[The Applicant] v. Aviva Insurance Company, 2018 CanLII 130850

Tribunal File Number: 17-008198/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:

[The Applicant]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the Applicant: Marina Korshunova, Paralegal

For the Respondent: Amanda Fowler and Kathleen Mertes, Counsel

Interpreter in the Twi language: Yaw Brako-Acquah

HEARD In-Person on: July 20, August 13, 14, 15, 2018

OVERVIEW

1[The applicant] was injured in a motor vehicle accident (“the accident”) on September 29, 2015. The applicant applied to Aviva Insurance Company of Canada (“Aviva”) for accident benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2The applicant’s vehicle was rear-ended while she was driving. The applicant was off from work for a period of six weeks following the accident and returned to work on November 16, 2015. The applicant suffered a hemorrhagic stroke (“stroke”) while at work on March 2, 2016 and remains incapable of returning to work following the stroke. The applicant is unable to use her right arm and right leg and remains confined to a wheelchair. The applicant’s position is that the injuries she sustained from the accident caused the stroke. The respondent maintains the position the applicant sustained soft tissue injuries from the accident. The respondent concedes the applicant sustained serious injuries as a result of the stroke but maintains the stroke was not connected to the accident. Causation is therefore something I need to decide.

ISSUES

3The following issues are in dispute for this hearing:

i. Is the applicant entitled to a weekly income replacement benefit in the amount of $400.00 for the period of October 6, 2015 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $4,449.00 for an electric scooter, recommended by Mackenzie Medical Centre, in a treatment plan dated December 21, 2016, and denied by the respondent on March 15, 2017?

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

4Based upon the evidence before me on a balance of probabilities, I find the applicant’s stroke was not caused by the injuries sustained from the accident on September 29, 2015. I further find that the applicant is not entitled to the following benefits as a result of the injuries she sustained from the accident:

(1) A weekly income replacement benefit in the amount of $400.00 from October 6, 2015 to date and ongoing?

(2) A medical benefit in the amount of $4,449.00 for an electric scooter recommended by Mackenzie Medical Centre, in a treatment plan (OCF-18) dated December 21, 2016, and denied by the respondent on March 15, 2017?

(3) An award under Ontario Regulation 664.

(4) As no benefits are payable, the applicant is not entitled to any interest.

Analysis

5The parties agreed that the “but for” test is the test to be applied in determining causation. The Supreme Court of Canada case of Clements v. Clements² has been referenced by both parties to support their positions regarding causation. It is the applicant’s onus to demonstrate on a balance of probabilities that “but for” the accident the applicant would not have sustained a stroke. The respondent’s position is that the applicant has not satisfied her onus that the “stroke five months after the subject accident would not have occurred but for the subject accident”. I agree the “but for” test is the correct test to be applied in determining causation with respect to the applicant’s stroke and subsequently the material contribution test would not be applicable because it is only appropriate to apply the material contribution test in rare situations, where it is impossible to provide the cause of the applicant’s injuries using the “but for” test. Both parties agreed that this is not the case and I agree. I will also need to determine if the applicant’s headaches, chronic pain in the areas of her neck, back, and psychological impairments were caused as a result of the accident to determine entitlement to the benefits in dispute.

Was the applicant’s stroke caused by the accident?

6I find the applicant’s stroke was not caused by the accident.

7The applicant’s position is that her head and chest hit the steering wheel at the time of the accident. She returned to work performing her regular job duties as a custodian on November 16, 2015 for financial reasons but maintains she had not fully recovered from the injuries she sustained from the accident. The applicant submitted this created additional physical and emotional stress as her job was physically demanding and she experienced a great deal of pain upon her return to work. It is the applicant’s submission that hitting her head in the accident combined with the stress of returning to work when she had not fully recovered from her accident related injuries is the cause of her stroke on March 2, 2016.

8It is also the applicant’s position that she sustained injuries to back, neck, and right knee, and also “suffered from significantly higher level of blood pressure” [sic] as a result of the accident³. The applicant submitted that her medical history is significant as it relates to anxiety, depression, and back pain⁴. The respondent’s position is that the applicant’s blood pressure was not well controlled prior to the accident and the applicant had hypertension which existed prior to the accident, placing her at risk of a stroke. Further, the respondent submitted that the applicant’s family doctor, Dr. Patrick Safieh was not qualified as an expert by the Tribunal and therefore is not permitted to provide opinion evidence⁵. Dr. Safieh testified that the applicant was in good health prior to the accident and was not treated for hypertension. Dr. Safieh stated he had followed the CHEP (Canadian Hypertension Program) Guidelines when interpreting the applicant’s blood pressure readings. Dr. Safieh confirmed his CNR of September 18, 2014⁶ which noted: low risk on Framingham, LDL 4.3, and blood pressure 120/80. Dr. Safieh testified that low risk on the Framingham test meant that the patient would be low risk for heart attack, or stroke based on the patient’s criterion which includes their age, sex, and risk factors. The CNR of another family doctor who the applicant saw, Dr. Katherine Kosar dated February 19, 2014⁷ notes “ANXIETY NEUROSIS HYSTERIA NEURASTHENIA OBSESSIVE COMPULSIVE NEUROSIS” and the status is noted as “acute”. This CNR references complaints unrelated to headaches and back pain and there are no further psychological complaints noted again until September 23, 2016 which was in a letter from Dr. Safieh and Dr. Kosar to SunLife Group Life & Disability⁸.

9Dr. Gary Moddel, a neurologist provided a medical explanation for the stroke and that it was not caused by the accident. Dr. Moddel also testified he was the former director of the stroke unit at Scarborough General Hospital from 1995 - 2010. He conducted an insurer examination (IE) and opined that the cause of the applicant’s stroke on March 2, 2016 was due to uncontrolled hypertension. Dr. Moddel testified that the applicant was also “significantly hyper-lipidemic” and there was evidence of this in Dr. Safieh’s CNRs that the applicant had high low-density lipoproteins (LDLs).

10The blood pressure readings noted in Dr. Safieh’s CNRs confirm elevations within the applicant’s blood pressure. Dr. Safieh’s CNR dated July 22, 2014 noted a blood pressure reading of 165/100 and Dr. Safieh discussed with the applicant decreasing her sodium intake, a dash diet, and moderate intensity exercise regularly 3 times/week. The CNR of Dr. Safieh dated September 18, 2014 noted a blood pressure reading of 120/80 and an LDL reading of 4.3. Dr. Moddel stated the applicant’s LDLs were slightly above 4 and the applicant’s LDLs should have been less than 2. Dr. Moddel disagreed with Dr. Safieh that the applicant has a low Framingham score. The applicant’s blood pressure in Dr. Safieh’s CNR of January 19, 2016 noted 150/86. Dr. Moddel testified this reading did not reflect that the applicant’s blood pressure was well controlled and the applicant’s systolic blood pressure should have been lower. Dr. Moddel conceded that stress can elevate a person’s blood pressure but stated there is no evidence that stress can cause a person to become hypertensive. Dr. Moddel opined through his oral testimony that chronic pain cannot cause a permanent disability from a neurological perspective.

11I prefer the evidence of Dr. Moddel over Dr. Safieh regarding the cause of the stroke. I do not agree with the conclusion reached by Dr. Safieh that the applicant was not suffering from hypertension prior to the stroke. I find that Dr. Safieh is qualified as the applicant’s treating family doctor to assess and provide an opinion regarding if the applicant suffered from hypertension or hyper-lipidemia but I am persuaded by the conclusion opined by Dr. Moddel. Dr. Moddel is a specialist in the area of neurology and also was a former director of the stroke unit in a hospital for a period of 15 years. The evidence contained within Dr. Safieh’s CNRs supports that the applicant’s blood pressure was not well controlled. Dr. Safieh’s CNR dated July 22, 2014 noted information provided to the applicant in relation to suggested changes to her diet and exercise. I accept what Dr. Moddel has opined that the applicant’s LDL level in 2014 which was 4.3 should have been less than 2 and that the applicant’s blood pressure was not well-controlled. Dr. Safieh’s CNRs provide evidence of fluctuations in her blood pressure between 2014 and prior to the stroke in 2016. I find this evidence combined with an LDL level of 4.3 in 2014 to support the applicant had hypertension and was also hyper-lipidemic prior to the stroke. I accept that due to the applicant’s aphasia at the time of the neurological assessment in February 2017, there would have been little information Dr. Moddel would have been able to obtain regarding the mechanism of injury from the applicant at the time of the assessment. Dr. Moddel testified and noted within his reports that the documentation which he reviewed assisted him in reaching his conclusion that the stroke was not caused by the accident.

12There has been nothing noted in any of the medical records produced for the hearing that the applicant hit her head at the time of the accident. The only evidence of this has been the applicant’s oral testimony at the hearing. C.Y., the applicant’s common-law spouse and J.W., a close friend of C.Y’s who also knew the applicant stated the applicant told them she had hit head at the time of the accident. C.Y. testified that the applicant would complain of headaches and pain following the accident and prior to her stroke. C.Y. and J.W. testified they assisted the applicant with performing household chores following the accident. C.Y. further stated that the applicant’s memory was affected following the stroke as she would sometimes say things and would then be unable to recall what she said. In the medical evidence produced for the hearing, there is nothing referencing that the applicant hit her head during the accident, and there is no reference to headaches or concussion symptoms noted in the CNRs of Dr. Safieh or Dr. Kosar following the accident but prior to the stroke.

13In the absence of medical evidence which supports that the applicant sustained an injury to her head, I do not find that the applicant hitting her head has caused the applicant’s stroke. The testimony provided by C.Y and J.M. provided evidence that the applicant complained of pain and headaches following the accident and they also provided oral testimony of the activities they assisted her with following the accident. However, this information was not helpful in providing assistance with establishing causation between the stroke and the accident.

14I find on a balance of probabilities that the accident did not cause the applicant’s stroke on March 2, 2016. The applicant has not established that “but for” the accident the stroke would not have occurred. Therefore, the applicant has not succeeded in establishing that the stroke was caused by the accident.

Is the Applicant Entitled to an Income Replacement Benefit?

15While I have determined that the stroke was not caused by the accident, I need to determine whether the applicant is entitled to receive an income replacement benefit (“IRB”) as a result of the accident on the basis of other impairments. I find the applicant has not proven that she has a substantial inability to perform the duties of her pre-accident employment as a result of the injuries she sustained as a result of the accident.

16The applicant has claimed entitlement to an income replacement benefit on the basis that the injuries she sustained in the accident specifically; pain in her neck, chest, and back had not resolved upon her return to work on November 16, 2015. The applicant submitted that her return to work affected her emotional and psychological well-being as she experienced a great deal of pain while performing her job duties. The respondent has submitted the applicant did not request a further doctor’s note or disability certificate for additional time off from work. The respondent further submitted that upon the applicant’s return to work she performed her regular custodian duties and worked the same hours as she did prior to the accident. It was the applicant’s testimony that she would have continued working if she did not have a stroke.

17Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person:

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

18The applicant testified that prior to the accident she took Ibuprofen and Naproxen to treat her back pain and headaches but she stated the dosage of these medications increased following the accident.

19The pre-accident CNRs of Dr. Safieh in July 2014⁹ indicate that the doctor prescribed Zomig for the applicant’s migraines, as well as Ibuprofen and Reactine for headaches and seasonal allergies. The CNR’s of Dr. Safieh dated March 10, 2015 noted the applicant was prescribed Ibuprofen 600 mg for back pain and headaches, and on June 29, 2015¹⁰ Naproxen 500 mg was prescribed for low back pain. The evidence contained within the CNRs of Dr. Safieh and Dr. Kosar note the applicant was prescribed Ibuprofen 600 mg and Naproxen 500 mg prior to and after the accident. This evidence generally supports that the applicant was experiencing headaches and back pain prior to the accident and continued to take the same medication at the same dosage following the accident.

20The applicant had worked as a custodian at the same company since 1992 and had no issues performing any of her job duties prior to the accident. A disability certificate (“OCF-3”) dated October 8, 2015¹¹ was completed by Dr. Safieh which noted sprain and strain to the neck, lumbar spine, thorax, and chest pain. The OCF- 3 further noted the applicant had a substantial inability to perform the essential tasks of her employment, and housekeeping and home maintenance services for more than twelve weeks.

21The applicant was off work from September 29, 2015 to November 15, 2015 and received short term disability payments at the rate of $576.00 per week through her extended benefit provider Sun Life Group Life & Disability (“Sun Life”)¹². The OCF-3 supports that the applicant was entitled to an income replacement benefit during this period. I accept the applicant is entitled to an IRB during this period. On page 3 of the Sun Life file it notes the member’s (applicant’s) regular salary amount is $821.52 per week¹³. The explanation of benefits (“EOB”) confirmed that the applicant was entitled to an IRB during the period September 29 - November 15, 2015. The IRB quantum would have been based on 70% of $821.52 which equals $575.06. However, no income replacement benefit is payable during this period as the applicant’s post-accident income received from Sun Life exceeded the amount payable for the IRB.

22The applicant stated she did not ask Dr. Safieh for a further note to support additional time off of work as she stated she returned to work for financial reasons so she could pay her bills. The applicant returned to work on November 16, 2015 and performed the same custodian duties and hours but stated she had severe headaches and back pain. The applicant testified that following the accident but prior to the stroke her emotional was “not great” and that she was “not that healthy” after returning to work. Dr. Safieh noted complaints of back pain following the accident on two occasions prior to the stroke: October 2, 2015 and February 5, 2016¹⁴. There is no information contained with these CNRs which notes any difficulties with the applicant’s return to work since November 16, 2015.

23Dr. Safieh issued a letter dated September 23, 2016¹⁵ which was co-authored by Dr. Kosar. The letter was addressed to Sun Life regarding the applicant’s long-term disability claim. This letter diagnosed the applicant with chronic pain syndrome that has worsened over the last three years. The letter further notes the applicant has “chronic, severe, debilitating pain and dysfunction of her lower back. This has resulted in depression and fatigue.” It also noted the applicant would benefit from intensive therapy and that the doctors remain unconvinced that she can return to her own occupation or any aspect of her occupation until she receives this therapy. Dr. Safieh testified that the applicant’s chronic back pain is linked to the accident but confirmed that the applicant required the electric scooter as a result of her stroke. Dr. Safieh testified that the applicant’s presentation when she was at his office following the accident supported Dr. Safieh’s diagnosis that the applicant suffered from chronic pain syndrome as a result of the accident. A subsequent OCF-3 dated November 18, 2016 was completed and submitted to the respondent. The applicant submitted that the respondent has delayed assessing the applicant for entitlement to the IRB.

24The applicant underwent an “IE” with Dr. Yuri Marchuk, physiatrist on January 16, 2017 to assess current entitlement for the IRB as a result of the accident and to provide an opinion regarding if the treatment plan for the electric scooter was reasonable and necessary. Dr. Marchuk interviewed the applicant, reviewed the medical documentation, and performed a physical examination. Dr. Marchuk`s IE report dated March 1, 2017 diagnosed the applicant with accident related impairments as follows: Whiplash Associated Disorder (WAD2), Cervicothoracic bilateral shoulder myofascial dysfunction, Lumbar musculoligamentous dysfunction – exacerbated right side. Dr. Marchuk concluded the applicant did not suffer a substantial inability to perform the tasks of her pre-accident employment as a result of the injuries sustained in the accident and the electric scooter was not reasonable and necessary in relation to the injuries sustained as a result of the accident. A paper review was done following a review of further medical information and Dr. Marchuk’s opinion remained unchanged as noted in his addendum report dated June 23, 2017.

25The assessment of Dr. Marchuk concluded that the applicant sustained soft tissue injuries as a result of the accident. I prefer the diagnosis of Dr. Marchuk over the diagnosis of Dr. Safieh and Dr. Kosar which diagnosed the applicant with chronic pain in a letter dated September 23, 2016. The CNRs of Dr. Safieh noted back pain on two occasions following the accident but prior to the stroke. The CNRs do not reference headaches post-accident, prior to the stroke. Dr. Safieh provided a diagnosis of chronic pain which he links to the accident but the CNRs note the applicant’s back pain existed prior to the accident and there was no change in the medication or dosage prescribed by Dr. Safieh following the accident to address these symptoms. The letter was issued following the applicant’s stroke but it does not reference the applicant’s stroke, nor that the applicant is suffering from right side hemiplegia and is confined to a wheelchair. These factors are important as they are significant changes to the applicant following her stroke. For the reasons I have noted, I afford little weight to this letter that the applicant suffers from chronic pain syndrome as a result of the injuries she sustained from the accident. The February 5, 2016 CNR noted the applicant was working with pain but the CNRs prior to the accident noted the applicant had back pain and was prescribed Ibuprofen and Naproxen. The applicant continued to work her regular duties and hours for six weeks following the accident until March 2, 2016. I accept the applicant returned to work for financial reasons but the applicant has testified if she had not had the stroke, she “most likely would have continued working”.

26The applicant was assessed by Dr. Moddel to determine if the applicant sustained a neurological impairment as a result of the accident and if the applicant is entitled to receive IRBs. Dr. Moddel issued a report dated March 1, 2017 which noted that at the time of the assessment, the applicant was confined to a wheelchair and was aphasic. Dr. Moddel conducted a physical examination, performed cranial testing, and reviewed documents¹⁶. Dr. Moddel concluded that the applicant did not sustain a neurological impairment as a result of the accident and did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the injuries she sustained from the accident.

27Dr. Moddel issued an addendum report dated June 23, 2017 which was based a paper review of additional medical information and his opinion remained unchanged.

28The applicant continued to work her regular duties and hours from six weeks following the accident until March 2, 2016. I do not accept that the applicant suffers from chronic pain as a result of the injuries she sustained from the accident as the applicant worked with back pain and took Ibuprofen at the same dosage before and after the accident. The applicant has testified if she had not had the stroke, she “most likely would have continued working”.

29Section 6(2)(b) of the Schedule provides that an insurer is not required to pay an IRB,

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. O.,Reg. 34/10, s. 6 (2).

30I note the applicant has claimed entitlement to IRBs from October 6, 2015 to date and ongoing. The post 104 week period for IRB entitlement happened after the applicant`s stroke. Given my finding that the stroke was not caused by the accident, as well as the fact that the applicant stopped working following this stroke, I found that the applicant’s other impairments do not entitle her to receive IRBs from March 2, 2016 up to the 104 week mark. The disability test within 104 weeks is a less stringent test to meet and I have found the applicant is not entitled to IRBs during this period, I therefore find there is no entitlement to IRBs post 104 weeks.

Is the Applicant Entitled to Receive a Medical Benefit in the Amount of $4,449.00 for an Electric Scooter?

31There has been no evidence produced which supports that the applicant required an electric scooter following the accident but prior to her stroke. The applicant and Dr. Safieh both testified that the applicant required an electric scooter to assist her with her mobility issues following the stroke. I have found that the stroke was not caused by the accident. I therefore find that the electric scooter is not reasonable and necessary as I do not find the applicant requires a scooter as a result of the other injuries she sustained from the accident.

32I have reviewed the case law and jurisprudence which has been provided by the applicant. A significant number of the decisions provided by the applicant addressed cases when a special award was awarded to the applicant. Other decisions addressed s.s. 38 (8)(11) of the Schedule. I did not find these cases to be persuasive or helpful in assisting me with reaching my conclusion.

Claim for an Award under Ontario Regulation 664?

33The applicant claimed an award under Regulation 664 based upon the following:

(a) The respondent unreasonably withheld or delayed payment of the treatment plan (“OCF-18”) dated December 21, 2016;

(b) The respondent unreasonably delayed assessing the applicant’s eligibility for income replacement benefits (IRBs”);

(c) The respondent failed to assess and re-assess the claim on an ongoing basis.

34The applicant maintains the first IE was 17 months following the accident, and almost 11 months after she had a stroke. The applicant submits she was aphasic from the stroke and could not articulate the accident-related issues to the assessors, and was not physically and psychologically fit to engage in both IE assessments. The applicant submits that the respondent failed to provide all available medical documentation to their assessors for review. In addition, to date the respondent has failed to calculate the quantum of the IRB.

35Moreover, the applicant contends that Dr. Marchuk’s Physiatry report dated March 1, 2017 mentions that the applicant complained about the following symptoms since the index accident: headache, depression, anxiety, stress, problems initiating sleep, speech impairments, memory loss issues, fatigue, and difficulty with conversation, nausea, personality change, and difficulty swallowing. The applicant asserts that the respondent did not proceed with having the applicant undergo a psychological assessment. The applicant testified her emotional well-being was “not as good” following the accident and upon her return to work. The only evidence which supports this was noted in the September 23, 2016 letter of Dr. Safieh and Dr. Kosar which was six months following the stroke.

36The respondent submitted that causation was at issue and the respondent’s refusal to pay the benefits was not a result of unreasonably withholding or delaying the payment of benefits. Further, the respondent submits the conclusion they reached was following their assessment of the merits of the case in which they maintained their denial of the benefits in dispute for this hearing.

37I find that the applicant is not entitled to an award. I find the reasons provided by the respondent within their Explanation of Benefits (“EOBs”) provided to the applicant were correct and adequate for the following reasons. The EOB dated January 26, 2016¹⁷ noted receipt of the Employer Confirmation Form (“OCF-2”) which noted the applicant received short-term disability from September 29 - November 15, 2015. It was further noted on the EOB that the applicant was entitled to an IRB during this period but that the applicant was no longer entitled to an IRB effective November 16, 2015 as the applicant returned to work to her full duties and hours. The EOB dated January 11, 2017¹⁸ noted the respondent was in receipt of the OCF-3 dated November 18, 2016 and the applicant would be required to attend an IE to determine entitlement to an IRB. The assessments needed to be scheduled and were completed in January and February of 2017. Based upon this evidence, I do not find there was an unreasonable delay from when the respondent received the subsequent OCF-3 dated November 18, 2016 and the applicant attended the IE’s in January and February 2017.

38I do not accept the applicant’s submission that the respondent ignored the recommendation of its IE assessor, Dr. Marchuk and did not send the applicant for a psychological assessment based on the applicant’s psychological symptoms. The onus is incumbent on the applicant to request treatment from the respondent by submitting a treatment plan. There is no evidence before me that the applicant submitted a treatment plan requesting a psychological assessment or treatment.

39I find the evidence does not support that the respondent withheld medical documents from its own IE assessors. I also find no evidence that the respondent failed to assess the applicant’s claim on an ongoing basis. The evidence before me supports the IE assessors were provided with the relevant medical documents for their review at the time of the assessment. When the respondent received new medical documentation it was forwarded to both IE assessors for review and addendum reports were issued by both IE assessors which noted the documents which they reviewed. I therefore find there has not been an unreasonable withholding or delay of payment by the respondent.

New Evidence Raised by the Applicant in Closing Submissions

40In her closing submissions, the applicant raised a new argument that the respondent failed to identify within 10 days the goods and services described in the treatment plan which the respondent does not agree to pay for. Further the applicant submitted that the respondent failed to provide medical and any other reasons in their denial of this disputed treatment plan. The applicant argued that since the respondent failed to comply with s. 38 (8) of the Schedule, the applicant is entitled to the medical benefit in dispute for the electric scooter.

41The respondent submitted the applicant is barred from introducing new evidence and arguments in her closing submissions. The respondent submitted their EOB dated January 11, 2017 which stated the goods and services the respondent does not agree to pay for and provided medical and all other reasons why the treatment plan is not reasonable and necessary. Further, even if this EOB was defective, which the respondent denies, the respondent submitted it was cured by a second EOB dated March 15, 2017 which was issued along with the IE report of Dr. Marchuk which determined the treatment plan in dispute was not reasonable and necessary. The respondent lastly submitted this treatment plan in dispute has not been incurred.

42In addition, the applicant submitted a CBC Sports article and a medical case report for the first time with her closing submissions¹⁹. The respondent objects to these articles being raised by the applicant within their closing submissions as the respondent is prejudiced by not having an opportunity to cross-examine these documents.

43I will not consider the argument raised by the applicant that the respondent did not comply with s. 38 of the Schedule. I agree with the respondent that the proper forum to have raised this was during the hearing. The applicant could have raised this argument at many earlier points during the dispute resolution process; at the case conference, or at the in person hearing as a preliminary issue. I find it is prejudicial to the respondent for this argument to have been raised as part of the applicant’s closing submissions. Therefore, I have not considered those portions of the applicant’s closing submissions. I have found on the issue of causation and determined on a balance of probabilities that the applicant’s stroke was not caused by the accident. As a result of this conclusion I have reached on causation, I have found the scooter not to be reasonable and necessary as the applicant’s mobility issues are not as a result of injuries sustained by the accident, but rather the stroke.

Motion brought by the Respondent

44The respondent filed a Notice of Motion on October 9, 2018 which requested that the Tribunal schedule a motion hearing as the respondent was seeking an Order striking the applicant’s final reply submissions, or in the alternative, striking highlighted sections of these reply submissions. The respondent argued that the applicant’s reply submissions which were served two days late and contravened the Tribunal’s Order dated August 17, 2018. Further, the respondent submitted that the applicant’s reply submissions were improper as prior arguments were reiterated and new arguments raised. The respondent submitted they would be prejudiced by the applicant’s actions.

45I did not strike the applicant’s reply submissions, or strike high-lighted sections of the applicant’s reply submissions, as requested by the respondent. The reply submissions were served two days past the due date noted in my Order dated August 17, 2018. However, I find there is no prejudice to the respondent in allowing these reply submissions as the delay was only two days. The prejudice to the applicant would significantly outweigh any prejudice to the respondent if I was to not accept their final reply submissions. I have reviewed and weighed the reply submissions accordingly.

Costs

46The respondent requested $2,000 in costs be awarded against the applicant and relies on rule 19.6 of the License Appeal Tribunal’s Common Rule of Practice and Procedure, October 2, 2017 (“Tribunal rules”). The respondent submitted the applicant acted frivously during the Tribunal process by not producing any expert evidence at the hearing. Further, the respondent submitted the lay witnesses who testified at the hearing provided no value and interfered with the Tribunal’s ability to carry out an efficient process.

47The applicant also requested $4,000.00 in costs be awarded against the respondent in accordance with rule 19.6 of the Tribunal rules as the respondent behaved frivously and vexatiously during the hearing process and with adjusting of the applicant’s claim.

48It is the applicant’s decision which witnesses they would like to have testify at the hearing, and not for the respondent to decide. It is the discretion of the parties to elect how they choose to advocate for their clients and I did not find that the advocacy choices made by the parties amounted to a level of conduct which warrants costs. I find no evidence that either party acted unreasonably, frivously, vexatiously, or in bad faith. Both parties request for costs is dismissed without merit.

CONCLUSION

49The applicant is not entitled to a weekly income replacement benefit in the amount of $400.00 from October 6, 2015 to date and ongoing.

50The applicant is not entitled to a medical benefit in the amount of $4,449.00 for an electric scooter recommended by Mackenzie Medical centre, in a treatment plan (OCF-18) dated December 21, 2016, and denied by the respondent on March 15, 2017.

51The applicant is not entitled to an award under Ontario Regulation 664.

52As no benefits are payable, the applicant is not entitled to any interest.

Footnotes

1. 1O. Reg. 34/10
2. 2Clements v. Clements 2012 SCC 32, paragraph 8.
3. 3closing arguments of the applicant, at 9
4. 4Ibid
5. 5closing submissions of the respondent, at 5
6. 6Exhibit 4 - CNRs of Dr. Patrick Safieh, applicant’s brief, Tab K, at 51
7. 7Exhibit 9 - CNRs of Dr. Katherine Kosar, applicant’s brief, Tab M, at 88
8. 8Exhibit 7 - applicant’s brief, Tab J, at 43.
9. 9Ibid, at 49, 50
10. 10Ibid, at 55, 56
11. 11Exhibit 6 - respondent’s brief, Tab 6
12. 12Exhibit 5 - letter from Sun Life dated October 13, 2015 contained within Sun Life file in respondent’s brief, Tab 18, page 17
13. 13Ibid, page 3
14. 14Supra note 6, at pages 57, 61
15. 15Supra, note 8
16. 16Exhibit 3 – Neurology Assessment Report of Dr. Moddel, respondent’s brief, Tab 13, pages 4, 7
17. 17Exhibit 11 – Explanation of Benefits, applicant’s brief, Tab E
18. 18Exhibit 10 – Explanation of Benefits, applicant’s brief, Tab D
19. 19Book of Authorities of Applicant, Tabs 12, 13 contained with applicant’s closing written submissions.