Citation: Greenedge v. The Commonwell Mutual Insurance Group, 2021 ONLAT 20-002023/AABS

Release date: 09/01/2021

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:

Delores Greenedge

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Julie Logoutova, Paralegal

For the Respondent:

Cecil Jaipaul, Paralegal

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Delores Greenedge, was injured in an automobile accident on November 20, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from The Commonwell Mutual Insurance Group, the respondent.

2The respondent denied the applicant’s claims for physiotherapy services and various assessments because it had determined that the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).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 July 14, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

(ii) Is the applicant entitled to chiropractic treatment, massage therapy, physiotherapy and acupuncture recommended by Dr. Paul Bruni as follows:

(a) $3,010.71 in a treatment plan (OCF-18) dated December 4, 2018?

(b) $1,496.26 ($2,111.41 less $615.16 approved) in an OCF-18 dated February 25, 2019?

(d) $1,212.11 in an OCF-18 dated July 8, 2019?

(iii) Is the applicant entitled to the following assessments recommended by Dr. Paul Bruni:

(a) $998.88 for an Attendant Care Assessment in an OCF-18 dated December 17, 2018?

(b) $1,293.80 for a Functional Abilities Evaluation (FAE) Assessment in an OCF-18 dated January 14, 2019?

(d) $2,000.00 for a Neurological Assessment in an OCF-18 dated July 29, 2019?

(iv) Is the applicant entitled to $1,999.82 for a Psychological Assessment recommended by Dr. Jon Mills as set out in an OCF-18 dated December 17, 2018?

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

RESPONDENT’S MOTION TO STRIKE THE APPLICANT’S REPLY SUBMISSIONS

5On February 3, 2021, the respondent filed a Notice of Motion to strike the applicant’s reply submissions in whole or in part because the applicant introduced new evidence and arguments that were not previously raised in her submissions. The respondent also submitted that the reply submissions were inflammatory and prejudicial. In the alternative, the respondent requested the right to file a sur-reply.

6The applicant opposed the motion and, as a result, the motion was scheduled to be heard as part of this written hearing.

7For the reasons that follow, the respondent’s request to strike the applicant’s reply submissions, in whole or in part, and/or to file a sur-reply is denied.

New Evidence/Arguments

8The right of reply is a limited one. The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in their initial submissions. Parties are expected to make the entirety of their cases in their main submissions and new evidence as part of a reply is typically not permitted.

9In this matter, the respondent alleged that the applicant introduced several new pieces of evidence and made several new arguments in almost every paragraph of her reply submissions.

10On review of the parties’ submissions, I disagree with the respondent. I find that the applicant was rebutting various arguments made by the respondent in her responding submissions. The respondent provided no evidence in its motion material that the applicant should have anticipated the scope of the respondent’s hearing arguments such that it would have been incumbent upon the applicant to address the overwhelming number of alleged new arguments in her original hearing submissions. Moreover, I find that any additional documents submitted were also provided in response to arguments raised by the respondent. Even if I am incorrect on this finding, little to no weight was given the additional documents submitted as my decision below did not turn on them.

11For these reasons, the respondent’s request to strike paragraphs 2-8, 10 and 12 of the applicant’s reply submissions on the basis that they contain new arguments and/or new evidence is denied.

Inflammatory and Prejudicial

12The respondent submitted that the applicant introduced new evidence in paragraph 14 of her reply submissions that were inflammatory and prejudicial and that were outside of the jurisdiction of the Tribunal. At paragraph 14, the applicant submitted, “the applicant withholds from further comments to the statements made by the respondent in paragraphs 49 and 50 and leaves it with Dr. Bruni to decide as to whether or not to proceed with the claim for defamation.”

13Paragraph 14 of the applicant’s reply submissions was in response to the respondent’s allegations of harassment by the applicant in filing an application with the Tribunal and claims of adverse motivations of Dr. Paul Bruni, East Sheppard Rehabilitation Clinic Inc. and/or 2430307 Ontario Ltd. As it was the respondent that first made allegations of harassment and other allegations, I find that the applicant is entitled to respond to them. Without evidence from the respondent that the applicant should have anticipated these arguments such that they should have been addressed in her initial hearing submissions, I find that paragraph 14 of the applicant’s submissions is not new argument and is not inflammatory and prejudicial such that it should be struck from the hearing record.

14In summary, the respondent’s motion to strike the applicant’s reply submissions in whole or in part and/or to have the opportunity to file a sur-reply is denied.

RESULT

15I find that:

(i) The applicant has proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident and, therefore, is entitled to treatment outside of the MIG framework;

(ii) The applicant is entitled to $549.20 of the December 4, 2018 OCF-18, plus interested in accordance with s. 51 of the Schedule, which represents:

(a) $349.20 for 12 sessions of massage therapy; and

(b) $200.00 for the cost of completing the OCF-18;

(iii) The applicant is not entitled to the remainder of the December 4, 2018 OCF-18, the unapproved portions of the February 25, 2019 OCF-18, the May 6, 2019 OCF-18 or the July 8, 2019 OCF-18 for chiropractic treatment, massage therapy, physiotherapy and acupuncture;

(iv) The applicant is not entitled to the attendant care assessment, the FAE assessment, the orthopaedic assessment and the neurology assessment;

(v) The applicant is entitled to the December 17, 2018 OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule; and

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

ANALYSIS

The Minor Injury Guideline (MIG)

16The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

17Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain.

Psychological Impairment

18I find that the applicant has proven a balance of probabilities that she sustained a psychological impairment as a result of the accident and is entitled to treatment beyond the MIG limit on this basis.

19In his January 25, 2019 Psychology Insurer’s Examination (IE) Assessment Report, Dr. Gary Challis, psychologist,³ conceded that the applicant presented with symptoms associated with anxiety, mildly depressed mood,⁴ and depressive features.⁵ In Dr. Challis’ report, the applicant’s psychological questionnaire results showed a severe level of anxiety on the Beck Anxiety Inventory, a moderate level of depression on the Beck Depression Inventory, and the Accident Fear Questionnaire showed that the applicant feared for her life during the accident and continued to be nervous before car travel, sometimes avoiding travelling as a passenger.⁶

20Dr. Challis, however, opined that caution should be used when interpreting the applicant’s psychological questionnaire results as, in his opinion, the applicant’s responses were more severe than reported during her clinical interview.⁷ Dr. Challis stated that the applicant rated a number of items in the extreme (without providing any examples of what those items were) and produced an invalid profile due to an over endorsement of item severity on one measure and an invalid profile on another due to inconsistency of responding.⁸ Dr. Challis ultimately opined that the genesis of the applicant’s reported and presenting psychological symptoms were directly associated with the applicant’s pre-existing heart condition and not as a result of the accident.⁹

21I do not accept Dr. Challis’ opinion that the applicant’s psychological symptoms arose as a result of her pre-existing congestive heart failure and not as a result of the accident for the following reasons:

(i) The clinical notes and records (CNRs) prior to the accident dating back to December 7, 2015 of Dr. Eyob Gebremicael, the applicant’s family physician, show no psychological complaints;

(ii) Dr. Gebremicael did not include any psychological conditions on the applicant’s January 29, 2016 Health Status Report for her application for Ontario Disability Support Program (ODSP);

(iii) Dr. Challis did not review Dr. Gebremicael’s CNRs as part of his assessment of the applicant. Therefore, Dr. Challis’ report fails to provide an analysis or an explanation regarding his opinion that the applicant’s psychological conditions were attributable to her pre-existing health conditions given the absence of any psychological complaints made to Dr. Gebremicael in the three years prior to the accident; and

(iv) I do not accept that the applicant’s reporting of nervousness while travelling as a passenger, fearing for her life during the accident and avoiding travel as a passenger were attributable to her pre-existing heart condition.

22My finding that the applicant sustained a psychological impairment as a result of the accident is also supported by the February 11, 2019 Neurology IE Assessment Report by Dr. Paul J. Ranalli, neurologist.¹⁰ While Dr. Ranalli opined that the applicant did not sustain a neurological impairment as a result of the accident,¹¹ Dr. Ranalli noted that the applicant’s anxiety persisted 11 weeks after her accident¹² and he diagnosed her with a side-impact strain force injury to cervical and axial soft tissues with secondary anxiety as a result of the accident.¹³

23Moreover, while the December 17, 2018 Pre-Screening Questionnaire¹⁴ completed by the applicant was based on her self-reports with no validity testing, her endorsements of the following symptoms are consistent with my finding that she sustained a psychological impairment as a result of the accident: sleeping difficulties; nightmares; fatigue; anxiety attacks; anxious as a passenger in a vehicle; experiencing depression and difficulty concentrating; feeling angry, frustrated, easily irritated, and worried for her future; experiencing flashbacks; and anger outbursts.

24On the evidence, I find that the applicant is entitled to treatment beyond the MIG limits as she has proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident.

25Section 14 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving, on a balance of probabilities, that each treatment and assessment plan is reasonable and necessary.

26The respondent, however, submitted that it denied the disputed treatment plans pursuant to s. 38(5) of the Schedule and, as a result, the respondent’s denial is final and is not subject to review.

27Section 38(5) permits an insurer to refuse to accept a treatment plan if the plan describes goods or services to be received in respect of any period during which the insured person is entitled to receive goods or services under the MIG. Section 38(6) renders an insurer’s refusal to accept a treatment and assessment plan under s. 38(5) final and not subject to review by the Tribunal.

28I find that the respondent did not “refuse to accept” the disputed treatment plans as required by s. 38(5). Rather, in its denial letters, the respondent acknowledged receiving the OCF-18s, it scheduled IEs in response to several of the OCF-18s, it partially approved the February 25, 2019 treatment plan, it commented on the reasonableness and necessity of the December 4, 2018 treatment plan, and in all of its denial letters the respondent advised the applicant of her right to dispute its decision which is contrary to s. 38(6) of the Schedule. Moreover, while some of the denial letters noted that the respondent determined that the applicant’s injuries were within the MIG, the respondent does not refer to s. 38(5) in any of its correspondence to the applicant and it does not request that the applicant instead submit a Treatment Confirmation Form (OCF-23) under s. 49 of the Schedule.

29For these reasons, I find that the respondent did not rely upon s. 38(5) once it received the disputed treatment plans and, therefore, s. 38(6) of the Schedule does not apply in this matter. As a result, the applicant’s entitlement to the treatment plans is reviewable by the Tribunal.

Chiropractic Treatment, Massage Therapy, Physiotherapy and Acupuncture

30There are four treatment plans in dispute for chiropractic treatment, massage therapy, physiotherapy, and acupuncture. All four treatment plans were completed by Dr. Paul Bruni, chiropractor, and all had the same stated goals of pain reduction, increase in strength, increased range of motion, and a return to activities of normal living. All four OCF-18s sought funding for a total body assessment and completion of the OCF-18, as well as the following treatment:

	December 4, 2018	February 25, 2019	May 6, 2019	July 8, 2019
# of Chiropractic Treatment Sessions	12	8	8	6
# of Massage Therapy Sessions	12	8	8	6
# of Physiotherapy Sessions	24	16	16	12
# of Acupuncture Sessions	6	4	4	2
Estimated Duration of the OCF-18	6 weeks	4 Weeks	4 Weeks	6 Weeks
Proposed # of Treatment Sessions Per Week	9	9	9	4.3

31On March 20, 2019, the respondent partially approved the February 25, 2019 OCF-18. The respondent agreed to pay for the cost for completing the OCF-18 and for 4 exercise sessions to be provided by Dr. Bruni. The respondent relied upon the recommendations in the March 5, 2019 In-Home IE Report by James D’Astolfo, registered nurse.¹⁵ D’Astolfo recommended that the applicant be provided with a home exercise program by Dr. Bruni to help with pain reduction and that she be given strategies for good body mechanics for her lower back and neck.¹⁶ The respondent denied the remainder of the OCF-18s for physical therapy in their entirety.

32The December 4, 2018, the May 6, 2019 and the July 8, 2019 OCF-18s were all denied in full by the respondent.

33In her submissions, the applicant reiterated information from the OCF-18s and submitted that the Tribunal should place little weight on certain IE reports for various reasons. The applicant also submitted that the respondent’s decision to approve only 4 of the 8 proposed chiropractic treatment sessions from the February 25, 2019 OCF-18 was unclear. The applicant did not direct me to any other evidence in support of the reasonableness and necessity of the treatment plans in dispute.

34On the evidence, I find that the 12 sessions of massage therapy on the December 4, 2018 OCF-18 are reasonable and necessary. At the applicant’s first visit with Dr. Gebremicael after the accident on November 21, 2018, Dr. Gebremicael recommend massage therapy. While Dr. Gebremicael did not recommend any particular frequency of massage therapy, I find that twice per week as suggested by the treatment plan is reasonable given that this treatment was proposed in such close proximity to the date of the accident. Therefore, I find that the applicant is entitled to $549.20 of the December 4, 2018 OCF-18, which represents:

(i) $349.20 for 12 sessions of massage therapy; and

(ii) $200.00 for the cost of completing the OCF-18.

35I find, however, that the applicant has failed to prove on a balance of probabilities the reasonableness and necessity of the remainder of the December 4, 2018 OCF-18, the unapproved portions of the February 25, 2019 OCF-18, the May 6, 2019 OCF-18 and the July 8, 2019 OCF-18 for the following reasons:

(i) Dr. Bruni provided an Initial Report dated December 4, 2018,¹⁷ but he failed to provide an explanation or any rationale for proposing 9 sessions of treatment per week in the December 4, 2018, February 25, 2019 and May 6, 2019 OCF-18s. On average, the number of treatment sessions proposed on each of these treatment plans if there were fully approved would equate to 2 sessions per day, assuming the treating clinic only operated on Mondays to Fridays, even for the May 6, 2019 OCF-18 which is dated 6-months post-accident. This frequency of treatment is contrary to Dr. Bruni’s own progress report dated February 25, 2019¹⁸ that recommend a rehabilitation program of 2 times per week for 4 weeks;¹⁹

(ii) The treatment plans were not achieving their stated goals of pain reduction. Despite the denials, the applicant attended for treatment at East Sheppard Rehabilitation Clinic and her pain remained consistent in her neck and back from February 25, 2019 to July 8, 2019 with only minimal improvement in her pain in her shoulders and head;

(iii) One of the stated goals for the treatment plans was increased range of motion. In his initial report dated December 4, 2018, Dr. Bruni reported on the applicant’s range of motion in her cervical and lumbar spine in terms of being “suboptimal” as opposed to providing information on whether she had range of motion within normal limits. Dr. Gebremicael’s CNRs show that the applicant had full range of motion in all of her joints at her appointment on November 21, 2018. Further, in the February 13, 2019 Physiatry IE Assessment report, Dr. Alborz Oshidari, physiatrist,²⁰ found that the applicant had full range of motion of the spine and in her upper and lower extremities.²¹ Dr. Ranalli also reported that the applicant had full and painless range of motion in her neck and full forward flexion of the back to 90 degrees in his February 11, 2019 Report.²² D’Astolfo also found that the applicant’s range of motion was within normal limits for her shoulders, neck, thoracic spine, and lumbar spine.²³ Therefore, while it is unclear to me if the applicant’s range of motion in her neck and back were ever outside of normal limits, I find that at least as of February 2019 that the applicant had full range of motion and, therefore, the stated goal of the February 25, 2019, May 6, 2019 and July 8, 2019 treatment plans to increase her range of motion was no longer applicable;

(iv) I am not persuaded by Dr. Bruni’s progress reports and his opinion that the applicant required ongoing treatment. Dr. Bruni’s February 25, 2019, May 6, 2019 and July 8, 2019 progress reports contain identical language regarding the applicant’s condition being chronic, that her injuries have not yet resolved, that the applicant requires ongoing supportive treatment and without it, her symptoms will be exacerbated, that the applicant reports significant difficulties with activities of daily living, that the applicant has significant and continuous limits and restrictions on housekeeping activities and social activities, etc. The description of the applicant’s progress in these reports is very general in nature and does not provide sufficient detail to allow an analysis of the applicant’s condition. In sum, I find Dr. Bruni’s progress reports to be boilerplate and of little assistance in determining the reasonableness and necessity of the dispute treatment plans; and

(v) There is no information or evidence before me regarding the reasonableness and necessity of the total body assessments proposed on each of the disputed OCF-18s.

36Therefore, I find that the applicant is entitled to the 12 sessions of massage therapy and the cost of completing the OCF-18s as set out in the December 4, 2018 treatment plan. The applicant is not entitled to the remainder of the December 4, 2018 OCF-18, the unapproved portions of the February 25, 2019 OCF-18, the May 6, 2019 OCF-18, or the July 8, 2019 OCF-18.

Attendant Care Assessment, FAE Assessment, Orthopaedic Assessment and Neurological Assessment

37The December 17, 2019 OCF-18 was completed by Dr. Bruni and sought funding for an attendant care assessment to be completed by Beverley Sue Neal, registered nurse. The goals of this treatment plan were pain reduction, increase in strength, increased range of motion, a return to activities of normal living. The OCF-18 noted that the applicant demonstrated restricted and painful motion of the cervical, thoracic and lumbar spine and shoulders, that the applicant had difficulty with heavy lifting, bending, twisting, pushing/pulling and prolonged sitting/standing/walking. The OCF-18 also noted that the applicant was experiencing neck pain aggravated by any movements, mid and low back pain aggravated by certain movements, shoulder pain, increased stress, anxiety, malaise, fatigue, and disordered sleep.

38The January 14, 2019 OCF-18 was completed by Dr. Bruni and sought funding for a FAE assessment. The goals of the treatment plan were pain reduction, increased range of motion, increase in strength, a return to activities or normal living, and a return to pre-accident work activities.

39The May 27, 2019 OCF-18 was completed by Dr. Bruni and sought funding for an orthopaedic assessment to be completed by Dr. Khal Efala, orthopaedic surgeon. The goals of the treatment plan were to provide further recommendations for treatment and pain management, and to return to activities of normal living. In the additional comments portion, the OCF-18 stated that the applicant required an orthopaedic assessment because she has reported chronic neck pain, shoulder pain, arm pain, back pain, pain radiating down the right and left buttock/leg, knee pain and leg pain.

40The July 29, 2019 OCF-18 was also completed by Dr. Bruni and sought funding for a neurological assessment to be completed by Dr. Viachislav Prigozhikh, neurologist. The goals of this treatment plan were to provide further recommendations for treatment and pain management and to return to activities of normal living. The additional comments portion of the OCF-18 stated that the proposed neurological assessment was warranted because the applicant reported the following symptoms: headache; neck pain; shoulder girdle pain; upper or lower extremity radicular pain; cervical lumbar thoracic pelvis pain; sciatica; confusion/memory loss or concentration; disturbances of speech, language and expression, slurred speech, swallowing problems; weakness; numbness and coldness; personality change; syncope; behavioural disturbances including anxiety, depression and personality disorder; sleep disturbances; psychiatric disturbances including agitation, paranoia, delusions, hallucinations or other alterations of mental mechanisms; and tremors.

41The treatment plans on their own are not compelling evidence in support of the proposed assessments – there must be compelling contemporaneous evidence. In the present case:

(i) The applicant made no submissions regarding the proposed attendant care assessment. Moreover, the evidence shows that the applicant was independent with her activities of daily living as of February 13, 2019,²⁴ and there is no explanation as to why an attendant care assessment was first being sought over a year post-accident;

(ii) The applicant submitted that the purpose of the FAE assessment was to determine the applicant’s physical tolerance in order to develop an exercise program.²⁵ The applicant, however, failed to direct me to any evidence that this was the purpose of the proposed FAE assessment and her submissions are not evidence;

(iii) The applicant simply repeated the stated goals of the OCF-18s in her submissions as to the reasonableness and necessity of the proposed orthopaedic and neurological assessments;

(iv) The OCF-18 proposing a neurological assessment clearly included boilerplate language in the additional comments portion as there are no reports that the applicant suffered from many of listed symptoms such slurred speech, swallowing problems, paranoia, delusions, hallucinations, tremors, etc.; and

(v) The applicant failed to direct me to any contemporaneous evidence in support of the proposed assessments outside of the treatment plans.

42On the evidence, I find that the applicant has not met her burden of proving on a balance of probabilities that the attendant care assessment, the FAE assessment, the orthopaedic assessment and the neurological assessment are reasonable and necessary. As a result, she is not entitled to these treatment plans.

Psychological Assessment

43The December 17, 2018 OCF-18 was completed by Dr. Jon Mills, psychologist, and sought funding for a psychological assessment. The goals of the treatment plan were pain reduction, and a return to pre-accident level of psychological functioning. The additional comments portion of the OCF-18 stated that the applicant was interviewed on December 17, 2018 and she reported sleeping problems, nightmares of the accident, fatigue, anxiety attacks, stress and anxiousness while driving or being a passenger in an automobile, she suffers from depressed mood and has difficulties with concentration, feeling angry, frustrated and irritable, and flashbacks of the accident. The additional comments also stated that the applicant has not been able to return to work.

44It is undisputed that the applicant did not work pre-accident and was in receipt of ODSP. Therefore, I find that the additional comments portion of the December 17, 2018 OCF-18 clearly contains an error. However, I have also found that the applicant sustained a psychological impairment as a result of the accident and was noted by two IE assessors in early 2019 as having anxiety and depressed mood, among other psychological conditions. Therefore, I find that the proposed psychological assessment was reasonable and necessary on a balance of probabilities at the time it was submitted to the respondent for consideration and, as a result, the applicant is entitled to this assessment.

Interest

45The applicant is entitled to interest in accordance with s. 51 of the Schedule for $549.20 of the December 4, 2018 OCF-18 ($349.20 for 12 sessions of massage therapy and $200.00 for the cost of completing the OCF-18) and for the December 17, 2018 OCF-18 for a psychological assessment.

Costs

46In its submissions, the respondent requested its costs as against the applicant for the following reasons:

(i) The applicant’s initiation of the proceedings and continuing with them was an abuse of process and, as a result, the respondent was required to prepare for and attend the case conference and the written hearing;

(ii) The applicant’s actions in initiating and continuing her proceeding before the Tribunal was a strategy to harass the respondent into paying for treatment plans that are not reasonable and necessary;

(iii) That the applicant was a shield for Dr. Bruni to hide behind as Dr. Bruni sought to advance the broader financial interests of East Sheppard Rehabilitation Clinic and/or 2430307 Ontario Ltd.; and/or

(iv) That the applicant’s application to the Tribunal was frivolous, vexatious or an abuse of process.

47In the alternative, the respondent requested that I order costs against Dr. Bruni, East Sheppard Rehabilitation Clinic Inc., 2430307 Ontario Ltd. and/or the applicant’s representative.

48Rule 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) (the “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.

49The respondent’s request for costs, however, is denied. I fail to understand how exercising an insured person’s legal right to apply to the Tribunal if a dispute arises over their entitlement to benefits with an insurer constitutes harassment, an abuse of process or is frivolous and vexatious as alleged by the respondent. The respondent’s denial letters also advised the applicant that she had a right to dispute the insurer’s decision if she disagrees with it.

50Moreover, the applicant was partially successful in her application such that I have found her injuries require treatment outside of the MIG and that she is entitled to a portion of the December 4, 2018 OCF-18 as well as to a psychological assessment. The applicant’s partial success in this hearing is further evidence that her application was not frivolous.

51Even if I agreed with the respondent that there were grounds to order costs in this matter, which I do not, I also find that I have no jurisdiction under Rule 19 to order costs against Dr. Bruni, East Sheppard Rehabilitation Clinic Inc., 2430307 Ontario Ltd. and/or the applicant’s representative as requested by the respondent because they are not parties to this proceeding.

52For all these reasons, the respondent’s request for costs is denied.

CONCLUSION

53For the reasons outlined above, I find that: