred and are  considered overdue.

[70] Ms. Primo is entitled to an award of 30% of the amount of the IRB’s, treatments plans that violated s. 38(8), and interest, at the rate of 2 per cent per month,  compounded monthly, from the time the benefits first became payable under the  Schedule.

Released: May 31, 2022




Chloe Lester


Dr Sujay Patel
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