Rebecca Patterson v. Aviva General Insurance Company, 2023 CanLII 52116

Licence Appeal Tribunal File Number: 21-003880/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:

Rebecca Patterson, Applicant

and

Aviva General Insurance Company, Respondent

DECISION

Vice-Chair: Brett Todd

Appearances:

For the Applicant: Tiffany V. Little, Counsel

For the Respondent: Natalie Spinelli, Paralegal

Heard: By Way of Written Submissions

OVERVIEW

1Rebecca Patterson (the “applicant”) was involved in a motor vehicle accident on October 26, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied a treatment plan. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to $2,570.00 for physiotherapy services, recommended by Body ’n Balance Physiotherapy in a treatment plan/OCF-18 dated March 28, 2019?
2. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

3I find that the applicant has not demonstrated the treatment plan in dispute for physiotherapy dated March 28, 2019, in the amount of $2,570.00 to be reasonable and necessary. She is not entitled to this plan or interest.

PROCEDURAL ISSUES

4In submissions, the respondent raised the following three procedural issues about late and improper submissions of evidence by the applicant and the length of the applicant’s written submissions. Aviva claims that it has been prejudiced by all three matters.

Has the applicant submitted late evidence that was not properly disclosed?

5I decline to admit the letter of Dr. Dorothy Sunderland, general practitioner, dated August 25, 2022 (Tab 4 in the applicant’s submissions) into the evidentiary record as it was submitted late and thereby breached the Tribunal’s Common Rules of Practice & Procedure (the “Rules”).

6In its written submissions, the respondent states that the applicant’s written submissions served on August 26, 2022 included a letter from Dr. Sunderland that had not previously been disclosed. According to the Case Conference Report and Order (“CCRO”) released on January 26, 2022 that set this matter down for the hearing now before me, all items that both parties were intending to rely upon in the hearing were to have been disclosed by July 8, 2022.

7As this letter was not disclosed by the date set forth in the CCRO, the respondent submits that the applicant should be found as having breached Rule 9.4 of this Tribunal that governs failure to comply with such disclosure orders. Aviva further claims that it was prejudiced by what it calls an evidentiary “ambush,” as it was unable to properly review this new evidence to prepare a response in its own hearing submissions due September 9, 2022. As a result, the respondent requests that this letter be struck from the evidentiary record.

8The applicant did not file reply submissions, so she is silent on this issue.

9I agree with the respondent. Rule 9.4 mandates that any party failing to comply with disclosure rules such as those set forth in a CCRO “may not rely on the document or thing as evidence...without the consent of the Tribunal.” I choose not to provide such consent here. Not only was this letter of Dr. Sunderland submitted some six weeks after the date for disclosure set in the CCRO, it was not even written until August 25, 2022, given the date on the document itself. This is unacceptably late and in my view amounts to a procedural ambush on the eve of the date when submissions were due.

10Correspondingly, I find that the respondent has been prejudiced by the late production of the Dr. Sunderland letter dated August 25, 2022. I therefore decline to admit Tab 4 of the applicant’s submissions (that consists solely of this correspondence) to the evidentiary record.

Should the applicant’s references to specific medical treatment be struck from the record because no reports or records have been disclosed?

11I strike paragraphs #36-40 from the applicant’s written submissions, as they refer to a medical report that was not included with the applicant’s evidence.

12The respondent argues that it has been prejudiced by the applicant’s inclusion of references in paragraphs #36-40 of her written submissions to treatment provided by Dr. Inese Robertus, family doctor, of the Orangeville Pain Institute. Aviva submits that these paragraphs should be omitted from the evidentiary record because no clinical notes and records (“CNRs”) or reports from Dr. Robertus were provided by the applicant, which prevented the insurer from submitting a response.

13Again, as the applicant chose not to file reply submissions, she did not comment on this matter.

14I concur with the respondent. Aviva has been prejudiced here. Paragraphs #36-40 of the applicant’s submissions are dedicated entirely to the treatment and diagnoses that she received from Dr. Robertus, yet the report that is extensively referenced here was not submitted as part of the applicant’s evidence. This placed the respondent in an impossible position, as it could not properly respond to such a report without having the document in hand to assess it in full.

15For the above reasons, I strike paragraphs #36-40 of the applicant’s written submissions, the entire section referencing the absent report of Dr. Robertus.

Has the length of the applicant’s written submissions breached the CCRO?

16I find that the applicant has not prejudiced the respondent with the length of her written submissions.

17The respondent argues that the applicant contravened the CCRO with written submissions that were somehow both too short and too long. Where the CCRO mandated that initial submissions of both parties be double-spaced and 10 pages in length, the applicant submitted a document that was single-spaced and eight pages in length.

18As noted above, the applicant chose not to file reply submissions. So, she provided no input on this issue.

19Pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act and paragraph #10 of the CCRO in question, it falls within my discretion to strike submissions that do not follow the specifications of the CCRO. However, I am prepared to admit these non-compliant submissions. While the respondent is technically correct, it is my view that the applicant did not intentionally breach the CCRO as much as she provided a poorly formatted document. Also, the written submissions are not unduly lengthy. Due to a long break on page one, short paragraphs with significant spaces between them that result in a great deal of white space, and the two paragraphs on page eight consisting of just five lines, I doubt the document would stretch to 10 pages even if the text were double-spaced. In short, I do not agree that the respondent has been prejudiced here.

20Accordingly, I accept the entirety of the applicant’s written submissions into evidence, with the exception noted above.

ANALYSIS

The Treatment Plan

21I find that the applicant has not met her burden and demonstrated that the treatment plan for physiotherapy services dated March 28, 2019 is reasonable and necessary. She is therefore not entitled to this plan or interest.

22To be entitled to a treatment 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

23In dispute is a treatment plan for physiotherapy services that the applicant submits has been demonstrated to be reasonable and necessary. The OCF-18 was completed by Courtney Prophet, physiotherapist, of the Body ’n Balance Physio and Wellness Clinic. It entails 16 sessions each of physical rehabilitation and therapy on multiple body sites to treat head injuries, a rib fracture, whiplash associated disorder (“WAD 2”), an abdominal wall contusion, sprain and strain of the lumbar spine, and sprain and strain of an ankle. Pain reduction, strength increase, increased range of motion, and a return to the activities of daily living and pre-accident work activities are listed as the goals of this plan.

24The applicant relies on a medical progress narrative report of Dr. Sunderland dated June 22, 2022, treatment records from Body ’n Balance Physio and Wellness Clinic, and the treatment plan in dispute.

25In response, Aviva argues that the treatment plan has not been proven to be reasonable and necessary. It relies primarily on two s. 44 insurer’s examination (“IE”) reports: a musculoskeletal assessment by Dr. James Stewart, family physician, dated July 4, 2019, and a follow-up addendum report also completed by Dr. Stewart and dated December 22, 2021.

26I agree with the respondent. The applicant has presented minimal medical evidence to demonstrate that the treatment plan is reasonable and necessary, submitting just the two-page narrative of Dr. Sunderland and seven pages of relatively brief progress reports from her physiotherapy treatment sessions. Content is also lacking. The Dr. Sunderland narrative is actually a letter summarizing her personal opinions about the applicant’s health challenges overall. Most of it details concerns that are not related to the treatment plan in dispute, such as her development of post-traumatic stress after the accident, her struggles in dealing with an unsupportive workplace, and various medical worries that have nothing to do with the accident.

27Moreover, Dr. Sunderland does not specifically endorse physiotherapy in her narrative, let alone this specific treatment plan (that was completed more than three years before she wrote this letter). In addition, this letter was not supported with Dr. Sunderland’s CNRs, leaving me with no information about the treatment that the applicant sought from her family physician—or anyone else, for that matter, outside of Body ’n Balance Physio and Wellness Clinic.

28So, while I can readily accept Dr. Sunderland’s opinion that the applicant struggled with health issues following what seems to have been a serious accident, this does not substantiate that additional physiotherapy treatments as proposed in this treatment plan are reasonable and necessary. The same can be said of the treatment records from Body ’n Balance Physio and Wellness Clinic and the treatment plan in dispute, which are insufficient on their own in the absence of objective medical evidence.

29I prefer the IE reports of Dr. Stewart, which I find form the most comprehensive medical evidence before me. In his first examination, which took place on June 19, 2019 (resulting in the July 4, 2019 report) roughly three months after the completion of the treatment plan in dispute, Dr. Stewart found that the applicant’s contusions, lacerations, and rib fracture sustained in the accident had resolved. He also determined that the applicant did not suffer from musculoskeletal functional limitations that would warrant any ongoing facility-based care. Correspondingly, he found the treatment plan in dispute here to not be reasonable and necessary. Dr. Stewart confirmed these opinions in a second examination that took place on December 8, 2021 (resulting in the December 22, 2021 report) and again found the same treatment plan to not be reasonable and necessary. As the reports of Dr. Stewart are thorough to the point where he assessed the applicant in person twice, I give significant weight to his conclusions.

30For the above reasons, I find that the applicant has not demonstrated the treatment plan in dispute to be reasonable and necessary. She is not entitled to this plan, or interest.

ORDER

31The applicant is not entitled to the treatment plan for physiotherapy in the amount of $2,570.00 dated March 28, 2019, or interest.

32The application is dismissed.