Released Date: 08/23/2021
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:
V.C.
Applicant
and
Royal Sun Alliance Insurance (RSA)
Respondent
DECISION ON MOTION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Sam Elbassiouni, Paralegal
For the Respondent:
Robert Bowman, Counsel
HEARD by Videoconference:
August 16, 17, 2021
OVERVIEW
1V.C. (“applicant”) was involved in an automobile accident on November 1, 2016 (“accident”). The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2The applicant was denied benefits by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
PRE-HEARING MOTION AND MOTION DECISION
3At the beginning of this hearing on August 16, 2021, the applicant brought an oral motion seeking an Order that the applicant is entitled to the five treatment plans in dispute and that the hearing proceed on the issue of special award only. The ground for the motion is that the applicant never received any of the denial letters for the five treatment plans. As a result, the applicant submits that the respondent did not comply with s. 38 of the Schedule and there is no need to proceed with the hearing except to as to the applicant’s claim for an award. The applicant relies on Kyrylenko v. Aviva Insurance Company, ONSC 4929 (Div Crt) in support of her submission that she does not need to establish the reasonableness and necessity of the treatment plans in issue at this hearing if no notice was given in accordance with s. 38.
4When asked what evidence the applicant has to establish that the applicant never received any of the denial letters, the applicant’s legal representative submitted that this was raised by the applicant in her OCF-1, application for accident benefits, and because it is not possible for the applicant to prove a negative, the respondent must prove that the denial letters were sent. In the respondent’s productions the applicant’s representative has not found any fax confirmations showing denial letters sent to the applicant and the onus is on the respondent to prove that the denial letters were served on the applicant in the appellant’s view. Lastly, the applicant submits that this motion was brought in order to shorten the hearing, save cost to the applicant and resources for the Tribunal.
5The applicant submits that no motion material was served, and the motion was made at the beginning of the hearing because the applicant’s legal representative became aware of the Kyrylenko case only about ten days prior to the commencement of the hearing and in the meantime the legal representatives of both parties were engaged in discussions about resolution.
6The respondent does not agree that denial letters were not sent to the applicant. The respondent submits that the denial letters are in the materials filed by the respondent. Whether or not the denial letters made their way to the applicant is a disputed factual issue and the respondent submits that the respondent’s adjuster should provide his evidence at the hearing as to whether the letters were sent. It is expected that the adjuster will disagree with the applicant on this issue. There needs to be a full hearing on the merits in the respondent’s view. Further, whether or not the Kyrylenko case is applicable here will depend on the outcome of the factual dispute about the denial letters.
7The applicant’s motion is dismissed for the following reasons. Whether or not the denial letters were sent in accordance with s. 38 of the Schedule is a fundamental factual and legal issue which requires determination at the conclusion of this hearing after both parties have had an opportunity to provide their evidence. The Tribunal’s case conference Order made October 1, 2020, frames all five issues for this hearing as whether or not the applicant is entitled to the five treatment plans claimed. Entitlement can be affected by a legal argument that s. 38 of the Schedule was not complied with but this determination cannot be made in the absence of a factual inquiry at this hearing as to whether the denials were made in accordance with s. 38.
8The mandate of the Tribunal in Rule 3.1 of the Safety, Licencing Appeals & Standards Tribunal Ontario Common Rules of Practice & Procedure, October 2, 2017 (“Rules”) is to facilitate a fair, open and accessible process and to allow effective participation by all parties and to ensure efficient, proportional and timely resolution of the merits of a proceeding. Given that evidence will be led about the denial letters, there is no saving of time, cost or resources by hearing this issue first, determining it and later continuing the hearing or not, depending on the outcome. Therefore, the hearing will proceed as scheduled. Given that the applicant’s motion was made at the beginning of the hearing without any notice, both parties are given leave to call additional witnesses in respect of the denial letters limited to no more than two witnesses for each of the applicant and the respondent, if so advised, without further leave.
9Following the delivery of this ruling, the applicant confirmed that she would not be calling any additional witnesses on this issue. The respondent confirmed it would be calling its adjuster William Dobson to testify.
ISSUES
10The issues to be decided in this hearing are:
i. Is the applicant entitled to a medical benefit in the amount of $2,593.74 for psychological services, recommended by Dr. Leanne Wagner of Injury Management & Medical Assessments as detailed in a treatment plan (OCF-18) submitted June 26, 2018, and denied August 15, 2018?
ii. Is the applicant entitled to a medical benefit in the amount of $2,555.45 for physiotherapy services recommended by Sunita Munshi of Lakeview Physiotherapy & Massage as detailed in a treatment plan (OCF-18) submitted August 24, 2017, and denied September 11, 2017?
iii. Is the applicant entitled to a medical benefit in the amount of $1,541.32 for physiotherapy services recommended by Nileshkumar Parmar of Lakesview Physiotherapy & Massage as detailed in a treatment plan (OCF-18) submitted January 16, 2018, and denied January 30, 2018?
iv. Is the applicant entitled to a medical benefit in the amount of $2,521.77 for physiotherapy services recommended by Sunita Munshi of Lakeview Physiotherapy & Massage as detailed in a treatment plan (OCF-18) submitted August 3, 2017, and denied August 18, 2017?
v. Is the applicant entitled to a cost of examination expense in the amount of $2,200.00 for a chronic pain assessment recommended by Dr. Dahir Hashi of HAL Disability Management Inc.?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
SETTLEMENT REACHED DURING THE HEARING
11The parties reached a settlement in principle of all issues in dispute on the second day of the hearing but asked for time to finalize the settlement.
ORDER
12On consent of both the applicant’s legal representative and respondent’s counsel, this hearing is adjourned and will be rescheduled to resume at a later date unless the applicant’s legal representative files a Notice of Withdrawal in this proceeding and in Tribunal file numbers 21-007809/AABS and 21-008332/AABS by 12:00 p.m. on August 20, 2021.
Date of Issue: August 23, 2021
Avril A. Farlam, Vice Chair