Spence v. Aviva General Insurance, 2023 CanLII 84381

Citation: Spence v. Aviva General Insurance, 2023 CanLII 84381

Licence Appeal Tribunal File Number: 21-006356/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:

Jheanelle Spence

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Jheanelle Spence, Applicant Marissa Bannister, Paralegal

For the Respondent: Aviva General Insurance, Ankita Abraham, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jheanelle Spence, the applicant, was involved in an automobile accident on January 13, 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 the respondent, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was stopped at an intersection, with her husband as a passenger, when her vehicle was rear-ended. The emergency provider notes issued by Mackenzie Richmond Hill Hospital, describe on impact that the applicant struck her head without being able to recall the mechanism of injury. The applicant described to the emergency room physician having right-sided headache and nausea; the emergency room physician noted localized swelling and a small bump on the applicant’s head. She was noted as having no vision disturbances and no neck pain on palpation. The applicant described that her past medical history was one showing good health. She described no history of neck pain, back pain, numbness, weakness or changes to her vision or speech.

3The applicant underwent a CT head scan on the day of the accident which revealed no evidence of hemorrhage or skull fracture.

PRELIMINARY ISSUES

Motion to Strike Applicant Reply Submissions

4Before proceeding to decide the issues in dispute, the respondent submits that I should strike the applicant’s reply submissions dated January 13, 2023. The case conference report and order dated April 6, 2022, set forth the filing requirements for the exchange of written submissions and evidence between the parties, including applicant reply to respondent submissions. The respondent has brought a motion dated January 16, 2023, asking that the new evidence and arguments raised in the Applicant’s Reply Submissions be struck from the evidentiary record. The respondent has cited for the Tribunal’s consideration the leading case pertaining to the rule against splitting one’s case: R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466. For reasons that follow, I am partially granting the respondent’s request for the reply submissions to be struck from the evidentiary record.

5There is a legal rule against any attempt by a party to add further evidence or argument after the other party’s defence is complete, as described called “case splitting”. A party may not offer new evidence outside of or beyond what it has already raised in its submissions. This rule reflects the concerns of unfair surprise, prejudice and confusion expressed by the Courts in establishing well-settled law against “case splitting”.¹

6The applicant must produce and enter in his initial submissions, all the clearly relevant evidence it intends to rely upon, to establish its case with respect to all the issues raised in the appeal. The respondent is entitled to have the applicant’s full case from the outset, so that it knows from the outset what it must address in response.²

7An applicant may only include new evidence in its reply if it is necessary to rebut some new evidence or defence which the applicant has had no opportunity to deal with and which the applicant could not reasonably have anticipated. Rebuttal is not permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the applicant's case that could have been brought before the defence was made. It will be permitted only when it is necessary to ensure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.³

8The Tribunal, in the decision A.J. v. Aviva General Insurance, 2020 CanLII 72500 (ON LAT), confirmed that reply submissions are not an opportunity for a party to raise issues that should have been raised in initial submissions or to reformulate its argument. As stated by the Tribunal in that case, the purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions.

9The respondent submits that it prepared its responding submissions based on the applicant’s submissions, which were prepared by a paralegal employed by the applicant’s representative: TShah Personal Injury Legal Services Professional Corporation. The applicant submits that the paralegal responsible for the submissions, lacked experience and was unable to provide effective representative on behalf of the applicant. The respondent submits that the paralegal at issue who authored the submissions, is licensed in the Province of Ontario, employed by the applicant’s representative, and the applicant did not bring a motion to change representatives.

10The respondent submits that the disparagement of a duly appointed representative of the applicant, who remained on the record at the time of the motion to strike the pleading, is not an effective defence and should not be accepted by the Tribunal as a justification for case splitting. The respondent also submits that the applicant made new arguments and introduced new evidence in its reply relating to the reasonableness and necessity of the three treatment plans in dispute.

11The respondent submits that the applicant’s reply includes evidence which was not in the original applicant submissions, including, a fax confirmation dated September 26, 2019, a respondent denial notice letter dated May 22, 2019, and an OCF-18 dated May 9, 2019. In addition, as stated by the respondent, the applicant introduced new legal arguments in her reply at paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15, of the applicant’s submissions.

12I will strike the new arguments made in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the applicant’s reply. The applicant presents new evidence and new arguments in paragraph 5, 6, 7, 8 and 9 of the reply, introducing the fax confirmation dated September 26, 2019, while arguing the reasonableness and necessity of the treatment plan in the amount of $4,239.99 less $2,239.99 for psychological treatment and comparing the outcome of a separate OCF-18 dated May 9, 2019, submitted by Medex Assessments. As stated by the respondent, if the argument regarding the reasonableness and necessity of the treatment plan was not made in the original submissions, it can not be introduced in reply. The applicant similarly makes new arguments which were not advanced in its original submissions respecting the OCF-18 dated December 13, 2019, proposing a driver’s reintegration evaluation, at paragraphs 10 and 11 of its reply. In addition, the applicant makes new arguments which would only have been appropriately advanced in its original submissions, at paragraphs 12, 13, 14, and 15, respecting the OCF-18 for physiotherapy services dated May 7, 2019, being reasonable and necessary.

13The right of reply is a limited one. As a general rule, parties are expected to make the entirety of their cases in their main submissions (18-001471 v. Economical Insurance Company, 2019 CanLII 22187 (ON LAT)). New evidence as part of a reply is typically not permitted because the respondent does not have the opportunity to respond to new evidence that is tendered as part of reply. I find that the combination of the reply being used to make new arguments and putting forth new evidence, are grounds to strike the aforementioned portions of the reply submissions together with the new evidence referenced of: The respondent denial letter dated May 22, 2019, the fax confirmation dated September 26, 2019, and the OCF-18 in the amount of $2,260.00 approved on May 13, 2020. I will not strike the evidence consisting of the jurisprudence referenced: A.B v. Guarantee Insurance, 2019 ONLAT 18-010371/AABS, the Clinical Notes and Records (“CNRs”) of the General Practitioner Dr. Choe nor the two medical reports referenced which, except for the Tribunal decision which is jurisprudence, were provided in evidence in the applicant’s and respondent’s submissions.

ISSUES

14The issues in dispute are:

i. Is the applicant entitled to $4,239.99, less $2,294.54, partially approved by the respondent, for a psychological treatment plan by Medex Assessments Inc, dated December 13, 2019;

ii. Is the applicant entitled to $2,260.00 for a driver’s evaluation assessment plan by Medex Assessments Inc., dated December 13, 2019; and

iii. Is the applicant entitled to $3,303.90 for a physiotherapy treatment plan by Physiomed Westwood Inc., dated May 7, 2019?

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

RESULT

a) The applicant is not entitled to $4239.99, less $2,294.54, partially approved by the respondent, for a psychological treatment plan by Medex Assessments Inc., dated December 13, 2019; and

b) The applicant is not entitled to $2,260.00 for a driver’s evaluation assessment plan by Medex Assessments Inc., dated December 13, 2019; and

c) The applicant is not entitled to $3,303.90 for a physiotherapy treatment plan by Physiomed Westwood Inc., dated May 7, 2019; and

d) The applicant is not entitled to interest on any overdue payment of benefits since there are no overdue payments of medical benefits.

ANALYSIS

15Pursuant to section 18(2) of the Schedule, if an insured provides documented pre-accident medical evidence by a health practitioner, to show a pre-existing medical condition that prevents an insured from achieving maximal recovery under the Minor Injury Guideline, then the $3500.00 limit does not apply.

16The onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary pursuant to section 15 of the Schedule. Section 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident, and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

17The onus of proving that the medical benefits are reasonable and necessary lies with the insured. The reasonableness and necessity of treatment must be held to an established standard which requires:

I. The treatment goals as identified are reasonable;

II. The treatment goals are being met to a reasonable degree; and

III. The overall costs of achieving these goals are reasonable.⁴

Medical Evidence

18Following the accident, on January 14, 2019, the applicant went to her family physician reporting post-accident symptoms. Following his examination, Dr. James Choe described the applicant having mild pain with normal range of motion in the shoulders, upper back stiffness, and mild right thigh tenderness. He prescribed Vimovo and referred the applicant to Physio Wellness Institute. Dr. Choe recommended the applicant take a week’s leave of absence from her employment. The applicant reported at her next appointment on January 22, 2019, returning to her work on a graduated schedule, planning on returning over time, to full-time duties.

19On April 16, 2019, the applicant met with her family doctor Dr. Choe, describing neck and upper back pain, in addition, to the applicant reporting experiencing panic and involuntary shaking when driven by another person. On April 29, 2019, the applicant requested a referral from Dr. Choe to a psychiatrist, reporting a fear of driving. Dr. Choe provided the applicant with a referral to a psychologist but at her next appointment on May 21, 2019, the applicant reported that she had not contacted the psychologist. In addition, on May 21, 2019, Dr. Choe commented in his CNRs that the applicant’s neck and back had a good range of motion although the applicant reported pain and fatigue in her upper back, neck and lower back.

20On December 3, 2019, Dr. Choe prescribed citalopram for the treatment of depression and anxiety. The applicant later took escitalopram for the treatment of anxiety and depression, in order to stabilize her mental health. On January 7, 2020, the applicant described her driving anxieties increasing by reason of winter driving conditions. By July 14, 2020, the applicant described to Dr. Choe, returning to full-time employment responsibilities following her graduated return to work. She continued to describe experiencing accident-related pain.

21On January 12, 2021, the applicant reported receiving cognitive behavioural counselling. She stated that she was unsure if the cognitive behavioural therapy was making a difference in terms of addressing her mental health. In March 2021, the applicant reported to her family physician concussion symptoms as a result of the accident, including headache ensuing with loud sounds, blurry vision and light sensitivity. The applicant underwent a spinal MRI at William Osler Health Centre on September 6, 2021, showing a normal result with no evidence of bony lesions or fractures. Dr. Choe commented at a telephone consultation with the applicant on December 6, 2021, that the results of the spinal MRI taken in September 2021, were normal.

22As a result of a referral by Dr. Choe to a physiatrist, the applicant underwent an examination by Dr. Farooq Ismail. Dr. Farooq Ismail, examined the applicant, assessing her post-accident physical injuries. He completed an interview with the applicant, a physical examination, and a review of the CT scan on the day of the accident, in addition to the MRI of the applicant’s cervical spine taken in September 2021. He opines in his report that the applicant on March 10, 2022, has an active range of motion in her cervical spine, lumbosacral spine, and shoulders within normal limits and pain-free in all directions. Dr. Ismail opined that the examination on March 10, 2022, did not reveal any ongoing musculoskeletal or neurological impairment. There was no evidence of myelopathy, cervical or lumbosacral radiculopathy on either the right or left side of the applicant. Dr. Ismail recommended the application of moist heat to the cervical area with stretching to alleviate any pain as a result of chronic cervical strain. Dr. Ismail also suggested taking Robaxacet to treat pain symptoms. When the applicant returned on March 31, 2022, to Dr. Ismail, neurological and sensory examination of the applicant’s upper extremities revealed normal results.

23The treatment plan submitted by Physiomed Westwood Inc., dated May 7, 2019, in the amount of $3303.90 requests eight weeks of treatment, including four one-hour sessions with a massage therapist and sixteen sessions of physical rehabilitation with a chiropractor, in addition to an assessment with the chiropractor, and eight one-hour sessions of exercise to multiple body sites with a kinesiologist, assistive devices, including TENS unit, cervical pillow, and heat pad, and a documentation fee. The purpose of the treatment plan is pain reduction, an increase of strength and an increase of range of motion, in addition to a return to the activities of normal living and pre-accident work activities.

24The Musculoskeletal Assessment dated February 27, 2020, completed by Dr. Todd Walters offers the opinion that the treatment plan in the amount of $3,303.90 for physiotherapy by Physiomed Westwood Inc, dated May 7, 2019, is neither reasonable nor necessary since upon physical examination, the applicant had no objective musculoskeletal impairment and a full range of motion in the cervical spine, in addition to her shoulders, elbows, wrists and the small joints of her hand. Dr. Todd Walters described the applicant’s diagnosis as consistent with a contusion to the right temple, WAD-II strain and lumbrosacral strain on February 12, 2020.

25The IE section 44, Musculoskeletal Assessment, completed by Dr. Todd Walters, is corroborated by the medical examination and report by Dr. Farooq Ismail, on March 10, 2022, to the effect that upon examination and a review of diagnostic tests, it was not revealed that the applicant had any ongoing musculoskeletal or neurological impairment. The applicant had an active range of motion in her cervical spine, lumbosacral spine, and shoulders within normal limits and pain-free in all directions. Dr. Ismail recommended to the applicant, the application of moist heat to the cervical area with stretching to alleviate any pain as a result of chronic cervical strain. He suggested taking Robaxacet to treat pain symptoms.

26Given the opinion of Dr. Todd Walters in the IE Musculoskeletal Assessment dated February 27, 2020, and the opinion of Dr. Farooq Ismail, having examined the applicant on March 10, 2022, as described, I find that the treatment plan for physiotherapy in the amount of $3,303.90 by Physiomed Westwood Inc, dated May 7, 2019, is neither reasonable nor necessary since according to Dr. Walters, the applicant will not benefit from the facility-based treatment and according to Dr. Ismail the applicant no longer is experiencing any ongoing musculoskeletal or neurological impairment. She has an active range of motion in her cervical spine, lumbosacral spine, and shoulders within normal limits and pain-free in all directions.

27When interviewed by Dr. Todd Walters, the applicant stated that she drives to and from work and that she resumed her full-time regular duties of employment since March 2019. Dr. Zack Cernovsky, prepared a section 25 psychological report, with the evaluation date being December 13, 2019. The applicant relies on the section 25 psychological report of Dr. Zack Cernovsky, however, I place less weight on the report by reason of Dr. Cernovsky relying on the applicant’s reports of pain and, in addition, Dr. Cernovsky is not qualified to opine relating to physical injuries. Dr. Cernovsky opines regarding the applicant’s physical injuries based on the applicants’ reports of pain, which opinion as stated, I place no evidentiary weight on since Dr. Cernovsky is not qualified to offer an opinion relating to any medical diagnosis. Dr. Cernovsky is only qualified to offer an opinion relating to psychological diagnoses.

28I agree with the findings of Dr. Todd Walters and Dr. Farooq Ismail, relating to the applicant’s injuries post-accident. As stated, I find that the treatment plan for physiotherapy in the amount of $3,303.90 by Physiomed Westwood Inc, dated May 7, 2019, is neither reasonable nor necessary since according to Dr. Walters the applicant will not benefit from further facility-based treatment. According to Dr. Ismail, the applicant no longer is experiencing any ongoing musculoskeletal or neurological impairment. She has an active range of motion in her cervical spine, lumbosacral spine, and shoulders within normal limits and pain-free in all directions. I rely on the opinion of Dr. Todd Walters in his section 44, IE Musculoskeletal Assessment dated February 27, 2020, that the treatment plan in the amount of $3,303.90 by Physiomed Westwood Inc, dated May 7, 2019, is neither reasonable nor necessary. The applicant has not met her burden to demonstrate that the treatment plan described is reasonable and necessary.

29The two treatment plans completed by Dr. Cernovsky, Psychologist, of Medex Assessments Inc., both dated December 13, 2019, noted that the applicant was experiencing: Specific (isolated) phobias; Post-traumatic stress disorder; generalized anxiety disorder; depressive episode; and nonorganic sleep disorders. Part 12 of the treatment plan proposing a Driver’s Reintegration Evaluation proposes goods and services including: a Driver’s Reintegration evaluation, completion of the treatment plan; a preparation service fee; and scoring and interpretation of the assessment.

30The treatment plan completed by Dr. Cernovsky, proposing mental health and addictions counselling proposes goods and services included in Part 12 of the treatment plan: Counseling mental health and addictions; a documentation support activity; completion of an OCF-18; a preparation service; proposes goods and services including: a Driver’s Reintegration evaluation, completion of the treatment plan, scoring and interpretation; provider travel time, provider to treatment.

31Dr. Cernovsky, prepared a section 25 psychological report, with the evaluation date being December 13, 2019. Dr. Cernovsky, completed an interview, diagnostic tests, and a review of medical documentation. He diagnoses the applicant with post-concussion syndrome, post-traumatic stress disorder, adjustment disorder, and nonorganic insomnia disorder. Dr. Cernovsky recommends that the applicant receive sixteen hours of psychological treatment based on cognitive behavioural therapy to help the applicant reduce her levels of anxiety, depression and her PTSD symptoms from the motor vehicle accident of January 2019.

32Dr. Kelly McCutcheon, Clinical Psychologist, completed a Psychology Examination, dated February 6, 2020. Where she lists among the documents considered, the psychological report of Dr. Cernovsky, in addition to a comprehensive documentation review. Dr. McCutcheon interviewed the applicant noting that the applicant missed a month of work following the accident, but the applicant described returning to her full-time responsibilities, at first on modified hours, but that at the time of the interview by Dr. McCutcheon, the applicant was working regular full-time hours. The applicant also stated to Dr. McCutcheon that she drives herself back and forth from work, five days weekly.

33Dr. McCutcheon was of the opinion that the applicant’s accident-related psychological symptoms were significant enough to remove her from the Minor Injury Guideline. Following psychological testing, Dr. McCutcheon opined that the applicant meets the criteria for a DSM-5 Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as some of the symptoms of Post Traumatic Stress Disorder as a result of the car accident which warrant additional psychological assessment as it is reasonable for treating professionals to base their treatment planning on their own assessments.

34Dr. McCutcheon was of the opinion that psychological treatment is warranted for the applicant, however, she found that the proposed goods and services proposed in the treatment plan dated December 13, 2019, by Dr. Cernovsky for psychological treatment counselling was excessive. Dr. McCutcheon found that the treatment plan was partially reasonable and necessary with 12 one-hour sessions of counselling, completion of the OCF-18, and preparation service. She was also of the opinion that travel time was not warranted as the applicant is still willing and able to drive five days a week.

35Dr. McCutcheon observed that the applicant experienced some in-vehicle anxiety and worries related to the applicant’s safety and the possibility of being involved in another motor vehicle accident. However, as described by the applicant, the applicant drives to and from work and otherwise engages in driving a car for the purpose of her day-to-day activities. Dr. McCutcheon opined that the driver reintegration evaluation was premature, and she recommended that before the driver reintegration was undertaken, it is recommended that the driver’s passenger anxiety be addressed with psychological counseling. The CNRs of Dr. Choe describe that as of March 9, 2021, the applicant had attended 13 sessions of psychotherapy, and she was unsure (CNR of February 9, 2021) if the counseling was making any difference.

36I agree with the findings of Dr. McCutcheon who completed a Psychology Examination, that the treatment plan in the amount of $2,260.00 for a driver’s reintegration evaluation plan by Medex Assessments Inc., dated December 13, 2019, was neither reasonable nor necessary since the applicant had been approved for psychological counseling and it was too early to decide whether or not the psychological counseling would not also address issues around driving anxiety. I have received insufficient evidence from the applicant to the effect that the driver’s reintegration evaluation plan is reasonable and necessary. The CNRs of Dr. Choe describe that the applicant continued to receive psychological counseling in March 2021; the applicant states that she is driving herself to and from her employment. In addition, as stated, I find that the treatment plan partially approved in the amount of $4239.99, less $2,294.54, for a psychological treatment plan by Medex Assessments Inc., dated December 13, 2019, is in addition not a reasonable and necessary expense for the reasons earlier described. The applicant has not met her burden to demonstrate that the two treatment plans in dispute are reasonable and necessary.

INTEREST

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no medical benefits are payable by the respondent insurer, no interest applies since there are no overdue payments.

ORDER

38I find that the applicant is not entitled to the treatment plans in dispute;

39Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

40The application is dismissed.

Footnotes

1. 1The leading case is Krause v. The Queen, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, SCJ No.65, pp.473-474, per McIntyre, J., cited by Wawanesa
2. 2ibid
3. 3ibid
4. 417-001007/AABS v. Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT), paragraph 11; General Accident Insurance Company and Violi (Appeal P99-0047 September 27, 2000; Ibrahim and State Farm (FSCO A12-003584 date December 10, 2014.