Saba Dawood v. Nordic Insurance Company of Canada, 2023 CanLII 32792

20-015148/AABS

Licence Appeal Tribunal File Number: 20-015148/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:

Saba Dawood

Applicant

and

Nordic Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jessica Cavdar

APPEARANCES:

For the Applicant: Daniel D'Urzo, Counsel

For the Respondent: Kendall Andjelkovic, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on December 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute before the Tribunal are:

i. Is the applicant entitled to a benefit in the amount of $2,195.00 for physiotherapy treatment recommended by Ruhani Physio and Wellness Inc., in a treatment plan dated November 30, 2019?

ii. Is the applicant entitled to $226.51 for medication expenses submitted August 21, 2019?

iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to payment for the benefits in dispute because they were not reasonable and necessary. As a result, there is no entitlement to interest and the respondent is not liable to pay an award.

ANALYSIS

Physiotherapy Treatment Plan for $2,195.00 dated November 30, 2019

4To receive payment for a treatment and assessment plan under s. 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. 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.

5The applicant submits that she is entitled to a November 30, 2019 physiotherapy treatment plan with the goals of pain reduction, increase in strength, and a return to activities of normal living. To support this, the applicant submits that there was ample evidence that the applicant had ongoing injuries and impairments, including a cortisone injection for her right shoulder, and that both her family doctor and rheumatologist supported further physiotherapy.

6The respondent submits that the physiotherapy treatment was not reasonable or necessary and relies on, among other things, the May 22, 2019 report of Dr. Sangeeta Thiviyarajah, rheumatologist, which states that the applicant had already been attending physiotherapy and was not improving.

7The respondent further submits that the applicant’s initial complaints six days post-accident, on December 27, 2018, to her family doctor, Dr. Chowdhury, were left-side back pain, left shoulder pain, and spasms. The respondent notes that the applicant subsequently traveled abroad for three months, during which time the applicant states she received facility-based treatment. The respondent notes that no records of such treatment were produced.

8The respondent notes that, on April 25, 2019, the applicant visited her family doctor upon her return from abroad. At this visit, the applicant complained, for the first time, of right shoulder pain for the previous two weeks after she had started working out at the gym. No mention was made of the accident or accident-related impairments at this visit. The respondent points to further clinical notes of Dr. Chowdhury, from August 19, 2019 and August 5, 2020, respectively, in which the applicant complains of right shoulder pain originating several months after the subject accident. The respondent submits that the right shoulder pain is a result of the applicant’s gym injury sometime in late March or early April 2019, which the applicant reported to Dr. Chowdhury at her April 25, 2019 visit.

9I agree with the respondent that the applicant has not proven that the treatment plan in dispute is reasonable and necessary as a result of injuries sustained in the accident. Dr. Chowdhury’s note of April 25, 2019 explicitly states that the applicant’s right shoulder pain is “since two weeks after starting gym, related to movement, no trauma.” Further, the applicant told Dr. Thiviyarajah, rheumatologist, that she was experiencing no significant improvement with physiotherapy. The treatment plan in dispute is for the continuation of treatment that has proven unsuccessful to meet the applicant’s rehabilitation goals. I therefore find that the applicant has not met her burden of demonstrating that the right shoulder injury is a result of the accident.

Prescription medication for $226.51 submitted August 21, 2019

10The applicant submitted an OCF-6 requesting payment for prescription medications Cyclobenzaprine, Naproxen, Amoxicillin, Locacorten Vioform, and Anvamys. The applicant submits that these medications are necessary for her accident-related injuries.

11The respondent submits that these medications may not have been prescribed for the accident-related injuries of the applicant and requested documentation to support that these medications were prescribed as a result of the subject accident. The respondent submits that the applicant failed to provide such documentation and that the OCF-6 is therefore not payable. The applicant did not prove entitlement to the OCF-6 because she failed to provide documentation to support that these medications were prescribed as a result of the subject accident.

Section 10 Award

12The applicant seeks an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50 percent of the total benefits payable together with interest on all amounts owing if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66, at 17.

13The applicant submits that she is entitled to an award because the respondent maintained a stubborn and inflexible position regarding its handling of her claim for non-earner benefits. The Tribunal notes that non-earner benefits are not an issue in dispute before the Tribunal in the present case.

14In particular, the applicant submits that she is entitled to a s. 10 award because the respondent failed to respond to her submission of the OCF-3 regarding her entitlement to non-earner benefits as well as multiple requests for status updates regarding payment; never provided her with a medical reason as to why her NEB claim was denied; failed to properly schedule IEs in accordance with s. 44; and because the respondent paid the applicant over $13,000.00 for past non-earner benefits after the Tribunal’s case conference without explanation, which the applicant submits is a willful disregard of the respondent’s obligation to inform the applicant as to why she was now entitled to non-earner benefits.

15The applicant submits that the respondent had a pattern of responding late to the applicant's submission of the non-earner benefits, treatment plan, and medical expenses and that this behaviour should attract an award of 50 percent of the non-earner benefit paid to the applicant.

16The respondent submits that while the applicant submitted her Election of Income Replacement, Non-Earner or Caregiver Benefits (OCF-10) and elected Non-Earner Benefits on July 26, 2019, she did not provide the OCF-3 and OCF-10, supporting the Application for Non-Earner Benefits, until October 21, 2019. The respondent submits that, at the June 2, 2021 case conference, it agreed to pay the applicant non-earner benefits, with interest, of over $13,000.00. The applicant has argued that the respondent failed to comply with its obligations pursuant to s. 36(4) of the Schedule, as it did not respond to the completed OCF-3 with its position on the non-earner benefits within ten days of receipt of the OCF-3. However, the Respondent submits that it ultimately paid the applicant non-earner benefits, plus interest, in a reasonable time frame.

17With respect to the disputed OCF-18, the respondent maintains that it did not unreasonably delay or withhold benefits because the medical evidence supports that this treatment plan is not reasonable and necessary.

18The respondent submits that its conduct in handling this matter has not reached the stringent level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” in order to justify awarding the applicant a special award. I agree.

19Since no benefits are payable here, I find there is no basis for an award.

CONCLUSION

20The applicant is not entitled to payment for the benefits in dispute because they were not reasonable and necessary. As no benefits are overdue, no interest is payable. Accordingly, there is no basis for an award.