J. B. v. Meloche Monnex Financial Services Inc., 2016 CanLII 96162

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: December 14, 2016

Tribunal File Number: 16-000766/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

J. B.

Applicant

and

Meloche Monnex Financial Services Inc.

Respondent

DECISION

Adjudicator: Nicole Treksler

Parties:

Applicant: J. B.

Counsel for the Applicant: Rajiv Kapoor

Representative of the Insurance Company: David Lawrence

Counsel for the Insurance Company: Geoffrey H. Yu

Written Hearing: October 12, 2016

I. Introduction:

1. The Applicant, J. B., was injured in an automobile accident on April 28, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2. The Applicant made claims for medical benefits for a temporomandibular joint (TMJ) assessment, chiropractic services and other assistive devices.

3. The Respondent denied the TMJ assessment because the Applicant did not provide medical evidence to support that the TMJ injuries were the result of the accident.

4. The remaining issues were denied because the Respondent requested that the Applicant submit the billing for those treatment plans to Sunlife extended healthcare benefits for payment.

5. In the Respondent’s submissions, they requested that I decide a number of preliminary issues. I address those issues below.

II. Preliminary Issues

a) Are the Applicant’s submissions admissible despite being in contravention of the Order of the Case Conference Adjudicator?

1. The Respondent raised a preliminary issue. The Applicant served her submissions late in contravention of the case conference adjudicator’s order. The Applicant’s submissions were due on September 22, 2016. The Applicant served those documents at 6:29 p.m. on September 22, 2016, which is considered the next business day according to Rule 6.5 of the Rules of Practice and Procedure (Rules). According to the Rules, documents must be served filed by 5:00 p.m.

2. The Respondent is requesting that the Tribunal not accept the Applicant’s submissions.

3. The Applicant denies the Respondent’s allegations. I note that on September 22, 2016, the Applicant spoke with the Tribunal’s case management officer (CMO) at 4:14 p.m. requesting to send the submissions by email. Due to the sensitivity of the medical information, the CMO advised against it. The Applicant indicated that he would send the materials by mail.

4. The Tribunal received the Applicant’s submissions the week of September 26, 2016. However, the Applicant sent it to the other party after 5 p.m. on September 22, 2016.

5. I acknowledge that according to Rule 6.5, the Applicant served her submissions late.

6. Rule 3.1 allows me to liberally interpret and apply rules to facilitate a fair, open and accessible process. I am of the view that if I were to decide that the Applicant’s submissions were not admissible that decision would be disproportionate to the Applicant’s minor breach of the Rules, resulting in an unfair outcome. Further, the Applicant’s late submissions caused little prejudice to the Respondent and the Tribunal. I agree with the Respondent that the Tribunal’s timelines are important and should be adhered to by all parties. However, in this matter, the Applicant’s late submissions did not impact the Tribunal’s timelines to achieve a resolution of the dispute within a six month timeframe. Lastly, if the Respondent believed that the Applicant’s late submissions prejudiced them; they could have requested additional time to prepare their submissions. To my knowledge, such a request was not made.

7. I allow the Applicant’s submissions to be considered for this hearing.

b) Should the Tribunal dismiss the Application on the grounds that the Applicant failed to establish that her TMJ complaints were a result of the subject accident?

8. According to Rule 3.4 of the Rules, the Tribunal may dismiss an appeal without a hearing if:

a. The appeal is frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process;

b. The appeal related to matters that are outside the Tribunal’s jurisdiction;

c. Any of the statutory requirement for bringing the appeal have not been met; or

d. The party filing the appeal has abandoned the proceeding.

9. I am of the view that this application does not meet any requirements under Rule 3.4 as follows:

a. The appeal stems from a denial of a treatment and assessment plan requesting that the insurer fund a TMJ assessment. The Insurer’s position is that the Applicant must establish that the cause of her TMJ injuries were a result of the accident. As will be detailed in the decision, I am of the view that it is premature to establish the cause of the Applicant’s TMJ injuries. First, what must be established is whether the Applicant has TMJ injuries and, if so, the cause of those injuries. In my opinion, that can only be reasonably established through a TMJ assessment. As such, this appeal is not frivolous, vexatious, or frivolous, commenced in bad faith, or is otherwise an abuse of process;

b. The issue of the appeal is within the Tribunal’s jurisdiction as the appeal deals with a denial of a treatment plan.

c. To my knowledge, the statutory requirements for bringing the appeal have been met; and

d. The party filing the appeal has not abandoned the proceeding.

10. The Respondent has not provided any evidence to persuade me that the Application should be dismissed. As such, I find no grounds to dismiss this matter on this preliminary basis.

III. Benefits in dispute:

Issue #1

1. Is the Applicant entitled to the cost of a TMJ assessment in the amount of $1900, on a Treatment and Assessment Plan (OCF-18) submitted October 27, 2015, recommended by Dr. Leo Treger, Toronto Medical Services and denied on November 3, 2015?

Issue #2

2. Is the Applicant entitled to a medical benefit in the amount of $792.45 for ‘other devices’, on a Treatment and Assessment Plan (OCF-18) submitted July 6, 2015, recommended by Dr. Jordana Rachel Levine, Toronto Medical Services and denied on August 26, 2015?

Issue #3

3. Is the Applicant entitled to a medical benefit in the amount of $1857.47 for chiropractic services, on a Treatment and Assessment Plan (OCF-18) submitted July 6, 2015, recommended by Dr. Jordana Rachel Levine, Toronto Medical Services and denied on August 26, 2015?

IV. Additional issues in dispute:

Issue #4

4. Is the Applicant entitled to interest for overdue payment regarding the claimed benefits?

Issue #5

5. Is the Applicant entitled to costs under Rule 19.1 of the LAT Rules?

Issue #6

6. Is the Respondent entitled to recover costs under Rule 19.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (Rules)?

V. Result

Issue #1

1)The Applicant is entitled to the cost of a TMJ assessment in the amount of $1900 on a Treatment and Assessment Plan (OCF-18) submitted October 27, 2015, recommended by Dr. Leo Treger, Toronto Medical Services and denied on November 3, 2015.

Issue #2

2)The Respondent funded the treatment plan in the amount of $792.45 for ‘other assistive devices’, submitted July 6, 2015, recommended by Dr. Jordana Rachel Levine from Toronto Medical Services.

Issue #3

3)The Respondent funded the treatment plan in the amount of $1857.47 for chiropractic services, submitted July 6, 2015, recommended by Dr. Jordana Rachel Levine from Toronto Medical Services.

Issue #4

4)The Applicant withdrew the issue of interest for the TMJ Assessment. Given that the Respondent funded the treatment plans, the Tribunal will not award interest for those matters.

Issue #5

5)The Applicant is not entitled to costs under Rule 19.1 of the LAT Rules.

Issue #6

6)The Respondent is not entitled to costs under Rule 19.1 of the LAT Rules.

VI. Background

1. The Applicant was in motor vehicle accident on April 28, 2015. She was hit by a tractor trailer on the passenger side.

2. On April 29, 2015, the Applicant submitted a Disability Certificate (OCF- 3) from Dr. Luela Louis, Chiropractor, which listed numerous injuries, including, but not limited to, sprain and strain of the cervical spine, whiplash associated disorder (WAD 2), chronic post-traumatic headache, nonorganic sleep disorder, and post-traumatic stress disorder. This disability certificate did not list any TMJ injuries.

3. The Applicant’s first mention of TMJ pain was to Dr. Shalini Manuch, family doctor, on May 11, 2015 and once again on November 5, 2015. In the Toronto Medical Centre’ clinical notes and records (CNRs), the Applicant mentioned TMJ pain on November 3 and 11, 2015. The Applicant also indicated TMJ pain to Dr. Igor Wilderman during an examination on March 28, 2016.

4. On October 27, 2015, the Applicant submitted a Treatment and Assessment plan requesting a TMJ assessment and the Respondent denied the assessment on November 3, 2015, stating that the Applicant did not suffer a TMJ injury.

VII. Analysis:

Issue #1: Is the treatment and assessment plan for a TMJ assessment, submitted October 27, 2015, reasonable and necessary?

1. The Respondent’s position is that the Applicant did not establish that the TMJ injuries were a result of the accident. The Respondent’s arguments rely on the Applicant’s lack of and late communication of her TMJ issues to medical practitioners.

2. The Respondent submits that the Applicant’s disability certificate dated April 29, 2015, from Dr. Louis did not list any TMJ pain as one of the Applicant’s injuries. The Respondent notes that the Applicant underwent six section 25 assessments and she never reported any TMJ symptoms to any of these assessors nor did these assessors diagnose any TMJ issues. In addition, the Applicant also underwent three section 44 assessments requested by the Insurance Company and once again the Applicant did not report any TMJ symptoms to any of these assessors nor did any of these assessors diagnose any TMJ issues. Lastly, the Applicant has not provided any medical records from her dentist to indicate that she complained of TMJ pain.

3. The Respondent indicates that the Applicant’s first mention of any TMJ issues to any accident-related assessor was a full 11 months after the accident to Dr. Wilderman, physiatrist. The Respondent submits that little weight should be placed on Dr. Wilderman’s report, as he does not have any training/education in dentistry and should not have recommended treatment for the Applicant’s alleged TMJ pain. It is not necessary for me to determine whether Dr. Wilderman is qualified to make a TMJ assessment. I have considered his report only to affirm that the Applicant mentioned TMJ symptoms to this practitioner.

4. The Respondent also argues that a treatment and assessment plan dated October 27, 2015 is not reasonable and necessary if the alleged injury is not listed in a disability certificate (OCF-3).

5. For the reasons listed above, the Respondent concludes that the Applicant failed to establish causation between the TMJ injury and the accident.

6. The Applicant started to report left jaw pain shortly after the accident to Dr. Shalini Manuch, family doctor, on May 11, 2015. I am of the view that it is reasonable to assess whether the Applicant actually has TMJ problems, and if so, whether the TMJ pain was caused by the accident.

7. The Applicant states that the Respondent has not taken any steps to assess the Applicant’s TMJ pain, such as an Insurer’s examination. Despite the fact, contrary to the respondent’s assertions, that the Applicant has reported on at least 5 occasions of TMJ pain from May 11, 2015 to March 2016 to health practitioners (CNRs from Dr. Munich on May 11 and November 5, 2015; CNRs from Toronto Medical Centre on November 3 and 11, 2015; and Dr. Wilderman’s report dated March 28, 2016). In my opinion, the Applicant’s numerous TMJ complaints should have formed a sufficient basis for the Respondent to investigate whether the Applicant suffers from TMJ symptoms by approving funding for a TMJ assessment.

8. I examined the proposed goods and services section in the October 27, 2015 treatment and assessment plan for the TMJ Assessment. The treatment plan proposed TMJ assessment; preparation, service; report preparation; dental assessment; photographs; and radiographs. In the additional comment section of the treatment plan it stated that the

“purpose of the TMJ Assessment is to evaluate ongoing complaints that have been unresponsive to conventional treatment, and that see[m] to have [been] stemming from the TM Joint and/or Orofacial Complex. In the course of this assessment patient will be provided with explanations and recommendations for treating such disorder. The assessment is performed in order to help investigate further/rule out pathology noted by assessors within the course of this patient’s rehabilitation process.”

I note that there was no mention of proposed dental treatment or services; only recommendations.

9. I find that in order for the treatment plan to be reasonable and necessary, the Applicant must show that she suffers from TMJ or TMJ related pain. There is objective medical evidence that the Applicant informed health practitioners on at least 5 occasions of her left-sided jaw pain. The Applicant first mentioned TMJ pain approximately two weeks after the accident. The Applicant’s first complaint is close to the date of the accident, April 28, 2015, which establishes that the alleged injuries may have been a result of the accident.

10. The Respondent argues that given the number of examinations and assessments that the Applicant underwent, she should have mentioned this TMJ pain much earlier and more frequently. I find it irrelevant how often the Applicant could have mentioned the TMJ pain to the medical assessors. The fact is that there is objective medical evidence that she mentioned these symptoms on at least 5 occasions. The Applicant stated to Dr. Wilderman that she suffered TMJ pain once or twice monthly and rated her pain as 4-5 out of a possible10 on the verbal and visual pain scale, lasting one to two days per episode.

11. Irrespective of the Applicant’s reasons for not mentioning her TMJ pain more frequently and to more practitioners, I am persuaded that the Applicant provided enough objective medical evidence to show that she complained of left-sided jaw pain on several occasions to warrant an assessment of the injury.

12. Further, I do not feel that it is necessary for this injury to have been listed on a disability certificate in order for the Respondent to consider possible treatment of this injury. I agree with the Applicant that the Insurer has an ongoing duty to assess and reassess a file. In this matter, the Applicant provided objective medical evidence from her treating physicians that she complained of left-sided jaw pain. In my view, this is sufficient information for the Insurer to investigate the nature of the pain and whether it is related to the accident.

13. I find that the proposed treatment and assessment plan dated October 27, 2015 is reasonable and necessary in order for the respondent to determine the nature of the injury and whether the injury is related to the Applicant’s accident.

Issue #2 and #3: Are the amounts requested under two separate treatment plans dated July 6, 2015 still outstanding?

14. The Application by an injured person also included disputes for outstanding amounts of $792.45 and $1,857.47 for separate treatment plans dated July 6, 2015.

15. The Respondent indicates that these treatment plans were denied on the basis that these amounts had to be first submitted to the Applicant Extended Healthcare Provider, Sunlife.

16. On October 2, 2016, the Respondent indicates that they received confirmation that the Applicant submitted these amounts to Sunlife. As such, the Respondent issued two cheques to the Toronto Medical Centre on October 7 and 8, 2016, respectively.

17. The Respondent provided a copy of the financial screen shot that indicates that the cheques were issued to the Toronto Medical Centre.

18. The Applicant has not provided any documentary evidence that the invoices remain unpaid. Further, in the Applicant’s submissions, there was no mention that these issues were still in dispute.

19. I am satisfied that the invoices were paid and these issues are no longer in dispute.

Issue #4: Is the Applicant entitled to interest on the claimed benefits?

20. The Applicant withdrew the issue of costs for the TMJ assessment. Given that the Respondent funded the other treatment plans in dispute, I will not award interest for those matters.

Issue #5 and #6: Are either the Respondent or the Applicant entitled to recover costs pursuant to Rule 19.1 of the LAT Rules?

21. The Tribunal’s jurisdiction to award costs is found in the Statutory Powers and Procedures Act and its own Rules.

22. Rule 19.1 provides that costs may be requested in a proceeding where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.

23. The Applicant is requesting costs because the Respondent failed to assess and re-assess the claim on an ongoing basis. As indicated above, costs can only be requested when a party in a proceeding acts unreasonably, frivolously, vexatiously or in bad faith.

24. When does a proceeding begin and end? Rule 2.17 defines “a proceeding” as the “entire process from the start of an appeal to the time a matter is finally resolved.” In short, a proceeding starts once the Applicant submits an application to the Tribunal and ends once all issues in dispute between the parties are resolved.

25. I find that the alleged behaviour did not occur during the proceeding. Further, even if such alleged behaviour did occur during the proceeding, I find that it would not reach the threshold as outlined under Rule 19.1.

26. I will not award costs to the Applicant in this matter.

27. The Respondent submits that the Applicant’s late service of the materials and failure to respond to issues in dispute regarding treatment plans dated July 6, 2015 constitute unreasonable behaviour as set out in Rule 19.1.

28. I find that the Applicant’s conduct, while not ideal, does not meet the threshold of unreasonable under the Tribunal’s Rules. A costs award shall not be granted because the Applicant’s behaviour caused some inconvenience to the Respondent. Firstly, the Applicant’s late submissions caused little prejudice to the Respondent and the Tribunal and did not impact the Tribunal’s timelines to achieve a resolution of the dispute within a six month timeframe.

29. Secondly, the Applicant’s failure to respond to issues in the application prejudiced the Applicant, more so than the Respondent, as I only relied on the information provided to me by the parties.

30. The Respondent has not persuaded me that the Applicant has engaged in a course of conduct that reaches the threshold of unreasonable, frivolous, vexatious or in bad faith.

31. I find that the Respondent is not entitled to costs in this matter.

VIII. Order

I order the following:

• The Applicant is entitled to the cost of a TMJ assessment in the amount of $1900 for a Treatment and Assessment Plan (OCF-18) submitted October 27, 2015, recommended by Dr. Leo Treger, Toronto Medical Services to establish the nature of the injury and whether it was a result of the accident.

• The Respondent is not required to make further payment for the treatment plans in the amount of $792.45 for ‘other devices’, and chiropractic services in the amount of $1857.47, both submitted July 6, 2015, as the Respondent has already funded these plans in full.

• The Applicant is not entitled to interest for overdue payment regarding the claimed benefits.

• The Applicant is not entitled to costs under Rule 19.1 of the LAT Rules.

• The Respondent is not entitled to costs under Rule 19.1 of the LAT Rules.

Released: December 14, 2016

Nicole Treksler, Adjudicator