Licence Appeal Tribunal File Number: 22-001804/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:
Laura McLean
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Deborah Neilson
APPEARANCES:
For the Applicant:
Laura McLean, Applicant Laura L Dickson, Counsel
For the Respondent:
Darryl McInnis, Claims Representative
Yann Grand-Clement, Counsel
HEARD: by Videoconference:
July 10 to 13, 2023
OVERVIEW
1Laura McLean, the applicant, was involved in an automobile accident on November 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant received income replacement benefits (“IRBs”) from the respondent up to August 19, 2021. She claims ongoing entitlement to IRBs plus entitlement to physiotherapy, a neural monitoring unit and the cost of a metabolic assessment. She also claims entitlement to an award under Regulation 664, her costs of the proceedings and interest on the benefits claimed. The respondent submits that the applicant’s impairments are the result of a 2017 motor vehicle accident and that, because she is able to work five hours per week, it is not required to pay any more IRBs. The respondent further submits that the applicant has failed to provide any evidence that meets the test for IRBs payable more than 104 weeks post-accident.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to IRBs from August 19, 2021, to date and ongoing? The Tribunal is not being asked to make a determination on IRB quantum.
ii. Is the applicant entitled to $3,954.00 for laboratory metabolic testing, proposed by Daniel Agostinelli in a treatment plan/OCF-18 (“plan”) submitted on April 16, 2021, and denied on July 21, 2021?
iii. Is the applicant entitled to $3,427.52 for physiotherapy services proposed by Daniel Agostinelli, physiotherapist, of Absolute Rehabilitation & Wellness Inc. (ARWI) in a plan submitted on April 15, 2021, and denied on August 24, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant entitled to her costs?
4The applicant added the issue of costs at the hearing.
RESULT
5The applicant meets the test for IRBs from August 19, 2021 to date. I make no determination on the applicant’s entitlement to interest as I am not to determine the quantum of IRBs. She is not entitled to any of the other claims.
PROCEDURAL ISSUES
6The following procedural issues arose through the course of the hearing:
i. The applicant brought a motion to add an issue;
ii. The respondent brought a motion to strike portions of the applicant’s document brief;
iii. The applicant sought to have the respondent’s experts barred from testifying;
iv. The applicant sought to exclude the respondent’s surveillance evidence; and
v. The applicant sought to strike the reports of Dr. Rusen, orthopaedic surgeon as exhibits.
7Both motions were dismissed and the applicant’s requests to exclude expert evidence, surveillance evidence and to strike exhibits were denied.
The applicant’s motion to add issues was dismissed
8The applicant brought a motion on June 26, 2023 to add an issue to the hearing consisting of a treatment plan submitted to the respondent on January 12, 2023. The respondent opposed the motion. The treatment plan was denied on January 12, 2023 and again on May 30, 2023 after the applicant underwent an insurer’s examination requested by the respondent under s.44 of the Schedule (“IE). She submitted that the respondent was not prejudiced by the addition of the new issue because she agreed to the respondent calling an extra witness to address the new issue. However, this does not cure any prejudice to the respondent as it is already limited by the Tribunal’s Order dated December 22, 2022 to calling five witnesses. I find that the respondent is prejudiced because the request was made too close to the hearing for the respondent to serve any additional documentary evidence it may have needed to rely on at a hearing on the new issue or, if warranted, a motion to vary the respondent’s witness limitation. There is, however, no prejudice to the applicant who may file an application to the Tribunal on the new issue at any time. For these reasons the applicant’s motion was dismissed.
The respondent’s motion to exclude documents from the hearing was dismissed
9The respondent sought to exclude documents the applicant served on June 27, 2023 on the basis they were requested from non-parties and produced to the respondent after the deadline ordered by the Tribunal in its December 22, 2022 Order.
10Rule 9.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [the “Rules”] allows the Tribunal to change the 10 day deadline in Rule 9.2 for disclosure of documents a party intends to rely on for the hearing. Where a Tribunal’s order does not speak to a deadline, the Rules always do. Under Rule 9.4, if a party fails to comply with a production order or any Rules with respect to disclosure, that party may not rely on the document as evidence or call the witness to testify without the consent of the Tribunal.
11The respondent submits that the parties were ordered at the case conference to provide any further evidence they intended to rely on for the hearing no later than 90 days after the case conference. The applicant submits that the Order dated December 22, 2022 does not prohibit the parties from filing further evidence. The respondent submits it is prejudiced by the filing of the evidence as it has not had an opportunity to review the documents and determine whether it should conduct another IE assessment.
12The December 22, 2022 case conference Order states that by no later than 90 calendar days after the case conference, the parties shall disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing. There was no other deadline imposed for serving evidence for the hearing. The wording of the Order, in the absence of any other deadline for serving evidence either party intends to rely on at the hearing, could mean that neither party will be filing any other evidence except, perhaps, addendum reports to address documentary evidence already served on each other. It could also mean that if there were any addendum reports, they were due 90 days from the date of the case conference, but any other evidence could be served at any time, subject to the deadlines in the Rules. In this case, the Order was not clear as it could have meant two different things. Accordingly I am unable to find that the applicant deliberately flaunted the Tribunal’s Order without reason. I find that it was not unreasonable for the applicant to believe that she had until 10 days before the hearing to serve evidence other than addendum reports.
13The respondent has had the documents since at least June 27, 2023 and, therefore, has been able to forward them to its experts for comment. The case law relied upon by the respondent dealt with orders where there was a clear deadline. In the absence of a clear deadline for evidence other than addendum reports, I find that Rule 9.2 applies and that the documents were served within 10 days of the hearing.
14Further, the applicant was willing to have the respondent’s expert’s testify or provide their opinions on the records at the hearing without first having any indication of what their testimony will be. The respondent did not request an adjournment to allow his witnesses to review the documents. Accordingly, I find there is no prejudice to the respondent. For these reasons the respondent’s motion is dismissed.
The applicant’s request to bar the respondent’s witnesses from testifying was denied
15The applicant submits she is prejudiced because she was served with the acknowledgement of expert’s duty forms (“AED”) and curriculum vitae (“CV”) of the respondent’s experts past the 20 day deadline allowed under Rule 10.3. Rule 10.2(c) requires a party to provide the qualifications of their expert referring to the education, training and experience relied on to qualify the expert. Rule 10.2(b) requires the party to serve an AED signed by the expert. In this case, the respondent served the AEDs and CVs of its experts on July 5, 2023.
16The applicant submitted that she was prejudiced because she had no knowledge of the experts’ qualifications or information as to the purpose of their reports. The respondent admits that the assessment clinic was tardy in providing the AEDs and could provide no explanation for why they were late.
17I find that the qualifications of each of the respondent’s experts were set out in their reports or that there was enough information in the reports for the applicant to follow up on with each expert’s college to substantiate their education, training or experience. Accordingly, I find that the qualifications of each expert was served well before the 20 day deadline. The purpose of writing the reports is also set out in each report. For these reasons, I found that the applicant was not prejudiced as she had information on the experts’ qualifications well before the hearing. Further, if there was any prejudice to the applicant, it was outweighed by the prejudice to the respondent if it was barred from relying on the evidence of its experts. As to the late service of the AED forms, any concerns about each expert’s bias could be explored by cross-examination and dealt with by the weight to be given to their evidence. Accordingly, the applicant’s request was denied.
The applicant’s request to bar the respondent from relying on surveillance was denied
18The applicant submitted that the respondent was ordered to produce the particulars of its surveillance but it failed to do so. The Order does not state that. It states that the respondent shall produce items 1 and 3-5 as requested in the applicant’s case conference summary no later than 60 days from the date of the case conference or by February 22, 2023. The applicant’s case conference summary was not before me.
19The applicant also submitted that if the respondent intended to rely on surveillance evidence, it ought to have called its investigator as well. The applicant relies on Iannarella v. Corbett, 2015 ONCA 110. In that case, the Court of Appeal determined the pre-trial judge erred in refusing to order production of particulars of surveillance and by allowing the defendant to use surveillance evidence at trial. The defendant breached the Rules of Civil Procedure by not producing an affidavit of documents and failing to provide particulars of surveillance after the matter was set down for trial. That decision is distinguishable as it dealt with a court matter, which has a discovery process, and the Rules of Civil Procedure, which have no application to the Tribunal. Accordingly, I do not find that the case assists the applicant.
20The respondent submitted that it believed its obligations were complied with when it produced copies of its surveillance report. It submitted that if the applicant did not think it had complied with the case conference Order, she ought to have filed a motion. I agree. If the applicant believed that the respondent failed to comply with an order, she had from February 23, 2023 to bring a motion instead of waiting until the hearing and asking for the surveillance to be excluded. By filing a motion, I expect the materials would have included evidence of what items 1 and 3-5 in the applicant’s case conference summary were. Without knowing what was ordered, the Tribunal cannot make a determination of whether the Order was complied with.
21The applicant submitted that she sent a number of letters to the respondent asking for production of unedited surveillance footage. However, those letters were not before me as no motion was filed by the applicant in accordance with the Rules.
22For these reasons, I allowed the respondent’s surveillance report to be filed as an exhibit once the request was made by the respondent.
The applicant’s request to remove Dr. Rusen’s reports from the exhibit list was denied
23On the last day of the hearing the applicant sought to have Exhibit 28, the IE report of Dr. Jamie Rusen, orthopaedic surgeon, of July 6, 2021; Exhibit 35, IE report of Dr. Rusen of August 10, 2021; and Exhibit 37, the executive summary IE report of Dr. Rusen of August 10, 2021, expunged as exhibits. The applicant submitted that they ought to be removed from the exhibit list on the basis Dr. Rusen was not going to be appearing at the Tribunal to testify. She submitted that when she consented to the reports being made exhibits, she believed that he would be available at some point during the hearing for cross-examination.
24I find this submission is not credible because at no point did the applicant indicate that she consented to Dr. Rusen’s reports being filed as exhibits on the condition that he be available for cross-examination. Further, the applicant knew prior to the reports being made exhibits that Dr. Rusen would not be attending the hearing. The respondent advised the applicant before the hearing that Dr. Rusen was available for a limited time on the first day of the hearing. It advised both the Tribunal and the applicant on a number of occasions throughout the hearing that it tried to get hold of Dr. Rusen, who indicated he would not be available to testify any other time than on the first day of the hearing at 10:00 a.m. The applicant notified the Tribunal prior to the hearing that she objected to Dr. Rusen testifying at that time and, accordingly, on the basis that the applicant objected to the respondent presenting its witnesses out of order, I advised the respondent that Dr. Rusen would have to be available for cross-examination at some other time. If the applicant insisted on Dr. Rusen being available for cross-examination knowing he was not available other than on the first day of the hearing, she ought to have summonsed him as she had since July 5, 2023 to do so. The applicant submitted that she was prejudiced because this was not enough time to issue and serve a summons. I disagree as I was presented with no evidence or reason as to why 5 days before a hearing and 7 days before testifying was not enough time to issue and serve a summons.
25The applicant relies on Girao v. Cunningham, 2020 ONCA 260 , specifically para.74. The Court of Appeal in that case determined that the unrepresented plaintiff’s procedural rights were violated when the Court allowed the defendant to file her family doctor’s records without calling the doctor to allow the plaintiff to cross-examine him. However, that case is distinguishable because the plaintiff did not have any opportunity to cross-examine her doctor, unlike the situation with Dr. Rusen.
26Dr. Rusen actually attended at the hearing on the first day of the hearing. However, given my determination, I advised him that he would have to appear later in the week. At no time before I excused him that day did the applicant advise that she required Dr. Rusen to attend for cross-examination on his reports.
27The evidence before me from the parties’ emails that was provided during the hearing was that the respondent told the applicant that Dr. Rusen was only available to testify on the first day of the hearing and that it was unable to change the date despite its attempts. The applicant knew this by July 5, 2023, but did not provide this evidence with the submissions she filed prior to the hearing with her request that Dr. Rusen not testify out of order.
28I agree with the respondent that there is no prejudice to the applicant as she was well aware beforehand of Dr. Rusen’s evidence, she did not demand at the case conference that he be available for cross-examination, any of his evidence will be within the four corners of his report and there was nothing preventing the applicant from making submissions for why no weight should be given to any of that evidence, including any adverse inferences that should be drawn for his unwillingness to make himself available on a different day at the hearing. Nor was any request made to adjourn the hearing in order to cross-examine Dr. Rusen on a date that he is available. Accordingly, the applicant’s request to expunge Exhibits 28, 35 and 37 was denied.
ANALYSIS
The applicant has a relevant pre-accident history
29The applicant was involved in a motor vehicle accident on October 31, 2017. As a result of that accident, in his August 19, 2019 report, Dr. Ronald Kaplan, psychologist, diagnosed the applicant with post-traumatic stress disorder (“PTSD”), specific phobias; Depressive episode; post-concussion syndrome; and Nervousness, all of which were exacerbated by the 2018 accident and a near accident in 2019. Dr. Kaplan reported that there was no change to her mild cognitive disorder and headaches from the October 31, 2017 accident.
30After the 2017 accident, the applicant worked at Mohawk College as a part-time professor teaching recreation therapy one to six hours per week and as a field placement specialist 15 to 24 hours per week.
31As a result of the 2018 accident, the respondent paid the applicant IRBs up to August 19, 2021, after which IRBs were denied on the basis she could work as a recreation program coordinator or a teaching assistant. Since then the applicant has continued to work one to six hours per week and possibly more teaching the same courses she taught prior to the accident.
32The test for entitlement to IRBs changes after the first 104 weeks of disability. The parties disagree on whether the applicant’s capacity to work at this level meets the post-104 test of entitlement to IRBs. The respondent also submits that the applicant is capable of working more than six hours per week.
The applicant meets the test for post-104 week income replacement benefits
33The applicant submits that she is entitled to IRBs because she was working 20 to 30 hours per week prior to the accident and is now only able to work 6 hours per week as a result of her accident injuries. To receive payment for a post 104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
34The applicant relies on Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 (Burtch v. Aviva), in which the Court of Appeal held that the trial judge properly considered the decisions of arbitrators and discussed the proper principles in determining what constitutes employment reasonably suited by education, training or experience. The respondent submits that Burtch v. Aviva does not assist the applicant because the Court of Appeal determined that the plaintiff in that case could work as a truck driver despite not having trained as one. However, I am bound by Burtch v. Aviva and the proper principles in interpreting s.6(2)(b) that were identified by the Court of Appeal as follows:
i. A suitable alternative occupation must be reasonably comparable to the insured's former job both in status and reward;
ii. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required; and
iii. While the primary focus in determining whether a job is a suitable alternative is on the insured's functional limitations, job market considerations are also relevant.
35This was reiterated by the Divisional Court in Wawanesa Mutual Insurance Company v. Renwick, 2020 ONSC 2226 (Wawanesa v. Renwick). The Divisional Court also endorsed that working beyond the 104 week period does not disentitle an insured person from claiming they are completely disabled from working.
36The respondent submits that Wawanesa v. Renwick is distinguishable because the insured in that case worked full time prior to the accident and was only able to work part-time afterward. I disagree. While the facts in Wawanesa v. Renwick are somewhat different from this case, there are similarities in that both Ms. Renwick and the applicant were only able to work significantly reduced hours post-accident as a result of their accident injuries.
37No authority was presented to me at the hearing that the factors to consider in applying the test of any employment reasonably suited set out in Wawanesa v. Renwick and in Burtch v. Aviva are incorrect or have been reversed by the Court of Appeal. After the hearing, the Divisional Court decision of Traders General Insurance Company v. Rumball, 2022 ONSC 7215 (Traders v Rumball) came to my attention and I asked the parties for their submissions on that case and on the Court of Appeal decision of Constitution Insurance Co. of Canada v. Coombe, 1997 CanLII 1845 (ON CA) (leave to appeal to SCC denied) (Constitution v Coombe).
38The Divisional Court in Traders v Rumball stated that the Court of Appeal in Burtch v. Aviva did not endorse the principles listed in paragraph 34 above as the proper principles to consider when determining what constitutes employment reasonably suited by education, training or experience. Leave to appeal to the Court of Appeal has been granted in Traders v Rumball. The respondent submits that the Divisional Court in Traders v Rumball is not binding on the Tribunal. However, it submits that Traders v Rumball is relevant as it accurately cites the test for post-104 week IRBs and confirms the Burtch v. Aviva decision.
39The applicant submits that the Divisional Court in Traders v Rumball ignored the Court of Appeal’s decision in Constitution v Coombe. In that case, the Court of Appeal discussed the judicial interpretation of what it means to be totally disabled from engaging in any occupation that is reasonably by education, training or experience. It held that the judicial interpretation of total disability as being reasonably comparable to the old occupation in status and reward and reasonably suitable in work activity in light of education, training and experience does not place a burden on an insurer to show that an insured person is receiving similar compensation, but that the insured person is capable of entering into an occupation that is reasonably suitable in status and reward.
40The respondent submits that Constitution v Coombe is distinguishable because the test for IRBs applicable to Mr. Coombe was whether he was permanently and totally disabled from engaging in any occupation or employment for which he was reasonably suited by education, training or experience. The respondent submits that “permanently and totally disabled” is not at all the same as a “complete inability.” I am unable to agree with the respondent that the different wording of a “permanently and totally disabled” and “complete inability” means that the Court of Appeal’s determination of the factors to look at to determine whether the occupation is reasonably suited by education, training or experience is not relevant. In fact, the Court of Appeal’s determination of the factors to consider when interpreting whether employment for which the insured person is reasonably suited by education, training or experience is binding on me. Accordingly, I find that in determining whether the applicant in this case is reasonably suited by education, training or experience for any employment, the work should also be comparable in terms of status and wages.
41The respondent asked in its submissions on Traders v Rumball that an adverse inference be drawn because the applicant did not obtain the evidence of a vocational assessor. In Traders v Rumball, the Divisional Court determined that there was no evidence of the applicant attempting to try her own occupation or any other occupation. Under those circumstances, the Divisional Court questioned why she chose not to call any evidence from a vocational assessor. It is not clear whether the Divisional Court in Traders v Rumball had evidence that the respondent approved a treatment plan for a s.25 vocational assessment. There was no such evidence before me in this case. In any event, I find that a vocational assessor would not have added anything to the evidence I already heard from the respondent’s vocational assessor. Further, I had evidence before me of the applicant’s efforts to work and of the maximum hours per week of suitable work that she is capable of performing. Accordingly, this is not an appropriate case for drawing an adverse inference from the applicant’s failure to file a vocational assessor’s report.
42The applicant also relies on 16-00874 v. Certas Home and Auto Insurance Company, 2017 CanLII 69444, in which the Tribunal pointed out that it is well established in the jurisprudence that reasonably suitable employment in insurance policies means the work should be comparable in terms of status and wages. I agree with the Tribunal that the jurisprudence has been well established that reasonably suited employment should be comparable in status and reward. The Court of Appeal has not reversed its 30 year recognition of these principles and, accordingly, I am unable to find that Traders v Rumball means that Constitution v Coombe was reversed and is no longer binding on me.
43The respondent submits that an ability to work at 25% to 30% percent capacity of the pre-accident hours at any suitable employment is not a complete inability to engage any employment. I agree with the respondent only if the income and status from the reduced hours is comparable to the pre-accident income. Otherwise, this submission is contrary to the Schedule requiring insured persons to work to mitigate their loss under s. 58 and allowing for insurers to deduct post-accident income from IRBs under s.7(3)(a). The deduction is not limited to the 104 week period post-accident, but applies to the period of time for which an insured person is entitled to receive an IRB. If the Schedule was meant to be interpreted in the manner proposed by the respondent, that an inability to engage in reasonably suitable employment for substantially similar work hours as pre-accident does not meet the test for entitlement, then the Schedule would not have accommodated income earned post-104 weeks. Otherwise, I would have expected the Schedule to limit insurers’ deduction of post-accident income from IRBs to the pre-104 week disability period.
44The meaning of a “complete inability” in s. 6(2)(b) of the Schedule is to be read in its entire context and harmoniously with the remainder of the Schedule. The only definition of a “complete inability” in the Schedule is in s.3(7) in the definition of a complete inability to carry on a normal life applied for entitlement to non-earner benefits. Section 3(7) states that a person suffers a complete inability to carry on a normal life if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident. When the meaning of a complete inability in s.3(7) is applied to s.6(2)(b) by analogy, the test for post-104 week IRBs is whether the applicant sustains an impairment that continuously prevents her from engaging in substantially all of the essential tasks of the employment that is reasonably suited based on her education, training and experience. If an insured person is only able to work at 30% capacity of a specific employment compared to her pre-accident capacity, then I fail to see how the person can be engaging in substantially all of the essential tasks of that occupation.
45The respondent relies on the IE reports of Ruth Billet, vocational evaluation expert, dated August 10, 2021. Ms. Billet identified two jobs that the respondent submits are reasonably suited to the applicant based on her education, training or experience. Ms. Billet did not know the hourly rate that the applicant was paid prior to the accident, which means her recommendations are not persuasive. The first job she identified as suitable is a recreation program coordinator earning an average of $25.71 per hour and a maximum of $51.03 per hour. The second is a teaching assistant at a maximum of $44.00 per hour. According to the part of her employment file that was before me, the applicant was earning $33.17 per hour from January 22 to April 30, 2018 as a field placement officer and in May 2017, she was earning $89.92 per hour as a part-time professor. The OCF-2 Employer’s Confirmation of Income form from Mohawk College states she earned $46,047.66 in the 52 weeks preceding the accident. Ms. Billet testified that the applicant’s entry earnings as a recreation program co-ordinator would be $25.71 per hour or 22.5% less per hour than a field placement officer. A teacher’s assistant earns anywhere from 51% to 72% less per hour than a part-time professor. This means an overall decrease of roughly 32% of her pre-accident income. The discrepancy between these hourly rates is more than an insignificant difference. Further, a teacher’s assistant clearly carries less status that a professor.
46I find that the employment identified by the respondent is not suitable for the applicant as it does not carry the same status and provides for significantly less income than the applicant was earning pre-accident if she were to work the same hours as she was capable of working pre-accident.
47The respondent relied on the August 10, 2021 report of Dr. Shahriar Moshiri, psychologist, who did an IE assessment of the applicant. He diagnosed the applicant with an Adjustment Disorder With Mixed Anxiety and depressed Mood; Specific (isolated) Phobias, vehicular; and Insomnia Disorder, persistent. Dr. Moshiri reported that the psychometric testing suggested the applicant did not feign, exaggerate or overreport her symptoms. This is in keeping with Dr. Paul Robinson’s opinion, a psychologist who prepared an IE report of July 16, 2019. Dr. Moshiri testified that he accepted that the applicant can only work a maximum of six hours per week due to her accident injuries. However, he reported that the applicant did not have a complete inability to engage in any suitable employment. He testified that the applicant’s ability to work only six hours per week post-accident compared to her pre-accident 26 to 30 hours per week means that she does not have a complete inability to engage in any occupation. Dr. Moshiri testified that, based on the applicant’s psychological impairments, she could only work at 25% to 30% capacity or no more than 6 hours per week at the employment identified by Ms. Billet. I find that Dr. Moshiri misunderstood what the post-104 week test means. If the applicant can only earn $12,794 per year as a teacher’s assistant at 6 hours per week or only $7,404 per year as a recreation program director, she is clearly not able to earn anywhere near her pre-accident income of $46,047.66 per year that Mohawk College identified in its OCF-2 Employer’s Confirmation of Income form dated September 15, 2020.
48Although the respondent suggested in its submissions that the applicant may be less than credible, it did not put any contradictions or inconsistent statements to her when cross-examining her as required by the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) (Eng.). Further, given the psychometric validity test results, I was presented with no reason to question or doubt the applicant’s credibility.
49Luigi Grimaldi, a kinesiologist who conducted an IE functional capacity assessment of the applicant, reported on August 10, 2021 that she has low bilateral handgrip strength and pinch grip strength, limited upper body and crouching tolerance, very limited stooping tolerance, limited cervical mobility and can carry only 7.5 pounds. Ms. Billet did not provide any information on the extent gripping, crouching, stooping, carrying or upper body strength is required for the jobs she identified as suitable. Without such information, I am unable to determine whether the recommended jobs are physically suitable for the applicant.
50The applicant reported to Dr. Robinson and Dr. Rusen that she returned to her part-time employment as a professor but not her field placement position. However, she told Ms. Billet and Dr. Moshiri that she returned to her field placement position as well, which is consistent with her testimony. She was not cross-examined about her reports to Dr. Robinson or Dr. Rusen and, accordingly, I do not draw any conclusions about the applicant’s credibility as a result. I accept, based on her well documented complaints and the psychological diagnosis, that she may have days when her memory is not so great.
51The applicant told Ms. Billet and Dr. Moshiri that she reduced her hours to 18 to 24 hours per week and did not return to the field placement position in the Fall of 2019, only the part-time instructing position, on the recommendations of her family physician. She testified that she stopped her field placement position in September 2020 or 2021. The reason she stopped was that Mohawk College hired a full-time field placement officer and the applicant could not work those hours. She testified that she could not work at another position because she is unable to sleep the night before due to her fear of driving to and from the college. Therefore, she teaches a three hour day on alternate days so that she can recuperate in between. She testified that she is unable to engage in any activity the day after teaching because of the emotional toll and the lack of sleep.
52The respondent submitted that the applicant’s present impairments are due to the 2017 accident. However, the applicant was capable of working 24 to 29 hours per week prior to the 2018 accident. The evidence is that she is only capable of working 6 to 10 hours per week. In other words, but for her 2018 accident injuries, the applicant would be able to work 29 hours per week.
53The respondent filed a surveillance report that shows the applicant drove to and from Mohawk College, which was at least a 30 minute drive. The surveillance showed the applicant was able to drive short distances from her house and was still able to teach the next day. However, the only surveillance taken of the applicant after a teaching day disclosed that she did not go out the following day other than to move a couple of empty recycle bins. The surveillance supports the applicant’s testimony that she is unable to do much following a teaching day. The surveillance report indicates the applicant may have also obtained a teaching position at Niagara College. However, she was not questioned about that and, accordingly, I draw no conclusions.
54I find that the applicant’s continued engagement in one of her pre-accident positions is evidence that the applicant has made attempts to continue working. The positions identified by Ms. Billet would require travel just as her present employment does. Both jobs identified by Ms. Billet as suitable require concentration and focus, which would also be affected by the applicant’s insomnia due to fear of driving to work. I accept Dr. Moshiri’s opinion that the applicant can only work 6 to 10 hours per week at those jobs. I am satisfied by the applicant’s continued attempts at working at a job similar to those identified by Ms. Billet that the applicant has proven that she has a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience.
The applicant is not entitled to metabolic testing
55The applicant is seeking $3,954.00 for laboratory metabolic testing, proposed by Daniel Agostinelli in a plan submitted on April 16, 2021, and denied on July 21, 2021. I find that the recommendations are for the cost of an assessment under s.25 of the Schedule and not for treatment.
56The respondent is required to pay for all reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan or for preparing a disability certificate under s.25 of the Schedule. The test for entitlement to the cost of an examination does not require the applicant to prove that she has the type of impairment that the proposed assessment will examine. It is whether there is a possibility that she has that type of impairment caused by the accident. If so, the applicant must show on a balance of probabilities that an assessment is necessary under s.25 of the Schedule for the review of or preparation of a disability certificate or treatment plan and that the fees charged for that assessment are reasonable.
57Under s.25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”). Under s.25(5)(a) an insurer is not required to pay more than $2,000 plus HST for an assessment.
58Daniel Agostinelli testified that metabolic testing is blood, urine and stool testing to determine what supplements a neuropath and a physician would recommend. The only company doing this specific type of lab work is called Nova Diagnostics. This type of testing is not commonly done by physiotherapists. Mr. Agostinelli would not be the one drawing the applicant’s blood or processing the lab tests. He was unable to advise who would be doing that, what their qualifications are, their hourly fees or the hours required. Without this information I am unable to determine whether the hourly fees charged exceed the Professional Services Guideline as the treatment plan just provides a lump fee of $3,854.00 for the assessment plus $100.00 for documentation. Not enough details are provided to determine whether the fee is reasonable and, accordingly, the applicant has failed to prove on a balance of probabilities that the assessment is either reasonable or necessary.
The applicant is not entitled to neuromonitoring or physiotherapy
59The applicant is claiming entitlement to $3,427.52 for physiotherapy services proposed by Daniel Agostinelli in a plan dated April 15, 2021. Part of the plan includes $700.00 for a service called neuromonitoring. To 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. Treatment with the aim of relieving pain has been accepted as a reasonable goal at the Tribunal. An insurer is not required to pay for treatment that is experimental.
60The respondent relies on the decision of YFTL v The Co-operators General Insurance Company, 2020 CanLII 27398 (LAT) (YFTL v The Co-operators) and submits that the applicant has not provided medical evidence to support entitlement to the treatment recommended in the treatment plans. YFTL v The Co-operators held that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be supportive objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment. Persuasive evidence from the applicant about the effectiveness of treatment in relieving pain or improving function is also helpful. I agree with this reasoning.
Neuromonitoring is not necessary for treating an impairment sustained from the accident
61The applicant relies on Mr. Agostinelli’s testimony that he recommended the neuromonitoring to address the applicant’s post concussion syndrome. However, the applicant was not diagnosed with post concussion syndrome by anybody qualified to do so as a result of the 2018 accident. The applicant submits that Mr. Agostinelli’s testimony that the applicant has cognitive issues and the neuromonitoring would help in addressing those issues supports her claim. However, there was no evidence that any cognitive issue the applicant experiences are from the accident, other than from sleep issues. The accident sleep issues are from the applicant’s insomnia due to her fear of driving the next day. I did not hear any evidence on how the neuromonitoring would assist the applicant with her fear of driving and the resulting insomnia. Accordingly, I find that it is not reasonable or necessary as result of the applicant’s accident injuries or impairments.
Physiotherapy is necessary but there is no evidence that the cost is reasonable
62The applicant testified that she has continued with physiotherapy and massage therapy once per week at her own expense, alternating between each therapy every other week, because it offers her some pain relief. As I have not been provided with any convincing reason to doubt the applicant’s veracity, I find that her testimony amounts to evidence that corroborates that the goal of pain relief in the treatment plan is achievable.
63The respondent relies on the report of Dr. Rusen dated August 10, 2021 as he determined that further facility based treatment would not contribute to objective recovery from the applicant’s accident related orthopaedic injuries. However, Dr. Rusen did not comment on the treatment plan’s goal of pain reduction. For this reason, I give his opinion little weight.
64Similar to the cost of assessments, under s.15(2)(b) and s.16(4)(a) of the Schedule, an insurer is not required to pay a medical or rehabilitation benefit that exceeds the hourly rates set out in the Professional Services Guideline. Unfortunately there is not enough information in the treatment plan to determine what Mr. Agostinelli’s hourly fee is for the physiotherapy services listed. His hourly rate is not listed anywhere and the fees recommended for the services are per session, procedure or good. Without some evidence of the hourly fee charged, I am unable to determine whether the cost of the proposed treatment is reasonable. The applicant has not satisfied her onus to show that the overall costs of achieving the goal of pain relief and increased range of motion are reasonable.
65Accordingly, I am unable to find that the applicant is entitled to the neuromonitoring and physiotherapy recommended in Mr. Agostinelli’s April 15, 2021 treatment plan.
Interest
66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Although the applicant meets the test for entitlement to IRBs, I am not to determine whether any IRBs are payable as the issue is not before me. Accordingly, I make no determination on whether interest is payable on any IRBs.
Award
67The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
68The applicant submitted that the respondent failed to approve a treatment plan for physiotherapy because the respondent was more concerned with the clinic being closed due to COVID rather than accepting that the applicant was receiving virtual treatment from the clinic. The applicant summoned Melanie Martel, an adjuster for the respondent, for cross-examination. Ms. Martel’s evidence was that roughly two months after the treatment plan was submitted, it was accepted once she was able to confirm that the applicant was indeed receiving virtual treatment. Questions of whether recommended treatment is received are dealt with under s.46.1 to 46.3 of the Schedule. Whether recommended treatment is received is not relevant to whether it is reasonable and necessary. Under normal circumstances I would find such behaviour deserving of an award as it would appear to be a method for discouraging or delaying treatment by withholding approval for a circular reason. However, the pandemic was an unusual circumstance. While the respondent’s reaction may have been ill advised, I do not see that it was a stubborn, inflexible or bad faith action deserving of condemnation, especially given that the treatment was eventually approved.
69The applicant submits that the respondent kept the applicant in the Minor Injury Guideline (“MIG”) despite her diagnosis and despite being aware that the applicant was in a prior motor vehicle accident. However, Ms. Martel’s evidence was that she did not have medical documentation to support the applicant being taken out of the MIG at the time. Therefore IEs were scheduled. Once the IE report was received stating the applicant had psychological injuries as a result of the accident, she was taken out of the MIG. Since the onus of proof is always on the applicant. I fail to see how this resulted in a delay in the applicant’s receipt of IRBs or the treatment that is in issue before me.
70The applicant submits that an award is warranted because Ms. Martel has not spoken to the applicant in five years. Ms. Martel testified that she last spoke to the applicant on November 29th, 2018. She also testified that once legal representation is appointed to an applicant, and adjuster will no longer speak to the applicant but will only deal with the legal representative. I was provided with no evidence that the respondent failed or refused to address any concerns the applicant or her legal representative notified the respondent of. Accordingly, I am unable to find that this is reason for an award.
71I am not to determine how much IRB is payable. This means I have no evidence on whether the applicant is receiving a collateral benefit that is deductible from the IRB or whether any IRB is payable after deduction of the 70% of the applicant’s gross post-accident income. The applicant submits that I may order a percentage of what is owed. However, as I am unable to determine whether any IRB is owed, I cannot order an award. In any event, I am not satisfied that the respondent’s reliance on the opinions of its IE assessors in denying IRBs was unreasonable or is the type of behaviour that warrants an award. It was not until Dr. Moshiri testified at the hearing that the reasons for his opinion became clear. For all of these reasons, the applicant’s claim for an award is dismissed.
The applicant is not entitled to her costs of the hearing
72The applicant asks for her costs of the hearing. Under Rule 19, the Tribunal may award costs if it determines that a party acted unreasonably, frivolously, vexatiously or in bad faith during the proceedings. Costs shall not exceed $1,000 for each full day of attendance at a motion, case conference or hearing.
73The applicant submits that she is entitled to costs because the respondent did not co-operate with the scheduling of witnesses and he brought a motion to bar her from filing documents that were served seven and nine business days prior to the hearing. She relies on Franche v Wawanesa Mutual Insurance Company, 2022 CanLII 98067 (ON LAT) at paras.55-66 in which the Tribunal held that both parties should have worked out a practical hearing schedule of witnesses and the experts whose evidence could be called by filing medical reports only without testimony, rather than just sending positional letters.
74In this case, the respondent sent emails to the applicant advising that some witnesses were only available during the first few days of the hearing. The applicant advised the respondent she was unwilling to accommodate the schedule of the respondent’s orthopaedic expert and that she would defer to the Tribunal. The respondent advised the applicant that it made efforts to reschedule the availability of its orthopaedic expert, Dr. Rusen, who adamantly would not testify on any other day. I am unable to find that Dr. Rusen’s refusal to make himself available to testify means the respondent acted unreasonably, frivolously, vexatiously or in bad faith. The inability to agree to a witness schedule due to the availability of witnesses is not, in my view, a reason to award costs.
75The applicant also relied on Robinson v AIG Insurance, 2022 CanLII 35796 (ON LAT) at para.86 in which costs were awarded against a party for bringing motions without sufficient notice on the eve of or during the hearing. In this case, the respondent filed a motion on notice, whereas the applicant brought motions without serving and filing a notice of motion or any evidence to support her motion submissions. I am unable to find that the respondent’s actions were unreasonable when the applicant thought the same or worse conduct performed by her (motions without notice) is reasonable. For these reasons, I am unable to find that the respondent conducted itself in a manner that warrants a costs award.
ORDER
76Since August 19, 2021, the applicant has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Therefore, she is entitled to post 104-week IRBs
77I make no order with respect to interest. The remainder of the applicant’s claims are dismissed.
Released: September 13, 2023
__________________________
Deborah Neilson
Adjudicator