Simmons v. Aviva Insurance Company
Licence Appeal Tribunal File Number: 21-014671/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:
Nezel Simmons
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Nikolai Singh, Paralegal
For the Respondent: James Kolumbus, Counsel
HEARD: In Writing
OVERVIEW
1Nezel Simmons, the applicant, was involved in an automobile accident on November 5, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The case conference report and order (“CCRO”) dated October 31, 2022 specified the following timelines for written submissions:
i. Applicant’s submissions and evidence due – 30 calendar days prior to scheduled hearing;
ii. Respondent’s submissions and evidence due – 7 calendar days prior to scheduled hearing; and
iii. Reply submissions due – 3 calendar days prior to scheduled hearing.
3The Notice of Written Hearing dated December 16, 2022, informed the parties that the written hearing was scheduled for Friday, July 28, 2023. Thereby, the applicant’s initial submissions were due Wednesday, June 28, 2023.
4At the time the respondent’s filed its written submissions on July 5, 2023, the applicant had yet to file her submissions. The applicant filed their initial written submissions on July 7, 2023.
5The respondent submits that the application should be dismissed in its entirety as the applicant did not comply with Tribunal timelines; in the alternative, the respondent submits that the applicant should not be permitted to submit or rely upon documentary evidence or written submissions. If the Tribunal were to accept the applicant’s submissions after July 5, 2023, the respondent would have no opportunity to respond, effectively reversing the burden of proof and violating the principle set out in Scarlett v. Belair Insurance, 2015 ONSC 3635.
6On July 5, 2023, after the respondent filed written submissions, the applicant filed a notice of motion seeking that the hearing scheduled to commence on July 28, 2023 be rescheduled. The Tribunal advised the applicant on July 6, 2023, that the motion would not be considered as currently filed, and advised the applicant if requesting an adjournment to file a Request for Adjournment form. The Tribunal did not receive a Request for Adjournment form.
7The applicant’s written submissions dated July 7, 2023, acknowledged that the submissions were late, arguing that the presumption was that this hearing was to be heard December 15, 2023 as initially scheduled by the November 10, 2022 Notice of Written Hearing. The applicant’s reply submissions dated July 25, 2023, acknowledge that the submissions were filed late, and that the respondent was prejudiced. The applicant’s position was that it would not have been prejudicial to the respondent had they filed their response 7 days prior to the scheduled hearing on July 21, 2023. The applicant submits that the Tribunal should consider submissions based on it being submitted prior to the scheduled written hearing on July 28, 2023.
8In this case, the applicant was ordered by the Tribunal to serve and file her written submissions and evidence no later than June 28, 2023. The applicant did not file written submissions until July 7, 2023. I find that the applicant did not comply with the CCRO. I find that the respondent did comply with the CCRO.
9I am not persuaded by the respondent’s argument that the application be dismissed. I am satisfied by the applicant’s notice of motion that she was not abandoning her application. Under Rule 3.4 of the Common Rules, the Tribunal may dismiss an application without a hearing if the applicant is found to have abandoned the proceeding. Before doing so, the Tribunal is required under Rule 3.5 to give the parties notice of its intention to dismiss, the reasons for the Tribunal’s intention, inform the parties of the right to make written submissions, and consider any written submissions provided. I am not persuaded to dismiss the application as abandoned, nor did the respondent file a motion seeking a notice of intention to dismiss the application.
10However, I am persuaded by the respondent’s submission that fundamental to any administrative process is the requirement that it be fair. A party is to have an opportunity to be heard and be able to respond to the position taken against it. The respondent was not afforded this opportunity, as the respondent did not have the opportunity to review the submission and evidence to be relied on by the applicant prior to advancing its position. I find that the applicant’s submissions failed to comply with the CCRO and allowing the late submissions would amount to a breach of procedural fairness and would significantly prejudice the respondent.
11As a result, I decline to admit the applicant’s submissions dated July 7, 2023. I will consider the applicant’s reply submissions as they were on July 25, 2023, in accordance with the CCRO.
12I would be remiss if I did not caution the parties that anytime there is non-compliance with a previous Order, parties risk exclusion of the submissions or evidence or both.
ISSUES
13The issues in dispute are:
i. Is the applicant entitled to $2,016.41 for a visual therapy assessment and optometry screening, proposed by Canadian Active Rehabilitation Centre in a treatment plan (“OCF-18”) dated January 11, 2021?
ii. Is the applicant entitled to $1,459.11 for occupational therapy proposed by Functionability Rehabilitation Services in OCF-18 dated April 22, 2021?
iii. Is the applicant entitled to $3,192.52 for occupational therapy, proposed by Functionability Rehabilitation Services in OCF-18 dated June 1, 2022?
iv. Is the applicant entitled to $1,433.60 for psychological services, proposed by Functionability Rehabilitation Services in OCF-18 dated February 5, 2021?
v. Is the applicant entitled to $3,447.20 for chiropractic and massage treatment, proposed by Midland Wellness Centre in OCF-18 dated October 23, 2021?
vi. 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?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
14The application is dismissed. The applicant has not met her evidentiary burden to establish her entitlement to the benefits in dispute. Given there are no benefits payable, she is not entitled to an award or interest.
ANALYSIS
Applicant’s Onus to Establish a Treatment Plan is Reasonable and Necessary
15To receive payment from an insurer for a medical benefit sought under sections 14 and 15 of the Schedule, an applicant must establish on a balance of probabilities that he has suffered an impairment from the accident and that the medical benefit is a reasonable and necessary expense as a result of the accident.
16There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.
17In demonstrating the reasonableness and necessity of a benefit sought, 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 the goals are reasonable.
THE DISPUTED TREATMENT PLANS
The applicant is not entitled $2,016.41 for a visual therapy assessment and optometry screening
18I find that the applicant has not established that the OCF-18 for a visual therapy assessment and optometry screening is reasonable and necessary. I am persuaded by the optometry assessment report, dated April 13, 2021, of Dr. Colin Chan, optometrist. Dr. Chan opined that the applicant did not suffer an impairment from an ocular standpoint as a result of the motor vehicle accident. Accordingly, I find that the OCF-18 is not reasonable and necessary.
The applicant is not entitled to $1,459.11 or $3,192.52 for occupational therapy
19I find that the applicant has not established that the OCF-18 for occupational therapy is reasonable and necessary. I am persuaded by the occupational therapy assessment of Mr. Rasul Kassam, occupational therapist, dated May 27, 2021, and August 22, 2022 that opined the applicant demonstrated functional AROM and tolerances to perform her ADL and IADLs independently. Furthermore, the assessment revealed the applicant is independent to participate in her pre-accident day to day self-care activities. Accordingly, I find that the OCF-18s are not reasonable and necessary.
The applicant is not entitled to $1,433.60 for psychological services
20The applicant submitted a total of $5,729.60 for psychological services, the respondent partially approved up to $4,296.00, leaving $1,433.60 in dispute. The respondent submits that the psychological services were approved up to $4,296.00 based on the corresponding FSCO rates, as the OCF-18 provided that a social worker was administering this service. The FSCO sets an hourly rate of $100 for a social worker. There is no evidence before the Tribunal to substantiate those alternative rates were reasonable and necessary. Accordingly, I find that the outstanding balance of the OCF-18 is not reasonable and necessary.
The applicant is not entitled to $3,447.20 for chiropractic and massage treatment
21I find that the applicant has not established that the OCF-18 for chiropractic and massage treatment is reasonable and necessary. I am persuaded by the orthopaedic assessment report of Dr. Ramunas Saplys, orthopaedic surgeon, dated April 11, 2022. Dr. Saplys opined that the proposed treatment was not reasonable and necessary and that her injuries would resolve over a period of three months. Accordingly, I find that the OCF-18 is not reasonable and necessary.
Award and Interest
22Given that there are no benefits payable, the applicant is not entitled to an award or interest.
ORDER
23I find that the applicant is not entitled to:
i. $2,016.41 for a visual therapy assessment and optometry screening,
ii. $1,459.11 for occupational therapy,
iii. $3,192.52 for occupational therapy,
iv. $1,433.60 for psychological services,
v. $3,447.20 for chiropractic and massage treatment,
vi. an award, or
vii. interest on any overdue payment of benefits.
Released: December 5, 2023
Monica Ciriello
Vice-Chair