Din v. Wawanesa Insurance, 2021 CanLII 140213

Citation: Din v. Wawanesa Insurance, 2022 ONLAT 20-003509/AABS

Released Date: 01/19/2022

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Shaneeza Din

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Shaneeza Din, was injured in an automobile accident on September 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Wawanesa Insurance, the respondent.

2The respondent denied the applicant’s claims for a psychological assessment and terminated the applicant’s income replacement benefits (IRBs) effective December 13, 2020.² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on August 27, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:³

(i) Is the applicant entitled to IRBs of $400.00 per week from December 14, 2020 to date and ongoing?

(ii) Is the applicant entitled to $563.90 ($2,260.00 less $1,696.10 approved) for a psychological assessment recommended by Medex Assessment in a treatment plan (OCF-18) dated February 12, 2018?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is not entitled to IRBs from December 14, 2020 to date and ongoing or to the unapproved portion of the February 12, 2018 treatment plans. The applicant’s November 3, 2021 motion to change the format of the hearing is also denied and no interest is payable. The respondent’s request for costs following the applicant’s motion is also denied and this application is dismissed.

PROCEDURAL ISSUE

Additional Issues Added in the Applicant’s Submissions

6In two versions of her written hearing submissions filed with the Tribunal, the applicant listed the following additional issues in dispute despite not being previously listed in the Tribunal’s August 27, 2020 Case Conference Report and Order:

(i) Is the applicant entitled to $1,700.00 for physiotherapy services recommended by Humber Family Chiropractic, Rehab & Wellness in a treatment plan submitted February 9, 2018; and

(ii) Is the applicant entitled to a medical benefit in the amount of $1,696.10 for psychological services recommended by Medex Assessment in a treatment plan submitted February 12, 2018?

7I find that these issues are not properly before me. The applicant had ample time between the case conference and the written hearing date to file a formal Notice of Motion requesting to add these additional issues. To simply insert additional issues into written hearing submissions is not the appropriate manner to add issues in dispute as, in my opinion, this would require an order from the Tribunal. Further, such actions are highly prejudicial to the respondent.

8For all of these reasons, I decline to determine the applicant’s entitlement to the treatment plans set out in paragraph [6] above.

ANALYSIS

Income Replacement Benefits (IRBs)

9The applicant failed to list the issue of, or even address her claim for, IRBs in either the first version of her submissions or the subsequent version of submissions filed with the Tribunal. The Tribunal has been clear that it is not acceptable for a party to expect the Tribunal to puzzle through documents in order to decipher and assemble an evidentiary foundation for one’s case.⁴

10Notwithstanding the lack of guidance in the applicant’s submissions, I find that upon review of all of the evidence before me that the applicant is not entitled to IRBs for the period from December 14, 2020 to date and ongoing.

11To be eligible to receive IRBs 104-weeks post-accident, an applicant must be completely unable to engage in any employment for which he or she is reasonably suited by education, training, or experience.⁵ In this matter, the applicant has only provided very limited information regarding her education, training, and experience. For example, in the May 4, 2018 Psychological Assessment Report by Dr. Silva Tenebaum, psychologist,⁶ the applicant’s highest level of education was noted as high school and “some college,” and that she worked as a receiver at a warehouse prior to the accident.⁷ In the April 12, 2018 Insurer’s Examination (IE) Multidisciplinary Assessment – Orthopaedic Assessment by Dr. Osma Gharsaa, orthopaedic surgeon,⁸ Dr. Gharsaa also noted that the applicant worked as a receiving clerk prior to the accident. No further evidence was submitted regarding any other work experiences or training completed by the applicant, or details regarding her college experience.

12On November 3, 2021, the applicant filed a notice of motion seeking to convert the written hearing to a videoconference hearing. This motion was subsequently scheduled to be determined as part of the hearing in this matter.

13One of the reasons provided by the applicant for her request to change the hearing format was to allow the applicant to provide viva voce testimony to demonstrate her ability to work, her work experience, her training, and her education. While I agree that without such testimony, there is very limited evidence before me of the applicant’s work experience, training, and education as discussed above, I also agree, however, with the respondent’s position that no explanation was provided as to why the applicant waited for such a substantial amount of time after the written hearing submissions were concluded before filing her motion. Moreover, even if I were to grant the applicant’s motion, which I am not prepared to do, the applicant’s testimony would not assist the applicant in discharging her burden because she filed no medical evidence dated during the period in dispute for IRBs. Therefore, as the applicant’s testimony alone would not be enough to discharge her burden, the applicant’s November 3, 2021 motion is denied in its entirety, and the applicant is not entitled to IRBs from December 14, 2020 to date and ongoing.

February 12, 2018 Treatment Plan

14Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

15I find that the applicant has failed to prove that the unapproved portion of the February 12, 2018 OCF-18 is reasonable and necessary on a balance of probabilities.

16The February 12, 2018 OCF-18 was completed by Michael Sabayle, occupational therapist, and sought funding for a psychological assessment to be completed by Dr. Zack Cernovsky, psychologist.

17On April 26, 2018, the respondent partially approved the February 12, 2018 OCF-18 in the amount of $1,696.10. The respondent quoted from an April 12, 2018 Psychological IE Assessment Report by Dr. Paul Kelly, psychologist,⁹ in which Dr. Kelly found that the proposed amount of time for the psychological assessment was not reasonable.¹⁰ Dr. Kelly opined that psychological assessments can ordinarily be completed within ten hours of time and that the February 12, 2018 OCF-18 provided no information as to why the applicant’s psychological assessment could not be completed within ten hours.¹¹ Further, at the current Financial Services Commission of Ontario rates, Dr. Kelly opined that a reasonable fee for the psychological assessment would be $1,496.10 and that it was also reasonable to pay for the $200.00 fee for completion of the OCF-18 for a total payable of $1,696.10.¹² Dr. Kelly also noted that the amount listed for tax was not reasonable as psychological services for treatment-related purposes are tax exempt.¹³

18The applicant provided no submissions or evidence in response to Dr. Kelly’s opinion that only $1,696.10 of the $2,260.00 sought was reasonable and necessary. In fact, the applicant’s first submissions referenced this treatment plan as a request for psychological services, which it was not, and the applicant failed to file any reply submissions. As a result, I find that the applicant has failed to prove on a balance of probabilities that she is entitled to the remaining unapproved portion in the amount of $563.90 of the February 12, 2018 treatment plan.

Interest

19As there are no benefits owing, no interest is payable.

Costs

20In its submissions, the respondent requested nominal costs to be awarded against the applicant as a result of the applicant’s November 3, 2021 motion to convert the hearing format. It is the respondent’s position that costs are appropriate because the applicant acted unreasonably and vexatiously by way of her motion because she consented to the hearing format in accordance with the Tribunal’s August 27, 2020 Case Conference Report and Order.

21Rule 19.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules), allows a party to make a written request for costs at a hearing or at any time before a decision is released. Therefore, the respondent’s requests for costs is properly before me.

22The respondent’s request for costs, however, is denied. While the respondent was required to respond to the applicant’s November 3, 2021 motion, and it is questionable as to why the applicant waited for such a significant period of time before filing her motion, these actions do not rise to the high threshold of acting unreasonably, frivolously, vexatiously, or in bad faith such that a costs order is warranted in this matter.

CONCLUSION

23For the reasons outlined above, I find that:

(i) The applicant is not entitled to IRBs from December 14, 2020 to date and ongoing or to the unapproved portion of the February 12, 2018 treatment plan;

(ii) No interest is payable;

(iii) The applicant’s November 3, 2021 motion to change the hearing format is denied and the respondent’s request for costs following the applicant’s motion is also denied; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2In the Tribunal’s August 27, 2020 Case Conference Report and Order, the period for which the applicant was claiming Income Replacement Benefits (IRBs) was from May 1, 2019 to date and ongoing. However, the respondent provided correspondence dated December 2, 2020 in its hearing material which evidenced IRBs having been paid to the applicant up to and including December 13, 2020. As the applicant filed no reply submissions and, therefore, did not dispute payment of IRBs up to December 13, 2020, I find that the correct period in dispute for IRBs is from December 14, 2020 to date and ongoing.
3. 3The applicant also withdrew her claim for a treatment plan in the amount of $3,581.14 for psychological services dated May 4, 2018 by way of email dated January 13, 2022.
4. 4See the reconsideration decision in D.T. v Wawanesa Mutual Insurance Company, 2017 CanLII 144648 (ON LAT) at para. 25 and also J.K. v. Aviva Insurance Company of Canada, 2020 CanLII 34446 (ON LAT) at para. 16.
5. 5Schedule, s. 6(2)(b).
6. 6Written Submissions of the Applicant dated April 26, 2021, tab 6.
7. 7Ibid. at page 5.
8. 8Written Submissions of the Applicant dated April 26, 2021, tab 8.
9. 9Respondent’s Brief of Documents, tab 4.
10. 10Ibid. at page 26.
11. 11Ibid.
12. 12Ibid.
13. 13Ibid.