Tribunal File Number: 17-002558/AABS
Case Name: 17-002558 v The Guarantee Company of North America
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:
N. A.
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
ADJUDICATOR: Anita Goela
Paralegal for applicant: Joel Lewis
Counsel for respondent: Shawn MacDonald
HEARD in writing: October 17, 2017
OVERVIEW
1The applicant was injured in an automobile accident on January 1, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 ("Schedule"), some of which were denied by the respondent.
2The applicant disagreed with the respondent's decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal"). The parties participated in a case conference but were unable to resolve the issues in dispute.
3The applicant was involved in a previous automobile accident on January 8, 2010. It is not disputed that she was profoundly injured and impaired as a result of that accident.
4The issue before the Tribunal is whether the treatment plans submitted in this application are reasonable and necessary with respect to injuries and impairments that resulted from the January 1, 2011 accident.
ISSUES TO BE DECIDED
Preliminary Issues – Motion to Strike the Reply
5I must first determine two preliminary issues:
i. Should the applicant's response to the motion to strike the reply be considered even though the response was received late?
ii. Should the applicant's reply submissions be struck because the reply was used improperly?
Substantive Issues
6The substantive issues I must decide are:
iii. Is the applicant entitled to receive the following medical benefits for physiotherapy services recommended by Mary Jane Calzado of HealthMax-Etobicoke:
a. Treatment plan dated April 2, 2016 in the amount of $2,727.40 and denied by the respondent on August 29, 2016?
b. Treatment plan dated August 11, 2016 in the amount of $3,778.73 and denied by the respondent on September 7, 2016?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7For the reasons set out below, I find that:
i. Despite being late, I will consider the applicant's response to the motion to strike the reply.
ii. The applicant's reply is struck and was not considered in rendering my decision regarding the applicant's entitlement to the medical benefits in dispute.
iii. The applicant is not entitled to receive medical benefits outlined in the treatment plans dated April 2, 2016 and August 11, 2016.
iv. Because I find that the applicant is not entitled to the two disputed medical benefits, it is not necessary for me to consider whether the applicant is entitled to interest.
ANALYSIS
Preliminary Issues – Motion to Strike the Reply
8The applicant filed reply submissions. The respondent then brought a motion to strike the applicant's reply on the basis that it was used improperly.
9The Tribunal ordered that any response to the applicant's motion was due by Thursday, October 26 at 5:00 p.m.
10The applicant served and filed the response on Friday, October 27, shortly after 9:00 a.m. The respondent wrote to the Tribunal that same day and indicated that the Tribunal should not consider the response because of the applicant's non-compliance with the due date.
11While it is regrettable that the applicant did not meet the due date, I do not see how the respondent was prejudiced by the late filing. I find that it would be in the interest of fairness to consider the response.
12The applicant's response to the motion to strike the appeal is allowed.
Was the reply used improperly?
13The purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party's submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument.
14The respondent's position is that the applicant should have anticipated the scope of the respondent's arguments because they were contained in the respondent's response to the application and were relevant to the issues in dispute.
15I reviewed the response by the respondent dated May 24, 2017. In that document, the respondent identified the following issues:
a. Settlement of the 2010 accident;
b. Dr. Calzado's April 2, 2016 OCF-18; and
c. Dr. Czok's August 16, 2017 assessment of the applicant.
16In her reply, the applicant's explanation as to why she did not focus her initial submissions on the information contained in the response was that: "[t]his would not have been possible in 10 pages as the discussion of the applicant's evidence took up those pages."
17The applicant's explanation for not addressing the issues raised in the response is unreasonable. The purpose of a reply is not to respond to arguments that the party did not have the opportunity to address initially due to page limitations. If the applicant needed additional pages to properly state her case, she should have informed the case conference adjudicator or sought permission from the Tribunal. In addition, I find it curious that the applicant's initial submissions were only six pages long.
18The applicant should have known that the respondent would raise the issues above in its responding submissions as they were the main reasons the insurer denied the disputed benefits.
19The balance of the applicant's reply submissions include information regarding:
a. Dr. Hussein's March 13, 2016 referral that includes reference to a motor vehicle accident ("MVA");
b. Discussion of the contents of Dr. Alona Kuzmina's September 3, 2013 chronic pain report; and
c. Arguments in support of the challenges the applicant experienced in keeping the 2010 and 2011 accident treatment plans separate.
20After carefully reviewing the applicant's initial and reply submissions, I agree with the respondent that the applicant used the reply to introduce new information and arguments that should have been addressed in her initial submissions.
21The applicant should have addressed the specific MVA referenced by Dr. Hussein in her initial submissions. Given that the issue in this case is whether the applicant's injuries are related to the 2010 or 2011 accident, I find the applicant ought to have known that the respondent would question what MVA was being referenced in the referral. The applicant did not address this issue at all in her initial submissions.
22The applicant had ample opportunity to discuss the contents of the chronic pain report completed by Dr. Kuzmina. Instead, the only submission on this topic in initial submissions was that "[s]he was diagnosed with chronic pain in September of 2013 due to the subject MVA (Tab 1)."
23Finally, in her reply, the applicant provides information that should have properly been submitted in the form of an affidavit, e.g. questionable practices the applicant observed at the assessor's office.
24For the reasons above, the applicant's reply is struck and was not considered when rendering my decision on the substantive issues.
25Even if I did not strike the reply, because of the issues identified above, I would have given minimal weight to the content of the reply when reaching my conclusion on the substantive issues in dispute.
Substantive Issues
Are the treatment plans dated April 2, 2016 and August 11, 2016 reasonable and necessary?
26Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the treatment plans are reasonable and necessary.
27After reviewing the medical documentation provided by the applicant, I find it difficult to determine that the treatment plans in dispute relate to injuries that are a result of the 2011 accident. For example, the physiotherapy and massage referral by Dr. Hussein dated March 13, 2016 states only that the applicant "needs physiotherapy, massage for pain in the back, neck, shoulders and thighs – due to MVA". As the applicant was involved in two MVAs, I am unable to determine from the face of the document which accident is the subject of the referral.
28The respondent provided persuasive submissions regarding the impact of the 2010 accident on the applicant and the relatively few treatment plans submitted in relation to the 2011 accident. Specifically, the respondent noted that the applicant submitted a total of 57 different treatment, assessment and examination plans in less than a year following the 2010 accident. With respect to the 2011 accident, the respondent noted that the applicant submitted only two plans over a period of two years. The applicant did not explain why so few treatment plans were submitted in relation to the 2011 accident. Because of this, I found it difficult to appreciate how the 2011 accident exacerbated the applicant's existing injuries and impairments.
29As discussed below, I found issues with the overall reliability of the medical documentation relied on by the applicant.
30I agree with the respondent that some of the medical recommendations produced by the applicant are flawed. Specifically, I determined that Dr. Kuzmina's September 3, 2013 recommendation was not reliable due to multiple factual inaccuracies including:
a. Dr. Kuzmina's suggestions that the impairments the applicant sustained as a result of the January 8, 2010 accident were limited to the head and shoulder injuries despite evidence that the 2010 accident impaired the lower half of her body;
b. Dr. Kuzmina's indication that the applicant had perfect visual acuity before the January 1, 2011 accident and lost or almost completely lost her vision in both eyes as a result of it when there is evidence that she lost her vision before the 2011 accident; and
c. Dr. Kuzmina's indication that the applicant was not sexually active in 2011 despite giving birth to her daughter in April 2012.
31I find similar issues with reports authored by Dr. Nikol and Ms. Calzado:
d. Dr. Nikol completed a November 26, 2012 OCF-18. In that document, he responded "No" to the question of whether the applicant had any disease, condition or injury that could affect her response to treatment. The respondent submits that the majority of the injuries and sequelae reported by Dr. Nikol appeared similar to the injury and sequelae that the applicant sustained as a result of the 2010 accident. I agree with the respondent that Dr. Nikol did not appear to be aware of the impact of the 2010 accident.
e. Ms. Calzado recommended treatment for the applicant's fractured left leg and shoulder, which were not caused by the January 1, 2011 accident.
32The factual inaccuracies above support the respondent's position that the medical professionals who recommended treatment for the applicant did not appreciate the scope of the 2010 accident. Because of the issues with the applicant's medical evidence, I have given less weight to the conclusions reached by Dr. Kuzmina, Dr. Nikol and Ms. Calzado.
33On a balance of probabilities, I do not find that the applicant has met her burden to establish that the treatment plans are reasonable and necessary in relation to the 2011 accident. It is undisputed from the medical evidence before me that the applicant suffered significant injury and impairment from the 2010 accident. However, there is a lack of medical documentation that points specifically to impairment sustained as a result of the 2011 accident.
CONCLUSION
34For the reasons outlined above, I find that the applicant is not entitled to the treatment plans dated April 2, 2016 and August 11, 2016 or interest.
Released: January 16, 2018
Anita Goela, Adjudicator