Baker v. Aviva General Insurance, 2022 CanLII 30688

Citation: Baker v. Aviva General Insurance, 2022 CanLII 30688

Licence Appeal Tribunal File Number: 20-007708/AABS

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:

Dorrel Baker

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Claudette Leslie

APPEARANCES:

For the Applicant: Vipen Dhingra, Counsel

For the Respondent: Lauren Kolarek, Counsel

HEARD: By way of written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on January 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties were unable to resolve their dispute at a case conference held on February 11, 2021. At that time, the respondent raised preliminary issues regarding two of the claims made by the applicant. A written hearing was scheduled.

ISSUES IN DISPUTE

3The following are the issues before me:

Preliminary issue(s)

(a) Are the applicant’s claims for medical benefits ii. and iii. below, statute-barred, pursuant to s. 56 of the Schedule, because the applicant commenced these claims more than two years after the claims were denied?

Subsequent to the case conference, in its hearing submissions, the respondent, upon review of the process and in light of Ontario Regulation 73/20, suspending limitation periods between March 11, 2020 to September 14, 2020 during the COVID-19 pandemic, accepts that the applicant’s claim for the medical benefit noted as issue #ii. below, is not statute barred. However, the respondent maintained that issue #iii. is statute barred.

(b) If I find that the applicant is not barred from commencing an application regarding issue #iii. below, then I must decide all of the following substantive issues in dispute:

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 under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to a medical benefit in the amount of $2,317.34 for physiotherapy and massage therapy services recommended by Complete Physiotherapy Centre (“CPC”) as per OCF-18 submitted on June 5, 2018 and denied on June 18, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $2,387.89 for physiotherapy and massage therapy services recommended by Complete Physiotherapy Centre as per OCF-18 submitted on November 13, 2018 and denied on November 26, 2018?

RESULT

4I find that,

(a) On the preliminary issue, pursuant to s. 56 of the Schedule, the applicant filed the claim for medical benefits in the amount of $2,387.89 noted at 3 iii. above, a few months beyond the two-year limitation period. Mr. Baker has also not provided any reasonable explanation for the delay that would persuade me to grant an extension of time per s. 7 of the Licence Appeal Tribunal Act, 1999. The claim is therefore, statute barred.

(b) The applicant sustained predominantly minor injuries and is subject to the MIG treatment and the funding limit of $3,500.

(c) The single remaining treatment plan (# 3 ii.) is reasonable and necessary, up to any remaining balance of the $3,500 MIG funding limit.

(d) The applicant is entitled to interest on any incurred, overdue payment of the amount indicated in (c), above.

(e) The applicant is not entitled to a cost award.

BACKGROUND

5On January 1, 2018, the applicant was driving a vehicle and had come to a complete stop at a red light, when he was rear-ended by the vehicle behind him. The applicant reported being jolted by the impact; however, he did not lose consciousness, and the airbags did not deploy. Police and paramedics attended the scene. He was not taken to a hospital. The applicant consulted with a physician for pain a day after the accident. He started receiving physiotherapy, massages, and home-based exercises treatment shortly after the accident, continuing up to November 2018 when the respondent denied further payment of benefits.

The LAW, evidence and ANALYSIS

Preliminary issue

6The only preliminary issue to be determined is the following:

1. Whether the applicant is barred from proceeding with his application for the medical benefit listed as number [3] (b) iii. above, in the amount of $2,387.89, because he missed the statutory, two-year limit to dispute the respondent’s denial; or whether he provided reasonable grounds for consideration that would warrant an extension of the limitation period under s. 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”)?

Is the claim for physiotherapy and massage therapy services in the amount of $2,387.89, statute barred?

7Considering the submissions of both parties, and for the reasons that follow, I find that the application for the claim at issue was commenced approximately two-and-a-half months after the two-year limitation period expired. Furthermore, I find the applicant has not established reasonable grounds that would warrant granting an extension of the limitation period under s. 7 of the LAT Act.

8Section 56 of the Schedule states that an application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The claim at issue was denied on November 26, 2018. Without applying the regulation suspending limitation periods, the two-year limitation period to appeal the denial of the treatment plan elapsed on November 26, 2020. According to the Tribunal’s records, the applicant filed his application on June 30, 2020 (as opposed to June 26, 2020, as indicated by the parties). However, the application as filed, did not include the claim for the medical benefit at issue. This claim was added at the case conference held on February 11, 2021.

9Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule, if it is satisfied that there are reasonable grounds for granting such relief.

The parties’ positions

10The respondent submitted that the claim is statute barred, notwithstanding Regulation 73/20, which suspended limitation periods during the COVID-19 pandemic in 2020. To this end, the respondent argued that the limitation clock commenced as of the denial date of November 26, 2018; and regulated, pandemic, limitation suspensions issued for the period of March 16, 2020 and September 14, 2020, did not affect the applicant’s decision to appeal the denial within the limitation period on November 26, 2020. The respondent further asserted that it had received no indication from Mr. Baker that he was disputing or intended to dispute the denial of the treatment plan, including the fact that this issue was not included in his June 30, 2020 application to the Tribunal. The first indication of the applicant’s intentions regarding this denial was at the case conference. The respondent further pointed out that the applicant failed to put forward any circumstances for consideration that would warrant an extension of the two-year limitation period under s. 7 of the LAT Act.

11In response, the applicant states that he has a right to have his claim heard on the following basis: the global COVID-19 pandemic caused a lot of confusion and uncertainty regarding the operation of judicial services; limitation periods were suspended; and he made the application to dispute the treatment plan at issue within the limitation period.

Key dates

12The following key dates represent the chronology of events regarding this claim/application:

i. January 1, 2018: The applicant is involved in the motor-vehicle accident.

ii. January 17, 2018: He starts the claims process, indicated by the date of application for accident benefits (OCF-1) submitted to the respondent.

iii. November 13, 2018: The applicant submitted the OCF-18 in question to the respondent.

iv. November 26, 2018: the respondent denied the claim and informs the applicant of the two-year limitation period for appealing the denial.

v. March 11, 2020 to September 14 2020: Regulation 73/20’s suspension on limitation periods takes effect.

vi. June 30, 2020: The applicant filed an application with the Tribunal regarding denied benefits. The application does not include the OCF-18 in question.

vii. November 26, 2020: The limitation period for appealing the denied benefit expired. Up to this point there is no evidence/indication that the applicant intended to appeal the denied OCF-18 in question.

viii. February 11, 2021: The case conference is convened; both parties along with their legal counsels appear. The OCF-18 in question is added as an issue of appeal at the case conference.

Regarding the two-year limitation period

13The above, undisputed chronology of events indicates the following. Mr. Baker filed his application on June 30, 2020, within the limitation period and accounting for the regulation’s suspension of limitation periods. However, the denied treatment plan in question was not included in the application and thus it cannot be said to have been appealed on June 30, 2020. The two-year limitation period to appeal the denial of the OCF-18 in question had not yet expired at the time of his filing the application with the Tribunal. Regulation 73/20 ran its course and was revoked effective September 14, 2020. Likewise, the two-year limitation period expired on November, 26 2020, without any indication from the applicant of his intentions regarding the OCF-18 in question.

14The applicant had two years to dispute the denial before the Tribunal. Based on the evidence provided, he did not. The applicant gave his first indication to dispute the denial of the OCF-18 in question at the case conference held on February 11, 2021, representing: seven months and 12 days after he filed the application regarding the other disputed benefits on June 30, 2020; and two months and 16 days after the two-year limitation period for filing had expired on November 26, 2020.

Regarding s. 7 of the LAT Act

15While it is generally understood that limitation periods provide procedural fairness to the parties, provide certainty, and ensure that parties are diligent in pursuing claims in a timely manner, s. 7 of the LAT Act authorizes the Tribunal to extend a limitation period under certain circumstances. It is likely, as the applicant stated, that the global COVID-19 pandemic caused a lot of confusion and uncertainty regarding the operation of judicial services. Yet he offers no specifics as to the impact as it relates to his appeal of the denied OCF-18 at issue or any reasonable grounds that would warrant extending the limitation period. In any event, I am mindful of the fact that the applicant retained legal counsel in this case, which indicates to me that he had legal guidance and direction for navigating any confusion and uncertainties that may have been inherent in the process.

16Furthermore, the applicant has not satisfied me that there are circumstances that would lead me to extend the two-year limitation period. While I am not bound by another member’s decision, I agree with the Executive Chair’s reconsideration decision in A.F. v. North Blenheim Mutual Insurance Company (2017 CanLII 87546), in this regard. In the decision, the Tribunal adopted the Divisional Court’s decision in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002 (2012 ONSC 1492) to identify the following four factors in determining whether the justice of the case requires that an extension be granted: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. These four factors are not strict elements that must each be met in order to grant an extension of time. Rather, I find they are a guide to assist me in determining the justice of the case.

17In applying these factors, I find that the justice of the case does not warrant an extension of the limitation period for the following reasons:

i) Bona fide intention to appeal: I find there was no indication of a bona fide intention to appeal the denial at any point after the claim was denied until the case conference of February 11, 2021. The applicant had several opportunities to appeal the denial, including at the time he filed his application regarding the other denied claims on June 30, 2020 and the period leading up to the November 26, 2020 expiry date;

ii) The length of the delay: the applicant first gave an indication to dispute the OCF-18 in question some two months and 16 days after the November 26, 2020 expiry of the limitation period. Although the filing was only a few months post, the two-year expiry, the applicant provided no explanation as to why he disregarded the statutory requirement, or the significance of regulated limitation periods.

iii) Prejudice to the other party: in that his conduct distorted the process and preventing the insurer from executing its required due diligence as legally required.

iv) Merits of the appeal: the more than two years filing of the appeal of this denied treatment, may be construed as a reflection of the benefit to or lack there of, to the applicant.

18Having considered the above, Mr. Baker’s appeal of the denial of the OCF-18 for physiotherapy and massage therapy services in the amount of $2,387.89 is therefore statute barred, pursuant to s. 56 of the Schedule.

The Minor Injury Guideline (MIG)

19The MIG establishes a framework available to insured persons who sustain minor injuries 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.” For clarity, the terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in the Schedule.

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 for individuals who sustain minor injuries. An insured person may also be removed from the MIG treatment limit if, as per section 18(2), they have a documented, pre-existing injury or condition, combined with compelling medical evidence indicating that the condition will prevent the individual from achieving maximal medical recovery from the minor injuries. The Tribunal has also established that an individual may receive payment for treatment beyond the MIG limit if there is compelling medical evidence of chronic, psychological or pain accident-related injuries, causing functional impairment. In all cases, the burden rests with the applicant to prove, on a balance of probabilities, entitlement to funds exceeding the MIG treatment limit.

Did the applicant sustain predominantly minor injuries as defined by the Schedule, that are subject to a maximum $3,500 treatment limit?

21I have considered all of the relevant evidence provided and find that the applicant failed to prove on a balance of probabilities that his accident-related injuries do not meet the MIG definition, or that he requires treatment beyond the $3,500 treatment limit based on a pre-existing condition, physical or non-physical injury and/or chronic pain.

The applicant’s position

22The applicant argued that he has sustained physical and non-physical injuries that are not minor as contemplated by the Schedule. As such, he contends that he requires access to more that the $3,500 MIG treatment limit in order to achieve maximal medical recovery in keeping with section 18(2)provisions. He offers the following evidence for consideration.

23The applicant’s sole pre-accident medical submission is a September 27, 2017 Clinical Notes and Records (“CNR”) of Dr. Rafiqi Wajahat. The doctor notes that the applicant had recently been experiencing increased stress and poor sleep. The doctor’s remedy was to direct Mr. Baker to educate himself on the role of stress and sleep hygiene. In my view, this single medical reference made several months before the accident is not indicative of an ongoing, pre-existing condition that would impact the applicant’s recovery from impairments he may have sustained in the accident.

24The applicant visited a walk-in clinic the day after the accident, on January 2, 2018, due to pain in his neck and lower back. The doctor prescribed pain medication, physiotherapy and massage. There is no dispute that he began attending CPC on January 3, 2018 where he received physiotherapy, acupuncture and massage therapy for a duration of approximately 11 months, up to November 20, 2018.

25A January 9, 2018 disability certificate (“OCF-3”) completed by Physiotherapist, D. Tamakuwala, of the CPC, indicates that the applicant reported that he could not modify his work hours and that he was no longer able to function due to the acute and severe nature of the physical and non-physical injures he sustained as a result of the accident. He reported severe anxiety, nightmares, depression and he felt he needed psychological, orthopaedic and physical assessments. The disability certificate notes his injuries as follows:

“Other Sprain and Strain of Cervical spine, Sprain and Strain of Thoracic Spine, Sprain and Strain of Lumbar Spine, Sprain and Strain of Sacroiliac Joint, Radiculopathy, Disorders of initiating and maintaining sleep [ Insominias], Nausea alone, Nightmares, Reaction to severe stress, unspecified, irritability and anger, generalized anxiety disorder.”

26The applicant relied largely on CNRs of walk-in clinic, Dr. Sediq Wajahat which indicate the following. He visited the clinic/consulted with the doctor on several occasions. On February 12, 2018, he reported intermittent pain, lasting a few hours at his “right ear radiating down back of right neck”. The doctor found there was tenderness on palpitation of the right, lesser occipital region. The applicant was diagnosed with a “sternocleidomastoid strain”, relieved through planned stretching exercises. The applicant was provided with educational handouts among other things. On June 27 2018, he saw the doctor again due to neck injuries and dizziness. The doctor’s notes of October 27, 2018 indicate that the applicant was still experiencing sleeplessness. Depression and sleeplessness are noted in the November 8, 2018 CNRs. On November 12, 2018, Mr. Baker complained to Dr. Wajahat about headaches, dizziness and neck pain. As a result, the doctor referred the applicant to a specialist to undergo imaging of his skull. The November 19, 2018 X-ray showed that his cranium was intact, thereby ruling out fractures. CNRs further indicate that as a result of his headache complaints, the applicant was assessed for concussion on November 23, 2018.

27On September 26, 2019, one year and nine months post-accident, the applicant was assessed by Pain Specialist, Dr. Grigory Karmy. Among other things, Dr. Karmy reviewed the applicant’s OHIP record going back to June of 2014, which, in the doctor’s view, suggested that the applicant had some “pre-existing physiological condition”. The applicant reported to Dr. Karmy that he experienced intermittent pain in his mid and lower back areas. The neck pains rated as 9/10 in severity had resurfaced, and that, overall, his functionality had been interrupted by pain, anxiety and mood problems, and fatigue. Mr. Baker further reported to Dr. Karmy that approximately two months after the accident, he began experiencing loss of smell, morning stiffness lasting 1 to 2 hours, bowel and bladder incontinence/stress incontinence which the applicant associated with lower back pain. Dr. Karmy’s diagnosis is as follows:

1. Post-Traumatic Fibromyalgia, caused by the subject accident;
2. Persisting symptoms following mild Traumatic Brain Injury, caused by the subject accident;
3. Chronic Post-Traumatic Headache, caused by the subject accident;
4. Chronic mechanical neck pain, relapsed as a result of the subject accident, and possibly associated with radicular symptoms, caused by the subject accident;
5. Chronic mechanical mid back pain, likely originating from the thoracic discs and facet joints, caused by the subject accident;
6. Chronic mechanical bilateral shoulder pain, likely originating from post-traumatic tendinopathy, caused by the subject accident;
7. Chronic mechanical lower back pain, likely originating from the lumbar discs and facet joints, caused by the subject accident;
8. Sacroiliac joint dysfunction, caused by the subject accident;
9. Chronic Pain Syndrome, caused by the subject accident;
10. Sleep Disorder, caused by the subject accident;
11. Mood Disorder with symptoms of Driving and Passenger Anxiety as well as post traumatic symptoms, all caused by the subject accident.

28Overall, based on the applicant’s reporting and his assessment, Dr. Karmy concluded that Mr. Baker, who reported being shocked, confused and dizzy immediately after the accident, had sustained brain concussion (mild Traumatic Brain injury); and over time he had developed widespread musculoskeletal pain, consistent with a Fibromyalgia diagnosis, as a result of his accident-related injuries. The doctor notes that such injuries fall outside of the MIG definition/treatment limit. Dr. Karmy provided a further expansive explanation of the nature, symptoms and negative effects of chronic pain on an individual’s well-being and functionality.

29Over a year, following his visit with pain specialist Dr. Karmy, a December 9, 2020 CNR indicates that the applicant met with Dr. Edwin Munich, a California doctor, for his annual examination. Mr. Baker reported to the doctor that he had been experiencing headaches, once to twice weekly since the accident in 2018, which he could not attribute to any previous head injury; and even though he had received various modes of treatments since the accident.

The Respondent’s position

30The respondent submits that Mr. Baker has failed to establish that his accident-related impairments fall outside the MIG classification. Specifically, the respondent submits that: the evidence indicates that the applicant’s previous medical history is unremarkable and primarily relates to erectile/libido issues; he sought medical attention the day after the accident with Dr. Wajahat at the walk- clinic where he reported pain in his neck and low back; he began receiving physiotherapy, acupuncture and massage therapy at CPC a couple of days after the accident up to November 20, 2018; there is no evidence of accident-related injuries/complaints by Mr. Baker since February 12, 2018; medical follow ups appear to have been minimal; and prior to November 2018, there is no evidence of any medical referral to a specialist. The respondent points to a November 18, 2018 CPC progress report completed by the Physiotherapist D. Tamakuwala in which the applicant reported that his neck pain and low back pain were each 80% improved.

31The respondent also points out that the applicant’s headache complaints started after November 2018 and were likely due to the following workplace injury. November 13, 2018 CNRs of Dr. Wajahat indicate that the applicant had sustained a workplace injury. He had hit his head on a wall, felt dizzy, had a headache and as a result, he was diagnosed with a concussion on November 23, 2018. According to the respondent, Mr. Baker did not mention headaches in connection to the accident until more than two years later in consultation with Dr. Munich in California, when he told the doctor he had experienced headaches “since MVA 2018”. Dr. Munich’s CNRs show that specimen testing of the thyroid was conducted; December 9, and 10, 2020 notes indicate that the applicant reported a loss of appetite and that he had lost 8-10 lbs “because of busy at work, missing lunch”.

32The respondent submits that Mr. Tamakuwala, the physiotherapist who completed the disability certificate provided by the applicant, is not qualified or legally permitted by the Regulated Health Professions Act, 1991 to make diagnoses of radiculopathy, insomnia, nausea, stress, nightmares, irritability/anger or generalized anxiety disorder as indicated. Such diagnoses should therefore be disregarded.

33Similarly, the respondent questions the expertise of Dr. Karmy and, consequentially, the reliability of his report. Specifically, the respondent upon review of Dr. Karmy’s credentials states that the general practitioner is a self-described chronic pain specialist, as he is not recognized as such by the College of Physicians and Surgeons of Ontario (“CPSO”). The respondent states that Dr. Karmy paid a fee to the American Academy of Pain Medicine to use the assignation, as opposed to undergoing the specific, training requirements of the CPSO. Furthermore, the respondent argues that Dr. Karmy’s assessment report of October 22, 2019, appears to be primarily reliant on subjective reporting by the applicant, in particular regarding his psychological findings, as opposed to testing conducted by the doctor. The respondent therefore submits that Dr. Karmy’s report should be given little or no weight.

34The respondent asserts that the applicant’s evidence establishes that, at most, the applicant sustained MIG associated sequelae, included in the minor injuries definition:

a. MIG associated diagnosis indicated in OCF-3;

b. Records show his visits to the clinic for treatment was regular within two months of the accident; it was sporadic after that;

c. the applicant’s lack of attendance for treatment and the clinical notes and records of Dr. Wajahat and Dr. Munich demonstrate that there was no requirement for treatment;

d. He has not used the full amount of the MIG limit available, with $1,104.75 remaining;

e. There was no record of the applicant receiving physiotherapy or massage therapy after November 20, 2018, and complaints of headaches surfaced after the applicant’s workplace head injury/concussion in November of 2018;

f. There is no evidence that he was reliant on medication; for example, in November of 2018, he was prescribed a month’s supply of Wellbutrin. The prescription was not renewed.

The evidence is not compelling

35I find no compelling evidence that would lead me to make a finding that the applicant’s injuries fall outside of the MIG classification, or that he warrants treatment beyond the $3,500 limit.

Pre-existing condition: The medical evidence provided does not indicate a pre-existing condition that would negatively impact the applicant’s recovery from accident-related injuries. The sole September 27, 2017 CNR of Dr. Wajahat notes that the applicant had been experiencing stress and poor sleep, a few months prior to the accident. The doctor’s CNRs reflect no subsequent, observations or connection to this pre-accident condition.

Psychological injuries: I agree with the respondent that the evidence indicates the applicant did not sustain a concussion as a result of the accident. There was no diagnosis of such until after the applicant’s workplace head injury occurred. Similarly, the applicant’s complaints of ongoing headaches started after the workplace injury and cannot be reasonably linked to the accident. While it is likely that the applicant’s mood and sleep issues were heightened to some extent as a result of the accident, the evidence does not lead me to believe they were anything other than sequalae of the soft tissue accident injuries included under the MIG classification. Furthermore, there is no evidence that any non-physical sequalae sustained rendered him functionally impaired in any way.

Physical pain: The evidence leads me to conclude that the pain appears to be clinically associated sequela to minor, soft tissue injuries. Other than simple, ongoing, or recurrent intermittent pain, primarily indicated in the back and neck areas, the evidence does not reflect that the applicant sustained, severe and constant pain. I find no indication that pain caused functional impairment and disability, or significantly disrupted or disabled the applicant’s activities of daily living.

Chronic pain: There is no evidence that the applicant developed chronic pain from the soft tissue injuries diagnosed in the disability certificate that would remove him from the MIG. Notwithstanding the respondent’s misgivings about Dr. Karmy’s expertise and credentials, I am not convinced that Dr. Karmy’s diagnosis of fibromyalgia/chronic pain syndrome had any bearing on the accident-related injuries Mr. Baker sustained. Firstly, the consultation with the doctor took place a year and nine months post accident in a case where healing was expected to happen in three months, and the persistent headaches reported to Dr. Karmy by the applicant started after his workplace injury. Secondly, it appears that the applicant did not apprise the doctor of the workplace concussion he had sustained, which, had he done so, may have led to a different conclusion by the doctor; and thirdly, nowhere in the evidence/CNRs of the doctors Mr. Baker saw prior to the November 2018 workplace accident is there a mention or concerns about headaches. Like the respondent, this leads me to believe that the headaches and subsequent diagnosis were possibly because of the workplace head injury he sustained.

36Other than the subjective, non-physical complaints noted, the disability certificate reflects injuries and consequential symptoms diagnosed under the expertise of the consulting physiotherapist, that fall within the definition of minor injuries. The fact that the physiotherapist anticipated healing duration to be 9-12 weeks, or a maximum of approximately three months, in my view, validates the minor nature of the applicant’s injuries. In fact, Physiotherapist Tamakuwala’s November 18, 2018 progress report indicates that Mr. Baker’s pain was relieved with conventional treatment: his neck pain and low back pain were each noted as 80% improved.

37While it is likely that Mr. Baker did have instances of physical pain related to the sprain/strains he sustained because of the accident, the evidence shows that he took advantage of pain relief treatment recommended, largely during the months of January to March of 2018, and sporadically thereafter. As I have stated above, due to the intervening November 2018 workplace accident almost a year post-accident, Mr. Baker’s complaints, and the findings of Dr. Baker, cannot be reasonably linked to the accident, especially given that his treatment progress report showed improvements.

38In any case, Mr. Baker has not established, on a balance of probabilities, that any accident-related pain he experienced, prior to November 2018, was due to anything other than “one or more of a strain, sprain, whiplash associated disorder…and any clinically associated sequelae to such an injury”, under the minor injury definition. Furthermore, there is no evidence that such pain caused a functional impairment or affected his well being that would warrant treatment beyond the MIG limit. On the contrary, the indication is that he did not withdraw from work nor was he dysfunctional in his life activities. Indeed, he indicated to his California physician that he was overworked to the point of losing weight.

Issue #ii: Is the treatment plan in the amount of $2,317.34 for physiotherapy and massage therapy services recommended by Complete Physiotherapy reasonable and necessary?

39To receive payment for a treatment plan under s. 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary treatment, for his accident-related injuries. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

40The plan, completed by Physiotherapist, Denish Tamakuwala, dated May 25, 2018 was submitted on June 5, 2018. In the plan, the physiotherapist indicated that the applicant had received treatment under the MIG and additional treatment was required, specifically, a 16-session, active functional restoration program and 8 massage therapy sessions for his physical injury and sequelae primarily noted as sprains and strains in different areas of the body. The goals of the proposed treatment are noted as “pain reduction, increased strength, range of motion, and increase cardiovascular fitness levels, increase strength, endurance and flexibility, improve motor control of lumbopelvic and cervicothoracic muscles”.

The evidence

41The applicant asserts that that the plan is reasonable and necessary as the proposed treatment techniques provide healing for his accident-related injury and subsequent symptoms. Apart from the applicant’s expressed gratitude for the support the therapy the afforded him, the physiotherapist indicates that at the time of consultation in June 2018, Mr. Baker continued to note difficulty with bending, lifting and prolonged posture secondary to lower back pain. Lifting, push/pull and prolonged unsupported postures allegedly aggravated his neck and back pain. According to the physiotherapist, the proposed treatment plan will help him achieve functional goals of returning to, although unspecified, activities of normal living and pre-accident work activities.

42While the respondent concurred that the applicant had sustained some sprains/strains to the musculoskeletal system as a result of the accident, it submits that there was no indication of ongoing chronicity of any of his alleged injuries as a result of the accident. It is the respondent’s position that no further physiotherapy or massage therapy treatment recommended in the proposed treatment plan is warranted; especially considering that the CNRs of the treatment clinic show that although Mr. Baker’s attendance was sporadic, and there was continuous improvement. The respondent refers to the March 21, 2018 Progress Form as support. It indicates that Mr. Baker’s neck and back pain had each improved by 80%. The respondent denied the proposed treatment plan on the basis that the MIG applied, and that the proposed treatment plan was not reasonable or necessary.

The plan is reasonable and necessary under the MIG treatment limit

43I have already determined that the applicant’s injuries are within the MIG classification, and as such he is eligible for treatment up to a maximum funding limit of $3,500. While the respondent’s June 18, 2018 explanation of benefits to the applicant indicates that he had reached the MIG treatment limit and no further funding was available, the respondent indicates otherwise in its hearing submissions. According to the respondent’s submissions, the treatment limit has not been exhausted, as there is still $1,104.75 remaining. I accept the respondent’s more recent indication that there are still funds available. To that end, I must now determine whether the treatment plan is reasonable and necessary, and consequently whether the applicant is entitled to the remainder of the MIG funding.

44There is no dispute that the applicant sustained soft tissue, physical injuries and sequela as a result of the accident that are classified as minor injuries. The physiotherapist reiterates this in the treatment plan. The indication is that the physiotherapy and massage treatments Mr. Baker had been receiving up to that point provided pain relief and improvement of the applicant’s injuries. In fact, in the treatment plan the physiotherapist notes the applicant’s subjective reporting of his symptoms, and his acknowledgement of the support the therapy afforded him. On a balance of probabilities, considering that the applicant demonstrated marked improvement as a result of the ongoing physiotherapy treatment he had been receiving, I find that the treatment plan is reasonable and necessary, up to the remaining balance of the MIG treatment limit, in the amount of $1,104.75, as indicated by the respondent. However, if there is no remaining balance the treatment plan is not payable and is dismissed.

INTEREST

45Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

46The applicant is entitled to interest on any overdue, incurred portion of the remaining amount indicated above.

COSTS

47Rule 19 of the Common Rules of Practice and Procedure (the ”Rules”) allows parties to request costs if they believe that the other party in the proceeding acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for such a request including the reasons for the request and the particulars of the alleged conduct. The Rules concerning costs are made pursuant to the sections 17.1 and 25.1 of the Statutory Powers Procedure Act (“SPPA”). The applicant seeks to have costs awarded under Rule 19.

48The words “unreasonably, vexatiously, frivolously, or bad faith” are not defined in the Rules or the SPPA. However, in my view, a dictionary definition/reasonable understanding of these terms are as follows: “unreasonable” meaning unwarranted; “vexatious” meaning, acting without reasonable or probable cause or as a means of annoying someone; “frivolous” meaning not having a serious purpose or value; and “bad faith” meaning deceitful or dishonest. Nothing in the submissions provided would lead me to make a finding that the respondent’s conduct in this matter warrants awarding costs pursuant to the Rules. I have considered the following.

49Mr. Baker alleges that the respondent acted unreasonably, frivolously and in bad faith in its handling of this matter, as follows: its continued denials of the various treatment plans; his having to dispute the claims created a substantial workload for his counsel, including having to file the application, participate in the proceedings before the Tribunal and conduct the administrative work involved in having this matter heard.

50I note here that Rule 19 cost provisions are meant to maintain civility and order during a proceeding, to deter conduct that threatens the order and civil resolution of an application and to ensure the Tribunal’s process. Costs are not intended to compensate parties or their counsel for the work or expenses involved in bringing or defending claims, or to punish parties. Considering the following, I am not persuaded that the respondent’s course of conduct can be considered unreasonable, frivolous, vexatious or in bad faith: the respondent relied on the medical evidence provided, in its estimation that the applicant’s injuries were minor, and therefore treatable up to the maximum funds available; there is no indication of delayed responses or baseless withholding of funds or deceitfulness on its part. Furthermore, expenses or the work involved by a party’s counsel in pursuing the available recourse of the appeal process before the Tribunal, including preparing for a hearing, are not grounds for or the intention to award costs under Rule 19/SPPA. The applicant is not entitled to costs.

ORDER

51For the reasons outlined above, I order as follows

(a) The applicant’s claim for the medical benefit in the amount of $2,387.89, number [3] (b), iii. above, denied by the respondent on November 26, 2018, is statute barred. The claim is dismissed.

(b) The applicant injuries are predominantly minor as defined in the Schedule and are therefore subject to the maximum treatment limit of $3,500.

(c) The applicant is entitled to the treatment plan noted above as [3] (b) ii., for physiotherapy and massage therapy services, up to any remaining balance of the $3,500 MIG funding limit; and interest on any overdue payment incurred on the amount.

(d) The applicant’s claim for costs is dismissed.