Licence Appeal Tribunal File Number: 21-011095/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:
Aicha Elbahja
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Kelisa Reyes, Paralegal
For the Respondent: Symone Marlowe, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Aicha Elbahja (the “applicant”) was involved in an automobile accident on January 12, 2019, 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 Wawanesa Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2This matter was originally scheduled to be heard via a videoconference hearing which was to take place from December 19 to December 22, 2022. On November 18, 2020, the Tribunal granted the respondent’s motion to convert the videoconference hearing to a written hearing.
PRELIMINARY ISSUE 1- page limit of the Respondent’s written submissions
3The applicant submits that the respondent exceeded the page limit as mandated in a previous Motion Order, dated November 18, 2022, where the Tribunal set a page limit of 15 pages for initial submissions from the parties. The previous Motion Order also stated that the hearing adjudicator may consider submissions which exceed the page limit. Further, the Motion Orders dated November 18, 2022, and April 18, 2023, noted that the applicant requested an increase in length of the written submissions on two separate occasions, however that request was denied by the Tribunal.
4The applicant submits that as a result of the respondent breaching the previous Orders, I should not consider any submissions beyond page 15.
5I agree with the applicant that the respondent was noncompliant with the page limit as its submissions are clearly over the page limit of 15 pages.
6In accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. The applicant has failed to demonstrate actual prejudice that she sustained as a result of the non-compliance. When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the respondent. The respondent would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter. As such, I will not exclude the respondent’s submissions beyond page 15 as requested by the applicant as it would prevent the respondent from addressing Income Replacement Benefits (“IRB”), interest, and an award.
PRELIMINARY ISSUE 2- LATE FILING/SERVICE OF THE RESPONDENT’S SUBMISSIONS
7The respondent served its initial submissions on May 12, 2023, at 6:53 PM and its amended written submissions on May 15, 2023, 3 days after the deadline.
8The Motion Order dated April 18, 2023, was clear that the respondent’s submissions were due on May 12, 2023. The applicant submits that the respondent late filed/served its initial submissions and as such requests that the Tribunal should not consider these submissions. While the applicant did not refer me to Rule 6.5 of the Rules, that deems documents sent after 5:00 PM have been received on the next day that is not a holiday. Further, the applicant submits that the Tribunal should disregard the respondent’s amended submissions as they were sent 3 days following the deadline.
9In accordance with Rule 3.1 of the Rules, I will allow for a liberal interpretation of the Tribunal Rules. Further, the applicant has not directed me to evidence of prejudice that was caused by either this slight delay or the respondent’s amended submissions. Moreover, I find that the applicant was able to respond to the respondent’s amended submissions in her reply submissions. I find that the respondent would suffer significant prejudice if its submissions/evidence were excluded for the purposes of this hearing, as it would not be able to defend the issues in dispute, and this would be disproportionate to its error.
10However, this should not be viewed as tacit acceptance of such blatant contraventions of the Tribunal’s orders. The respondent who is experienced with submissions to this Tribunal—needs to be aware that this sort of misconduct risks the potential exclusion of its submissions and that they must act in accordance with Tribunal orders in the future. If they seek to vary written submission page limits, or require an extension of deadlines, they needs to file a timely Notice of Motion in compliance with Rule 15 of the Rules.
ISSUES
11The issues in dispute are:
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 Minor Injury Guideline (“MIG”)?
Is the applicant entitled to IRB in the amount of $400.00 per week from November 3, 2019, to date and ongoing?
Is the applicant entitled to $2,145.44 for physiotherapy, massage and chiropractic services proposed by Mavis Eglington Physiotherapy in a treatment plan (“OCF-18”) submitted October 8, 2019, and denied October 23, 2019?
Is the applicant entitled to $3,627.26 for psychological services proposed by Novo Medical Services in an OCF-18 submitted February 12, 2020, and denied February 20, 2020?
Is the applicant entitled to the following assessments proposed by Novo Medical Services, as follows:
(i) $2,200.00 for a psychological assessment, in an OCF-18, submitted on August 30, 2019, and denied on September 10, 2019?
(ii) $2,200.00 for a chronic pain assessment, in an OCF-18 submitted on November 5, 2019, and denied on November 15, 2019? and
(iii) $2,200.00 for a social work assessment, in an OCF-18 submitted on May 7, 2021, and denied on May 14, 2021?
Is the applicant entitled to $2,041.25 for a Psychological Assessment, proposed by Integral Health Group in an OCF-18 dated June 11, 2020, submitted on June 22, 2020, and denied on July 8, 2020?
Is the applicant entitled to $2,983.15 for massage, physiotherapy chiropractic and acupuncture services proposed by Mavis Eglington Physiotherapy in an OCF-18 submitted on September 14, 2021, and denied on October 28, 2021?
Is the applicant entitled to $281.66 for medications, submitted on a claim form (OCF-6) dated August 28, 2020, and denied September 15, 2020?
Is the applicant entitled to $195.00 for acupuncture treatment, submitted in an OCF-6 dated August 20, 2020, and denied September 15, 2020?
Is the applicant entitled to $201.36 for medication and TMJ expenses, submitted in an OCF-6 dated September 29, 2020, and denied October 1, 2020?
Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to costs pursuant to Rule 19 of the Rules?
RESULT
12I find that the applicant is not entitled to IRB for any of the periods claimed.
13I find that the applicant is removed from the MIG due to her psychological impairments.
14I find that the applicant is entitled to the following OCF-18s with interest:
i. An OCF-18 in the amount of $3,627.26 for psychological services;
ii. An OCF-18 in the amount of $2,200.00 for a psychological assessment; and
iii. An OCF-18 in the amount of $2,200.00 for a social work assessment.
15I find that the applicant is not entitled to the remaining OCF-18s or interest. Further, the applicant is not entitled to the OCF-6s in dispute.
16The respondent is not liable to pay an award pursuant to s.10 of Regulation 664.
17The respondent is not liable to pay costs.
ANALYSIS
Is the applicant precluded from claiming IRB due to the late submission of her OCF-3?
18I find that the applicant is not entitled to IRB for any period prior to April 28, 2023, when she submitted a completed OCF-3, as required by section 36(3) of the Schedule. I further find that the applicant is not entitled to IRBs beyond this period of time as the applicant has failed to comply with the provision outlined in s. 5(1) the Schedule.
19Section 36(2) of the Schedule mandates that an applicant seeking IRBs shall submit a completed OCF-3 with his or her application. Section 36(3) sets out that an applicant is not entitled to IRBs for any period before the completed OCF-3 has been submitted.
20The respondent submits that the applicant is not entitled to IRB as she never submitted an OCF-3. The respondent further submits that the applicant has failed to prove that the two OCF-3s included in her hearing brief were submitted to the respondent, as there is no fax confirmation. Moreover, the respondent sent correspondence to the applicant on February 7, 2019, which advised that the Application for Accident Benefits indicates that the applicant was employed, and her injuries did not prevent her from working. Additionally, on July 19, 2021, further correspondence was sent to the applicant which advised that despite her filing an OCF-2, there was no entitlement to IRB before a completed OCF-3 was received.
21I find that the applicant did not submit the OCF-3s until she made submissions for this hearing on April 28, 2023 (approximately 4 years following the accident) as she has failed to provide proof, such as a fax confirmation, that the OCF-3s were provided to the respondent prior to this date. While I acknowledge that the applicant provided copies of the OCF-3s in her submissions, this in my view, does not constitute as proof that they were actually provided to the respondent. The applicant also failed to address why she would be entitled to IRB despite her noncompliance with section 36(2) of the Schedule. Instead, the applicant’s submissions focused heavily on the test for pre- and post-104 IRB.
22Further, the applicant has no explanation as to why the OCF-3s were not submitted when the respondent specifically requested them in the correspondence noted above.
23In addition, the applicant has failed to comply with the time provisions outlined in section 5(1) of the Schedule. In regard to section 5(1), the applicant has not demonstrated a substantial inability to perform the essential tasks of her employment within 104 weeks of the accident as the OCF-3s were not submitted until almost 5 years after the accident. The applicant’s failure to comply with the time provisions outlined in the Schedule is fatal to her claim for IRBs as it precluded the respondent from assessing her entitlement to the benefit contemporaneous with the period claimed.
24I find that the applicant has not demonstrated that she submitted the OCF-3s to the respondent before April 28, 2023, and has failed to comply with the notice provisions in the Schedule. As a result, I find that the applicant is not entitled to IRBs for any period claimed.
Minor Injury Guideline
25The 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.
26Section 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 with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
27The applicant submits that she should be removed from the MIG on the following grounds:
(i) She has pre-existing conditions to her wrist, elbow, back, neck, shoulders, and headaches which were aggravated by this accident;
(ii) She has cognitive/neurological injuries such as: headaches, extremity weakness, numbness, a decline in memory and concentration, dizziness, tingling, and vision blurriness;
(iii) She has chronic pain;
(iv) She has temporomandibular joint pain (“TMJ”); and
(v) She has been diagnosed with psychological conditions such as generalized anxiety disorder with panic attacks, adjustment disorder with mixed anxiety and depressed mood, and specific phobia- situational phobia.
28The respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of a minor injury. The respondent further submits that the applicant has not provided any evidence to suggest or prove that her pre-existing conditions were exacerbated by this accident or that her pre-existing conditions would prevent recovery if subjected to the MIG. The respondent also submits that the clinical notes and records of her family physician, Dr. Shadwa Salib do not suggest that the applicant has psychological impairments as a result of the accident.
29I find that the applicant has demonstrated that she has been diagnosed with psychological impairments following this accident and as such, she is removed from the MIG on this basis. As I have determined that the applicant is removed from the MIG on the basis of her psychological impairments, I do not need to consider whether her pre-existing injuries, cognitive/neurological injuries, chronic pain, and alleged TMJ will remove her from the MIG.
The applicant is removed from the MIG as she has psychological impairments from the accident
30I find that the applicant has established on a balance of probabilities that she has psychological impairments and therefore is removed from the MIG.
31The applicant relies on a section 25 report of psychologist, Dr. Leon Steiner.
32The respondent submits that the applicant never reported any psychological symptoms from this accident to her family physician or section 44 assessors, Dr. Jacqueline Auguste, or Dr. Jamsheed Desai.
33Dr. Steiner, in his report dated November 10, 2019, diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood; and specific phobia- situational phobia, based on psychological testing and behavioural presentation.
34The respondent did not complete section 44 psychological assessments.
35The applicant refers to the authority of Raja-Mohamad v. The Personal Insurance Company (“Raja-Mohamad”), 2022 CanLII 33191 (ON LAT), which I find persuasive. In Raja-Mohamad, the applicant was diagnosed with psychological impairments by a section 25 assessor and the respondent argued that the report should be given little weight as there was no other corroborating medical evidence to support his subjective reports to the assessor. I agree with the Tribunal that absent a contrary medical opinion; my job is not to scrutinize the diagnosis made by medical professionals within their expertise but to weight the evidence presented. Further, I find that just because an applicant did not complain to her family physician or section 44 assessors about her psychological symptoms should not mean that a medical professional did not conduct an appropriate assessment or make a proper diagnosis. Dr. Steiner completed numerous psychological tests in conjunction with his assessment to determine whether the applicant was suffering from a psychological condition.
36Also, while the respondent submits that the applicant’s emotional distress is not causally related to the accident, but more likely to the experience of potentially suffering a stroke, because the applicant self-reported that she thought she experienced a stroke to Dr. Steiner. Nevertheless, Dr. Steiner diagnosed the applicant with psychological impairments from this accident. The respondent has also not referred me to evidence that rebuts the psychological testing conducted or the diagnosis made by Dr. Steiner.
37Accordingly, and for the reasons outlined above, the applicant is removed from the MIG on the basis of her psychological impairments from this accident.
Reasonable and Necessary
38Since the applicant is removed from the MIG, she can apply for medical and rehabilitation benefits above the MIG limits
39To receive payment for a treatment and assessment plan pursuant to sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.
The applicant has failed to demonstrate that the OCF-18 in the amount of $2,145.44 is reasonable and necessary.
40I find that the respondent was noncompliant with s.38(8) of the Schedule as the denial letter was sent one day late, however I find that the denial letter sent on October 24, 2019, was compliant with section 38(8) of the Schedule. I also find that the applicant has failed to establish that the proposed OCF-18 for physiotherapy, massage, and chiropractic services was reasonable and necessary.
41I find that the respondent was initially non-compliant with section 38(8) of the Schedule as the denial letter was sent after 10 business days. However, this deficiency was cured on the 11th day by its denial letter, dated October 23, 2019, but sent on October 24, 2019. The mandatory “shall pay” language in section 38(11)2 is for expenses “that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)” Here, the “shall pay” period began to run on the same day that the insurer cured the deficiency of its notice.
42The applicant did not provide submissions or tender evidence on whether she incurred the OCF-18 on October 24, 2019. The parties also disagree whether the OCF-18 has to be incurred during the non-compliant period, in order to be payable by the respondent. I find that in accordance with Aviva General Insurance Company v. Catic (“Catic”), 2022 ONSC 6000, the OCF-18 is not payable during the non-compliant period because the applicant has not adduced evidence that she incurred the OCF-18.
43I find that the denial letter dated October 23, 2019, provided sufficient medical reasons for the applicant to either accept or dispute the decision. The denial letter advised that based on a review of part 4 of the disputed OCF-18, it was noted that the applicant’s injuries were minor. The denial letter further advised that the OCF-18 was not reasonable and necessary as there was a lack of medical documentation to demonstrate that she suffered from injuries that were not classified within the MIG. Moreover, the respondent advised that if the applicant’s family doctor or any treating practitioner had further information, she should submit this to the respondent. The applicant in her own submissions acknowledged that she did not serve a vast majority of the medical records until August 18, 2020, to April 7, 2021, which is after this OCF-18 was submitted and denied by the respondent.
44The respondent provided a compliant notice on the same day as the penalty period pursuant to s.38(11) started. As such, it remains necessary to evaluate whether the goods and services proposed in the OCF-18 are reasonable and necessary as a result of the accident pursuant to section 15 of the Schedule.
45I find that the proposed OCF-18 is not reasonable or necessary for the following reasons. Firstly, the applicant has not referred me to compelling medical evidence, outside of the OCF-18, that the treatment was recommended by her treatment providers. While I acknowledge that the applicant submits that she complained of pain in her head, neck, upper/lower back, jaw, mouth, ears, and shoulders to her providers at Mavis Eglinton Physiotherapy, she has not referred me to a single entry from any of her treatment providers where the proposed treatment was recommended. During the time period of this OCF-18, there is no corroborating medical evidence that supports or recommends any of the treatment proposed.
46Further, the applicant has failed to provide a medical opinion that links her left hemifacial spasm, Bell Palsy, right sided otalgia, and facial twitching to this accident. The applicant has not referred me to a single entry from Dr. Salid’s records which demonstrates that these complaints are linked to the accident. Further, Dr. Steiner, did not provide an opinion with respect to this. As such, I find that the applicant has failed to establish these ongoing physical complaints are a result of the accident.
47Lastly, I prefer the evidence of the respondent’s s. 44 assessor, Dr. Auguste, who concluded that he could not identify any accident-related impairments from strictly an orthopaedic perspective at nearly 3 years post accident that would require ongoing physical therapy which is consistent with the medical evidence. The applicant has failed to refer me to any entries beyond late 2019 where she complained of accident-related injuries. Further, Dr. Desai, in his report, dated January 5, 2022, concluded that the applicant’s left hemifacial spasm as well as headaches are not related to this accident. As Dr. Desai is a neurologist, I place significant weight on this opinion and the applicant has failed to refer me to any opinion from any medical professional where a link was established between the applicant’s neurological complaints and this accident.
48The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make her case. As the applicant has failed to refer to any evidence to support that the treatment goals are reasonable, that they will be met to a reasonable degree, and the costs associated are reasonable, I find that she has not met her onus to demonstrate that this OCF-18 is reasonable and necessary.
The applicant has failed to demonstrate that the OCF-18s in the amount of $2,983.15 is reasonable and necessary
49I find that the denial letter, dated September 21, 2021, pertaining to the OCF-18 in the amount of $2,983.15, was compliant with s. 38(8) of the Schedule. I further find that the applicant has failed to establish that the OCF-18 proposing physiotherapy, chiropractic, acupuncture, and massage treatment are reasonable and necessary as a result of her accident-related injuries.
50I find that the denial letter, dated September 21, 2021, pertaining to the OCF-18 in the amount of $2,983.15, was compliant with s. 38(8) of the Schedule. The applicant submits that the denial letter was sent on November 2, 2021, beyond the 10-day deadline of September 27, 2021. The respondent submits that the OCF-18 was submitted on September 14, 2021, and denied on September 21, 2021, which is within the 10-day deadline mandated under the Schedule. The respondent submits that the second denial letter dated November 2, 2021, was sent after the Insurer’s examination (“IE”) reports were received. The applicant failed to address this issue further in her reply submissions and as such it appears that she agrees that a denial letter was sent within the 10-day period. Further, the applicant did not provide submissions with respect to the denial letter, dated September 21, 2021, as such, I find that there is no dispute whether that denial letter is in accordance with sections 38(8) and (9) of the Schedule.
51I find that the applicant has failed to establish the proposed OCF-18 is reasonable and necessary for the following reasons. She has not referred me to compelling medical evidence, outside of the OCF-18s that any treatment providers recommended the proposed treatment. Further, as noted above, the applicant has failed to link ongoing physical complaints she may have to this accident, which has further supported by the fact that she has not complained of any accident-related injuries to her family physician, since late 2019.
52The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make her case. As the applicant has failed to refer to any evidence to support that the treatment goals are reasonable, that they will be met to a reasonable degree, and the costs associated are reasonable, I find that she has not met her onus to demonstrate that this OCF-18 is reasonable and necessary.
The applicant has demonstrated that the OCF-18 in the amount of $3,627.26 for psychological services is reasonable and necessary
53I find that the applicant has demonstrated that the OCF-18 for psychological services is reasonable and necessary based on Dr. Steiner’s section 25 report.
54The OCF-18 in dispute pertains to 12 psychological therapy sessions to be provided by psychologist Dr. Leon Steiner and psychotherapist, Ms. El-Barbary Abier.
55The applicant has demonstrated that this treatment is reasonable and necessary to treat her psychological impairments from the accident. Dr. Steiner in his undisputed s. 25 report, recommended 12-16 sessions of psychotherapy as a result of the applicant’s accident-related psychological impairments. While I acknowledge that the applicant did not advise the doctors at Credit Valley Hospital of the accident, I find that Dr. Steiner has concluded that as a result of the accident, the applicant requires the proposed treatment, and the respondent has not referred me to an opposing medical opinion.
56The applicant also raised an issue of the respondent not being compliant with respect to s.38(8) of the Schedule, with respect to its denial letter, dated February 20, 2020. However, as I have found this OCF-18 is reasonable and necessary, I have not considered this position.
The applicant has demonstrated that the OCF-18 in the amount of $2,200.00 for a psychological assessment is reasonable and necessary
57I find that on a balance of probabilities, the applicant has demonstrated that a psychological assessment is reasonable and necessary.
58The applicant was removed from the MIG on the basis of the psychological assessment that was completed by Dr. Steiner, which is listed in dispute as issue 5(i). As such, the psychological assessment was reasonable and necessary to determine that the applicant sustained an adjustment disorder with mixed anxiety and depressed mood; and a specific phobia-situational phobia and that she required psychotherapy as a result.
59The applicant also raised an issue of the respondent not being compliant with respect to s. 38(8) of the Schedule, with respect to its denial letter, dated September 10, 2019. However, as I have found this OCF-18 reasonable and necessary, I have not considered this position.
60Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.
The applicant has failed to demonstrate that the OCF-18 in the amount of $2,200.00 for a chronic pain assessment is reasonable and necessary
61I find that the denial letter, dated November 15, 2019, was compliant with s. 38(8) of the Schedule. I also find that the applicant has failed to establish a chronic pain assessment is reasonable and necessary, as the evidence before me does not indicate that the applicant might have chronic pain.
62In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary by pointing to persuasive objective evidence that there are grounds to suspect that she has the condition for which she seeks the assessment.
63The applicant submits that the denial letter was noncompliant with section 38(8) as it failed to provide her with medical reasons for the denial and contained boilerplate language.
64The respondent failed to provide any submission with respect to section 38(8).
65I find that the denial letter, dated November 15, 2019, was compliant with section 38(8) of the Schedule, as it advised the applicant that based on the medical information on file, her injuries were classified within the MIG, and that she should provide any additional medical records from a family doctor or any treating practitioner for its consideration. The applicant has also admitted in her submissions that a vast majority of the evidence was not provided until August 2020 to the respondent.
66In my view, this satisfies the requirements under section 38(8) of the Schedule, as it advised the applicant that based on the medical information provided at that time, the respondent believed she was in the MIG, and the respondent identified medical information that it does not have and requires from the applicant. I find that the denial letter was clear and unequivocal to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
67As I have determined that the denial letter, dated November 15, 2019, was compliant with s. 38(8) of the Schedule, I will now consider whether the proposed OCF-18 is reasonable and necessary, which I find it is not.
68This OCF-18 in dispute pertains to a chronic pain assessment to be completed by general practitioner (“GP”), Dr. Leon Rivlin.
69The applicant submits that the goals of the OCF-18 include pain reduction and for her to return to her activities of normal living. The applicant further submits that her pain progressed well past the expected time frame and that Dr. Steiner recommended a multi-disciplinary pain management program.
70The respondent submits that the only mention of chronic pain was in Dr. Steiner’s report and there is no evidence elsewhere to prove that chronic pain exists.
71I agree with the respondent for the following reasons and find that the applicant has not pointed me to persuasive objective evidence that she has chronic pain, as a result of this accident, that would warrant a chronic pain assessment.
72Firstly, the applicant has failed to persuade me that she suffers from chronic pain as a result of the accident, nor as she established that she complained of accident-related physical injuries beyond fall of 2019. The applicant has not referred me to medical evidence that demonstrates that she complained consistently of accident-related physical injuries which caused functional impairments. The records from Mavis Eglington Physiotherapy demonstrate that the applicant last attended treatment for her physical injuries in September of 2019. Further, while I acknowledge that Dr. Steiner concluded that the applicant suffered from debilitating chronic pain, his report was conducted in November of 2019 and is outdated.
73Secondly, the records demonstrate that as of May 2019 to 2022, the applicant has consistently reported issues with her: left hemifacial spasm, Bell Palsy, right sided otalgia and facial twitching, however, she has not demonstrated that these are linked to the accident. The applicant has failed to refer me to a medical opinion which links her ongoing physical complaints to the accident.
74Lastly, I prefer the evidence of the respondent over the applicant. Dr. Steiner’s report was completed in November 2019, and is outdated. I prefer the report of s.44 assessor, Dr. Auguste, and agree that the applicant has failed to establish that she suffers from ongoing physical injuries from this accident. This is further demonstrated by the fact that she has not referred me to medical evidence that demonstrates that she is complaining of her accident-related injuries beyond fall of 2019.
75Accordingly, and for the reasons outlined above, the applicant has not demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.
The applicant has demonstrated that the OCF-18 in the amount of $2,200.00 for a social work assessment is reasonable and necessary
76I find that the applicant has demonstrated that a social work assessment is reasonable and necessary as the applicant’s social functioning has been affected as a result of her psychological impairments from the accident.
77This OCF-18 pertains to a social work assessment to be completed by OT Mr. Julian Amchislovsky and Social Worker, Ms. Nazila Isgandarova. The purpose of the social work assessment is to identify and intervene with social and environmental variables that impair the applicant’s return to pre-morbid function.
78Dr. Steiner, in his report dated November 10, 2019, noted that the applicant had reduced social skills following the accident and did not like people anymore. As such, Dr. Steiner concluded that the applicant who was once a social individual has become withdrawn and reclusive and finds it uncomfortable to be around others, and as such, he recommended the proposed assessment. As such, I find that the OCF-18 is reasonable and necessary to enhance her social functioning. Further, the respondent did not conduct any section 44 assessments to determine whether a social work assessment was reasonable and necessary.
79Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.
The applicant has failed to demonstrate that the OCF-18 in the amount of $2,041.25 for a psychological assessment is reasonable and necessary
80I find that the denial letter, dated July 8, 2020, was compliant with s. 38(8) of the Schedule. I also find that the applicant has failed to demonstrate that this OCF-18 for a psychological assessment is reasonable and necessary because one was already completed by Dr. Steiner, which is listed as issue 5(i) for the purposes of this hearing.
81The applicant submits that the denial was noncompliant as it did not advise that the MIG was applicable pursuant to s. 38(9) of the Schedule. I disagree, the denial letter clearly stated that based on the documentation received at that time, the respondent believed that the applicant’s injuries were predominantly minor injuries. As such, I find that the denial letter was compliant with the Schedule.
82Now turning to the reasonableness and necessity test, I find that applicant has not met this test for the following reasons. I have already determined that the psychological assessment and psychological services proposed by Dr. Steiner are reasonable and necessary. As such, I find that an additional psychological assessment by psychologist, Dr. Rick Lindal is not reasonable or necessary. While I acknowledge that the applicant has psychological impairments, I find that Dr. Steiner’s report dated November 10, 2019, and the proposed psychological treatment will address the applicant’s issues. As such, the applicant has failed to demonstrate why a second psychological assessment is required.
83As such, the applicant has not demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.
The applicant is not entitled to the OCF-6 in the amount of $281.66
84I find that the applicant has not established entitlement to the OCF-6 for the cost of prescribed medication.
85The applicant submitted an OCF-6 in the amount of $281.66 on August 28, 2020, for medication. The expenses were denied by the respondent as her impairments were classified within the MIG and prescription costs were not payable.
86The respondent submits that the onus is on the applicant to prove that as a direct result of the accident, she sustained impairments that can be categorized outside the MIG.
87While I have determined that the applicant’s injuries are not categorized within the MIG, I find that the applicant has failed to establish this medication is reasonable and necessary in August 2020 because she has failed to demonstrate that she has ongoing physical injuries from the accident beyond the fall of 2019, nor did she make any submissions on why the medication is payable for her accident-related injuries. As such, I find that the applicant has failed to meet her evidentiary onus to prove that the cost of this medication is reasonable and necessary.
The applicant is not entitled to the OCF-6 in the amount of $195.00
88I find that the applicant has not established entitlement to the OCF-6 for the cost of acupuncture treatment.
89The applicant submitted an OCF-6 in the amount of $195.00 for incurred acupuncture treatment on August 28, 2020.
90The applicant submits that the denial letter by the respondent was sent approximately 18 days after the expenses were submitted and she was forced to pay out of pocket as she was left with no other option.
91The respondent did not provide any submissions with respect to this particular OCF-6.
92The applicant made no submissions on why the acupuncture treatment is reasonable and necessary for her accident-related injuries, nor did she refer me to any evidence to demonstrate that beyond the fall of 2019, she complained of accident-related injuries. Moreover, I have determined that the applicant has failed to establish that her physical complaints from 2020 to 2022 to her treatment providers are linked to this accident, as she has not referred me to any medical opinion to demonstrate this. As such, I find the applicant has failed to prove that the cost of acupuncture treatment was reasonable and necessary.
The applicant is not entitled to an OCF- 6 in the amount of $201.36
93I find that the applicant has not established entitlement to the OCF-6 for the cost of prescribed medication and TMJ follow up visit fees.
94The applicant submitted an OCF-6 in the amount of $201.36 for prescribed medication and TMJ follow up visit fees on September 29, 2020.
95The applicant failed to provide any submissions on why the prescribed medication is reasonable and necessary, nor did she refer me to any evidence. As such, I find that the applicant has failed to meet her burden of proof to demonstrate that the cost of these prescribed medicine is linked to the accident and reasonable and necessary.
96Turning now to the TMJ follow up visit fees, I agree with the respondent that the applicant has failed to demonstrate that her TMJ issues are a result of the accident. While the applicant submitted that the clinical notes and records demonstrate that she did not begin experiencing jaw pain until after the accident, she did not refer me to these records. It is well settled that submissions do not constitute as medical evidence and the applicant has not referred me to any medical opinion that demonstrates that she has TMJ as a result of the accident. Further, the record of Dr. Gasper Israelia, dated February 21, 2020, noted that the applicant’s TMJ pain was probably caused by grinding her teeth and there was no reference to the accident. As such, I find that the applicant has failed to demonstrate that the TMJ costs outlined in the OCF-6 are reasonable and necessary.
Interest
97Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As such, I find the applicant is entitled to interest only on any overdue payment of benefits for the following OCF-18s:
i. An OCF-18 in the amount of $3,627.26 for psychological services;
ii. An OCF-18 in the amount of $2,200.00 for a psychological assessment; and
iii. An OCF-18 in the amount of $2,200.00 for a social work assessment.
98The applicant is not entitled to interest on any of the other OCF-18s in dispute.
The respondent is not liable to pay an Award Pursuant to Regulation 664
99I find that the respondent is not liable to pay an award. It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order for an award to be awarded, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.
100Pursuant to section 10, the Tribunal may grant an award up to 50 per cent of the amount to which an applicant would be entitled to if the Tribunal finds that the respondent has unreasonably withheld, or delayed payments based on its conduct and interest.
101The applicant submits that the respondent breached its fiduciary duty to adjust the claim in good faith and failed to provide its assessors with medical evidence and documentation necessary to make a proper determination of the applicant’s medical condition and inabilities.
102The respondent submits that it considered all the medical documentation and completed s. 44 examinations, however it was determined that the applicant was subject to the MIG. In addition, the respondent submits that the clinical notes and records from the hospital and family doctor indicated the applicant had simple strain and sprain injuries.
103Although, I have found the OCF-18s for a psychological assessment, psychological services, and a social work assessment to be reasonable and necessary, I do not find that the insurer’s conduct in denying these treatment plans rose to a manner which was: excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I also find that the respondent did consider the medical evidence as it became available, as noted in the adjuster log notes. Just because I have found that the respondent was wrong in its denials does not automatically entitle the applicant to an award. An insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.
The respondent is not liable to pay costs
104I find that the respondent is not liable to pay costs to the applicant.
105The applicant made a request in her reply submissions for costs pursuant to Rule 19.1 of the Rules. Given this relief was not sought in the initial submissions, the applicant has split her case and prevented the respondent from providing any submissions in reply. To award costs pursuant to Rule 19 in these circumstances would be a breach of procedural fairness and Rule 3.1 of the Rules.
106Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high. Rule 19.5 provides me the discretion to deny or grant the request for costs or award an amount I deem appropriate. In considering the test for costs, the Tribunal may look at the level of seriousness of the misconduct, whether the conduct was in breach of any Tribunal orders, or whether the alleged behaviour in some way interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process. In addition, the Tribunal may consider whether the alleged conduct resulted in prejudice to the other parties, and the potential impact a costs award may have on individuals relying on the Tribunal process. It is the burden of the party that raises a request for costs to support allegations of misconduct.
107I do not find that the high bar for costs has been established in this case. In a Motion Order, dated April 18, 2023, the respondent advised that the log notes were not produced by the deadline of February 19, 2023, due to oversight on its part. In my view, this does not constitute as a blatant disregard of the Tribunal’s order, as the respondent already explained that it was an oversight on its part. The applicant has also not directed me to evidence of prejudice caused by the delay of serving the initial submissions, the amended submission and by the respondent exceeding the page limit. I also note that the respondent was approximately two hours late with its initial submissions and three days late with the amended submissions.
108As a result, I find that the applicant has failed to support her claim that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith. Therefore, the respondent is not liable to pay costs.
ORDER
109The applicant is not entitled to IRBs because of the late submission of the OCF-3.
110The applicant is removed from the MIG on the grounds of her psychological impairment.
111The applicant is entitled to the following OCF-18s with interest:
a) An OCF-18 in the amount of $3,627.26 for psychological services;
b) An OCF-18 in the amount of $2,200.00 for psychological assessment; and
c) An OCF-18 in the amount of $2,200.00 for a social work assessment.
112The applicant is not entitled to the remaining OCF-18s or interest. Further, the applicant is not entitled to the OCF-6s in dispute.
113The respondent is not liable to pay an award pursuant to s. 10 of Regulation 664.
114The respondent is not liable to pay costs.
Released: December 7, 2023
Tanjoyt Deol
Adjudicator