[S.S.] v. Aviva General Insurance Company, 2019 CanLII 130376

Citation: [S.S.] vs. Aviva General Insurance Company, 2019 ONLAT 18-003871/AABS

Date: December 2, 2019

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:

[S.S.]

Applicant

and

Aviva General Insurance Company

Respondent

ADJUDICATOR:

Amanda Fricot

APPEARANCES:

For the Applicant:

Syed M. Raza, Counsel

For the Respondent:

Robert Jones, Counsel

Interpreters:

Jaya Ahuja (July 8 and July 11, 2019) - Punjabi

Harsha Baxi (July 9 and July 10, 2019 - Punjabi

Jasmeet Kaur (September 19, 2019) - Punjabi

Court Reporters:

Anmul Shafiq (July 8-11, 2019)

Greg Vaughan (a portion of September 19, 2019)

HEARD:

In-Person on: July 8, 9, 10 and 11, 2019 and September 19, 2019

OVERVIEW

1The applicant was injured in a motor vehicle accident on October 16, 2017 (“the accident”). The applicant sought accident benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). An application was made to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”) after his claims for income replacement benefits, medical benefits and the cost of an assessment were denied. The respondent contends that the applicant suffered only soft tissue injuries, is subject to the Minor Injury Guideline¹ (“MIG”) and has not established entitlement to any of the benefits claimed.

2Punjabi interpreters provided translation services throughout the hearing to the applicant and to Mr. Sains, a Punjabi-speaking witness.

ISSUES IN DISPUTE

3The following issues are in dispute:

(i) Is the applicant entitled to income replacement benefits (“IRBs) in the amount of $400.00 per week for the period from February 6, 2018 to date and ongoing?

(ii) Did the applicant sustain predominantly minor injuries as defined under the Schedule?

(iii) If the applicant’s injuries are not subject to the MIG, then I must determine the following issues:

Is the applicant entitled to a medical benefit in the amount of $1,995.50 for physiotherapy, recommended in a treatment plan dated October 17, 2017, submitted December 1, 2017, denied by the respondent January 23, 2018?
Is the applicant entitled to a medical benefit in the amount of $3,613.06 for chiropractic treatment, recommended in a treatment plan dated October 18, 2017, submitted November 1, 2017, denied by the respondent January 23, 2018?
Is the applicant entitled to a medical benefit in the amount of $875.00 for assistive devices, recommended in a treatment plan dated November 17, 2017, denied by the respondent January 23, 2018?
Is the applicant entitled to a medical benefit in the amount of $4,500.96 for physiotherapy, recommended in a treatment plan dated January 22, 2018, denied by the respondent January 25, 2018?
Is the applicant entitled to a medical benefit in the amount of $3,531.20 for chiropractic treatment, recommended in a treatment plan dated May 23, 2018, denied by the respondent June 12, 2018?
Is the applicant entitled to a medical benefit in the amount of $1,196.16 for vestibular therapy, recommended in a treatment plan dated July 20, 2018, denied by the respondent September 27, 2018?
Is the applicant entitled to the cost of a psychological assessment in the amount of $2,000.00, recommended in a treatment plan dated July 12, 2018, denied July 31, 2018?

(iv) Is the applicant entitled to interest on any overdue payments?

(v) Is the respondent entitled to costs pursuant to Tribunal Rule 19.1² as a result of conduct that is alleged to have occurred at the case conferences?

(vi) Is the respondent entitled to costs pursuant to Tribunal Rule 19.1 in relation to the respondent’s motion dated July 3, 2019 and/or the applicant’s conduct throughout this proceeding?

(vii) Is the applicant entitled to costs pursuant to Tribunal Rule 19.1 as a result of the respondent’s conduct throughout this proceeding?

RESULT

4I find that:

(i) The applicant is not entitled to IRBs for the period from and after February 6, 2018.

(ii) The applicant’s injuries were not limited to predominantly minor injuries as defined under the Schedule and accordingly the MIG does not apply.

(iii) The applicant is entitled to the cost of a psychological assessment, plus interest thereon in accordance with the Schedule.

(iv) The applicant is not entitled to costs or to any of the other benefits claimed.

(v) The respondent is entitled to costs in the amount of $150.00 pursuant to Tribunal Rule 19.1.

(vi) If the respondent wishes to bring a motion for costs relating to the case conference, the respondent shall file its motion with the Tribunal within 10 calendar days of the release of this Decision.

ANALYSIS

Preliminary Motions and Objections

5A number of preliminary motions and objections were made by both parties at the commencement of the hearing. Rulings on each were provided orally at the hearing. Those rulings and reasons for the same are set out below.

The respondent’s July 3, 2019 motion and the applicant’s objection to it proceeding

6The respondent filed a motion on July 3, 2019 seeking to exclude all of the applicant’s documentary evidence on the basis that copies of that evidence had not been served by the date prescribed by Tribunal Rule 9. In the alternative, the respondent sought to exclude all documentary evidence not served on the respondent prior to April 11, 2018, the production date agreed to by the parties at the Case Conference.

7The applicant objected to this motion proceeding and requested that it be dismissed on the basis that it was not served at least 10 days in advance of the hearing, as required by Tribunal Rule 15.2. The applicant argued that he had served the respondent with his Document Brief Index (“Document Index”) on June 20, 2019 and that the respondent could have brought its motion at least 10 days in advance of the hearing. The respondent submitted that it was awaiting the applicant’s evidence brief that was due 10 days in advance of the hearing and that it is illogical to have expected the respondent to bring its motion prior to that deadline passing on June 29, 2019. The respondent further submitted that pursuant to Tribunal Rule 3.1 the rules may be waived.

8I denied the applicant’s request to dismiss the respondent’s motion. In accordance with Tribunal Rule 3.1, I waived the 10 days notice requirement and determined that, in accordance with Tribunal Rule 3.1(a) and (b), the motion would proceed, and I would decide whether any or all of the applicant’s documents would be excluded.

9I denied the respondent’s request to exclude all of the applicant’s documentary evidence for the following reasons. The applicant served the respondent with a copy of his Document Index on June 20, 2019. The covering letter asked the respondent to “advise us if you require any documents so that we can send you with same.” The respondent did not respond. Applicant’s counsel advised that he believed that all documents had been provided to the respondent previously, that he understood that providing the list of documents was sufficient to comply with Tribunal Rule 9, and that, as he received no request for any of the documents in response to his letter, he did not provide further copies of any of the documents until he provided a copy of his bound Document Brief at the hearing. The respondent confirmed that it had previously received numerous documents from the applicant, but submitted that it was unable to determine whether they were the same documents as those listed in the Document Index and/or those contained in the applicant’s Document Brief, as it did not receive that Document Brief until the first day of the hearing. Although the applicant did not strictly comply with Tribunal Rule 9, the respondent ultimately confirmed that it had been provided with most of the applicant’s documents long before June 20, 2019. I found that the respondent would not be prejudiced if the documents previously provided were admitted as evidence, but that the applicant would be prejudiced if the documents were excluded. I therefore refused to exclude all of the applicant’s documentary evidence.

10I then heard submissions on the respondent’s alternative argument that some of the documents should be excluded. The respondent argued that five of the applicant’s documents had not been provided prior to the hearing and should therefore be excluded. The applicant withdrew one document, the Motor Vehicle Accident Report. With respect to the records of the applicant’s family doctor, Dr. Nagpal, the respondent confirmed that all documents had been previously provided, other a one-page February 15, 2019 note which I ordered excluded. After reviewing the portion of the decoded OHIP summary for the period from 2010 to October 2017 that had not previously been provided, the respondent withdrew its objection with regards to the same. The respondent objected to the filing of the clinical notes and records (“CNRs”) of Progressive Rehab Clinic. Ultimately, I ordered that those CNRs are relevant and would be admitted as evidence, provided the author was made available for cross-examination. The respondent was given the option of filing Addendum Reports after the hearing if required. The respondent subsequently advised that Dr. Safir, who would be called to give expert testimony, had reviewed these CNRs in advance of testifying, and that if Dr. Safir was permitted to opine on the legible portions of those records, the respondent would not be cross-examining the author, nor would any Addendum Reports be filed. There was no objection to these terms and, accordingly, these CNRs were admitted. The applicant’s Document Index refers to an “Employment File from [a kitchen and bath design business] from 2015 to 2017” which consisted of 4 pages of payroll printouts and did not contain any job description, performance assessments or any other employment documents. The parties ultimately agreed that these documents would be withdrawn by the applicant, subject to the parties stipulating that the applicant worked for [a kitchen and bath design business] from at least January 1, 2015 until the date of the accident.

The applicant’s motion to exclude the respondent’s documentary evidence

11The applicant requested that all of the documents filed by the respondent be excluded, alleging that copies of the same had not been served 10 business days in advance of the hearing, which the applicant submitted is required by Tribunal Rule 9.3. As Tribunal Rule 2.7 defines “day” to mean “a calendar day”, and as the respondent’s documents were served more than 10 calendar days prior to the hearing commencing on July 8, 2019, I ruled that the respondent had complied with Tribunal Rule 9.3 and dismissed the applicant’s request.

The respondent’s motion to exclude all reports and records of the witnesses the applicant did not intend to call to testify at the hearing

12By letter dated May 9, 2019, the applicant advised that he would be calling Dr. Koponen, Jennifer Veneruz, and Dr. Gozlan to testify. Shortly before the hearing, the applicant advised that he did not intend to call those individuals to testify. The respondent sought to exclude all of their reports and records and submitted that it would be prejudiced if their reports and records were admitted into evidence as the respondent would be deprived of the opportunity to cross-examine them. Applicant’s counsel submitted that the May 9, 2019 letter had been sent out in error by a paralegal in his office and that he had never intended to call any of the listed witnesses to testify.

13As the onus is on the party wishing to rely upon records or reports to have the author of the same available for cross-examination if required, and as the respondent wished to cross-examine, I ruled that the applicant would not be permitted to rely upon the records and reports of these individuals unless they attended for cross-examination. On consent, arrangements were made to have Dr. Gozlan testify by phone. When the respondent later advised that neither Dr. Koponen nor Ms. Veneruz would be required for cross-examination, the applicant elected not to call either to testify.

The applicant’s objection to the respondent’s expert witnesses testifying

14By email dated June 11, 2019, the respondent had advised that it intended to call Dr. Safir, Dr. Seon, Dr. Nesterenko, and Dr. Dodig to testify. As the respondent had indicated at the case conference that it would not be calling any witnesses, the applicant objected to the respondent being permitted to call any expert witnesses and argued that the respondent should be limited to relying upon their reports. The applicant submitted that it would be prejudiced if these experts were permitted to testify as the hearing would take longer. The respondent submitted that, as the applicant had been given notice of the respondent’s intention to call these witnesses and had not objected, the applicant would not be prejudiced. Applicant’s counsel confirmed that he took no steps prior to the commencement of the hearing to object to the respondent calling the expert witnesses to testify but submitted that his silence meant he did not agree. The respondent advised on the first day of the hearing that it only intended to call Dr. Safir, Dr. Seon and possibly Dr. Dodig, and that the examination-in-chief of the expert witnesses would assist the Tribunal and would be limited to having them clarify how their assessments were conduced and how they had reached their conclusions.

15After hearing the submissions from the parties, I ruled that the respondent would be permitted to call Dr. Safir, Dr. Seon and Dr. Dodig as witnesses, but that their examination-in-chief would be brief and limited to the areas identified by the respondent. I concluded that this would not prolong the hearing significantly or prejudice the applicant who would have the opportunity to cross-examine them.

The respondent’s objections to the applicant being permitted to call [D.S.] as a witness

Objection at the commencement of the hearing

16The applicant had advised the respondent by letter date May 10, 2019 that he intended to call [D.S.], the Owner/Manager of [a renovation business], as a witness. At the commencement of the hearing, the respondent objected to the applicant being permitted to call [D.S.] as a witness on the basis that the respondent would have inadequate time to prepare for cross-examination of this witness.

17I ruled that the applicant would be permitted to call [D.S.] as a witness for the following reasons. Contrary to the respondent’s submissions, as [D.S.] was not being called as an expert witness, the applicant was under no obligation to advise the respondent of his qualifications, nor did Tribunal Rule 9.2 require that his contact information be provided. Although a brief description of [D.S.]’ testimony was not provided to the respondent, given the video surveillance conducted by the respondent, the respondent was generally aware of what the nature of [D.S.]’ testimony would be.

Objection on the third day of the hearing

18In order to accommodate the testimony of expert witnesses, the testimony of the applicant’s witness, [D.S.], needed to be deferred several times. On the morning of the second day of the hearing, I made an order excluding witnesses. In addition, I directed the applicant not to have discussions of any kind with [D.S.] until after [D.S.] testified.

19At the commencement of the third day of the hearing, in the process of confirming the availability of the witnesses for the day, the applicant advised that he had confirmed with [D.S.] that he could attend. When questioned by the respondent, the applicant confirmed that he had spoken with [D.S.], but advised that their discussion had been limited to confirming his attendance. When asked why he contacted [D.S.] in contravention of the Tribunal’s direction not to do so, the applicant advised that he did not remember that he was not supposed to talk to him. The respondent requested that [D.S.] not be permitted to testify as a result of the applicant’s breach of my direction, arguing that [D.S.]’ evidence could be tainted by his discussions with the applicant.

20I ruled that because [D.S.]’ evidence is relevant, I would allow him to testify, but noted that the applicant’s contact with [D.S.] gave rise to concerns that could affect the weight given to [D.S.]’ evidence.

Income Replacement Benefits (IRBs)

21To be entitled to IRBs on and after February 6, 2018, the applicant must prove, on the balance of probabilities, that he suffers a substantial inability to perform the essential tasks of his pre-accident employment at [a kitchen and bath design business]³ on and after February 6, 2018 as a result of accident-related injuries.

22The applicant submits that the “but for” test for causation applies in this case. In the alternative, the applicant submits that the “material contribution” test applies. The respondent made no submissions on what causation test applies but submitted that the evidence does not establish that the accident caused anything other than minor soft tissue injuries, and that those injuries did not cause the applicant to suffer a substantial inability to perform the essential tasks of his pre-accident employment on and after February 6, 2018.

23The applicant relies on 16-000393⁴ in support of his position that the “but for” test for causation should be applied in this case. The adjudicator in 16-000393 notes that the “but for” test is the default test for establishing causation. Based on the facts of that case, however, the adjudicator went on to apply the “material contribution” test, noting that the courts have defined “material” to mean more than minimal and have stated that “a contributing factor is material if it falls outside the de minimus range”.

24Causation is a factual determination. As noted in 16-000393, the “but for” test is the default test for establishing causation and I find that it is the appropriate test for determining causation in this case. There is no dispute that, but for the accident and the applicant’s accident-related injuries, the applicant would not have stopped working immediately after the accident. In order to succeed with his claim for additional IRBs, however, the applicant must show, on the balance of probabilities, that as a result of the accident he has been substantially unable to perform the essential tasks of his pre-accident employment since February 6, 2018. I must, therefore, determine what injuries were sustained in the accident and whether those injuries caused the applicant to suffer a substantial inability to perform the essential tasks of his pre-accident employment on and after February 6, 2018.

25The applicant alleges that he has been unable to return to work since the accident as a result of chronic pain and functional limitations resulting from the following injuries that he alleges he sustained in the accident: an aggravation of a T9 fracture, L4-L5 nerve root damage, back pain, neck pain, concussion, dizziness, balance problems, fatigue, memory loss, and psychological injuries. There is insufficient evidence to establish that the applicant sustained any injuries other than soft tissue injuries and a mild concussion in the accident, and I find that the evidence does not establish that those injuries resulted in the applicant being substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018. I therefore find, for the reasons that follow, that there is insufficient evidence to establish that the applicant is entitled to the IRBs claimed.

26Prior to the accident, the applicant worked full-time as a cabinet-maker. The Employer’s Confirmation Form states that the essential duties of his job were sanding doors and prep work. The applicant testified that his job duties at [a kitchen and bath design business] included: sanding; loading and unloading cabinets into trucks; and moving boards and plywood boxes weighing up 40 pounds onto tables to sand. The applicant testified that he had consistently worked prior to the accident and the Employer’s Confirmation Form confirms that he worked full-time for [a kitchen and bath design business] from 2011 until the date of the accident, and that he had not been absent from work in the four weeks prior to the accident.

27The applicant testified that he did not return to work after the accident because he could not do his job as a result of the pain and functional limitations that he alleges were caused by accident-related injuries. He testified that, during the first two to three months after the accident, his employer had called him, but that after that there was no further contact from his employer, nor did he call his employer. He advised that he did not ask about the availability of light duty work with [a kitchen and bath design business] because he knew none was available.

28The applicant testified that the only time he attempted to find work after the accident was when he worked for his friend, [D.S.], at [a renovation business]. He testified that he tried to work for approximately two-to-three hours on each of two days, but that he could not continue as a result of pain in his upper back, lower back and neck. The applicant called [D.S.] to testify. I found [D.S.] to be a very credible witness. His testimony corroborates the applicant’s evidence that, although he attended at the [a renovation business] worksite, he did very little while he was there. Contrary to the applicant’s evidence, however, [D.S.] testified the applicant had never worked for him but, rather, had been allowed to come to the worksite after the applicant had pleaded with him to allow him to do so, so that he could see what [D.S.] did and find out whether it was work he could do. [D.S.] further testified that he asked the applicant not to return as it was clear to him that he did not have the required skills to do the tile work [D.S.] was doing. Video surveillance evidence showing the applicant at [a renovation business] worksite in February 2019 was relied upon by the respondent to support its position that the applicant was not entitled to IRBs on and after February 6, 2018. I find that the February 2019 video does not assist in determining whether the applicant was substantially able to perform the essential tasks of his pre-accident employment on and after February 6, 2018.

29The applicant confirmed on cross-examination that, after the accident, he was hesitant to do even light housekeeping or engage in other physical activity because of a fear of injuring himself.

30In order to determine whether the applicant has satisfied his onus of proving that he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident on and after February 6, 2018, the nature and extent of the injuries sustained in the accident and the effect of the same on his ability to perform the essential tasks of his pre-accident employment must be considered.

Concussion, fatigue and memory loss

31I find that the applicant sustained a mild concussion that caused headaches, dizziness and balance problems, but that there is insufficient evidence to establish that he suffers from fatigue or memory loss as a result of accident-related injuries. I further find that the evidence does not establish that the applicant was substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018 as a result of the mild concussion for the following reasons.

32The accident occurred when the applicant’s vehicle was rear-ended as he slowed down while approaching other vehicles stopped a red traffic light. The back bumper and the very rear portion of his car sustained damage. There was no secondary impact. The applicant’s airbags did not deploy and he did not lose consciousness. On the day after the accident, the applicant complained of dizziness and headaches during an initial physiotherapy assessment, and he continued to complain of those symptoms for several months.

33The applicant relies on the CNRs and reports of Dr. Koponen, who saw the applicant for the first time on January 12, 2018, after the applicant was referred to her regarding dizziness. Dr. Koponen notes that there was no head injury in the accident, and states that “On the background of a MVA he had vertigo… I suspect he had post traumatic dislocation of his otoconia plus concussion…”. She referred the applicant to a physiotherapist, Ms. Veneruz, for vestibular therapy. Ms. Veneruz’s CNRs indicate that treatment for concussion symptoms was provided. Dr. Koponen also conducted a neurobehavioural cognitive assessment on January 31, 2018, following which she again concludes that the applicant likely sustained a concussion.

34The respondent submits that Dr. Koponen’s evidence, including her diagnosis of concussion, should be given no weight based on her letters of July 5, 2019 and July 9, 2019 that were filed as evidence at the hearing. In those letters, Dr. Koponen states that she is not certain that the applicant sustained a concussion, that she did not feel her assessments are accurate, that there were problems with the cognitive testing because of a language barrier, that her secretary translated during the assessment, and that she deferred the concussion question to someone more qualified - like a neuropsychologist with a trained interpreter. Based on Dr. Koponen’s July 2019 letters, I have given her evidence very little weight. However, Dr. Dodig, who conducted a neurology insurer examination (“IE”) on September 6, 2018, also concluded that the applicant “likely sustained minor concussion initially following the subject accident…”

35There is only limited evidence regarding the nature, severity or frequency of the applicant’s headaches, dizziness and balance problems. During a Family Medicine IE conducted by Dr. Safir on January 10, 2018, the applicant complained of dizziness, but also advised that the had returned to driving. The applicant attended for vestibular treatment once in January 2018 and twice in February 2018. Services were discontinued April 4, 2018 as a result of lack of contact. The applicant reported dizziness to Dr. Koponen on March 1, 2018. On May 31, 2018, he reported that he was less dizzy and that he had occasional headaches. Neither the CNRs of Dr. Koponen or Ms. Veneruz contain details of the severity or duration of the applicant’s headaches, dizziness or balance problems, nor do either express an opinion on whether the same prevented him from returning to work. Dr. Dodig notes that the applicant reported no dizziness during the September 6, 2018 neurology IE. He concludes that, from a strictly neurological perspective, the applicant did not sustain any impairment as a direct result of the accident. When the applicant testified, he made no mention of continuing to have headaches, dizziness, or balance problems, nor did he provide any oral evidence that his ability to perform his pre-accident job duties was affected by his headaches, dizziness or balance problems.

36I find that the evidence, including the absence of any evidence of headaches, dizziness or balance problems prior to the accident, establishes that the applicant sustained a mild concussion in the accident that caused intermittent headaches, dizziness or balance problems. If find, however, that there is insufficient evidence to establish that the applicant was substantially unable to perform the essential tasks of his employment on and after February 6, 2018 as a result of those symptoms, particularly given the evidence that, by January 10, 2018, those symptoms did not interfere with the applicant’s ability to drive. Although the applicant testified that he continues to have memory issues, I find that there is insufficient evidence to support a finding of accident-related fatigue or memory issues.

Aggravation injury to a pre-existing T9 fracture

37I find that the evidence does not establish that the applicant sustained an aggravation injury to his pre-existing T9 fracture in the accident for the following reasons.

38The applicant testified that he continues to have upper back pain as a result of the accident and argues that he sustained an aggravation injury to his pre-existing T9 fracture in the accident. He relies on the October 17, 2017 x-ray report, and in particular on the portion that states: “There is some irregularity of the superior endplate of T9 which compared to the CT scan of 29/08/17, sagittal reformat images appears to be slightly worse and may represent further progression in the mild compression fracture at T9.” The August 29, 2017 CT scan done prior to the accident and referred to in the October 17, 2017 x-ray report was not entered into evidence.

39A bone scan completed on November 7, 2017 confirms that the T9 fracture identified on the October 17, 2017 x-ray was not metabolically active and was due to an old injury. I accept the evidence of Dr. Safir, who was cross-examined extensively on the interpretation of the bone scan. She testified that, if there had been any aggravation of the T9 fracture in the accident, it would have shown up on the bone scan. As the bone scan revealed no recent fracture or inflammation, Dr. Safir testified that the bone scan confirmed that there had been no aggravation of the T9 fracture in the accident.

Soft tissue injuries, L4/L5 nerve root damage, and ongoing neck, back and leg pain

40For the reasons that follow, I find that the applicant sustained soft tissue injuries to the cervical, thoracic and lumbosacral spine and bilateral upper and lower extremities (“soft tissue injuries”). If find that there is insufficient evidence to establish that the applicant sustained L4/L5 nerve root damage in the accident, or that he suffers from ongoing neck, back or leg pain as a result of his accident-related soft tissue injuries. I further find that the applicant’s soft tissue injuries did not result in him being substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018.

41In support of his position that he is substantially unable to perform the essential tasks of his pre-accident employment as a result of ongoing back pain caused by the accident, the applicant relies on his own evidence that he had no back pain prior to the accident and that his ongoing back pain prevents him from being able to return to any kind of employment. He also relies on the May 8, 2018 MRI report (“the MRI”); the reports of Dr. Minhas, Dr. Jha, Dr. Koponen, and Dr. Wilderman; and the CNRs of the physiotherapy clinics where the applicant received treatment. The respondent relies on the evidence of Dr. Safir in support of its position that the applicant suffered only soft tissue injuries that resolved prior to February 6, 2018.

42Other than when corroborated by other evidence, the applicant’s evidence has been given little weight as I find it to be unreliable for several reasons. Firstly, the applicant testified and advised treating health practitioners and assessors that he fractured his back in the accident and that prior to the accident he had never had back pain. When testifying, the applicant answered “no” to his counsel’s question of whether he had consulted anyone in the one to two years prior to the accident regarding back pain. When he was subsequently asked by his counsel whether he remembered complaining “of even slight back pain any time in the three to four years before the accident”, the applicant responded that he had had a pulled muscle but that it had not been very serious and had been okay after a few days. However, the OHIP Summary and other documentary evidence establishes that the applicant had a history of intermittent back pain prior to this accident. There are entries dated in April 2011, March 2014, July 2014, December 2015, and July 2016 on the OHIP Summary that have a diagnosis code description of “lumbar strain, lumbago, coccydynia, sciatica”. There is also March 2, 2014 entry for a visit to an emergency department with the same diagnosis code description, and a July 2, 2016 entry for another visit to an emergency department with the diagnosis code description of “sprains, strains and other trauma – neck, low back, coccyx”. When confronted with the discrepancy between the information on the OHIP Summary and his testimony that he had never had back pain prior to the accident, the applicant attempted to explain it by stating that a doctor had never used the words “lumbar” or “sciatica” and that the doctor had told him it was normal pain. This does not explain the applicant’s denial of prior back pain at the hearing, or his failure to disclose the same to assessors. Additionally, the applicant made no mention in his testimony, nor did he disclose to assessors, that he had issues with his hip just the week before the accident. The OHIP Summary and CNRs of his family doctor confirm that he was seen on October 5, 2017 regarding his right hip, and that an x-ray of his pelvis and sacro-iliac joint was done on October 12, 2017, just 4 days before the accident.

43The applicant testified that he had never been told prior to the accident that he had fractured his back. During cross-examination, when the applicant was referred to the bone scan that clarifies that the T9 fracture was on old fracture, he maintained his position that he fractured his back in the accident. Although it is possible that he had never been told prior to the accident that he had this fracture, the applicant’s testimony that he fractured his back in the accident, despite medical evidence to the contrary, undermines the reliability of his other evidence.

44Additionally, the reliability of the applicant’s evidence is called into question by the lack of corroborating evidence. Large portions of his family doctor’s CNRs are illegible and Dr. Nagpal was not called to testify. The applicant did not produce the complete records of William Osler-Brampton Civic Hospital from one year prior to the accident, which had been ordered at the case conference, nor did he produce the August 29, 2017 CT scan that is reported to have referenced the T9 fracture prior to the accident. Despite the Case Conference Order directing the applicant to produce his employment records from one year prior to the accident onwards, those records were not produced.⁵

45Dr. Safir conducted an IE on January 10, 2018. Her opinion, expressed in her reports and in her testimony, is that the applicant sustained cervical, thoracic and lumbosacral sprain/strain and bilateral upper and lower extremity soft tissue injuries in the accident. She concludes that, from a strictly physical perspective, the applicant’s accident-related soft tissue injuries would have resolved within 8-12 weeks after the accident. Dr. Safir also concludes that the applicant’s soft tissue injuries did not prevent him from returning to work by February 6, 2018. In reaching that conclusion she notes that his job required that he use a hand sanding machine, stand for extended periods, and lift up to 20-30 kg. She testified that even if he was continuing to experience some residual pain from accident-related injuries when she examined him on January 10, 2018, that pain would not have prevented him from returning to work.

46The applicant relies on Dr. Wilderman’s Independent Medical Evaluation Report dated February 22, 2019, in which he concludes that the applicant suffers from chronic pain disorder as a result of the accident and that he is unfit to engage in his pre-accident employment as a result of pain and other accident-related causes. Dr. Wilderman’s conclusions regarding the cause of the applicant’s injuries and pain is given limited weight for the following reasons. His assessment depends in large part on the applicant’s self-reporting of the injuries he sustained in the accident. His assessment was conducted without reference to any diagnostic tests done before and after the accident and the only document reviewed by Dr. Wilderman was the January 22, 2018 Disability Certificate which erroneously states that the applicant fractured his thoracic vertebra in the accident. Dr. Wilderman diagnosed that applicant as having sustained numerous injuries in the accident which the evidence does not establish are accident-related. Therefore, his conclusion that the applicant suffers from chronic pain and numerous other injuries as a result of the accident is given little weight.

47The applicant also relies on the May 8, 2018 MRI (“the MRI”) in support of his position that he sustained L4/L5 nerve root damage in the accident and that it causes him to have pain radiating down his legs. The MRI reveals multilevel DDD/facet osteoarthrosis most significantly at L4-L5 with moderate impingement of the L5 nerve root. The bone scan done on November 7, 2017, just weeks after the accident, notes activity due to degenerative changes at the L4-L5 vertebrae.

48The applicant relies on the report of Dr. Minhas, who saw him at a pain clinic on July 20, 2018, to establish that the accident caused his ongoing pain. The applicant complained to Dr. Minhas of intermittent neck pain, upper and lower back pain and pain from his lower back going into both his legs. That report states that “He has multilevel degenerative disc disease and accident might have triggered his pain”. As Dr. Minhas makes no reference to the applicant’s history of back pain under the “Past medical history” portion of his report, his conclusion that the accident might have triggered the applicant’s pain is given little weight. The applicant also relies on the report of Dr. Jha, a neurologist who saw him on August 21, 2018. Dr. Jha, makes no comment on causation, other than to report that the applicant advised that he had no history of low back pain or leg pain prior to the accident.

49There is no evidence that the applicant complained of pain radiating from his low back to his legs when physiotherapy assessments were conducted on October 17, 2017 and December 20, 2017. During Dr. Safir’s January 10, 2018 examination the applicant reported no complaints of pain radiating down his legs. Dr. Safir testified that she did a straight leg raise test to check for sciatica when she examined the applicant, and that it was negative bilaterally. In Dr. Safir’s review of the MRI findings she notes that they do not correlate with the applicant’s subjective pain complaints during her January 10, 2018 examination, and that the applicant had not complained of referral pain or sensory complaints relating to the lower extremities during that examination. Dr. Safir testified that her opinion that the applicant had sustained only minor soft tissue injuries remained unchanged after reviewing the MRI, as she indicated that the degenerative changes seen on the MRI are consistent with the aging process.

50In Dr. Koponen’s January 12, 2018 note, she indicates that the applicant reported “LBP down both legs” and refers to “chronic LBP down both legs” without any explanation of what is meant by “chronic”. As the applicant did not report pain down both legs in the prior physiotherapy assessments or when examined by Dr. Safir with the assistance of a translator on January 10, 2018, and as the Disability Certificate dated January 22, 2018 makes no reference to leg pain, I have given little weight to Dr. Koponen’s reference to ““chronic LBP down both legs”, particularly given Dr. Koponen’s own concerns with the accuracy of her assessments given the language barrier identified by her.

51From the legible portions of the family doctor’s CNRs, it appears that the applicant complained of worsening lower back pain with right radiculopathy on February 8, 2018. The family doctor then requested a MRI of the applicant’s lumbar spine. As his family doctor appears to have promptly referred the applicant to specialists upon receiving complaints of weight loss and dizziness, the absence of any earlier request for the MRI or an earlier referral to specialists to investigate this complaint suggests that the applicant did not complain of pain going into his legs until February 8, 2018. The pharmacy records are consistent with this as they indicate that the applicant filled his first prescription for Naproxen on February 13, 2018. The only prescription from his family doctor that was filled after the accident and prior to this was medication for dizziness on November 13, 2017. This evidence suggests that the back pain experienced in the few months after the accident was not the same, in nature or severity, as the back and leg pain the applicant began experiencing more than two months after the accident.

52The applicant relies on 17-006622⁶ in support of his position that he is entitled to ongoing IRBs as a result of chronic pain, which he alleges results from injuries sustained in the accident and prevents him from being substantially able to perform the essential tasks of his pre-accident employment. In 17-006622, however, the evidence established that the applicant had a pre-existing degenerative lumbar spine problem that had been asymptomatic prior to the accident and that the accident had caused the applicant’s chronic back pain. Those facts are distinguishable from the facts in this case.

53I find that the evidence does not establish that the accident caused L4/L5 nerve root damage, or that the applicant suffers from ongoing neck, back or leg pain as a result of his accident-related injuries. The applicant’s evidence that he had never had back pain prior to the accident is not credible. There is insufficient evidence to establish that the applicant had accident-related neck problems after his soft tissue injuries resolved. When the applicant testified regarding his current accident-related complaints, he made no mention of neck pain. Dr. Safir’s evidence was persuasive and consistent with the other evidence, and I accept her conclusion that the applicant sustained soft tissue injuries in the accident that did not result in him being substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018.

Psychological Injuries

54For the reasons that follow, I find that there is insufficient evidence to establish that the applicant sustained accident-related psychological injuries that caused the applicant to be substantially unable to perform the essential tasks of his pre-accident employment.

55The applicant relies on the reports of Dr. Gozlan and Dr. Wilderman in support of his position that he is substantially unable to perform the essential tasks of his pre-accident employment as a result of psychological injuries sustained in the accident. The respondent relies on the evidence of Dr. Seon in support of its position that the applicant did not sustain any psychological impairment as a result of the accident.

56Dr. Gozlan, a clinical psychologist, conducted a pre-screening interview on July 12, 2018 and a psychological assessment on September 11, 2018. In his reports and in his testimony, Dr. Gozlan opined that the applicant suffers from adjustment disorder with mixed anxiety and depressed mood and from chronic pain as a direct result of the accident, and that as a result he is unable to return to work. I have given Dr. Gozlan’s evidence limited weight for the following reasons. Firstly, Dr. Gozlan’s examination of the applicant, unlike that of all other assessors, was conducted without the assistance of a translator. The applicant’s need for a translator was evident during his oral testimony. This calls into question the accuracy of both the results of the subjective test administered and of the clinical interview with the applicant that formed the basis for Dr. Gozlan’s opinions. Secondly, Dr. Gozlan reviewed only limited documents, namely: the CNRs of Dr. Koponen and the report of Dr. Wilderman, both which have been given limited weight for the reasons discussed earlier in this decision; and the Disability Certificate dated January 22, 2018 that erroneously states that the applicant fractured his thoracic vertebra in the accident. Dr. Gozlan was not provided with Dr. Seon’s July 19, 2018 report to review. Finally, in his report, Dr. Gozlan refers to information provided by the applicant that is inaccurate. For example, the applicant advised that he sustained fractures to his lower and upper back in the accident.

57The respondent relies on the evidence of Dr. Seon, a psychologist, who conducted Psychology IEs on July 11, 2018 and February 27, 2018, as well as paper reviews of additional medical documentation on August 22, 2018 and March 8, 2019. Dr. Seon testified that the applicant presented as a calm, pleasant and engaged individual both times she assessed him. In her reports she notes that the applicant advised that he had fractured his back and that physical symptoms of pain were his primary concern. He advised that following the accident his sleep was disturbed because of his physical pain and that pain limited a number of his physical activities. She also notes that he denied any significant symptoms of posttraumatic stress. She notes that some of the objective psychometric testing noted the potential for symptom magnification. Dr. Seon testified and notes in her reports that the applicant reported experiencing psychological symptoms including irritability, frustration and perceived pain due to perceived physical symptoms of pain. She concludes, however, that the applicant did not sustain psychological impairment as a result of the accident. She based her conclusion on the absence of valid or objective test results, the applicant’s presentation during her assessments, together with the applicant’s subjective complaints, which she found were not of a sufficient magnitude to warrant a psychological diagnosis when the intensity, frequency and duration of his symptoms was considered.

58Although Dr. Seon concludes that the applicant experienced emotional difficulties following the accident, she concludes that the applicant did not suffer a substantial psychological inability to perform the essential tasks of his pre-accident employment, to be credible and persuasive. Dr. Seon notes that the applicant denied any significant psychological impairment that negatively interfered with his occupational functioning. There is no evidence that the applicant ever complained to his family doctor about accident-related psychological injuries, nor is there any evidence that his family doctor ever referred him to a psychologist or a psychiatrist. On cross-examination the applicant agreed that it was his physical and not his psychological injuries that prevented him from returning to work.

59Having considered all of the evidence, I find that there is insufficient evidence to establish that the applicant sustained any accident-related psychological impairments that caused him to be substantially unable to perform the essential tasks of his pre-accident employment.

60I find that there is insufficient evidence to establish that the applicant was substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018 as a result of accident-related injuries. In reaching my decision on this issue, I have considered the fact that the applicant was working prior to, and has not returned to work since, the October 16, 2017 accident. The applicant’s continued absence from work is, however, not sufficient to establish entitlement to further IRBs, in the absence of credible evidence that accident-related injuries continued to cause the applicant to be substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018. As I find that the only injuries caused by the accident were soft tissue injuries and a mild concussion and that neither caused the applicant to be substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018, the applicant has not established that he would have been substantially able to perform the essential tasks of his pre-accident employment on and after February 6, 2018 but for the accident. Whether the applicant’s refusal to even attempt to return to work is as a result of his fear of further injuring his back, given his testimony that he learned of his prior T9 fracture for the first time after the accident, or whether it is because of pain resulting from the progression of pre-existing degenerative and/or other causes, the evidence does not support the applicant’s entitlement to IRBs on and after February 6, 2018, when his accident-related injuries that had prevented him from returning to work immediately after the accident no longer caused him to be substantially unable to perform the essential tasks of his pre-accident employment.

61I therefore find that as the evidence does not establish that the applicant was substantially unable to perform the essential tasks of his pre-accident employment on and after February 6, 2018 as a result of accident-related injuries, the applicant is not entitled to the IRBs claimed.

Minor Injury Guideline

62The MIG applies if the applicant sustained predominantly “minor injuries”. Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

63If the applicant’s injuries are predominantly minor, s. 18(1) of the Schedule limits the applicant’s entitlement for medical and rehabilitation benefits to $3,500, unless s.18 (2) of the Schedule applies. If the applicant has a pre-existing medical condition and meets the conditions set out in s. 18 (2) of the Schedule, the MIG does not apply. The onus is on the applicant to establish, on the balance of probabilities, that his injuries are not subject to the MIG.⁷

64The applicant submits that he suffered injuries that are not predominately minor and that the MIG does not apply. The applicant also relies on s. 18(2) of the Schedule. The respondent submits that the MIG applies as the applicant has not established that he suffered anything more than minor injuries, and because he has not established that s. 18(2) of the Schedule applies.

Were the injuries sustained by the applicant in the accident predominantly minor injuries as defined under the Schedule?

65For the reasons set out above, I find that the applicant sustained a mild concussion in the accident. As a concussion injury does not fall within the definition of “minor injury” under the Schedule, the MIG does not apply.

66As I find that the MIG does not apply, the applicant’s argument that s. 18(2) of the Schedule applies need not be considered, and the applicant’s entitlement to the benefits sought in the treatment plans in issue must be determined.

Is the applicant entitled to the medical benefits and/or the cost of the assessment claimed?

67 Sections 14, 15 and 16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.

68The onus is on the applicant to prove, on a balance of probabilities, that the medical and rehabilitation benefits and the assessment sought are reasonable and necessary as a result of the injuries sustained in the accident.

69The applicant submits that, despite having provided the respondent with evidence of a worsening of the applicant’s T9 compression fracture, the respondent continued to deny treatment plans submitted in and after November 2017. The applicant made no other submissions with respect to the reasonableness or necessity of any of the treatment plans in dispute. The respondent submits that, based on the evidence, including the evidence of the IE assessors who reviewed the treatment plans, none of benefits sought in the treatment plans in dispute are reasonable and necessary.

70For the reasons that follow, I find that the evidence does not establish that the treatment plans for physiotherapy, chiropractic treatment, and exercise equipment are reasonable and necessary as a result of accident-related injuries.

Issues 1, 2, and 3

71The applicant submitted treatment plans for chiropractic treatment on November 1, 2017, for exercise equipment on November 17, 2017, and for physiotherapy on December 1, 2017. Following receipt of first two treatment plans, the respondent advised the applicant that his treatment was pre-approved to $2,200.00 under the MIG until more information was received regarding his injuries, that he could begin his treatment immediately, and that further medical documentation was requested. The respondent advised that $2,542.93 has been approved and paid to date for medical and rehabilitation benefits.

72All three of these treatment plans were denied based on Dr. Safir’s January 23, 2018 IE report in which she concludes that the applicant sustained only soft tissue injuries. Her report notes that the applicant advised that he began physical rehabilitation therapy the day following the accident and that he was attending three times a week at the date of the assessment. She concludes that the treatment recommended was not reasonable and necessary for the injuries sustained in the accident because the applicant did not demonstrate any “ongoing objective musculoskeletal impairment” attributable to the accident-related physical injuries.

73The documentary evidence indicates that the applicant attended for rehabilitation treatment on average five times a week during the first three weeks after the accident, reducing to two to three times per week commencing in December 2017.

74The applicant has not met his onus of demonstrating that these treatment plans are reasonable and necessary to treat the injuries sustained in the accident given the amount of treatment the applicant had already received for his soft tissue injuries.

Issue 4 and 5

75The applicant submitted a treatment plan for physiotherapy dated January 22, 2018 and a treatment plan for chiropractic treatment dated May 23, 2018. Both of these treatment plans relate to treatment of numerous injuries and symptoms that I have found were not caused by the accident.

76The January 22, 2018 treatment plan was denied based on Dr. Safir’s January 23, 2018 IE report referred to above. The May 23, 2018 treatment plan was denied on the basis that Dr. Safir had concluded that similar treatment plans were not reasonable and necessary; and based on Dr. Nesterenko’s Family Medicine IE report dated July 31, 2018, in which she concludes that the treatment plan was not reasonable and necessary and of no therapeutic value, as in her opinion there was no ongoing musculoskeletal impairment attributable to the accident.

77As these treatment plans relate to treatment for many injuries and symptoms that the evidence does not establish were caused by the accident, and based on the evidence of Dr. Safir and Dr. Nesterenko which I accept, I find that the applicant has not met his onus of demonstrating that these treatment plans are reasonable and necessary to treat the soft tissue injuries sustained in the accident.

78Despite my finding that the applicant sustained a mild concussion in the accident, I do not find the July 20, 2018 treatment plan recommending vestibular therapy to treat post-concussion syndrome to be reasonable and necessary for the following reasons.

79The CNRs of Ms. Veneruz, who provided the applicant with vestibular therapy earlier in 2018, do not support the reasonableness and necessity of further vestibular therapy for the following reasons. The applicant attended for therapy four times in January and February 2018. When there was no further contact from the applicant, his file was closed on April 4, 2018. He attended again on June 7, 2018 and July 16, 2018. In an August 13, 2018 note, Ms. Veneruz advises that she followed up with the applicant who reported no improvement and that she had put her chart on hold. Her CNR of the same date notes that the applicant was making no improvement with “VRT”.

80This treatment plan was denied based on Dr. Dodig IE neurological report dated September 20, 2018. After noting that the applicant “likely sustained minor concussion initially following the subject accident”, Dr. Dodig concluded that from a strictly neurological perspective the applicant did not sustain any impairment or neurological deficit as a direct result of the accident, and therefore concluded that the treatment plan was not reasonable and necessary.

81Based on Ms. Veneruz’s conclusion the applicant’s attendance for vestibular therapy earlier in the year had not resulted in any improvement in the applicant’s condition, together with Dr. Dodig’s evidence, I find that the applicant has not met his onus of demonstrating that this treatment plan for further vestibular therapy is reasonable and necessary.

82I find that the evidence establishes that the psychological assessment sought is reasonable and necessary for the following reasons.

83The treatment plan notes that the initial screening was conducted by Dr. Gozlan, a psychologist, when he met with the applicant on July 12, 2018. The treatment plan contains detailed notes of that assessment that support Dr. Gozlan’s recommendation for a psychological assessment.

84The respondent relied on the conclusions of Dr. Seon to deny this treatment plan. Dr. Seon’s conclusion in her July 19, 2018 IE report was that there were no objective findings to support a psychological diagnosis in direct relation to the injuries sustained and no psychological injuries that were not subject to the MIG. Dr. Seon also conducted an IE Paper Review on August 22, 2018, in which she concludes that the treatment plan was not reasonable and necessary based on her review of the treatment plan, her assessment of the applicant in July 2018 and the conclusions reached in her July 19, 2018 IE report.

85Although Dr. Seon disagreed with Dr. Gozlan’s conclusions, I find that there is sufficient evidence in the initial screening assessment conducted by Dr. Gozlan, as set out in the treatment plan, to render a full psychological assessment reasonable and necessary. This is particularly so given that the respondent determined it was necessary to conduct a psychological IE in order to determine whether the applicant’s injuries were subject to the MIG and whether the applicant suffered from psychological impairments that would prevent him from returning to work. Additionally, Dr. Seon’s findings that the applicant experienced psychological symptoms following the accident, although not of a magnitude that she found warranted a psychological diagnosis or supported a finding of psychological impairment, supports the reasonableness of the psychological assessment sought by the applicant.

86I therefore find that the applicant has met his onus of establishing that the psychological assessment sought is reasonable and necessary and that he is entitled to the cost of that assessment.

Interest

87I find that the applicant is entitled to interest on the cost of the psychological assessment in accordance with the Schedule.

Costs Pursuant to Tribunal Rule 19.1

Is the respondent entitled to costs as a result of conduct that is alleged to have occurred at the case conferences?

88The respondent requested costs pursuant to Tribunal Rule 19.1 based on what the respondent alleges was misconduct by the applicant and his counsel at the case conferences, which the respondent alleges caused delay and additional expense for the respondent and the Tribunal. The applicant confirmed that the case conference adjudicator ordered that this issue be addressed by the hearing adjudicator.

89The respondent sought to introduce the Case Conference Report (“CCR”) as evidence in support of its request for costs. The applicant objected to the CCR being admitted into evidence on the basis that the primary purpose of the case conference is settlement and that the CCR is therefore privileged. Upon further questioning by me, the respondent confirmed that although some of the facts were set out in the CCR, the CCR did not contain all the facts to be relied upon to support the respondent’s submissions alleging misconduct by the applicant and professional misconduct by applicant’s counsel. Respondent’s counsel advised that the only way of determining the facts not recorded in the CCR would be through counsels’ reliance on their notes made at the case conference.

90After hearing the parties’ submissions, I advised the parties that I would not be considering this request for costs by the respondent for the following reasons. The respondent alleges serious misconduct by the applicant and his counsel in a proceeding over which I did not preside. The applicant and his counsel are both entitled to make a full response to those allegations. I determined that that would require the parties and/or their counsel to testify, that cross-examination would be likely, and that the same would be inappropriate in the context of this hearing where counsel are the advocates for the parties. I therefore advised that if the respondent wishes to pursue its request for costs relating to conduct that is alleged to have occurred at the case conferences, the respondent may do so by motion to the Tribunal together with the necessary supporting documentary evidence. If the respondent wishes to bring such a motion, the respondent shall file its motion with the Tribunal within 10 calendar days of the release of this Decision.

Is the respondent entitled to costs in relation to the respondent’s motion dated July 3, 2019 and/or as a result of the applicant’s conduct throughout this proceeding?

91The respondent seeks costs pursuant to Tribunal Rule 19.1 in the amount of $500.00, alleging that the respondent incurred “additional, entirely unnecessary legal costs” as a result of the applicant’s unreasonable, frivolous, and vexatious conduct, including a complete disregard for Tribunal orders and processes. I find that a cost award in the amount of $150.00 is appropriate for the following reasons.

92The applicant submits that there was no breach of any Tribunal orders and that all efforts were made by the applicant to comply with the same. The applicant further submits that he complied with the Tribunal Rules as he made full disclosure of the existence of the documents to be relied upon at the hearing in his letter served June 20, 2018. That letter invited the respondent to advise if it required any of the documents listed in the Document Index and advised that if any were required, they would be provided. The respondent did not reply to that letter.

93The respondent relies upon the applicant’s failure and alleged refusal to provide some of the documents the Tribunal ordered the applicant to produce. In March 2019, the respondent’s counsel advised the applicant that if the requested documents were not produced by April 11, 2019, he would seek instructions to bring a motion to compel production of the same. No such motion was brought at anytime by the respondent. In the circumstances, I do not find that a cost award is warranted as a result of the applicant’s failure to produce the documents sought.

94The respondent also relies on the applicant’s failure to comply with Tribunal Rule 9.2 which requires that parties serve a copy of the documents they intend to rely upon at the hearing at least 10 days in advance of the hearing and the applicant’s allegedly frivolous motion to exclude the respondent’s documentary evidence. The respondent alleges that almost the entire first day of the hearing was spent dealing with procedural issues caused by the applicant’s “repeated non-compliance”.

95The applicant’s failure to file an electronic copy of his documents that matched the hard copy provided at the commencement of the hearing, and the absence of page numbers on many of the applicant’s documents, caused unnecessary confusion and delay. It became clear on the first day of the hearing that there were discrepancies between the number of pages of certain documents and in the date range of various CNRs listed on the Document Index as compared to the documents the applicant sought to rely upon and/or those that had been previously provided to the respondent. The Document Index did, however, sufficiently identify the documents the applicant intended to rely upon, such that had the respondent doubted that the documents listed were the documents provided months earlier, the respondent could have clarified whether there were new documents by responding to the applicant’s letter and requesting a complete copy of the documents. As the respondent did not do so, much of the first day was spent reviewing documents with a view to determining which documents, if any, had not been previously provided. It was ultimately confirmed by the respondent during the first few days of the hearing that most of the documents listed in the Document Index had been received by the respondent months earlier. Only the five documents identified earlier in this Decision were ultimately in dispute. I find that the respondent’s request to exclude all of the applicant’s documentary evidence was unreasonable. The issues relating to the five documents that had not been previously produced by the applicant could have been addressed in a fraction of the time had the applicant strictly complied with Tribunal Rule 9.2 or had the respondent responded to the applicant’s letter. I find that both parties contributed to the unnecessary waste of the better part of the first day of hearing. The applicant’s motion to exclude the respondent’s documentary evidence, although without merit, was dealt with summarily and did not cause any significant delay that would warrant a cost award.

96Finally, the respondent relies on what the respondent submits was a deliberate breach of my direction that the applicant not communicate with [D.S] until after [D.S.] testified. The respondent submits that this breach forced it to bring a further motion and further delayed the proceedings.

97As noted above, despite my direction on the morning of the second day of the hearing that the applicant was to have no discussions of any kind with [D.S.] until after [D.S.] testified, the applicant contacted [D.S.] on the evening of the second day of hearing. He testified that he did so to confirm [D.S.] attendance the following day and that he did not speak about anything else with [D.S.].

98There is no evidence that the applicant spoke to [D.S.] regarding anything other than confirming his attendance at the hearing. The applicant’s clear breach of my direction, did however, cause further delay of approximately one hour as the circumstances surrounding, and the content of, that communication needed to be determined and any potential prejudice to the respondent considered.

99I find that the applicant’s conduct in communicating with [D.S.] prior to [D.S.] testifying was a clear breach of my direction to him not to do so and was unreasonable when considered in the context of this hearing. I therefore order the applicant to pay the respondent the amount of $150.00. In determining the amount of this cost award, I have considered that pursuant to Tribunal Rule 19.6 the maximum cost award is $1,000.00 for each full day of attendance at a hearing and the fact that the applicant’s breach of my direction caused a delay of approximately one hour.

Is the applicant entitled to costs as a result of the respondent’s conduct throughout this proceeding?

100The applicant seeks costs pursuant to Tribunal Rule 19.1 in the amount of $1,500.00 In support of his request for costs, the applicant submitted that the respondent acted unreasonably, frivolously, vexatiously and in bad faith when it failed to remove the applicant from the MIG and failed to approve treatment plans up to the MIG limits of $3,500.00, despite having compelling evidence.

101The conduct relied upon by the applicant is not conduct that occurred during the proceeding and accordingly does not support a cost award pursuant to Tribunal Rule 19.1. I find no evidence to support the applicant’s claim to costs.

ORDER

102I find that:

(i) The applicant is not entitled to income replacement benefits (“IRBs) for the period from and after February 6, 2018.