Jekathalaprathapan v. BelairDirect, 2021 CanLII 19422

Jekathalaprathapan v. BelairDirect, 2021 CanLII 19422

Citation: Jekathalaprathapan v. BelairDirect, 2021 ONLAT 19-009488/AABS

Released Date: 02/11/2021

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:

Jegatheesan Jekathalaprathapan

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Mitchell Kent, Paralegal

For the Respondent:

Mary-Catherine Lill, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Jegatheesan Jekathalaprathapan (“Mr. Jekathalaprathapan”), was injured in an automobile accident on September 19, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from BelairDirect (“Belair”), the respondent.

2Belair denied Mr. Jekathalaprathapan’s claim for three treatment plans and, as a result, Mr. Jekathalaprathapan submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on April 9, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Mr. Jekathalaprathapan entitled to physiotherapy and chiropractic treatment recommended by Alexmuir Wellness Centre Inc. (“Alexmuir”) as follows:

(a) $2,956.62 as set out in a treatment plan (“OCF-18”) dated June 4, 2018, and denied on June 14, 2018?

(b) $2,917.65 as set out in an OCF-18 dated January 24, 2019, and denied on April 1, 2019?

(ii) Is Mr. Jekathalaprathapan entitled to $3,273.36 for physiotherapy, chiropractic treatment, massage therapy and acupuncture recommended by Alexmuir in an OCF-18 dated July 4, 2019, and denied on July 10, 2019?

(iii) Is Mr. Jekathalaprathapan entitled to interest on any overdue payment of benefits?

PROCEDURAL ISSUES

Exclusion of Mr. Jekathalaprathapan’s Hearing Submissions and Evidence

5In its submissions, Belair requested that Mr. Jekathalaprathapan’s initial hearing submissions and accompanying evidence be excluded from the hearing record, as he failed to comply with the deadlines set out in the Tribunal’s April 9, 2020 Order. The Tribunal’s April 9, 2020 Order provided that Mr. Jekathalaprathapan’s initial hearing submissions and evidence were due by September 18, 2020.

6In his reply submissions, Mr. Jekathalaprathapan conceded that his initial hearing submissions and evidence were submitted on September 25, 2020, which was five business days past the deadline.² Mr. Jekathalaprathapan relied upon Rule 3.1 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) (the “Rules”) and requested that the Tribunal accepts his late submissions and evidence. In characterizing his breach as “minor,” and relying upon the decision in 16-000766 v. Meloche Monnex Financial Services Inc.,³ Mr. Jekathalaprathapan maintained that Belair was not prejudiced by the late service as it filed its hearing submissions without requiring additional time from the originally established deadline.

7While I agree with Belair that no explanation for the late service of his hearing submissions was provided by Mr. Jekathalaprathapan, I am denying Belair’s request. Belair only generally stated that it was prejudiced by Mr. Jekathalaprathapan’s failure to adhere to the Tribunal’s April 9, 2020 Order and no further particulars were provided. I also agree with the Tribunal’s statement in 16-000766 that if I were to exclude Mr. Jekathalaprathapan’s submissions and evidence, that such a decision would be disproportionate and result in an unfair outcome.⁴ I also find that a more appropriate remedy, rather than excluding Mr. Jekathalaprathapan’s submissions and evidence, would be an adjournment to allow additional time for Belair to prepare its submissions. To my knowledge, such a request was not made. For these reasons, Mr. Jekathalaprathapan’s initial hearing submissions and evidence are not excluded from the hearing record.

Exclusion of Documentation from Alexmuir

8Belair also requested that the Alexmuir Account Activity spreadsheet as well as the Alexmuir Paperwork Summary spreadsheet dated April 11, 2020 that were filed by Mr. Jekathalaprathapan be excluded as evidence from the hearing, as Mr. Jekathalaprathapan failed to disclose these two spreadsheets to Belair in accordance with the Tribunal’s April 9, 2020 Order.

9While there was an omission in the Tribunal’s April 9, 2020 Order – it stated that Mr. Jekathalaprathapan agreed to produce complete clinical notes and records of all treatment clinics and services providers from “ – [sic] year” pre-accident to date – the parties also agreed to disclose any other documents that have not been previously disclosed, but which they intend to present as evidence at the hearing, by August 28, 2020.

10Belair’s position is that Mr. Jekathalaprathapan did not produce to it the two spreadhseets from Alexmuir until “well after the August 28, 2020 deadline.”⁵ Belair maintained that Mr. Jekathalaprathapan’s late disclosure of the two spreadsheets from Alexmuir resulted in prejudice and impacted its ability to effectively counter Mr. Jekathalaprathapan’s written submissions.

11Mr. Jekathalaprathapan does not provide the date he disclosed the Alexmuir spreadsheets to Belair. Instead, Mr. Jekathalaprathapan submitted that Belair implicitly waived the deadline for production of the Alexmuir spreadsheets in a September 16, 2020 email to Mr. Jekathalaprathapan’s representative. Mr. Jekathalaprathapan also submitted, as another explanation for failing to comply with the Tribunal’s April 15, 2020 Order, that his representative’s firm was having technical issues which was relayed to Belair in a September 18, 2020 email.

12The two spreadsheets from Alexmiur show a list of treatment confirmation forms and treatment plans, state whether they were approved or denied and list subsequent payment information. On their face, I find that that the two spreadsheets are relevant and, therefore, meet the low threshold to be admitted into evidence for the hearing pursuant to secion 15(1) of the Statutory Powers Procedure Act.⁶ Furthermore, while Belair asserted that it was prejudiced by the late disclosure of the spreadsheets, Belair was still able to file its written hearing submissions in accordance with the deadline set out in the Tribunal’s April 15, 2020 Order. Therefore, I find that Belair was not prejudiced by the late disclosure and, as the documents are relevant, Belair’s request to exclude the two spreadhseets from Alexmuir is denied.

Mr. Jekathalaprathapan’s failure to refile the disputed OCF-18s

13At the April 9, 2020 case conference, a written hearing was scheduled for this matter for October 13, 2020. The parties were required to serve their written submissions and evidence on each other, and file same with the Tribunal, according to the schedule outlined in the Tribunal’s April 15, 2020 Order.

14After reviewing the parties’ written submissions and evidence, the three disputed treatment plans were not included in either parties’ submissions for the hearing despite being referred to by both parties in their submissions.

15All three OCF-18s, however, were attached to Mr. Jekathalaprathapan’s Application by an Injured Person dated August 21, 2019. Paragraph [9]c. of the Tribunal’s April 15, 2020 Order, however, states, “documents previously filed with the application, response, or for the case conference must be resubmitted for the hearing (my emphasis added).” Therefore, I issued an Order on January 12, 2021 requesting submissions from both parties on whether or not I should allow the three disputed OCF-18s into evidence for the hearing, given the Tribunal’s Reconsideration Decision of J.R. v. Certas Home and Insurance Company.⁷ In that decision, the Executive Chair highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon in a hearing.

16I provided the parties until January 27, 2021 to file their submissions to the Tribunal. Belair’s submissions were received by this deadline. However, Mr. Jekathalaprathapan has filed no submissions in response to my January 12, 2021 Order to date. Failing to respond to the opportunity I provided to Mr. Jekathalaprathapan to provide submissions as to why he should be able to rely upon documents that were not filed in accordance with the Tribunal’s April 15, 2020 Order is unacceptable.

17Despite Mr. Jekathalaprathapan’s pattern of disregard for the Tribunal’s Orders, the June 4, 2018, January 24, 2019 and July 4, 2019 OCF-18s will be accepted into evidence for this hearing for the following reasons.

18Belair submitted that the Tribunal should not consider the three OCF-18s as evidence for the hearing because Mr. Jekathalaprathapan failed to refile the OCF-18s in accordance with the Tribunal’s April 15, 2020 Order and, as a result, he should not be permitted to rely upon these documents for the hearing pursuant to Rule 9.4 of the Rules.

19Belair also submitted that allowing the OCF-18s into evidence would be a breach of procedural fairness and run afoul of the fundamental principle that the burden of proof rests with the applicant. In this regard, Belair relies upon the following statement in J.R. v. Certas: “applicants to the Tribunal are obliged to make their own case. As part of that obligation, applicants must adduce all evidence upon which they need or intend to rely. The Tribunal will not satisfy their evidentiary onus for them.”⁸ Additionally, Belair noted that in Aviva Canada Inc. v. R.R.,⁹ the Executive Chair highlighted the parties’ obligation to ensure all documents that they wish the Tribunal to consider are filed with the Tribunal for the purposes of the hearing.¹⁰

20Finally, Belair sought to distinguish my decision in J.K. v. Aviva Insurance Company,¹¹ where, in keeping with the decision in J.R. v. Certas, I rejected the insurer’s argument that requesting missing documents from an applicant is satisfying the applicant’s evidentiary burden for them.¹² Belair argued that this matter is distinguishable from my decision in J.K. v. Aviva because here the question is not if the OCF-18s may be submitted, but rather whether or not I may consider them as part of the hearing given that they were attached to Mr. Jekathalaprathapan’s application.

21I do not agree with Belair that relying upon the OCF-18s constitutes a breach of procedural fairness because: the three OCF-18s are part of the Tribunal’s file, as they were attached to Mr. Jekathalaprathapan’s application; there is no dispute that these three documents exist; Belair was in receipt of them; and, accordingly, Belair is in no way prejudiced by my review of the information contained therein. In fact, and similar to J.K. v. Aviva, Belair made submissions as to the reasonableness and necessity of the treatment plans in its hearing submissions. Belair only took the position that Mr. Jekathalaprathapan’s submissions and evidence in its entirety should be excluded from the hearing given his late filing. It did not take the position in its initial submissions that Mr. Jekathalaprathapan failed to meet his onus as a result of failing to resubmit the disputed OCF-18s.

22Moreover, I find that Belair was selective in its reliance upon certain portions of the reconsideration decisions of J.R. v. Certas and Aviva Canada Inc. v. R.R. In both decisions, the Executive Chair confirms that the Tribunal may request further documentation from a party that it considers necessary and that the Tribunal is not bound to remain silent where it needs further information.¹³ Here, in its submissions in response to my January 12, 2021 Order, Belair conceded that the treatment plans are “at the crux of the dispute.”¹⁴ Therefore, I find that it is both necessary and appropriate for me to consider the OCF-18s in dispute in order to understand Mr. Jekathalaprathapan’s request for treatment, Belair’s response and to ensure that I adjudicate this matter with all of the relevant documentation before me.

23For all of the reasons set out above, I am allowing the June 4, 2018, January 24, 2019 and July 4, 2019 OCF-18s into evidence for this hearing.

Adding the Issue of Costs

24In its submissions in response to my January 12, 2021 Order, Belair requested to add the issue of whether it could recover its costs of this proceeding because Mr. Jekathalaprathapan acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. Belair is requesting $500.00 in costs.

25I order that the issues of costs be added to the issues in dispute in this matter because:

(i) Mr. Jekathalaprathapan made no reply submissions regarding Belair’s request to add the issue of costs. As such, Mr. Jekathalaprathapan failed to show that he would be prejudiced by the addition of this issue; and

(ii) Belair is not out of time to request to add the issue of costs, as the request may be made at any time before a decision is released, pursuant to Rule 19.2 of the Rules.

RESULT

26I find that Mr. Jekathalaprathapan has failed to prove the reasonableness and necessity of the treatment plans in dispute and, therefore, he is not entitled to the June 4, 2018, January 24, 2019 and July 4, 2019 OCF-18s. As no benefits are owing, no interest is payable. Belair’s request for costs is also denied.

ANALYSIS

27Sections 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.

28I find that Mr. Jekathalaprathapan has failed to meet his onus of proving that the June 4, 2018, January 24, 2019 and July 4, 2019 OCF-18s are reasonable and necessary on a balance of probabilities.¹⁵

29The June 4, 2018 OCF-18 was completed by Dr. Brank Milen, chiropractor, and sought funding for 14 one-hour chiropractic treatment sessions, 8 one-hour physiotherapy treatment sessions, 8 20-minute exercise sessions with a physiotherapist, 4 sessions of education to promote health and prevent disease and completion of the OCF-18. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to pre-accident work activities. The treatment plan noted that Mr. Jekathalaprathapan reported no significant improvement since the end of his previous treatment plan and that his leg pain had increased.

30The January 24, 2019 OCF-18 was also completed by Dr. Milen and sought funding for 20 one-hour physiotherapy treatment sessions, 15 one-hour chiropractic treatment sessions, 1 session of education to promote health and prevent disease and completion of the OCF-18. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, return to activities of normal living, return to pre-accident work activities and a return to modified work activities. The OCF-18 only noted “improving” in response to what Mr. Jekathalaprathapan’s improvement was at the end of the previous treatment plan.

31Dr. Milen also completed the July 4, 2019 OCF-18 which sought funding for 9 one-hour sessions of physiotherapy, 10 one-hour sessions of chiropractic treatment, 18 30-minute massage therapy sessions, 9 one-hour sessions of acupuncture and completion of the OCF-18. The goals of this treatment plan were the same as those listed in the January 24, 2019 OCF-18. This OCF-18 also noted “improving slowly” in response to what Mr. Jekathalaprathapan’s improvement was at the end of the previous treatment plan.

32Mr. Jekathalaprathapan relied upon the same evidence in support of all three of the OCF-18s which was a September 26, 2017 Disability Certificate (“OCF-3”) and the attendance sheet, soap notes, account activity spreadsheet and the paperwork summary spreadsheet from Alexmuir. As such, Mr. Jekathalaprathapan has offered no evidence of any diagnosis resulting from the accident as the treatment plans and disability certificates in and of themselves are not evidence of a diagnosis.

33The documentation from Alexmuir also does not support a finding that the proposed OCF-18s are reasonable and necessary for the following reasons:

(i) The last reassessment of Mr. Jekathalaprathapan prior to the submissions of the treatment plans was completed on December 16, 2017. Since that time, there has been no reassessment or any measurement of Mr. Jekathalaprathapan’s range of motion despite the three treatment plans stating that progress will be evaluated using, among other things, range of motion testing;

(ii) It is unclear what benefit, if any, Mr. Jekathalaprathapan was obtaining from substantially similar treatment as his pain ratings for his neck, back and shoulders was never below 5/10 and the clinical observation remarks remained as “same as last visit,” “unchanged from last visit” or “same as before” in the large majority of the entries with the exception of “aggravation/exacerbation” being noted on occasion;

(iii) There were no reasons or discussion provided for the funding sought for the additional treatment modalities included in the July 4, 2019 OCF-18 of massage therapy and acupuncture; and

(iv) The fact that Mr. Jekathalaprathapan was consistently attending Alexmuir for treatment, as highlighted in his submissions and evidenced by the documentation from Alexmuir, is not sufficient to meet his burden of proving that the proposed treatment plans are reasonable and necessary.

34Mr. Jekathalaprathan has also failed to submit any evidence from a specialist or a family physician regarding recommendations for treatment. I also note Belair’s submission that Mr. Jekathalaprathapan failed to disclose any CNRs from his family physician despite being ordered to do so in the Tribunal’s April 15, 2020 Order, which went unanswered in Mr. Jekathalaprathapan’s reply submissions.

35In contrast, Belair submitted four Insurer’s Examination (“IE”) reports¹⁶ that opined that the proposed treatment plans were not reasonable and necessary. In consideration of all of the evidence that is before me, I place more weight on the IE assessment reports over the various documents from Alexmuir given that the opinions in the IE reports are consistent and the reports provide greater details of Mr. Jekathalaprathapan’s injuries as a result of the accident. For example, in his March 22, 2019 Musculoskeletal IE report, Dr. Ahmad Belfon, physician, opined that Mr. Jekathalaprathapan sustained sprain/strain injuries to his cervical and lumbar spine, his left shoulder and to his left knee as a result of the accident.¹⁷ Dr. Belfon’s diagnosis is consistent with the diagnoses made by Dr. Shafik Nazerali Dharamshi, physician, in the General Physician’s MIG IE Assessment Report dated August 7, 2018.¹⁸ In her report, Dr. Dharamshi diagnoses Mr. Jekathalaprathapan with the following injuries as a result of the accident: whiplash associated disorder grade 1/persistent myofascial pain; left shoulder strain/persistent myofascial pain; lumbosacral musculoligamentous strain/persistent mechanical back pain; left knee strain/persistent patellofemoral pain syndrome; and bilateral ankle strain/persistent pain.¹⁹ The reports were also consistent in that none of the four IE assessors made any recommendations for further facility-based treatment and, rather, only supported further self-directed/home-based stretching and conditioning.

36Therefore, for all of the reasons set out above, I find that Mr. Jekathalaprathapan has not met his onus of proving on a balance of probabilities that the three OCF-18s dated June 4, 2018, January 24, 2019 and July 4, 2019 are reasonable and necessary and, therefore, he is not entitled to these treatment plans.²⁰

Interest

37As there are no benefits owing, no interest is payable.

Costs

38Belair requested its costs in the amount of $500.00 as against Mr. Jekathalaprathapan on the basis that Mr. Jekathalaprathapan’s conduct in the proceeding has been unreasonable and caused delay. Mr. Jekathalaprathapan did not respond to Belair’s request for costs.

39Rule 19.1 of the Rules provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

40I do not agree with Belair’s position that Mr. Jekathalaprathapan’s failures to comply with the Tribunal’s April 15, 2020 Order rise to the level of unreasonable, frivolous or vexatious actions. I do, however, accept Belair’s submissions that Mr. Jekathalaprathapan’s failure to comply with the Tribunal’s April 15, 2020 Order required it to prepare and file additional submissions which added a minimal delay to the written hearing. However, nothing prevented Belair from submitting the OCF-18s with its initial hearing material, especially after acknowledging that the OCF-18s were the “crux of the dispute” between the parties. If Belair had included the treatment plans with its hearing material, my request for additional submissions would not have been required. Further, inclusion of the OCF-18s by Belair in its hearing material would also be in keeping with its good faith obligations to Mr. Jekathalaprathapan while ensuring that all of the required information is before the Tribunal for the hearing.

41For all of these reasons, Belair’s costs request is denied.

CONCLUSION

42For the reasons outlined above, I find that:

(i) Mr. Jekathalaprathapan is not entitled to the three OCF-18s in dispute dated June 4, 2018, January 24, 2019 and July 4, 2019;

(ii) No interest is payable;

(iii) Belair is not entitled to its costs; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Applicant’s Reply Submissions, para. 7.
3. 32016 CanLII 96162 (ON LAT) (“16-000766”).
4. 4Ibid. at para. 6.
5. 5Respondent’s Submissions, para. 9.
6. 6R.S.O. 1990, c. S. 22 (“SPPA”).
7. 72018 CanLII 13161 (ON LAT) (“J.R. v. Certas”).
8. 8Ibid. at para. 22.
9. 92017 CanLII 81569 (ON LAT) at para. 26.
10. 10Ibid. at para. 26.
11. 112019 CanLII 101445 (ON LAT)(“J.K. v Aviva”), upheld on Reconsideration. See J.K. v. Aviva Insurance Company of Canada, 2020 CanLII 34446 (ON LAT).
12. 12Ibid. at para. 25.
13. 13J.R. v. Certas at para. 22 and Aviva Canada Inc. v. R.R. at para. 26.
14. 14Respondents Submissions in response to the Tribunal’s January 12, 2021 Order, para. 14.
15. 15Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
16. 16See: The Musculoskeletal IE report dated March 22, 2019 by Dr. Ahmad Belfon, physician; The Neurology IE report dated May 9, 2019 by Dr. Brandon Matthew Kuchner, neurologist; The General Physician MIG IE Assessment report dated August 7, 2018 by Dr. Sahfik Nazerali, physician; and the Musculoskeletal IE Paper Review report dated July 18, 2019 by Dr. Belfon.
17. 17Respondent’s Submissions, tab 3 at page 8.
18. 18Respondent’s Submissions, tab 5.
19. 19Ibid. at page 9.
20. 20Belair also raised the issue of causation for the January 29, 2019 and July 4, 2019 OCF-18s in dispute as Mr. Jekathalaprathapan sustained a workplace injury on October 29, 2018. Given my findings on the reasonableness and necessity of these two OCF-18s, I need not canvass or make any rulings on causation as I have found that Mr. Jekathalaprathapan is not entitled to these two treatment plans.