21-011746/AABS

Licence Appeal Tribunal File Number: 21-011746/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:

Caroline Brett

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Kaitlyn MacDonell, Counsel

For the Respondent:

James Kolumbus, Counsel

HEARD: by Videoconference:

March 20, 2023

OVERVIEW

1Caroline Brett, the applicant, was involved in an automobile accident on January 6, 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 Aviva General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was T-boned as she drove through an intersection. As a result of the accident, she suffers from ongoing pain, headaches, numbness in her hands and arms, difficulty sleeping, and depression and anxiety. As issue is whether she is entitled to benefits for physiotherapy, medications, massage therapy, and acupuncture.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to $2,656.00 ($3,633.95 less $977.95 approved) for physiotherapy services, proposed by Bloor West Physiotherapy in a treatment plan (“OCF-18”) dated January 23, 2020?

2. Is the applicant entitled to $637.20 for medication as requested in a letter dated November 25, 2021?

3. Is the applicant entitled to $4,629.19 for medication, massage therapy, physiotherapy, and acupuncture as requested in an expenses claim form (“OCF-6”) dated August 18, 2021?

4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to the physiotherapy proposed in the OCF-18 dated January 23, 2020 and the medications in dispute, with interest.

5The applicant is entitled to interest with respect to the cost of the Wellbutrin in dispute.

6The applicant is not entitled to the cost of the massage therapy, physiotherapy, and acupuncture requested in the OCF-6 dated August 18, 2021.

7The applicant is entitled to $300 in costs for the respondent’s motion to change the hearing format.

PROCEDURAL ISSUES

Motion to change hearing format

8At the case conference for this matter on August 9, 2022, the parties disagreed on the hearing format. The applicant sought a videoconference hearing and the respondent sought a written hearing. The Tribunal ordered a one-day videoconference hearing, and that the parties would exchange final witness lists no later than 15 calendar days before the date of the hearing (i.e. March 5, 2023).

9The applicant served and filed her witness list on January 20, 2023. She advised that she intended to call three witnesses, that she required Dr. G. Yee to be available for cross-examination if the respondent intended to rely on his expert report, and that she may summons the three adjusters that handled her accident benefits file.

10In a Notice of Motion filed on March 9, 2023, the respondent sought an order that the hearing proceed in writing. It argued that because the applicant was proposing to call six witnesses, the videoconference hearing could not be completed in one day and would therefore not be an efficient, proportional, or timely way to resolve the application.

11The applicant filed written submissions opposing the motion.

12At the start of the hearing, I advised that I would ensure the hearing took no longer than one day. The respondent consented to proceeding by videoconference and withdrew the motion.

13The applicant seeks $1,000 in costs for the motion. She argues that nothing had changed since the Tribunal decided the hearing format at the case conference, and that the respondent brought the motion to deny her right to be heard by driving up her legal costs and causing delay.

14The respondent submits that it brought the motion to resolve the application more efficiently. It argues that the rationale for granting a videoconference hearing was to allow the applicant to give evidence, and not to call up to five additional witnesses.

15I find that the applicant is entitled to $300 in costs for the motion.

16Rule 19.1 of the Rules provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.

17The motion sought to relitigate the issue of hearing format, which was argued and decided at the case conference. The respondent argues that it was justified in revisiting this issue when the applicant advised that she intended to call up to six witnesses. I do not accept this submission. The proper way for the respondent to address its concern about finishing the hearing on time was not to unilaterally request a change of hearing format, but to work out a schedule with the applicant. Granting the motion would not have increased the efficiency of the process. The respondent brought it only 11 days before the hearing despite having had the applicant’s witness list since January 20, 2023. It was scheduled to be heard at the hearing. If it were granted, the hearing would have been adjourned and the parties’ preparation for the videoconference hearing would have gone to waste.

18I find that the applicant was prejudiced because preparing submissions on the motion caused her to incur additional legal costs and diverted her from preparing for the hearing on the merits.

19While the respondent acted unreasonably within the meaning of Rule 19.1, I do not accept the applicant’s submission that it acted in bad faith. While the motion was an ill-conceived attempt to reduce the respondent’s legal costs, I do not see reason to infer that it intentionally sought to drive up the applicant’s legal costs and cause delay. The respondent withdrew the motion when I made it clear that the hearing would finish within one day.

20Nevertheless, I agree that the applicant is entitled to be indemnified for the time and expense of preparing submissions on the motion. Taking the above factors into account, I find that the appropriate quantum of costs is $300.

Motion to add an award as an issue

21Section 10 of Regulation 664 states that, in addition to awarding any benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award if the insurer unreasonably withheld or delayed payments. When an applicant claims an award under s. 10, they may call adjusters to give evidence regarding how the respondent managed their accident benefits file.

22At the start of the hearing, the applicant advised that she intended to call two adjusters as witnesses. When I pointed out that an award was not in dispute, she moved that it be added as an issue. She argued that although she inadvertently failed to raise this issue in the application or at the case conference, she had clearly intended to pursue it given that she had requested the adjusters’ log notes, stated in her witness list that she may summon the adjusters, and did summon them.

23The respondent opposed adding an award as an issue. It stated that it was unaware that the applicant intended to claim an award, that it had not received the summonses for the adjusters (which the Tribunal issued to counsel for the applicant), and that it did not know the applicant still intended to call them as witnesses. It argued that it would be prejudiced by adding this issue because it had no time to prepare its defence or prepare the adjusters for their examinations.

24I declined to add an award as an issue. The applicant did not request that this issue be added until the hearing was underway. It was reasonable for the respondent not to expect that an award was at issue given that the applicant did not raise it in the application, at the case conference, or before the hearing. Notice of the case to meet is an essential element of procedural fairness. Given that the hearing was only one day, adding an award as an issue would be especially prejudicial because the respondent would have no time to prepare its defence or prepare the adjusters for their examinations.

25After I denied the motion, the applicant requested that she still be allowed to examine the adjusters regarding the benefits in dispute. I denied the request because the respondent had no opportunity to prepare the adjusters for their examinations and because their evidence was not relevant to the issues that proceeded to the hearing.

26In her closing submissions, the applicant requested that I reconsider adding an award as an issue. I decline to do so. The applicant did not identify an error in my ruling and adding this issue would still be prejudicial to the respondent.

Challenge to Dr. Yee’s report

27Dr. Yee is an orthopaedic surgeon who conducted an independent assessment. The respondent relied on Dr. Yee’s opinion in partially denying the physiotherapy benefits in dispute.

28As noted above, the Case Conference Report and Order required the parties to serve their final witness lists by no later than March 5, 2023. In her witness list served on January 20, 2023, the applicant advised that she required the respondent to make Dr. Yee available for cross-examination if it intended to rely on his evidence. The respondent advised in an email of March 6, 2023, that it would not be calling any witnesses, then, in a second email 40 minutes later, that it would be calling Dr. Yee. On March 9, 2023, it advised that it would not be calling any witnesses.

29Later on March 9, 2023, the applicant requested summonses for herself, her other witnesses, and the three adjusters, but not Dr. Yee.

30The applicant submits that Dr. Yee’s report is inadmissible because the respondent did not call him as a witness. She argues that because she was unable to test Dr. Yee’s evidence by cross-examining him, it would be unfair for the respondent to make use of this evidence. She argues that although she could have called Dr. Yee as a witness, it is not her role to do so, nor should she have to pay him attendance money.

31The respondent submits that it is not obligated to call Dr. Yee as a witness. It relies on 16-000670 v Aviva Insurance Company, 2017 CanLII 39433 (ON LAT), in which the Tribunal allowed a party to rely on two experts’ reports even though the other party argued that it was prejudiced by being unable to cross-examine them.

32I find that Dr. Yee’s report is admissible.

33Section 15(1) of the Statutory Powers Procedure Act, RSO 1990 c. S.22 provides that a tribunal may admit any relevant document subject to exceptions set out in ss. (2) and (3). There is no question that Dr. Yee’s report is relevant, and the applicant does not argue that any of the exceptions applies.

34I disagree that the applicant was deprived of the opportunity to test Dr. Yee’s evidence. The applicant could have done so by calling him as a witness herself. In that case, she would have been required to pay him $50 in attendance money pursuant to Rule 8.3 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission and s. 21(1) of Tariff A of the Rules of Civil Procedure, RRO 1990, Reg 194. While this is an annoyance, it is not prohibitive. Consequently, I find there is no violation of procedural fairness in admitting Dr. Yee’s report.

35The applicant concedes that there is no Tribunal case law that stands for the proposition that a party cannot rely on an expert’s report if it does not call the expert as a witness for cross-examination by the other party. She referred me to cases where the Tribunal held that a party has a right to cross-examine the other party’s expert even though the other party did not call them as a witness. These cases are distinguishable:

1. In Khan v Allstate Insurance Company of Canada, 2022 CanLII 87721 (ON LAT), the respondent served a witness list two months before the hearing that included two experts, then advised 6 days before the hearing that it would not be calling the experts as witnesses. The Tribunal found it was reasonable for the applicant to expect that the experts would be called as witnesses, and that she did not have time to obtain summonses. The Tribunal did not exclude the experts’ reports, but ruled that the experts must attend the hearing to be cross-examined.

2. In Silva v Wawanesa Insurance, 2022 CanLII 45285 (ON LAT), the respondent did not call an expert as a witness, so the applicant summoned her. At issue was whether the applicant was required to conduct an examination in chief or a cross-examination.

3. In 17-005318/AABS v Aviva Insurance, 2018 CanLII 112116 (ON LAT), the Tribunal adjourned a hearing because an expert witness whom the applicant intended to cross-examine was unavailable.

4. In Applicant vs State Farm Mutual Automobile Insurance Company, 2020 CanLII 12764 (ON LAT), the applicant summoned the respondent’s expert. When she refused to comply with the summons, the Tribunal ordered the respondent to summon her as well. Even though she still did not comply, it appears that the Tribunal admitted her report.

36In 16-000670 v Aviva Insurance Company, the case relied upon by the respondent, the Tribunal made a fact-specific ruling that is not binding on me. I therefore do not rely on this case in finding that Dr. Yee’s report is admissible.

IS THE APPLICANT ENTITLED TO THE BENEFITS IN DISPUTE?

37The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, including physiotherapy services and medication. The onus is on the applicant to prove that the proposed goods and services are reasonable and necessary.

Physiotherapy

38I find that the applicant is entitled to the unapproved physiotherapy services proposed in the OCF-18 dated January 23, 2020.

39The OCF-18 proposed $3,633.95 for 24 sessions of physiotherapy. In an Explanation of Benefits dated October 21, 2020, the respondent partially approved the benefits for $977.95. It relied on Dr. Yee’s opinion recommending four sessions of physiotherapy to transition the applicant to a home-based exercise regimen. At issue is whether the applicant is entitled to the unapproved amount of $2,656.00 for ongoing in-clinic treatment.

40The applicant submits that she is entitled to the unapproved services because they have been effective at relieving her pain, and because ongoing supervision by a physiotherapist assists in her long-term recovery.

41The respondent does not deny that the applicant suffers from ongoing pain due to the accident. It relies on Dr. Yee’s opinion that further facility-based rehabilitation would no longer be reasonable and necessary once the applicant transitioned to a home-based exercise regimen. It argues further that in-clinic treatment provides only temporary pain relief, that in 2020 the applicant discontinued physiotherapy and reported to her family doctor that it was no longer useful, that she has full ranges of motion, and that she has returned to work and skiing, albeit with restrictions.

42I find that ongoing in-clinic physiotherapy is reasonable and necessary because it relieves the applicant’s pain and helps her recover from her injuries:

1. Dr. M. Valadka, the applicant’s family doctor at the time of the accident, recommended that she do physiotherapy to help recover from her injuries. Dr. J. Patel took over her care shortly after the accident. He also recommended physiotherapy.

2. The applicant obtained physiotherapy two to three times per week after the accident. She found that in-clinic treatments such as ultrasound, interferential current therapy, and acupuncture were effective at temporarily relieving her pain. She testified that if she had physiotherapy on a Monday, she would feel well that evening, she would start to feel pain on Tuesday, and she would want to have another session by Wednesday or Thursday.

3. Mr. J. Head, the applicant’s treating physiotherapist, testified that she made slow but steady progress in recovering from her injuries while she was receiving physiotherapy.

4. Mr. Head testified that even temporary pain relief can assist in a patient’s long-term recovery because it enables them to be more physically active and perform more aggressive exercises.

5. Mr. Head testified that ongoing supervision is an important part of the applicant’s rehabilitation. At a clinic, a physiotherapist can see whether a patient is correctly performing their in-home exercises, which they frequently do not. The physiotherapist can observe the patient’s progress and adjust their treatment and exercise regimen. As the patient improves, the physiotherapist can increase the intensity of their exercises so they continue to improve. The physiotherapist can also address any issues that arise. Mr. Head testified that it is normal for patients to experience “flare-ups” in their symptoms from time to time. When these occur, the physiotherapist can assess whether any there are any new issues that require attention and whether any changes to the patient’s treatment and exercise regimen are necessary.

6. Mr. Head and Dr. Patel testified that the applicant would continue to benefit from physiotherapy.

43I do not accept Dr. Yee’s opinion that the applicant needed only four sessions of physiotherapy to transition to a home-based exercise regimen. There is no dispute that home-based exercise is an important part of the applicant’s rehabilitation. The applicant testified that she does home-based exercises at least four times a week. Dr. Yee does not explain why in his view further facility-based treatment was no longer reasonable and necessary. The evidence does not show that home-based exercise obviates the need for in-clinic treatment. To the contrary, it shows that even though the applicant does home-based exercises, in-clinic treatment still plays an important role in relieving her pain and assisting in her recovery.

44As I do not accept Dr. Yee’s opinion, I need not comment on the applicant’s allegations that the respondent directed him what to write and that it is unclear whether he really is the author of the report.

45I do not accept the respondent’s submission that in-clinic physiotherapy is not reasonable and necessary because it only provides temporary pain relief. It would obviously be better if physiotherapy could provide permanent pain relief, but that does not make temporary pain relief unreasonable and unnecessary. The applicant and Dr. Patel testified that the pain relief treatments improve her quality of life, and Mr. Head testified that even temporary pain relief facilitates patients’ long-term recovery by enabling them to be more physically active and perform more aggressive exercises.

46The respondent notes that the applicant discontinued physiotherapy in 2020. It points to Dr. Patel’s clinical note dated October 8, 2020, which documents that the applicant reported she was finding physiotherapy had not been helpful, she had been unable to do physiotherapy due to the COVID-19 pandemic lockdown, and she lacked motivation to restart it because she had “been at it for so long with little relief.” These facts do not imply that the applicant no longer needed physiotherapy. To the contrary, they illustrate that in-clinic treatment benefits the applicant and is not rendered unnecessary by home-based exercise. The applicant testified that she discontinued physiotherapy for two reasons. First, she had difficulty affording treatment given that the respondent had denied benefits. Second, the physiotherapy clinic suspended in-clinic treatment due to the COVID-19 pandemic lockdown. She tried several online sessions but found them to be unhelpful because she could not receive in-clinic pain relief treatments and because the physiotherapist could not assist her with her exercises in person.

47Finally, it is irrelevant that the applicant has full ranges of motion and has resumed work and skiing to some extent. The fact remains that applicant suffers from pain due to the accident, and physiotherapy relieves this pain and facilitates her long-term recovery. Moreover, Mr. Head testified that having a full range of motion does not necessarily imply that one is fully functional, and the applicant testified that pain interferes with her ability to work in-person full time and that she can only ski for one hour at most before her pain becomes unbearable.

Medications

48On August 18, 2021, the applicant submitted an OCF-6 requesting $673.79 to pay for medications. The respondent denied funding because she did not provide proof that she had prescriptions for the medications. After the applicant provided a prescription summary on November 25, 2021, the respondent agreed to pay $36.58 for Naproxen, Baclofen, and Oxycocet in an Explanation of Benefits dated December 15, 2021. At the hearing, the parties advised that the respondent had subsequently agreed to pay $637.81 for Wellbutrin.

49It is unclear to me what remains in dispute. Issues two and three concern the same medications and are duplicative. The respondent has paid sixty cents more than the amount in dispute and agreed to pay for all the medications at issue except for Clonazepam. Based on the applicant’s prescription summary, the total unapproved cost of this medication is $7.90. However, as the parties advised that they disagree on the applicant’s entitlement to Clonazepam, Baclofen, Oxycocet, and Naproxen, I have considered this issue.

50I find that the applicant is entitled to the medications in dispute. Dr. Valadka and Dr. Patel prescribed them to treat her injuries from the accident: Clonazepam for anxiety and insomnia, Baclofen for muscle tension and insomnia, and Oxycocet and Naproxen for pain. There is no dispute that the applicant suffers from these conditions. As her family doctors, Dr. Valadka and Dr. Patel were in the best position to determine whether these medications were appropriate.

51I do not accept the respondent’s submission that the Clonazepam was not reasonable and necessary because it had been prescribed prior to the accident in the same dosage. The applicant testified that she took it before the accident to cope with the stress of an acrimonious divorce proceeding. By the time of the accident, the litigation has resolved and she was no longer taking it. Dr. Patel prescribed it after the accident to treat her psychological injuries, and not for pre-existing mental health issues.

Other Treatment

52In addition to medication, the OCF-6 dated August 18, 2021 requested funding for massage therapy, physiotherapy, and acupuncture treatment. The applicant incurred these expenses before submitting the OCF-6.

53I find that the applicant is not entitled to the cost of these services.

54The respondent argues that the applicant is not entitled to these services because she incurred them before submitting the OCF-6 and she ought to have requested them in a treatment plan (OCF-18). The applicant did not address this issue in her submissions.

55Section 38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical benefit that the insurer incurred before submitting a treatment plan compliant with s. 38(3), subject to certain exceptions that do not apply in this case. Section 38(3) sets out the requirements for a treatment plan, including, among other things, that it be completed and signed by a regulated health professional, and that the professional state that in their opinion the proposed goods and services are reasonable and necessary.

56As the applicant did not submit an OCF-18 and had already incurred the services in dispute, I agree with the respondent that s. 38(2) applies.

IS THE APPLICANT ENTITLED TO INTEREST?

57Section 51 of the Schedule provides that the applicant is entitled to interest on overdue payments of benefits. As I have found that she is entitled to the unapproved physiotherapy services proposed in the OCF-18 dated January 23, 2020 and to any of the medications still in dispute, she is entitled to interest accordingly.

58The applicant submits that she is entitled to interest for the cost of Wellbutrin, which she advises the respondent agreed to pay on January 31, 2023. The respondent did not address this issue in its submissions.

59I find that the applicant is entitled to interest for the cost of the Wellbutrin. Section 51(4) of the Schedule provides how interest is calculated when a dispute before the Tribunal is settled. I find that the respondent settled this issue by agreeing to pay for the Wellbutrin.

ORDER

60The applicant is entitled to $2,656.00 for the physiotherapy services proposed in the OCF-18 of January 23, 2020 with interest.

61The applicant is entitled to the cost of any of the medications still in dispute with interest.

62The applicant is entitled to interest for the cost of the Wellbutrin in dispute in accordance with s. 51(4) of the Schedule.

63The applicant is not entitled to the cost of the massage therapy, physiotherapy, and acupuncture requested in the OCF-6 dated August 18, 2021.

64The applicant is entitled to $300 in costs for the respondent’s motion to change the hearing format.