Citation: N.M. vs. Aviva Insurance Canada, 2021 ONLAT 18-008710/AABS & 18-008717/AABS

Released Date: 01/19/2021

18-008717/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:

N.M.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

[N.M.], Applicant

Victoria Tchilikova, Paralegal

For the Respondent:

Bland McPherson, Representative

Michael Silver, Counsel

Court Reporter:

Adam Kennedy

Heard In-Person:

March 11 and 12, 2020 and via teleconference on October 20, 2020

1The applicant, N.M. was involved in two separate automobile accidents on February 21, 2016 and March 28, 2017. Following each accident, he sought benefits pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was denied certain benefits by the respondent, Aviva, and submitted two applications (18-008717 re 2017 accident and 18-008710 re 2016 accident) to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was held to address both applications, but the parties were unable to come to a resolution and proceeded to a combination type hearing consisting of a two day in-person component to address non-earner benefits and written submissions to address the balance of the issues being the minor injury guideline, medical benefits, award and interest.

ISSUES IN DISPUTE

4The following are the listed issues as per the Case Conference Order dated January 28, 2019 which were further modified at the hearing by the parties:

518-008710/AABS (February 21, 2016 accident) (“First Accident”)

i. Is the applicant entitled to receive non-earner benefits in the amount of $185 weekly for the period of August 21, 2016 to January 27, 2017, submitted August 21, 2016, and denied by the respondent on January 19, 2017?

ii. Is the applicant entitled to receive medical benefits in the amount of $299.25 for physiotherapy services recommended by New Hope Physiotherapy in a treatment plan submitted December 14, 2017, and denied by the respondent on December 14, 2017?

iii. Is the applicant entitled to receive the cost of examination in the amount of $1,850 for an in-home assessment recommended by Ontario Independent Assessment Centre Inc. in a treatment plan submitted December 1, 2017, and denied by the respondent on December 14, 2017?

iv. Is the applicant entitled to receive the cost of examination in the amount of $2,200 for an orthopaedic assessment recommended by Ontario Independent Assessment Centre Inc. in a treatment plan submitted January 25, 2018, and denied by the respondent on February 8, 2018?

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

vi. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the Minor Injuries Guideline (MIG)?

vii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?

618-008717/AABS (March 28, 2017 accident) (“Second Accident”)

i. Is the applicant entitled to receive non-earner benefits (NEB) in the amount of $185 weekly for the period of September 21, 2017 to date and ongoing, submitted May 9, 2017, and denied by the respondent on February 20, 2018?

ii. Is the applicant entitled to receive medical benefits in the amount of $2,570.79 for physiotherapy services recommended by Brampton Civic Care Centre in a treatment plan submitted September 5, 2017, and denied by the respondent on September 18, 2017?

iii. Is the applicant entitled to receive medical benefits in the amount of $2,605.32 for physiotherapy services recommended by Brampton Civic Care Centre in a treatment plan submitted January 29, 2018, and denied by the respondent on February 12, 2018?

iv. Is the applicant entitled to receive the cost of examination in the amount of $1,995.33 for a psychological assessment recommended by Brampton Civic Care Centre in a treatment plan submitted October 1, 2017, and denied by the respondent on October 16, 2017?

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

vi. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the Minor Injuries Guideline (MIG)?

vii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?

7The applicant has been removed from the Minor Injury Guideline so issues 5(vi) and 6(vi) were moot and accordingly withdrawn by the applicant at the hearing. As well, the applicant withdrew issue 5(i) regarding the NEBs with respect to the first accident and issue 5(iii) regarding the cost of examination in the amount of $1,850 for the in-home assessment. The other issues remain in dispute and I address below. Finally, with respect to the amount of weekly NEBs and time period in dispute, the applicant requested $185.00 per week from February 20, 2018 (being the stoppage date) to March 28, 2019 (up to two year mark) and thereafter $320.00 per week from March 29, 2019 and ongoing.² However, there is no jurisdiction for me grant any amount past the two year since the $320.00 amount was eliminated with the June 1, 2016 changes to the Schedule. S. 12(3)(c) now states that the insurer is not required to pay a non-earner benefit for more than 104 weeks after the accident. This change applies to accident after June 1, 2016. Again, the applicant withdrew issue the NEBs with respect to the first accident and the second accident occurred on March 28, 2017.

8In its final submissions, the respondent raised causation and whether the injuries the applicant suffers from were as a result of the accident, therefore, I will address the issue of causation as well.

RESULT

9I find that N.M. is entitled to NEB’s for the period in dispute at the amount of $185 per week from February 20, 2018 to March 28, 2019 (2-year mark).

10N.M. is entitled to the physiotherapy treatment in dispute in the amount of $2,680.38 and $2,605.32 for physiotherapy services because they are reasonable and necessary.

11The applicant is not entitled to payment for the medical benefit in the amount of $1,995.33 for a psychological assessment.

12I find that an award in this matter is not appropriate as Aviva did not unreasonably withhold or delay payment of benefits.

13N.M. is entitled to interest on the payment of any overdue benefits, in accordance with s. 51 of the Schedule.

14There are no costs payable pursuant to Rule 19 of the Rules.

Procedural Issues

Request by respondent to submit document into evidence

15After the applicant had closed his case, on the second day of the hearing, the respondent requested to enter a document being an Explanation of Benefits dated February 14, 2018 apparently denying the NEBs with respect to the second accident. The applicant opposed the request arguing that the applicant had already closed his case and that it would be extremely prejudicial to allow in this document in the middle of a hearing when they did not have an opportunity to address it as part of their case. I did not allow this document into evidence because I found there would be prejudice to the applicant in allowing any additional document at this late stage of the proceedings when the applicant was not given an opportunity to review and respond to this document or potentially call witnesses to answer questions about this document.

16Moreover, pursuant to prior Tribunal order(s), the parties were to exchange their documents by a certain date which had already passed. Further, at the start of the hearing both parties filed their briefs and there was no request by the respondent to file any additional documents. At minimum, if there were any document that was inadvertently not included in their brief, it should have been brought to my attention at the start of the hearing. The respondent did not provide any adequate explanation why this document was not included in their brief aside from being an honest mistake. As such, the respondent’s motion was dismissed. This issue however does not end there.

17After the completion of the hearing during my review of the briefs and deliberations, I located two documents both labelled ‘Explanation of Benefits’ at tab 51 of the respondent’s brief (pages 1622-1624 and pages 1625-1627) placed behind a document entitled ‘Notice of Examination’. The Index references a Notice of Examination to be included under tab 51. It appears that these two additional documents were simply misplaced in the wrong part of the brief and the respondent’s counsel could not locate them. More importantly they were always there, unbeknownst to respondent’s counsel, and were technically entered as an exhibit at the start of the hearing on consent of the parties as the entire brief was entered. This is of course unless the document that the respondent was seeking to enter was, yet another Explanation of Benefits form also dated the same date. In any event, my original ruling stands, even if it may be moot, and I simply will take notice of these two particular Explanation of Benefits documents both dated February 14, 2018 (the one that is included at pages 1622-1624 and the other at 1625-1627) as they were already entered as an exhibit and the applicant would have also received a copy of same and been able to review and respond accordingly. These documents also greatly assist me in understanding the timeline for the denial of benefits and the reasons.

Request by applicant to deny Dr. Ato Seky-Otu from testifying at the hearing

18At the start of the respondent’s case, the applicant object to the responded calling Dr. Seky-Otu on the basis that he apparently never met with the applicant and any evidence he will provide will not be relevant. I denied the applicant’s request. In my view, the applicant’s principal argument, whether or not a physician has met with the applicant or not should not be the sole reason preventing a medical witness from testifying and ultimately should go to weight. Here, I noted that Dr. Seky-Otu did prepare a medical report related to this matter which was filed and he was ready and available to testify, and his testimony arguably seemed to be relevant. In any event, the applicant was able to cross examine this witness and make any submissions as to the appropriate weight I should assign to Dr. Seky-Out’s testimony. Therefore, the applicant’s motion was dismissed, and I allowed Dr. Seky-Otu to be called as a witness at the hearing.

ANALYSIS

Non-Earner Benefits (NEBs) – Second Accident

19In final submissions, applicant’s principal submission was that the respondent did not comply with section 36(4)(b) of the Schedule by sending him a proper notice explaining the reason the claim for the NEBs was denied. Section 36(6) required the respondent to pay the benefit, regardless of any question of entitlement. As well, when the updated Disability Certificate was provided the respondent did not comply with section 37(1)(b) of the Schedule by notifying the applicant that the insurer required an examination under section 44. Section 37(2) required the respondent not to discontinue paying a specified benefit (i.e. the NEB) unless, it met one of the enumerated seven grounds.

20The applicant’s paralegal did not address the NEB test in the Schedule or reference any medical evidence included in the briefs. However, in reply, the applicant’s counsel advanced additional arguments that the applicant did suffer a complete inability to carry on a normal life as a result of the accident and qualifies for NEBs on that basis as well. There were no objections to these submissions until the completion of the applicant’s reply submissions and the respondent’s counsel reasonably asked to make sur-reply submissions to allow him to respond to the additional arguments. The respondent did not ask to strike any of the reply. It is well-settled law that reply submissions should not introduce any new issues and must respond only to those matters raised by the respondent. As a result, to cure any potential prejudice, I allowed the respondent a sur-reply to address the applicant’s new arguments raised in reply and the respondent took the opportunity to do so.

Technical Breaches of the Schedule

Background

21The timeline of this matter and the various written correspondence is important. N.M. submitted his Application for Accident benefits (OCF-1) dated May 10, 2017³ and a Disability Certificate (OCF-3) dated May 9, 2017 completed by Dr. Dario Mirian⁴ This OCF-3 stated “Yes” in respect to whether the applicant sustained a complete inability to carry on a normal life and therefore supported his entitlement to NEBs.

22It appears that Aviva’s first written response to N.M..’s application was not until June 8, 2017 via a letter from Pamela Bernard-Sanchez, claims specialist, that N.M.’s Disability Certificate did not support his entitlement to non-earner benefits because his impairment must result in a ‘complete inability’ to carry on a normal life. This appears to have been an error in the adjusting of the file because on September 20, 2017, Aviva wrote to N.M. again that it had now “re-reviewed” the Disability Certificate dated May 9, 2017 and this time informed him that it did support the eligibility criteria for non-earner benefits and his scheduled benefits were to begin on September 26, 2017 in the amount of $185.00 per week. On that basis, the respondent paid the applicant NEB’s from September 26, 2017 until February 19, 2018 when it stopped this benefit based on correspondence dated February 14, 2018. There is no issue as to any entitlement to NEB’s prior to that date as the parties have resolved that issue. Therefore, it seems, to me the key issue here is whether the respondent properly terminated the applicant’s benefits on February 20, 2018.

23With the aforementioned September 20, 2017 letter (when it had ‘re reviewed’ the OCF-3) they also requested an updated Disability Certificate from N.M. no later than October 12, 2017. The applicant provided this additional OCF-3 on October 4, 2017, completed by Allya Salayeva, chiropractor, again confirming that the applicant sustained a complete inability to carry on a normal life. This is where some additional misinformation and mistakes occur by the respondent which ledto further noncompliance with the Schedule.

24On February 14, 2018, Aviva wrote to N.M. twice. First, in an Explanation of Benefits (EOB1)⁵ they advised receiving his OCF-3 dated October 4, 2017, but that his “non-earner benefits are stopped February 20, 2018, in accordance with s. 37 Insurer Multi Examination Reports.” Curiously this form also advised him that “We acknowledge receipt of your OCF-3 Disability Certificate dated October 4, 2017 completed by Dr. Allya Salayeva, chiropractor from Brampton Civic Care centre. As this information on this updated OCF-3 remains unchanged your entitled to specific benefits remains the same.” Therefore, on the one hand, this EOB, advised N.M. that his benefit was being stopped yet in the same letter that his entitlement remained the same (he was still receiving $185 per week up to that point). There was no explanation by the respondent regarding this misleading and inaccurate information.

25To confuse the applicant even further there was a second, but different Explanation of Benefits form also dated February 14, 2018 (EOB2),⁶ apparently this time enclosing the IE reports⁷ that the respondent was relying on for the stoppage of the NEBs to explain that according to the IE report he “does not suffer a complete inability to carry on a normal life.” This second EOB2 also stated that “we have issued you a cheque in the amount of $3,885.00 which represents your non-earner benefits owing from September 26, 2017 – February 19, 2018. No further non-earner benefit payment will be issued.”

Parties Positions

26The applicant submits that he is entitled to NEBs based on a procedural breach of the respondent obligations under the Schedule. In this respect, the applicant relies on a Tribunal decision in F.C. v Aviva Insurance Canada⁸, that held that NEBs were payable because of a technical breach of s. 36(5) (a) and (b) of the Schedule that required an insurer to respond to an applicant’s claim after receiving documents requested. As such, the Tribunal held that the respondent was liable to pay the non-earner benefit from the date of receipt of the new OCF-3 until the insurer provided notice to the applicant. This decision was upheld on reconsideration. See: F.C. v Aviva Insurance Canada, 2020 CanLII 63586 (ON LAT).

27In response, the respondent does not dispute the fact that it has not specifically addressed the updated OCF-3 and complied strictly with the Schedule but argues that this does not automatically entitle the applicant to payment of benefits because he is still required to prove his claim. Aviva relies on the Court of Appeal decision in Stranges v. Allstate Insurance Company of Canada,⁹ and Agyapong v. Jevco Insurance Company et al.¹⁰ to argue that procedural deficiencies do not automatically entitle an insured to non-earner benefits, as it is still the insured’s burden to prove that they meet the test under the Schedule. With respect to the F.C. v Aviva Insurance Canada decision relied on by the applicant – the responded maintains that it was wrongly decided and should not be followed, and I am bound by the Court of Appeal and Divisional Court decisions in Stranges and Agyapong.

28I agree with the applicant on this issue. Section 36(6) is a clear shall-pay provision that plainly states that if the insurer fails to comply with 36(4) or (5) within 10 days, it shall pay the specified benefit for the period starting on the day of non-compliance and ending on the day it gives proper notice. This approach and analysis of Stranges has been confirmed on several occasions by the Tribunal, including in at least three reconsideration decisions.¹¹

29More to the point, neither Stranges nor Agyapong interpreted a section equivalent to section 36(6). This is because both cases were decided under a different version of the Schedule that did not contain parallel consequences in what is now s. 36(6).

30Moreover, Stranges and Agyapong do not address the effect of an insurer’s failure to deliver notice under ss. 36(5). Nor does either case consider the effect of an insurer’s failure to deliver notice under section 37(1)(b) that it requires an examination under section 44. As such, I find that these two decisions are clearly distinguishable, and I am obliged to apply the mandatory provisions in the Schedule.

Sections 33, 36(4)(b), 36(5)(6) and 37 - Procedural errors do result in benefit entitlement

31When an insured person applies for NEBs by submitting an Application for Accident Benefits (OCF-1) and a Disability Certificate (OCF-3), pursuant to section 36(4), the insurer is required to respond in writing within 10 business days. In its written response, the insurer can either notify the insured person that the insurer:

(a) will pay the NEB; or

(b) will not pay the NEB with reasons why the insurer is not paying the NEB including a medical reason along with any other reason why it denied the NEBs; or

32Section 33 of the Schedule was also engaged when the respondent sent correspondence to the applicant dated September 20, 2017¹³ requesting a further Disability Certificate in order to assess his entitlement to the NEB. As such, sections 36 (5) and (6) of the Schedule are also relevant as this section addresses what the insurer must do upon receipt of the updated Disability Certificate:

(5) If the insurer sends a request to the applicant under subsection 33 (1) or (2), the insurer shall, within 10 business days after the applicant complies with the request,

(a) pay the specified benefit; or

(b) give the applicant a notice described in clause 36(4)(b)¹⁴

(6) If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.(emphasis added).

33Finally, section 37 was also utilized by Aviva to terminate the applicant’s NEBs. Similar to s. 36(4)(b), section 37(1)(b) requires an insurer to notify the insured person that the insurer requires an examination under section 44. Further section 37(2) states that an insurer shall not discontinue paying a specified benefit to an insured person unless one of the grounds in subsection (2) is met (emphasis added).¹⁵ Pursuant to section 37(4) if an insurer determines that an insured person is no longer entitled to receive a specified benefit on any one or more of the grounds in subsection (2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.

34I find that Aviva breached its obligation under s. 36(5) and 37(1)(b) as it failed to give the applicant the required notice – explaining that the insurer requires an examination under section 44 relating to the specified benefit. Here no such notice of an examination under s. 44 was ever provided regarding the NEBs with respect to the second accident in accordance with s. 37(1)(b) and s. 44 (even though the assessments were done).¹⁶ In fact, the applicant had no knowledge of the assessments as they were ‘paper’ assessments where his attendance was not required. It appears that N.M. only found out about these I.E.’s when he received the reports with the February 14, 2018 EOB2. The respondent acknowledged that no notice was provided to the applicant based on a clerical error and miscommunication with the assessors.¹⁷ Since there was no notice, it follows that no proper IEs were ever conducted (indeed the motion order excluded these IE reports from the hearing) and Aviva cannot now rely on these reports to support their position that they complied with s. 37(2) (meeting one of the enumerated grounds) and 37(4) (if an insurer determines that an insured person is no longer entitled to receive a specified benefit on any one of the grounds, the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination). Again, section 37(2) is mandatory and states that “an insurer shall not discontinue paying a specified benefit to an insured person unless” it meets of the enumerated grounds (emphasis added). In other words, no grounds for the termination were ever met and Aviva should not have discontinued payments.

35Further, I also find that when Aviva stopped the NEBs on February 20, 2018 it did not adequately explain under s. 37(2) why the benefit was being terminated. My review of the EOB1 and EOB2 is that Aviva’s explanation (that according to the IE reports N.M. did not suffer a complete inability to carry on a normal life) were insufficient and did not comply with s. 37(4) of the Schedule. The sufficiency of such notice and meaning of “medical and other reasons” in the Schedule has been addressed by the Tribunal in several decisions.¹⁸ In brief, Aviva’s two EOBs did not provide any specific details about the insured’s condition that formed the basis for its decision or reference any further information it required. It was also not written in plain and easy to read language and contained misleading language and was very confusing and difficult to understand. As a result, I find that the two EOBs were not in compliance with the Schedule and the principles as set out in Tribunal decisions and case law. As such, for all of these reasons I find that no valid denial of this benefit was ever provided in accordance with s. 37.

36As explained above, I do not agree with Aviva’s submission that procedural deficiencies do not automatically entitle an insured to non-earner benefits. Section 36(6) is a clear shall-pay provision that if the insurer fails to comply with 36(4) or (5) within 10 days, it shall pay the specified benefit for the period starting on the day of non-compliance and ending on the day it gives proper notice.

37There is no evidence before me that the respondent has remedied this non-compliance by giving proper notice as per s. 36(4)(b) to date. As such, the respondent is liable to pay the non-earner benefit at the rate of $185.00 per week from the stoppage date of February 20, 2018 (being the stoppage date) to March 28, 2019 (two-year mark).

Causation

38In final submissions at the completion of the in-person component of the hearing, respondent’s counsel raised a causation issue arguing that the applicant’s condition did not change much after the accident and he was living a similar life style. The respondent also relied on surveillance and surveillance reports for their position. Section 12 of the Schedule states that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident (emphasis added).

39The applicable test in making this determination is the “but for” test: whether N.M. would have had the impairments but for the accident.¹⁹ According to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”²⁰ Ultimately, however, causation is a question for the Tribunal, considering the totality of the evidence. The applicant must show that he would not have suffered the injuries “but for” the accident.

40The applicant relies upon two Disability Certificates²¹ from the second accident that note injuries as a direct result of the accident including chronic post traumatic headaches and anxiety disorders. N.M. also relies upon diagnostics, clinical notes and records (“CNRs”) of his treating providers including his family doctor as well as other records that he suffers from insomnia, neck, upper and lower back, shoulder, wrist, ankles hip pain and has also developed psychological impairments from the second accident and that there was an exacerbation of his pre existing medical condition that affects these body parts. It is uncontested that in 2014 prior to both accidents he was diagnosed with systemic lupus erythematosus and was being treated at Sick Kids Hospital. Further, as result of the lupus, prior to both subject accidents, the applicant was suffering from arthritis and avascular necrosis in his right knee and right shoulder.²² However, based on the totality of the evidence, I find that the accident related injuries have aggravated his lupus and led to further psychological and physical impairments.

41A note from Dr. E. Silverman at Sick Kids Hospital dated April 26, 2017 notes that N.M. had a recent car accident and has persistent pain in his neck and back. Dr. Silverman also noted that N.M. does not sleep well because of pain. A more recent report from Dr. Silverman dated May 1, 2018 discusses a possible joint replacement of his right shoulder. Dr. Silverman states in this report that N.M. has very little range of motion in his shoulder and significant pain and wakes up at night whenever he rolls on his side. A further note of December 4, 2018 details that N.M. was scheduled to undergo right shoulder replacement with Dr. Veillette later that week which I understand was performed on December 6, 2018. A Chronic Pain Report of Dr. D. Rozen dated April 2, 2019, diagnosed the applicant with chronic pain syndrome and chronic cervical spasm, whiplash, and aggravation of pre-existing right shoulder and right knee avascular necrosis as well as aggravation of his lupus. Dr. Rozen deems the applicant’s injuries to be chronic and likely permanent. This report was prepared nearly two years post accident and is detailed and comprehensive. An MRI of the applicant’s hips after the second accident show “minimal changes” to the applicant’s avascular necrosis.²³ In this same report Dr. E. Bogoch noted that N.M. has been quite despondent or depressed recently. Finally, before the accident N.M. was attending high school. After the accident his attendance suffered, his marks were negatively impacted, and as of the hearing he has been unable to finish high school. His report card dated June 30, 2017 notes that N.M. completed little, if any, homework and needs better attendance.²⁴

42I find that the injuries for which the applicant seeks the benefits and treatment were sustained as a result of the accident. In other words, but for the motor vehicle accident he would not have suffered the impairments which are the bases for his current claim for NEBs. I accept that N.M. has experienced increased physical and emotional disturbance since the accident which have affected all areas of his life including continuing pre-accident schooling, his ability to enter the workforce and aggravated his lupus and avascular necrosis. I also accept that at the time of the second accident he was continuing to experience impairments as a result of the first accident. Indeed, the respondent paid the applicant NEBs from September 26, 2017 until February 19, 2018 with respect to the second accident as well as other benefits, so I find it quite perplexing that they are raising causation at this stage.

43Again, according to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.” As a result of the above, I find that on a balance of probabilities, the evidence establishes that the pre-existing injuries of the applicant may have been necessarily caused by or worsened by the accident. Or put another way, I find that the applicant would not have suffered the injuries “but for” the accident. I will move now to discuss the remaining issues in dispute.

Medical and Rehabilitation Benefits

44The parties addressed the remaining issues being the treatment plans in writing.

Preliminary Issue - Request by respondent to exclude documents

45The respondent raised a preliminary issue in their written submissions. They submit that the applicant was ordered to produce various CNRs on or before March 11, 2019. Such productions included the updated walk in clinic CNRs, the updated Sick Kids Hospital CNRs, the extended health benefits file, and the Chronic Pain Assessment Report by Dr. Dima Rozen dated April 2, 2019. However, the respondent submits that several of the documents were produced for the first time along with the applicant’s written submissions, on May 14, 2019. Therefore, the respondent requests that the applicant ought not be permitted to rely upon documents produced after the production deadline, and ought to not be permitted to rely on documents which came into existence after the production deadline.

46In response, the applicant disagrees and explains that updated Sick Kids Hospital records were provided on May 7, 2019, and extended health benefits file on May 10, 2019 and that the applicant does not have control over these third-party records and provided them when they became available. With respect to the Chronic Pain Assessment of Dr. Rozen the applicant argues it was never part of the order requiring it be produced by March 11, 2019.

47Ultimately, the respondent has not alleged any prejudice as a result of the late productions and was able to address them at the hearing. I do not find this to be a blatant disregard for the Tribunal’s order, especially when it appears that the applicant’s counsel provided these records as soon after they became available and upon my review of the February 26, 2019 order I find it does not specifically refer to Dr. Rozen’s report. These records are clearly relevant, and the Tribunal is entitled to the best evidence reasonable available to inform its decision. The respondent’s request is denied.

48In order for N.M. to receive payment for medical and rehabilitation benefits under the Schedule, the benefits in dispute must be reasonable and necessary, pursuant to sections 15-17 of the Schedule. The applicant bears the onus of proving on a balance of probabilities that the goods and services listed in the treatment plans are reasonable and necessary.

49The term ‘reasonable and necessary’ is not defined in the Schedule. However, many Tribunal decisions have determined that the reasonableness and necessity of treatment must be held to an established standard which requires the following: (1) The treatment goals, as identified, are reasonable; (2) The treatment goals are being met to a reasonable degree; and (3) The overall costs of achieving these goals are reasonable.²⁵ I agree with the description in 17-001007/AABS v Aviva of what “reasonable” in s.15 of the Schedule means and shall now briefly address each of the treatment plans in dispute.

First Accident

a) $299.25 for physiotherapy services recommended by New Hope Physiotherapy in a treatment plan submitted December 14, 2017

50The applicant did not address this issue in his submissions. The respondent explains that this treatment plan submitted December 14, 2017, proposing physiotherapy services has been withdrawn as an issue in dispute referencing a fax dated May 7, 2019.²⁶ There is nothing further for me to add to this issue.

b) $1,850 for cost of examination being an in-home assessment recommended by Ontario Independent Assessment Centre Inc. in a treatment plan submitted December 1, 2017

51The applicant withdrew this issue. I also note that para. 8 of respondent’s submissions confirms that the treatment plan submitted December 1, 2017, proposing an In- Home Assessment has been approved. There is nothing further for me to add to this issue.

c) $2,200 for orthopaedic assessment recommended by Ontario Independent Assessment Centre Inc. in a treatment plan dated submitted January 25, 2018.

Does Section 38(2) of the Schedule limit the applicant’s entitlement to the benefits claimed in the January 25, 2018 treatment plan?

52The applicant submits this orthopaedic assessment is reasonable and necessary since the respondent’s initial assessment reviewed limited medical records. Another orthopaedic assessment was needed to review additional records and consider the applicant’s self-reporting to get a fuller picture of the applicant’s injuries and needs as to treatment.

53The respondent resists payment of this assessment on two grounds. It relies on s. 38(2) of the Schedule, which provides that it is not required to pay for an assessment incurred prior to the submission of a treatment plan. The treatment plan is dated January 19, 2018. It was not submitted to Aviva until January 25, 2019²⁷ but according to the applicant’s Application to the Tribunal, received on September 14, 2018, the assessment or report relating to this Treatment Plan s was conducted on January 19, 2018.²⁸ The respondent submits that it has never been provided with a copy of this assessment, notwithstanding indications that the assessment has been conducted. This assessment was included in the applicant’s brief. It is Aviva’s submission that s. 38(2) relieves it of any obligation to pay for the assessment.

54For the following reasons, I agree with the respondent and find the applicant is not entitled to the disputed treatment plan by virtue of s. 38(2). In reply submissions, the applicant argues that this orthopaedic assessment was never incurred by the applicant. However, I find that this plan was incurred as the applicant clearly conceded in his Application that this assessment was conducted prior to the date the plan was submitted and therefore, he received the services to which the expense in the plan relates to.

55Section 38 applies to “all applications for approval of assessments or examinations.” It goes on to provide in part in s. 38(2):

An insurer is not liable to pay an expense in respect of…an assessment or examination that was incurred before the insured person submits a treatment and assessment plan.

56I also note that within s.38 (2) of the Schedule that an insurer is not liable to pay a medical benefit or an assessment or examination which was incurred by an insured person prior to the insured person submitting a treatment plan which satisfies the requirements set out within s.38 (3). There are four exceptions noted within s.38 (2), however, I do not find any of those exceptions are applicable in this case.

57In this case, by having the assessment before the submission of a treatment plan, N.M. has barred Aviva’s right to reply within the permitted time frame. The scheme of the Schedule contemplates that the insured submit proposed treatment for an insurer’s approval. The insurer then has 10 days to review the proposed treatment and respond. That response may be to approve, deny the treatment or require the assured to attend an examination under s. 44. If the insurer fails to respond within 10 days, it becomes liable to pay for all treatment incurred from the 11th business day after the insurer receives the application until the insurer responds in accordance with the Schedule (such as s. 38(11) While I understand the purpose of the Schedule is consumer protection, it does not mean an insured can breach their obligations while expecting the insurer to keep its obligations.

58Therefore, by virtue of s. 38(2), Aviva is not liable to pay for the orthopedic assessment. The second ground advanced by Aviva is that the assessment was not reasonable and necessary. In light of my finding on the first ground, I need not address this ground or whether the respondent complied with s. 38(8).

Second Accident - Are the treatment plans reasonable and necessary?

a) $2,570.79[^29] for physiotherapy services recommended by Brampton Civic Care Centre in a treatment plan submitted September 5, 2017;

b) $2,605.32 for physiotherapy services recommended by Brampton Civic Care Centre in a treatment plan submitted January 29, 2018;

59I shall address these two treatment plans for physiotherapy under one heading. Both of these treatment plans relate to treatment of numerous injuries and symptoms that I have found were caused by the accident.

60For the reasons that follow, I find that the evidence establishes that these two treatment plans for physiotherapy are reasonable and necessary as a result of accident-related injuries.

61The respondent submits that the applicant suffered from much the same impairments and severity prior to the subject accidents and has failed to demonstrate that the impairments intensified or changed in any way after the subject accidents. As a result, they say, the applicant’s complaints were as a result of pre-existing medical conditions, rather than any accident related injuries, and none of the treatments requested in these two plans can be considered reasonable and necessary. I disagree because the evidence establishes that the pre-existing injuries of the applicant were worsened by the accident.

62The applicant also submits that he proceeded with some of the recommended treatments despite the denial and incurred $2,570.79. I accept the higher amount as out in the treatment plan in the amount of $2,680.38.

63My review of the OCF-18 dated September 1, 2017 and submitted on September 5, 2017 in the amount of $2,680.38, is that I find the treatment plan itself to be thorough. It identifies reasonable goals for treatment like pain reduction, increased strength and range of motion and specifically addresses the lupus diagnosed in 2014 and the previous accident in 2016. Further, it identifies pain complaints, sleep disturbances and PTSD symptomatology. It identifies the evaluation methods that will be used, barriers to recovery and recommends strategies to help overcome the barriers to recovery including co-managing with family physician. I find the additional comments section to be very detailed. The recommended treatment is also helpful as it references the goals to decrease pain, promote tissue healing and core strengthening. It ties in the treatment to N.M.’s accident related impairment and provides a roadmap for recovery.

64With regard to the OCF-18 dated January 26, 2018 in the amount of $2,605.32, I also find that it is reasonable and necessary. I find that this treatment plan is very detailed and identifies goals including pain reduction. It ties in the proposed treatment to N.M.’s accident-related impairments and provides strategies for recovery including increased strength and range of motion and the prevention of chronicity of injuries. Further, the additional comments section describes the benefits of shockwave therapy including accelerated healing of musculoskeletal conditions. I agree with Adjudicator Sewrattan in L.W. v. Cooperators General Insurance Company that “care which relieves physical pain, and therefore improves function, is a legitimate medical and rehabilitative goal.”³⁰ This decision, cited by the applicant, is not binding on me, but I find it persuasive.

65For these reasons, I find the treatment plans in the amount of $2,680.38 and $2,605.32 for physiotherapy are reasonable and necessary.

c) $1,995.33 for psychological assessment recommended by Brampton Civic Care Centre in a treatment plan submitted October 1, 2017, and denied by the respondent on October 16, 2017?

66The applicant submits that there is a reasonable possibility based on the medical evidence that the applicant is suffering from a psychological impairment and that prior to the accident he had no history of depressive symptoms.

67The respondent resists payment of this assessment on two grounds. It states that it is not required to pay for an assessment incurred prior to the submission of a treatment plan. Second, the respondent relies on the findings of Dr. Syed who determined that the applicant was not psychologically impaired as a result of the subject accident.

68Again, section 38(2) provides that an insurer is not liable to pay an expense in respect of an assessment that was incurred before the insured person submits a treatment and assessment plan. Here, the assessment to which this Treatment and Assessment Plan relates appears to have been conducted on September 19, 2017 but the plan was not submitted until October 1 or 2, 2017 (see Application page 5).³¹ In reply, the applicant submits that this psychological assessment was never incurred by the applicant.

69I agree with the respondent and find the applicant is not entitled to the disputed treatment plan by virtue of s. 38(2). I find that this plan was incurred as the applicant conceded in his Application (page 5) that the date of this examination or report was September 19, 2017³² and therefore this assessment was conducted prior to the date the plan was submitted. The applicant also requested interest regarding this plan which further indicates to me that this plan was incurred. The Application was signed by the applicant and his legal representative. For completeness, I do not find that any of the four exceptions noted within s.38 (2) are applicable.

70Therefore, by virtue of s. 38(2), Aviva is not liable to pay for the psychological assessment. The second ground advanced by Aviva is that the assessment was not reasonable and necessary. Considering my finding on the first ground, I need not address this ground.

Interest

71As I have found that N.M. is entitled to some of the benefits in dispute, he is also entitled to interest on those overdue benefits, pursuant to s. 51 of the Schedule.

Award

72Section 10 of Ontario Regulation 664 (“O.Reg. 664”) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which the an insured person is entitled, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award with interest on all amounts owing including unpaid interest.

73The applicant is seeking an award pursuant to section 10 for three reasons. First, because the respondent failed to give notice to the applicant with respect to two treatment plans dated November 14, 2017 and January 19, 2018 citing 17-002614 v Aviva Insurance Company of Canada, 2018 CanLII 61151 (ON LAT) (“17-002614 v. Aviva”). Second, the applicant relies on alleged incomplete production of log notes citing 17-009121 v Toronto Transit Commission, 2019 CanLII 27902 (ON LAT) (“17-009121 v Toronto Transit Commission”) where an award was granted as a result of lack of adjuster log notes. Finally, the applicant alleges deficiencies in the Explanation of Benefits related to the s. 44 examinations addressing the applicant’s entitlement to non-earner benefits. Notably the applicant did not raise any issues regarding the respondent’s behaviour regarding the adjusting of the NEB’s with respect to the second accident and the technical breaches of the Schedule discussed above.

74The threshold for an award under O.Reg. 664 is high. In this case, with respect to the lack of notice regarding the two treatment plans cited, I find the threshold has not been met. First, the In-Home Assessment dated November 14, 2017 and submitted on December 1, 2017 has been paid and the issue did not proceed to a hearing.³³ On this basis alone, the 17-002614 v Aviva case can be distinguished from the case here because the adjudicator in that case found it unreasonable for that treatment plan to proceed to hearing (at the time of the hearing the respondent still had not responded to the December treatment plan). Moreover, I find that the delay, if any, did not prejudice the applicant or prevent him from receiving benefits to which he was entitled to. As well, with respect to the January 19, 2018 treatment plan, I have already found that by virtue of s. 38(2), Aviva is not liable to pay for the orthopaedic assessment because this assessment was incurred prior to the submission of a treatment plan. Aviva was within its rights under the Schedule to challenge this treatment plan. More to the point, the applicant was prevented from receiving this benefit in the first place because of the non-compliance.

75With respect to the log notes, the respondent submits that all available log notes contained in their file have been produced, subject to privilege. I was not provided with contrary evidence to prove that Aviva does, in fact, have notes or logs that were not produced. I also note that in 17-009121 v Toronto Transit Commission, the insurer only produced a single page of the adjuster’s notes which led an award being granted. This is clearly not the case here where several pages of log notes were provided.

76Finally, with respect to the alleged deficiencies in the explanation of benefits related to the s. 44 examinations addressing the applicant’s entitlement to non-earner benefits and that the respondent unreasonably withheld payment of the NEB with respect to the first accident, the evidence before me is that the respondent paid the non-earner benefits³⁴ pending the results of s. 44 assessments and only discontinued them in reliance on the s. 44 reports. I do not find that when the respondent wrote in their notice of examination dated November 2, 2016 that the purpose of the IE was to determine ongoing entitlement to NEB that somehow the insurer accepted the applicant’s initial entitlement to this benefit. An insurer will not face a special award just because it misapplied the Schedule and “got it wrong.” Moreover, at the hearing, the applicant withdrew issue 5(i) regarding the NEBs with respect to the first accident as I understood the parties were able to resolve this issue. An award under O. Reg. 664 is reserved for conduct that is unreasonable.

77Based on the record before me, I do not see that threshold conduct having been crossed. I find there is no behaviour described in the submissions or any of the evidence that rises to the level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” conduct warranting a s. 10 award.³⁵

78For all of these reasons, the applicant’s claim for an award pursuant to section 10 of Ontario Regulation 664 is dismissed.

Costs

79Costs was not a listed issue in the January 28, 2019 Order. In written submissions, the respondent requested that the applications should be dismissed with costs. As well, the last paragraph of the applicant’s submissions states that the applicant submits that he is entitled to costs. Rule 19.1 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended provides that the Tribunal may award costs when a party has acted unreasonably, frivolously, vexatiously or in bad faith. The test to find bad faith and unreasonable, frivolous, vexatious behavior is very high.

80In order to award costs a party must adduce evidence of unreasonable, frivolous, vexatious or bad faith behaviour in a proceeding and I am not persuaded that neither’s parties’ conduct has reached that threshold. The applicant also attempted to provide fresh information in reply. In my view, reply is not an opportunity for a party to raise issues that should have been raised in initial submissions or to reformulate their argument. Especially when costs were not a listed issue for the hearing and the respondent is prejudiced by not having a right to reply. For all of these reasons, no costs shall be granted.

ORDER

81The applicant is entitled to a NEB of $185.00 per week from February 20, 2018 to March 28, 2019.

82The applicant is entitled to the medical benefits in the amount of $2,680.38 and $2,605.32 for physiotherapy services.

83The applicant is not entitled to payment in the amount of $1,995.33 for the psychological assessment.

84Interest is payable on any overdue benefits, in accordance with s. 51 of the Schedule.

85Neither party is entitled to costs.

86The applicant is not entitled to an award under Ontario Regulation 664.

Released: January 19, 2021

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