Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

Tribunal File Number: 16-001032/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:

E.S.

Applicant

And

Allstate Insurance Company of Canada

Respondent

DECISION

PANEL:

Rebecca Hines, Adjudicator

APPEARANCES:

For the Applicant:

Rajiv Kapoor

For the Respondent:

Victoria Fraser

HEARD:

In Writing on: October 25, 2016

OVERVIEW

1The applicant was injured in a motor vehicle accident on February 5, 2015 and applied for accident benefits to Allstate Insurance Company of Canada (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant applied for examination expenses which were denied by the respondent. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on September 22, 2016 and the matter proceeded to a written hearing.

PRELIMINARY ISSUE

3The applicant served and filed her submissions and evidence subsequent to the deadline outlined in the Tribunal’s order dated October 7, 2016. The order states that the applicant’s submissions and evidence should be submitted to the Tribunal and the respondent no later than October 1, 2016. The respondent’s reply was due on October 11, 2016.

4The applicant’s submissions and evidence were not received by the Tribunal until October 12, 2016. No filing extension was requested, nor did the applicant provide an explanation as to why the submissions were late. The respondent argues that the applicant also included several new documents that had not been previously disclosed to the respondent. These documents included:

a) OCF-3 dated June 11, 2015 completed by Dr. Louca;

b) Functional abilities assessment dated March 23, 2016 (one of the issues in dispute);

c) Social emotional assessment dated February 27, 2016;

d) Clinical notes and records of Dr. Daniel Yim; Bayview Thornhill Medical; Richmond Hill Dermatology; Dr. Simon Lee; and Dr. Amani; and

e) Affidavit of the applicant.

5The respondent filed its reply by October 11, 2016, the deadline outlined in the order, requesting costs for the applicant’s non-compliance with the Order. The respondent asserts that submitting documentation to the Tribunal that has not previously been provided to the respondent is contrary to the aim of early resolution of matters by way of full disclosure.

6The respondent requests costs in the amount of $500.00 pursuant to section 17.1 of the Statutory Powers and Procedures Act, R.S.O. 1990,c.22; and pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice and Procedure (“the Rules”). Both authorities allow the Tribunal to make an award of costs, where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.

7The respondent did not ask the Tribunal for an order excluding the submissions or any of the evidence filed by the applicant. The Rules include provisions in Rule 9 for disclosure of documents. Rule 9.3 allows the Tribunal to order that the parties either disclose its evidence at least 10 days prior to the hearing or as ordered by the Tribunal.

8I agree with the respondent that the Tribunal’s Orders and Rules are important and should be adhered to by the parties. In the present case, the applicant has failed to do so. However, if the respondent believed that they were prejudiced by the applicant’s late submissions and evidence they could have requested additional time to respond. They have not done so.

9The applicant did not request the consent of the Tribunal with respect to filing late submissions and evidence. Nor did the applicant provide a reasonable explanation with respect to why their submissions were late or why the documents were not disclosed in accordance with Rule 9 or the Case Conference Adjudicator’s Order. In addition, she failed to address the respondent’s requests for costs in their reply submissions. I agree with the respondent that this behaviour was unreasonable.

RESULT

10The respondent is entitled to receive payment for costs in the amount of $125.00.

ISSUES IN DISPUTE

11The following issues are in dispute before the Tribunal:

a) Is the applicant entitled to a cost of examination expense in the amount of $2,152.00 for a functional abilities evaluation recommended by Assess Medical and Diagnostics Inc. denied by the respondent on December 23, 2015;

b) Is the applicant entitled to a cost of examination expense in the amount of $2,000.00 for a social emotional assessment recommended by Pain Management and Mental Health Services denied by the respondent on December 10, 2015;

c) Is the applicant entitled to a cost of examination expense in the amount of $1,131.44 for an attendant care assessment recommended by Toronto Medical Centre denied by the respondent on August 5, 2015;

d) Is the applicant entitled to interest on overdue payments;

e) Is the applicant entitled to her expenses related to this written hearing;

f) Is the applicant entitled to an order of costs with respect to this proceeding.

12The following issues were listed in the applicant’s submissions as being withdrawn:

a) Is the applicant entitled to a medical benefit in the amount of $1,030.81 for a treatment plan dated September 21, 2015 for chiropractic and rehabilitation treatment, as recommended by Toronto Medical Centre;

b) Is the applicant entitled to an examination expense in the amount of $1,672.11 for a functional abilities evaluation in a treatment plan dated December 14, 2015, recommended by Toronto Medical Centre;

c) Is the applicant entitled to a medical benefit in the amount of $149.61 based on a treatment plan dated November 9, 2015 for a brokerage fee for a psychological referral from Toronto Medical Centre.

RESULT

13After reviewing the parties’ written submissions and evidence I find that the applicant is entitled to payment in the amount of $2,152.00 plus interest for the functional abilities evaluation recommended by Assess Medical and Diagnostics Inc. denied by the respondent on December 23, 2015.

14The applicant is not entitled to the following:

a) $2,000.00 for a social emotional assessment recommended by Pain Management and Mental Health Services denied by the respondent on December 10, 2015;

b) $1,131.44 for an attendant care assessment recommended by Toronto Medical Centre denied by the respondent on August 5, 2015;

c) Expenses related to this written hearing.

15In the applicant’s reply submissions she provides evidence with respect to the $149.61 for the brokerage fee for the psychological referral made by the Toronto Medical Centre. Since the applicant’s initial submissions indicated that this issue was withdrawn, this issue will not be addressed in this decision.

16The applicant is not entitled to an Order for costs.

FACTS

17On February 5, 2015, the applicant, a 50 year old woman, was involved in a motor vehicle accident. All three treatment plans in dispute listed the following accident related injuries: mainly WAD 2 soft tissue injuries including sprains and strains to multiple areas of the body, tension type headache, non-organic sleep disorder, unspecified; nervousness, mixed anxiety and depressive disorder, specific phobias and other chronic pain.

18The applicant’s injuries were initially considered minor but were later determined not to be predominantly minor injuries due to her psychological impairment.

THE LAW AND ANALYSIS:

19Section 15(1) of the Schedule provides that the insurer shall pay for “all reasonable and necessary” expenses incurred as a result of an accident.

20Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.

Is the functional abilities evaluation reasonable and necessary?

21The applicant argues that the functional abilities evaluation is reasonable and necessary as the purpose was to measure the applicant’s functional abilities as they relate to her pre-accident employment activities. The goals of the functional abilities evaluation were to reduce pain and determine the needed treatment and intervention. Further, these goals directly relate to the applicant’s injuries arising from the accident.

22In the applicant’s affidavit dated October 1, 2016 she contends that she still suffers from constant neck and back pain which restricts her everyday movements such as standing, walking, lifting, bending and carrying. She asserts that prior to the accident she worked as a piano teacher working 15-20 hours a week. Following the accident she is providing piano lessons 3-4 hours a week. Further, it has been difficult and painful to work with her injuries as being a piano teacher requires her to sit at the piano for prolonged periods of time, she must stand and walk intermittently and the job requires repetitive upper limb use. Further she must maintain focus and close attention to detail.

23The applicant’s reduction of work hours following the accident are reflected in the reports of Dr. Louis’ Worksite Assessment dated May 27, 2016 as well as the Orthopaedic Assessment of Dr. Efala dated May 16, 2016, both of which were provided to the respondent. The applicant maintains that she continues to complain to her family doctor about severe pain and it is getting worse as time progresses.

24The respondent argues that it denied this treatment plan by way of an Explanation of Benefits (OCF-9) dated December 23, 2015, as the applicant’s application for benefits indicated that her injuries did not prevent her from returning to work and she did not make a claim for income replacement benefits. Therefore, the respondent did not find the functional abilities evaluation to be reasonable and necessary.

25The applicant agrees that she did not claim an income replacement benefit. The need for a functional abilities evaluation is supported in the Worksite Assessment conducted by Dr. Louis on May 27, 2016. According to Dr. Louis, the purpose of the functional abilities evaluation is two-fold. Firstly, the evaluation would determine the applicant’s current physical abilities. Secondly, the findings would enable the development of a program to assist her recovery.

26In Dr. Efala’s orthopaedic assessment dated May 16, 2016, he notes that the applicant had difficulty in standing from a sitting position and vice versa. Dr. Efala’s physical examination revealed a woman in pain and distress and the fact that she still suffers from pain and activity limitations 15 months post-accident her prognosis for a complete recovery is guarded. Dr. Efala states the applicant can longer teach piano at the same level post-accident.

27I prefer the applicant’s evidence with respect to the applicant’s need for a functional abilities evaluation. The goal of the accident benefit system is to return the applicant to the position she was in prior to the accident. The evidence supports that she has not returned to all of her pre-accident employment duties and that she is still in pain. This fact has not been contradicted by any evidence submitted by the respondent. Therefore, I find this assessment to be reasonable and necessary.

Is the social emotional assessment reasonable and necessary?

28The applicant argues that the social emotional assessment was reasonable and necessary as the purpose was to assess the nature and extent of her impairment with respect to family and social role functioning and emotional effects to determine if psychotherapeutic treatment is warranted and to propose reasonable and necessary psychosocial intervention.

29The respondent contends that this treatment plan was denied by an Explanation of Benefits (OCF-9) dated December 10, 2015, as they had approved the Independent Psychological Assessment conducted by Dr. Levinson and 12 sessions of psychotherapy recommended in a treatment plan dated November 9, 2015. The respondent is of the view that this assessment is a duplication of services. It did not see the need for it so soon after the psychological assessment.

30The applicant argues that the social emotional assessment differs from the psychological assessment as it provides the applicant with a more comfortable and accessible method of discussing treatment of psychosocial symptoms as opposed to the strict medical confines of psychological treatment.

31In the applicant’s affidavit she asserts that prior to the accident she would actively communicate with friends and family and would attend social gatherings. Those aspects of her life have been affected by her accident related injuries. This evidence is contradicted in Dr. Levinson’s psychological assessment dated November 24, 2015. That report states that there has been no change in parenting when the applicant’s grown children visit from university. Further that the applicant was a “homebody before the accident” and that her relationships have not changed as they have never been the focal point of her life. The report did indicate that she is often angry with small things that arise in the relationship with her husband.

32The psychological progress report of Dr. Levinson dated July 20, 2016 states that while the applicant continues to have psychological issues that have a negative effect on various aspects of her life – school, parenting, family relationships etc., the applicant reported feeling more motivated and positive about her ability to make positive change in her life than she has in a long time. Further, that she had some success in managing her anxiety. Despite improvements she would benefit from 12 more sessions of psychotherapy.

33The evidence in the applicant’s affidavit supports that there has been very little impact on the applicant’s relationships and social functioning. In addition, the psychotherapy sessions conducted by Dr. Levinson had a positive impact. I find the respondent’s argument more persuasive and agree that this assessment is a duplication of services. Therefore, I do not find the social emotional assessment to be reasonable and necessary.

Is the attendant care assessment reasonable and necessary?

34The applicant argues that the purpose of the attendant care assessment is to identify the applicant’s obvious needs in relation to a number of factors. The applicant argues this assessment is not just restricted to the applicant’s personal care but also with respect to her need for assistance with housekeeping.

35Most of the evidence submitted by the applicant focusses on her lack of ability to do housekeeping and home maintenance tasks post-accident. It comes up in the majority of the assessments as well as in the applicant’s affidavit evidence. The applicant’s affidavit evidence supports the position that she cannot perform housekeeping or return to previous recreational activities due to pain and physical limitations and psychological distress. Absent from the applicant’s affidavit evidence were her limitations with respect to her personal care tasks.

36The respondent argues that the attendant care assessment was denied by an Explanation of Benefits (OCF-9) dated August 5, 2015, as there was no coverage for such an assessment for predominantly minor injuries subject to treatment under the Minor Injury Guideline. However, the respondent agrees that the applicant’s injuries no longer fall under the Minor Injury Guideline as the insurer paid more than $3,500 based on approval of psychological assessment and treatment.

37The respondent claims that even the applicant’s own independent assessments do not support the need for attendant care. For example, on November 24, 2015, the applicant reported to Dr. Levinson that she could complete personal care tasks with pain. Further, in the neurological assessment conducted by Dr. Majl dated March 8, 2016, the applicant reported that she is independent with personal care tasks.

38The applicant submits that Dr. Efala’s orthopaedic assessment dated May 16, 2016 supports her need for an attendant care assessment. The purpose of this assessment was to uncover the effect of the accident on the applicant’s physical ability and social limitations. The reports states that the applicant has limitations with respect to activities of daily living. She has difficulty with prolonged standing and reaching in the shower, taking care of her hair, dressing and undressing, grooming and putting on shoes. The report also indicates that she has difficulty with housekeeping and grocery shopping. The report comes to the conclusion that, considering the applicant’s functional abilities and physical demands, she suffers a substantial inability in performing self-care activities as a result of the accident.

39The applicant has not met her onus to show that on a balance of probabilities that the attendant care assessment is reasonable and necessary. The applicant did not provide any evidence in her affidavit that she requires assistance with personal care and two out of three of the doctor’s reports submitted in support of her position provided contradictory statements. For these reasons I do not find this treatment plan to be reasonable and necessary.

Is the applicant entitled to her expenses related to this written hearing?

40The applicant has made a request for the Tribunal to make an order with respect to payment of her legal expenses in relation to this hearing. The Tribunal does not have the authority to make such an order as the legislation has changed. Previously, the Financial Services Commission of Ontario could award a party payment of their legal expenses as a result of the hearing, if they were the successful party, or if a party was found to have acted unreasonably throughout the hearing. The provision to award expenses is no longer available. Therefore this issue is dismissed.

Is the applicant entitled to costs of this proceeding?

41In the applicant’s reply submissions she requests an order for costs and raises new arguments that were not raised in her initial submissions. This raises an issue of procedural fairness as the respondent was not given an opportunity to reply.

42The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

43The basis of the applicant’s request for costs is that the respondent had an ongoing duty to assess and reassess the file and that they failed in considering pertinent medical information by not referring the applicant to a section 44 assessment by an assessor qualified to address her symptomatology.

44There is nothing in the Schedule that states that the respondent has a mandatory duty to conduct a section 44 assessment. Further, it appears from the respondent’s reply submissions that a substantial amount of important clinical notes and records and reports had not been provided in advance of this hearing. The applicant failed to provide any explanation or argument in response to the respondent’s allegation that it did not receive certain records in advance of this written hearing. The applicant has not proven that that the respondent failed in their duty to adjust their file.

45The applicant’s submissions in respect to costs do not reference any behaviour on the part of the respondent during the proceeding as required by Rule 19. The applicant has failed to demonstrate that the respondent acted acted unreasonably, frivolously, vexatiously, or in bad faith in their handling of the file or during this proceeding. Therefore the applicant’s request for costs is denied.

ORDER

46Having read the submissions of the parties and reviewing the evidence, I find

a) The applicant is entitled to payment for an examination expense in the amount of $2,152.00 plus interest for a functional abilities evaluation recommended by Assess Medical and Diagnostics Inc. denied by the respondent on December 23, 2015.

47For the reasons outlined above the applicant is not entitled to:

a) The examination expense in the amount of $2,000.00 for a social emotional assessment recommended by Pain Management and Mental Health Services denied by the respondent on December 10, 2015.

b) The examination expense in the amount of $1,131.44 for an attendant care assessment recommended by Toronto Medical Centre denied by the respondent on August 5, 2015.

c) Interest on the two above examination expenses.

d) Her expenses in relation to this written hearing.

e) An award of costs with respect to this proceeding.

48The respondent is entitled to receive payment for costs in the amount of $125.00.

Released: May 25, 2017

___________________________

Rebecca Hines, Adjudicator