I.A. v. TD General Insurance Company, 2020 CanLII 80302

Citation: I.A. vs. TD General Insurance Company, 2019 ONLAT 19-006142/AABS

Released Date: 09/16/2020

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:

I. A.

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Lawrence H. Calenti, Counsel

For the Respondent: Michelle Hatzikonstadinou, Counsel

HEARD: By way of written submissions

OVERVIEW

1On February 4, 2017, the applicant, I.A., was involved in a car accident. He applied to the respondent, TD General Insurance Company (“TD”), for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).¹ TD denied his claim for benefits. I.A. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2The matter proceeded to a written hearing before me.

ISSUES

Preliminary Issue – non-compliance with Tribunal Order

Analysis

3At the case conference, the parties had agreed on consent that I.A. will produce his evidence by February 27, 2020 and initial submissions by April 27, 2020.² I.A. did not produce the submissions and evidence to TD until May 11, 2020.

4Consequently, TD asks for two remedies. First, TD requests that IA’s evidence and submissions be excluded because IA failed to comply with the production deadlines in the case conference order.

5Second, TD argues that IA’s claim ought to be dismissed in its entirety as a result of ailing to comply with the production deadlines. TD submits that there is no evidence that IA requested any extension of time or offer any reason for the late filings.

6TD states that its time to prepare for this hearing was hindered by IA’s late filings. In particular, TD states it was prejudiced by IA’s late delivery of his evidence; however, there is no evidence of such prejudice before me. From my reading of TD’s written submissions, TD was fully able to deal with IA’s evidence even though it was produced late. In the circumstances of this case (explained in greater detail when I address the substantive issues), I also cannot conclude that had IA’s evidence been produced sooner, it would have caused TD to change its decision or adjust the claim differently.

7The order issued by Adjudicator Griffith indicated: “The hearing adjudicator will be the final decision-making authority regarding the above noted requirements” including the timelines set with respect to filing. There was no indication in the Tribunal Order, that failure to comply would result in dismissal of the application.

8I find that dismissing the application due to late filing would be tremendously prejudicial to I.A. On the other hand, allowing the late filing and proceeding with the hearing causes minimal prejudice to TD. I am live to the issue that TD received diminished time to prepare its submissions in this proceeding and this is concerning given that both parties agreed to the timelines set out in Adjudicator Griffith’s order. However, there is no indication in this instance that TD was unprepared or unable to address the relevant issues within the reduced period of time.

9As a result, having considered whether it would be in the interests of natural justice to dismiss the application on the basis of the late filing, I find that it would be an unfair result.

10TD also requested costs under Rule 19 as a result of I.A.’s late filing and I will address this below.

Result

11For the reasons explained below, I have decided to allow this late submissions and evidence.

Substantive Issues

12According to the parties’ submissions, the issues that remain in dispute are as follows:

i. Is the medical benefit in the amount of $338.43 for chiropractic services recommended by North Toronto Rehab in a treatment plan (OCF-18) submitted on September 18, 2017, and denied on December 4, 2017, reasonable and necessary?

ii. Is the medical benefit in the amount of $225.62 ($1,779.34, less $1,553.72 approved) for chiropractic services recommended by North Toronto Rehab in an OCF-1) submitted on November 2, 2017, and denied on December 22, 2017, reasonable and necessary?

iii. Is the medical benefit in the amount of $1,663.53 for chiropractic services recommended by North Toronto Rehab in an OCF-18 submitted on December 9, 2017, and denied on January17, 2018, reasonable and necessary?

iv. Is the medical benefit in the amount of $1,553.72 for chiropractic services recommended by North Toronto Rehab in an OCF-18 submitted on January 13, 2018, and denied on February 8, 2018, reasonable and necessary?

v. Is the medical benefit in the amount of $1,892.52 for chiropractic services recommended by North Toronto Rehab in an OCF-18 submitted on February 12, 2018, and denied on March 12, 2018, reasonable and necessary?

vi. Is the medical benefit in the amount of $1,663.53 for chiropractic services recommended by North Toronto Rehab in an OCF-18 submitted on March 19, 2018, and denied on April 19, 2018, reasonable and necessary?

vii. Is the medical benefit in the amount of $1,328.10 for chiropractic services recommended by North Toronto Rehab in an OCF-18 submitted on April 19, 2018, and denied on April 27, 2018, reasonable and necessary?

viii. Is I.A. entitled to interest on any overdue payment of benefits?

FINDING

13Based on a review of the evidence, I find that:

a. I.A. is not entitled to the OCF-18s and, therefore, interest is not payable; and

b. TD is entitled to costs in the amount of $300.00.

LAW

14Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.³

Issues 12 i. through vii. - OCF-18s for chiropractic treatment

15For the reasons that follow, I find that I.A. has not met his onus on a balance of probabilities that the OCF-18s are reasonable and necessary.

16I.A.’s claims that the treatment he seeks is reasonable and necessary; I find the medical evidence does not support his claim.

17My finding that the OCF-18s are not reasonable and necessary are based on the following:

a. I.A. saw his family physician only 7 times for accident-related complaints, despite relatively frequent visits for other medical issues. Additionally, I.A. reported a 50-60% reduction in his overall symptoms to his treatment providers at North Toronto Rehab as early as April 2018. The fact that he reported a substantial improvement and has not complained to his family physician of accident-related symptoms since February 2019 does not support that the disputed treatment is reasonable and necessary. On the contrary, the evidence shows that I.A. would not benefit from further facility-based treatment;

b. I.A. reported to the section 25⁴ and 44 assessor⁵ that he was able to perform self-care and housekeeping activities, was exercising (including weightlifting at the gym), and, most significantly, had been working a new, somewhat physically-demanding job at a movie theatre, i.e. (cleaning and concession) in addition to going to school. This evidence of increased post-accident activity also does not support a need for further chiropractic treatment; and

c. I.A.'s own assessor, Dr. Fern, indicated that given the passage of time, I.A.'s symptoms were likely a central sensitization issue and therefore required a chronic pain management program. It’s important to note that Dr. Fern did not recommend chiropractic care.

18Aside from the OCF-18s, there are no other recommendations for chiropractic treatment. In this proceeding, the OCF-18s are unsupported by objective medical evidence to establish that the proposed chiropractic treatment is reasonable and necessary. Further, I.A.’s family physician does not recommend chiropractic treatment; nor does Dr. Fern specifically recommend chiropractic treatment. In fact, Dr. Fern recommends different treatment modalities to address I.A.’s accident-related injuries.

19On a review of all the evidence, I find that I.A. has not met his burden of proof on a balance of probabilities that the OCF-18s for further chiropractic treatment are reasonable and necessary.

COSTS

20TD submits that I.A. failed to comply with the Tribunal order, thereby establishing TD’s request for costs.

21For the following reasons, I find I.A. has acted unreasonably and, consequently, is ordered to pay costs in the amount of $300.00.

22Pursuant to rule 19.1 of the Common Rules of Practice and Procedure, October 2, 2017 (“the Rules”), costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 permits me the authority to deny or grant the request for costs or award a different amount.

23I.A.’s evidence and submissions were filed approximately two weeks late. I.A. offered no explanation for the late submissions. As a result of the late filing, I.A. was non-compliant with the terms of the Tribunal’s order dated December 19, 2019.

24As noted above, rule 19.5 authorizes me to deny or grant the request for costs or award a different amount. TD has not made a request for a specific amount of costs. I choose to award an amount of $300.00.

25Additionally, I note TD suffered little to no prejudice as a result of I.A., or his representative’s, actions and was ultimately successful in denying the application. I find that TD’s successful defence of its position mitigates a higher cost award against I.A.

26I agree with the adjudicator in E.M. and Pembridge.⁶ As in E.M., I also find the behaviour outlined is not considerate of the Tribunal’s process, is unreasonable, and warrants a cost award. I find that a cost award of $300.00 recognizes I.A.’s unreasonable behaviour and is considerable enough to discourage similar behaviour in future proceedings.

27Considering the behaviour of I.A., I order him to pay costs to TD in the amount of $300.00.

CONCLUSION

28I.A. has not satisfied his onus to persuade me that the OCF-18s are reasonable and necessary. He is therefore not entitled to the benefits claimed and no interest is owing as there is no overdue payment of benefits.

29I.A. is ordered to pay costs to TD in the amount of $300.00.

30I.A.’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Case Conference Order of Adjudicator Griffith dated December 19, 2019, at paras. 4 and 5.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635.
4. 4Respondent Document Brief - Orthopedic Assessment Report by Dr. Ken Fern dated February 20, 2019 , tab 16
5. 5Ibid - Insurer’s Examination Report of Dr. Gilbert Yee dated March 28, 2018, at tab 14
6. 6E.M. vs. Pembridge Insurance Company, 2020 CanLII 14476 (ON LAT)