Citation: Rawana v. Aviva Insurance Company, 2021 ONLAT 20-000952/AABS

Released Date: 07/12/2021

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:

Kim Rawana

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Jane Poproski, Counsel

For the Respondent:

Amanda Faulkner, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Kim Rawana, was injured in an automobile accident on March 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva Insurance Company, the respondent.

2The respondent denied the applicant’s claim for several treatment plans and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on June 10, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

1. Is the applicant entitled to $2,292.64 for massage therapy and a cervical pillow recommended by Physio Arts Rehabilitation in a treatment plan (“OCF-18”) dated December 18, 2018?

2. Is the applicant entitled to $4,400.00 for physiotherapy services recommended by Physio Arts Rehabilitation in an OCF-18 dated May 1, 2019?

3. Is the applicant entitled to social work and psychological services recommended by Dr. William Parkinson, psychologist, as follows:

(i) $459.22 ($3,555.88 less $3,096.66 approved) in an OCF-18 dated April 4, 2019;

(ii) $432.22 ($3,578.49 less $3,146.27 approved) in an OCF-18 dated May 29, 2019;

(iii) $566.00 ($3,510.66 less $2,944.66 approved) in an OCF-18 dated October 31, 2019; and

(iv) $513.00 ($3,510.56 less $2,997.56 approved) in an OCF-18 dated January 13, 2020?

4. Is the applicant entitled to $2,070.00 for an in-home attendant care assessment recommended by Physio Arts Rehabilitation in an OCF-18 dated July 5, 2019?

5. Is the applicant entitled to interest on any overdue payment of benefits, including interest on the following treatment plans and expenses that were previously in dispute between the parties but were approved by the respondent prior to the hearing:

(i) August 27, 2018 OCF-18 in the amount of $3,312.50 for physiotherapy services;

(ii) August 27, 2018 expense claim form (“OCF-6”) in the amount of $33.33;

(iii) December 10, 2018 OCF-18 in the amount of $750.00 for a psychological assessment;

(iv) February 12, 2019 OCF-18 in the amount of $1,862.99 for Botox injection services; and

(v) February 20, 2019 OCF-18 in the amount of $399.50 for a vestibular therapy assessment?

6. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

7. Is the applicant entitled to her costs of the proceeding because the respondent’s conduct, or course of conduct, has been unreasonable, frivolous or vexatious or because the respondent acted in bad faith?

RESULT

5I find that:

(i) The applicant is not entitled to any of the treatment plans in dispute as she has failed to prove that they are each reasonable and necessary on a balance of probabilities. As there are no benefits owing, no interest is payable on these treatment plans;

(ii) The applicant is entitled to interest in accordance with s. 51 of the Schedule for the incurred and unpaid goods and services set out in the August 27, 2018 OCF-18 in the amount of $33.33 and in the December 10, 2018 OCF-18 in the amount of $750.00;

(iii) The following treatment plans that were approved by the respondent prior the hearing, but not yet incurred by the applicant, are not “deemed” incurred under s. 3(8) of the Schedule:

(a) August 27, 2018 OCF-18 in the amount of $3,312.50 for physiotherapy services;

(b) February 12, 2019 OCF-18 in the amount of $1,862.99 for Botox injection services; and

(c) February 20, 2019 OCF-18 in the amount of $399.50 for a vestibular therapy assessment.

(iv) The applicant would, therefore, only be entitled to interest in accordance with s. 51 once the goods and services set out in the treatment plans listed in paragraph 5 above have been incurred and become overdue in accordance with the Schedule; and

(v) The applicant is not entitled to an award under O. Reg. 664 or to her costs of the proceeding.

ANALYSIS

6Sections 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.

7For the reasons that follow, I find that the applicant has not met her burden³ of proving that the treatment plans, or portions thereof, in dispute are reasonable and necessary on a balance of probabilities.

Massage Therapy and Cervical Pillow

8The December 18, 2018 OCF-18 was completed by Mohammad Bakri, physiotherapist with Physio Art Rehabilitation, and sought funding for a total body assessment, 30 1-hour sessions of massage therapy and a cervical pillow. The goals of the treatment plan were pain reduction, increase in strength and a return to activities of normal living.

9Aside from referring to the statements in the OCF-18 that the applicant has difficulty turning in bed, sitting, bending, standing, lifting, reaching and walking for long periods, which all aggravate her pain and stiffness, the only other submission made by the applicant regarding this disputed OCF-18 was regarding the respondent’s denial and its reliance upon the Physiatry Paper Review Report (undated) by Dr. Florin Feloiu, physiatrist.⁴ While I agree with the applicant that Dr. Feloiu’s opinion that the proposed massage therapy and cervical pillow were not reasonable or necessary was problematic given that he provided no discussion or analysis on how he arrived at this opinion, the onus is on the applicant to prove entitlement to a medical benefit on a balance of probabilities, and not for the respondent to disprove her entitlement.

10The applicant has not directed me to any other evidence to support the reasonableness or necessity of the proposed massage therapy and cervical pillow. The applicant stated in her affidavit that she desperately needed access to massage therapy to treat her many muscular and other medical issues⁵ and that she sought, among other treatment modalities, massage therapy on the advice of her doctor.⁶ My review of the clinical notes and records (“CNRs”) of Dr. David Johns, the applicant’s family physician, show no recommendation that were contemporaneous to, or reasonably contemporaneous to, the date of this OCF-18 for massage therapy or for a cervical pillow. The applicant has also not directed me to any evidence in support of this OCF-18.

11The presence of objective supporting evidence to justify entitlement to treatment and devices is key to determining whether medical benefits are reasonable and necessary. A treatment plan by itself is not enough to establish the applicant’s entitlement to treatment or to devices.⁷ As a result, I find that the applicant has failed to prove on a balance of probabilities that the December 18, 2018 OCF-18 for massage therapy and a cervical pillow was reasonable and necessary and, therefore, she is not entitled to this treatment plan.

Physiotherapy

12The May 1, 2019 OCF-18 was completed by Amr El Gabry, physiotherapist with Physio Art Rehabilitation, and sought funding for a total body assessment, 28 1-hour physical rehabilitation sessions, 28 sessions of stimulation of the muscles of the arm and shoulder area and 28 sessions of hypertherapy (multiple body sites). The estimated duration of the treatment plan was 8 weeks. The goals of the OCF-18 were pain reduction, increase in strength, increased range of motion and a return to activities of normal living.

13As the respondent again relied upon Dr. Feloiu’s undated paper review report as the basis for its denial of this treatment plan, the applicant also relied again upon her submissions regarding the deficiencies of Dr. Feloiu’s report as she did in her submissions regarding the December 18, 2018 OCF-18. The applicant also stated that the respondent ignored and failed to consider any of the additional medical evidence that has been provided to it over the course of the applicant’s file without directing me to any specific evidence in support of the proposed treatment. While the applicant refers to her affidavit and her own opinion that her condition continued to deteriorate without medical treatment, Dr. Johns made no recommendation for any physical therapy leading up to the date of this proposed OCF-18 despite the applicant attending regularly throughout April and May 2019 for unrelated medical issues.

14I find that there is no objective evidence before me that would support a finding that the proposed physiotherapy is reasonable and necessary on a balance of probabilities. Additionally, there is no evidence before me to support the proposed frequency of treatment set out in this OCF-18, which was dated well over a year post-accident, of 3.5 treatment sessions per week of physical rehabilitation without consideration of the proposed 28 sessions each of stimulation of the muscles of the arm and shoulder area and of hypertherapy. For these reasons, I find that the applicant has failed to prove on a balance of probabilities that the May 1, 2019 OCF-18 for physiotherapy treatment was reasonable and necessary and, therefore, she is not entitled to this treatment plan.

Social Work and Psychological Services

15There are four treatment plans in dispute between the parties for social work and psychological services as follows:

(i) $459.22 ($3,555.88 less $3,096.66 approved) in an OCF-18 dated April 4, 2019;

(ii) $432.22 ($3,578.49 less $3,146.27 approved) in an OCF-18 dated May 29, 2019;

(iii) $566.00 ($3,510.66 less $2,944.66 approved) in an OCF-18 dated October 31, 2019; and

(iv) $513.00 ($3,510.56 less $2,997.56 approved) in an OCF-18 dated January 13, 2020.

16The unapproved portions of these four treatment plans pertains to the hourly rate payable for services provided to the applicant by Anita Thompson, social worker. The OCF-18s show the hourly rate of $127.00 for Ms. Thompson’s services. The respondent partially approved the four OCF-18s initially with an hourly rate of $58.19 for Ms. Thompson’s services which was later increased to $100.00 per hour.

17I find that the applicant has failed to prove on a balance of probabilities that the difference between the hourly rate approved by the respondent of $100.00 for Ms. Thompson’s services and the hourly rate set out on the OCF-18s of $127.00 is reasonable and necessary for the following reasons:

(i) The rates of service providers are prescribed in the Professional Services Guideline⁸ and there is no rate specified for social workers. Unregulated providers, such as counsellors and psychometrists, have a maximum hourly rate of $58.19 for services provided to injured persons who have not sustained a catastrophic impairment. The respondent ultimately approved the hourly rate of $100.00 for Ms. Thompson’s services which exceeds the unregulated providers hourly rate provided for in the Guideline;

(ii) The Guideline expressly states, “The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved.” In my opinion, services proposed, which are not covered by the Guideline, are subject to negotiation. In the event that the applicant required the treatment and was unable to wait to make an agreement on the hourly rate of social worker prior to incurring it, such a dispute can be addressed directly by the service provider and the respondent. However, this does not entitle the applicant to the greater hourly rate – she still must prove that it is reasonable and necessary on a balance of probabilities;

(iii) The applicant has not submitted a curriculum vitae for Ms. Thompson despite the applicant’s own submission that the proper considerations for a determination of Ms. Thompson’s hourly rate would include an analysis of her training and experience level.⁹ The only information before me regarding her training and educational background is an email from Dr. Parkinson dated June 3, 2020 which states that Ms. Thompson has a master’s degree in social work with a specialty in individual, group and family therapy. Dr. Parkinson stated that Ms. Thompson has worked with him in rehabilitation psychology for 12 years, but there is no confirmation of when Ms. Thompson actually became a social worker. There is no other information before me to allow for an analysis of Ms. Thompson’s credentials and training to determine the hourly rate payable for her services;

(iv) I am not persuaded by the applicant’s reliance upon the Ontario Association of Social Workers (“OASW”) recommendation that social workers with a minimum of four years experience in an area of competency charge in the general range of $110.00 to $150.00 per hour. The hourly range amount suggested by the OASW relates to private practice and the Guideline establishes hourly rates payable that are generally lower than those charged by treating practitioners in private practice. Additionally, I have no evidence before me as to when Ms. Thompson became qualified as a social worker such that the hourly fees suggested by OASW would apply to her;

(v) I am not bound by R.O. vs. Aviva Insurance Company of Canada,¹⁰ relied upon by the applicant, which held that the appropriate hourly rate charged by a social worker was $130.00 per hour.¹¹ In that matter, the adjudicator relied upon the OSAW prescribed hourly fee for social workers but also held that she was not setting a precedent for the hourly rate for a social worker and that each decision must be made on the facts before the Tribunal;¹²

(vi) Finally, I find the applicant’s actions are tantamount to an agreement that Ms. Thompson be paid at the lesser rate. This is because the applicant not only failed to negotiate a different rate for Ms. Thompson’s social work services despite Aviva inviting Ms. Thompson to contact it in it Explanation of Benefits (“EOB”) dated April 18, 2019,¹³ but also proceeded to incur the treatment after the respondent approved it at the lower rate without indicating any opposition to the approved hourly rate until the application was filed to the Tribunal.

18For these reasons, the applicant is not entitled to the remaining unapproved portions of the April 4, 2019, May 29, 2019, October 31, 2019 and January 13, 2020 OCF-18s for social work and psychological services.

In-Home Attendant Care Assessment

19The July 5, 2019 OCF-18 was completed by Mr. El Gabry and sought funding for an in-home assessment and completion of an Assessment of Attendant Care Needs (“Form 1”). Both were to be completed by Cynthia Forster, registered nurse. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion and a return to activities of normal living. The OCF-18 stated that the applicant has difficulty performing the normal activities of daily living such as turning in bed, sitting, standing, bending, lifting, reaching and walking for long periods and that all of these activities aggravate her pain and stiffness.

20The respondent denied the attendant care assessment initially on July 18, 2019 and then again on September 6, 2019 following the applicant’s attendance at an Insurer’s Examination (“IE”) with Dr. Feloiu on August 16, 2019. In Dr. Feloiu’s August 28, 2019 Physical Medicine and Rehabilitation Specialist IE Assessment Report,¹⁴ Dr. Feloiu opined that the proposed in-home attendant care assessment was not reasonable and necessary.¹⁵ Although Dr. Feloiu found that the applicant’s whiplash associated disorder (WAD 2), lumbar spine strain with exacerbation of prior back pain were symptomatic at the time of his assessment, Dr. Feloiu found that these symptomatic conditions did not lead to any significant functional limitations in the applicant’s everyday functioning.¹⁶

21I find that the applicant has failed to prove on a balance of probabilities that the OCF-18 for an in-home attendant care assessment is reasonable and necessary on a balance of probabilities. Although the applicant reported in her affidavit that she sought an in-home assessment on the advice of her doctor, there is no such recommendation found in Dr. Johns’ CNRs. Further, the applicant’s reports in her affidavit that she struggles with her activities of daily living (“ADLs”) contradict other evidence before me. For example, the December 10, 2018 OCF-18 completed by Dr. Parkinson reported that the applicant was independent with her ADLs.¹⁷ The applicant again reported independence with her ADLs to Dr. Shariff Dessouki on July 9, 2019¹⁸ and to Dr. Feloiu in his August 28, 2019 Physical Medicine and Rehabilitation Specialist IE Assessment Report.¹⁹ The applicant also continued to drive after the accident and returned to work the day following the accident full-time as an office manager at Physio Art Rehabilitation where she is able to pace herself to complete her work tasks.²⁰

22Additionally, while the applicant reported in her affidavit that her partner and 12-year old son assist her with the laundry and cleaning and that she no longer does any of the cooking,²¹ I find this evidence regarding her functionality contradictory to other evidence before me of her activity level and function. For example, as the CNRs from Dr. Parkinson’s office note that:

(i) early as May 30, 2019, the applicant was walking everyday and playing basketball with her son;

(ii) on July 25, 2019, the CNRs show a recommendation to the applicant to increase her daily footstep count to 6000; and

(iii) on September 19, 2019, the CNRs show that the applicant attended a gym, was walking and playing basketball with her son everyday.

23The information contained in the CNRs from Dr. Parkinson’s office are co-corroborate by Dr. Johns’ CNR entry dated September 24, 2019, which noted that the applicant was “much more active,” walking over 5000 steps per day, was spending more time playing with her son and that the respondent had approved a gym membership for her.

24Therefore, I place little weight on the applicant’s self-reports of her functionality in her affidavit because they are inconsistent with her level of activity reported by her treating health care professionals in or about the date of the OCF-18 proposing an attendant care assessment. I also find that the little information contained in the OCF-18 to support the proposed assessment such as the applicant having difficulty sitting, standing, bending, lifting, reaching and walking for long periods inconsistent with the evidence that she was playing basketball and increasing her walking tolerance during this period.

25On the evidence, I find that the applicant has failed to prove that the proposed in-home attendant care assessment was reasonable and necessary on a balance of probabilities and, therefore, she is not entitled to this treatment plan.

Interest, s. 3(8) of the Schedule and the Approved OCF-18s

26As I have found that there are no benefits owing, no interest is payable on the issues in dispute.

27The applicant, however, maintained her claim for interest in accordance with s. 51 of the Schedule on the following treatment plans that were previously in dispute between the parties but were approved prior to the written hearing:

(i) August 27, 2018 OCF-18 in the amount of $3,312.50 for physiotherapy services;

(ii) August 27, 2018 expense claim form (“OCF-6”) in the amount of $33.33;

(iii) December 10, 2018 OCF-18 in the amount of $750.00 for a psychological assessment;

(iv) February 12, 2019 OCF-18 in the amount of $1,862.99 for Botox injection services; and

(v) February 20, 2019 OCF-18 in the amount of $399.50 for a vestibular therapy assessment.

28The August 27, 2018 OCF-18 in the amount of $33.33 and the December 10, 2018 OCF-18 in the amount of $750.00 have been incurred according to the applicant’s submissions.²² The Schedule is clear that interest applies when there is an overdue payment of a benefit and s. 51 does not allow an insurer to escape the payment of interest by approving a treatment plan prior to the hearing on the matter. Therefore, I find that the applicant is entitled to interest in accordance with s. 51 of the Schedule for the incurred and unpaid goods and services set out in the August 27, 2018 OCF-18 in the amount of $33.33 and in the December 10, 2018 OCF-18 in the amount of $750.00.

29For the remainder of the treatment plans set out in paragraph [27] above, the applicant acknowledges that these OCF-18s were not incurred and requested that I “deem” them incurred under s. 3(8) of the Schedule by determining that the respondent unreasonably withheld or delayed the payment of these benefits. The applicant seeks an order for the amounts payable to her plus interest in accordance with s. 51 of the Schedule.

30The respondent made no submissions regarding the applicant’s request that these expenses be deemed incurred and, rather, focused its submissions on the principle that no interest is owing if an expense is not incurred.

31The wording of “unreasonably withheld or delayed payment” in s. 3(8) is the exact wording used in s. 10 of O. Reg. 664 to determine an applicant’s entitlement to an award. Awards under s. 10 of O. Reg. 664 are not ordered simply because an insurer made an incorrect decision. Rather, there must be evidence of conduct by the insurer that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that these principles apply equally to the test for deeming an expense incurred under s. 3(8) of the Schedule.

32For the reasons that follow, I decline to exercise my discretion under s. 3(8) regarding the treatment plans that were approved prior the hearing, but not yet incurred, “deemed” incurred. Therefore, the applicant would only be entitled to interest in accordance with s. 51 of the Schedule regarding these treatment plans once the goods and services set out therein are incurred and become overdue.

August 27, 2018 OCF-18 for Physiotherapy Services ($3,312.50)

33The OCF-18 in the amount of $3,312.50 was dated August 27, 2018 and was initially denied by the respondent on September 10, 2018 because the applicant was still within the Minor Injury Guideline (the “MIG”)²³ at that time and she had exhausted the $3,500.00 in medical benefits available to her.²⁴ The respondent also included notice with its correspondence of the applicant’s required attendance at an IE under s. 44 of the Schedule.

34On October 29, 2018, the respondent sent correspondence to the applicant that again denied payment of this OCF-18 by relying upon Dr. Feloiu’s opinion in his October 16, 2018 Physiatry IE Assessment Report.²⁵ In this report, Dr. Feloiu opined that the disputed treatment plan was not reasonable and necessary as the applicant had appropriate facility-based interventions for her accident related injuries and he recommended that she continue with her home-exercise program.

35The parties disagreed when this treatment plan was approved by the respondent. The applicant submitted that it was approved on September 2, 2020²⁶ whereas the respondent submitted that it sent confirmation of its approval to the applicant by way of an EOB dated August 25, 2020.²⁷ I find that the treatment plan was approved on August 25, 2020 based on the submission of the respondent’s correspondence of the same date as evidence for the hearing.²⁸ This treatment plan, along with the February 12, 2019 OCF-18 for Botox Injections ($1,862.99) and the February 20, 2019 OCF-18 for a Vestibular Therapy Assessment ($399.50) were approved in the same EOB on a without prejudice basis with no further reasons provided by the respondent for the approvals.

36I find that the applicant has failed to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of the August 27, 2018 OCF-18 for physiotherapy services until the ultimate approval on August 25, 2020 for the following reasons:

(i) On the same date as this treatment plan, the applicant visited Dr. Johns and complained of neck pain, shoulder pain and intermittent headaches. Dr. Johns, however, made no recommendation for physical therapy at this visit. In fact, Dr. Johns made no recommendation for any physical therapy through to the last entry of his CNRs that are before me dated June 2, 2020;

(ii) The CNRs from Physio Art Rehabilitation are not before me to allow for an analysis of whether or not the proposed treatment was unreasonably withheld by the respondent at the time it was sought by the applicant;

(iii) The only recommendation for physiotherapy in any of the assessment reports before me was included in the February 19, 2019 Clinical Note by Dr. D. Robertson, neuro-otolaryngologist. In this note, Dr. Robertson recommended vestibular physiotherapy and there is no indication before me that this was the proposed type of physiotherapy to be provided to the applicant under this OCF-18 especially given that it was dated almost six months prior to Dr. Robertson’s report; and

(iv) Despite the applicant’s affidavit stating that she desperately needed access to physiotherapy,²⁹ her subjective reports are not enough to support a finding that there was an unreasonable withholding of the August 27, 2018 treatment plan by the respondent.

37For these reasons, I decline to exercise the discretion afford to me by s. 3(8) to deem the August 27, 2018 treatment plan for physiotherapy incurred. Therefore, the applicant would only be entitled to interest in accordance with s. 51 of the Schedule once the goods and services set out in this disputed treatment plan are incurred and become overdue.

February 12, 2019 OCF-18 for Botox Injections ($1,862.99)

38The February 12, 2019 OCF-18 in the amount of $1,862.99 was completed by Dr. Suneel Upadhye, physician, and sought funding for Botox injections. This OCF-18 noted that the applicant had difficulty with concentration, memory and attention, and that she reported difficulty with neck movements and sustained neck postures due to pain.

39This treatment plan was denied by the respondent on February 27, 2019 based upon Dr. Feloiu’s February 14, 2019 Physiatry IE Paper Review Report. In this report, Dr. Feloiu again opined that the applicant had had appropriate facility-based interventions for the injuries that she sustained as a result of the accident and that further rehabilitation therapies would not assist in her recovery.

40As discussed above in paragraph [35], the respondent ultimately approved this OCF-18 on a without prejudice basis on August 25, 2020.

41I agree with the applicant that Dr. Feloiu’s February 27, 2019 report did not specifically address the proposed Botox injections. However, the applicant has not directed me to any evidence aside from the treatment plan itself that supported the proposed treatment at the time that the February 12, 2019 OCF-18 was submitted to the respondent for consideration. Therefore, I find that there was no unreasonable withholding of the treatment plan as of February 27, 2019 because a treatment plan on its own is no compelling evidence in support of treatment at that time.

42Nevertheless, in the July 30, 2019 Physiatry Examination Report by Dr. Shariff Dessouki, physiatrist,³⁰ Dr. Dessouki recommended, among other things, a referral to a neurologist for an assessment and management of post-traumatic headaches with consideration for Botox injections and/or occipital nerve blocks.³¹

43While there is no evidence before me that the respondent reconsidered the February 12, 2019 OCF-18 after Dr. Dessouki’s report, there is also no evidence before me as to when Dr. Dessouki’s report was provided to the respondent. Further, the respondent’s failure to reconsider the proposed Botox injections in light of Dr. Dessouki’s report is, in my opinion, an error, but this error does not reach the threshold of unreasonably withholding payment of a benefit. Here, it appears as though the respondent simply “got it wrong” and this type of conduct, while incorrect, does not rise to the high level of actions that should attract a remedy under s. 3(8) of the Schedule.

44For these reasons, I decline to exercise the discretion afford by s. 3(8) to deem the February 12, 2019 treatment plan incurred. Therefore, the applicant is only entitled to interest in accordance with s. 51 of the Schedule once the goods and services set out in this disputed treatment plan are incurred and become overdue.

February 20, 2019 OCF-18 for a Vestibular Therapy Assessment ($399.50)

45The February 20, 2019 OCF-18 was completed by Catherine Mazurkiewicz, physiotherapist, and sought funding for a vestibular physiotherapy examination following a referral by Dr. Robertson.

46The respondent denied this treatment plan on February 27, 2019 based upon Dr. Feloiu’s February 14, 2019 Physiatry IE Paper Review Report. In this report, Dr. Feloiu opined that the applicant had had appropriate facility-based interventions for the injuries that she sustained as a result of the accident and that further rehabilitation therapies would not assist in her recovery.

47As discussed above in paragraph [35], the respondent ultimately approved this OCF-18 on a without prejudice basis on August 25, 2020.

48I agree with the applicant that Dr. Feloiu’s February 27, 2019 report did not specifically address the proposed vestibular physiotherapy examination. However, the applicant has not directed me to any evidence aside from the treatment plan itself that supports the proposed vestibular physiotherapy examination. Dr. Robertson’s February 19, 2019 clinic note recommended “a formalized trial of vestibular physiotherapy and balance training” and he referred the applicant to Better Balance Physiotherapy. I find that that there is no evidence before me to support a finding that the respondent withheld the proposed vestibular physiotherapy examination because there is no evidence before me to support a finding that a second examination was required prior to the applicant receiving vestibular physiotherapy that had already been recommended by Dr. Robertson.

49For these reasons, I decline to exercise the discretion afford by s. 3(8) to deem the February 20, 2019 treatment plan for a vestibular physiotherapy examination incurred. Therefore, the applicant is only entitled to interest in accordance with s. 51 of the Schedule once the goods and services set out in this disputed treatment plan are incurred and become overdue.

Award

50Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

51As I have found in that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

Costs

52The applicant has requested her costs of this hearing as she believes that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith in this proceeding.³²

53Of note is the fact that the respondent is the successful party in this matter. The usual course would be for a cost award to be made in favour of the successful party. 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 the [Statutory Powers Procedure Act],³³ however, reflect a different policy. By incorporating the behaviour of a party in a proceeding as a trigger for an award of costs, behaviour the focus regarding costs rather than success in the dispute. Thus, a successful but unreasonable party may be subject to a costs award.³⁴

54I find that the applicant’s claim for costs fails as she has not proven on a balance of probabilities that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith in this proceeding. The applicant failed to specify what conduct of the respondent she was relying upon for the basis of her claim for costs and, rather, referred me generally to her previous submissions. It’s the parties’ obligation, not the Tribunal’s, to make their case. The Tribunal should not be expected to puzzle through submissions in order to decipher the foundation for a party’s claim for costs. Furthermore, the applicant failed to specify the amount of costs that she was requesting. For these reasons, the applicant’s request for costs is denied.

CONCLUSION

55For the reasons outlined above, I find that:

(i) The applicant is not entitled to any of the treatment plans in dispute as she has failed to prove that they are each reasonable and necessary on a balance of probabilities. As there are no benefits owing, no interest is payable on these treatment plans;

(ii) The applicant is entitled to interest in accordance with s. 51 of the Schedule for the incurred and unpaid goods and services set out in the August 27, 2018 OCF-18 in the amount of $33.33 and in the December 10, 2018 OCF-18;

(iii) The following treatment plans that were approved by the respondent prior the hearing, but not yet incurred by the applicant, are not “deemed” incurred under s. 3(8) of the Schedule:

(a) August 27, 2018 OCF-18 in the amount of $3,312.50 for physiotherapy services;

(b) February 12, 2019 OCF-18 in the amount of $1,862.99 for Botox injection services; and

(c) February 20, 2019 OCF-18 in the amount of $399.50 for a vestibular therapy assessment.

(iv) The applicant would, therefore, only be entitled to interest in accordance with s. 51 of the Schedule once the goods and services set out in the treatment plans listed in paragraph 55 above have been incurred and become overdue;

(v) The applicant is not entitled to an award under O. Reg. 664; and

(vi) The applicant’s request for costs is denied.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Issues 1, 2, 4, 7 and 9 as set out in the Tribunals June 10, 2020 Case Conference Report and Order were noted as resolved by the applicant in the Submissions of the Applicant, para. 14.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
4. 4Written Submissions of the Respondent, tab F.
5. 5Affidavit of Kim Rawana sworn August 14, 2020, Submissions of the Applicant, tab 2, para. 19.
6. 6Ibid. at para. 11.
7. 7See: 17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
8. 8Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014 (the “Guideline”).
9. 9Submissions of the Applicant, para. 108.
10. 102019 CanLII 122721 (ON LAT).
11. 11Ibid. at para. 23.
12. 12Ibid. at para. 23.
13. 13Written Submissions of the Respondent, para. 36.
14. 14Written Submissions of the Respondent, tab X.
15. 15Ibid. at page 7.
16. 16Ibid.
17. 17Submissions of the Applicant, tab 13.
18. 18Physiatry Examination by Dr. Shariff Dessouki dated July 30, 2019, Submissions of the Applicant, tab 8, page 8.
19. 19Supra note 14 at page 4.
20. 20February 14, 2019 Psychiatry IE Assessment Report by Dr. Shreekant Sharma, Submissions of the Applicant, tab 16, pages 5 and 8.
21. 21Supra note 5 at para. 20.
22. 22Submissions of the Applicant, para. 179(2) and 121.
23. 23Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
24. 24Schedule, s. 18(1).
25. 25Written Submissions of the Respondent, tab D.
26. 26Submissions of the Applicant, para. 44.
27. 27Written Submissions of the Respondent, para. 9.
28. 28Written Submissions of the Respondent, tab A.
29. 29Supra note 5 at para. 19.
30. 30Supra note 18.
31. 31Ibid. at page 17.
32. 32Rule 19.1 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).
33. 33R.S.O. 1990, c. S.22 (“SPPA”).
34. 34See 17-005302 v Aviva Insurance Company of Canada, 2018 CanLII 83535 (ON LAT) at para. 43.