[G.J] v. Aviva Insurance Canada, 2023 CanLII 84400

Citation: [G.J] v. Aviva Insurance Canada, 2023 ONLAT 18-006663/AABS

Licence Appeal Tribunal File Number: 18-006663/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:

[G.J]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Robert P. Budgell, Counsel

For the Respondent: Kristofer B. Angle, Counsel

HEARD: By way of written submissions

OVERVIEW

1[G.J] ("the applicant") was involved in an automobile accident on January 1, 2010 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the "Schedule"). The applicant was denied benefits by Aviva Insurance Canada (the "respondent") and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2This matter has a lengthy history with the Tribunal and the application was commenced in 2018. This matter has proceeded through several case conferences, and a preliminary hearing. This matter was originally scheduled for an oral hearing; however, it was then converted to a written hearing scheduled for December 29, 2022. As per the Case Conference Order of Adjudicator Sharma, dated June 10, 2022 ("Order"), there were two issues listed in dispute that the respondent states have already been determined by the Tribunal. These issues are as follows:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for massage therapy recommended in a treatment plan by Absolute Chiropractic and Wellness Centre dated August 9, 2018 and denied by the respondent? and

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,440.00 for massage therapy recommended in a treatment plan by Absolute Chiropractic and Wellness Centre dated August 9, 2018 and denied by the respondent?

3I find that the Tribunal has already determined the above referenced issues on June 3, 2019. On June 3, 2019, Adjudicator Makhamra, determined that the applicant was barred from proceeding to a substantive hearing on these particular issues because he failed to attend s.44 assessments. The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Four preconditions must be established before the adjudicator can determine whether to exercise their discretion to apply res judicata. See: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 and 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502. The factors are:

i. The parties must be the same in both actions;

ii. The prior claim must be within the jurisdiction of the Court/Tribunal;

iii. The prior adjudication must have been on the merits; and

iv. The prior decision must have been a final judgment.

4As noted in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para 52, res judicata can be waived in the following situations:

i. The first proceeding is tainted by fraud or dishonesty;

ii. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

iii. When fairness dictates that the original result should not be binding in the new context.

5In my view, the four preconditions for doctrine of res judicata are satisfied. The parties are the same. The prior decision was within the jurisdiction of the Tribunal. The prior decision was based on the merits. The Tribunal reviewed the submissions and evidence and found that the applicant was barred from proceeding forward with respect to the two OCF-18s for massage therapy. The prior decision was a final decision because the applicant did not seek a reconsideration and nor did he appeal the decision. The applicant has failed to provide any submissions with respect to the doctrine of res judicata, and why it should be waived in these circumstances. For the reasons set out above, I find the doctrine of res judicata applies for the two OCF-18s for massage therapy and that there are no circumstances that warrant setting it aside.

ISSUES

6The issues in dispute with respect to this hearing are as follows:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,336.30 (incorrectly listed as $3,336.20 in the Order) for psychological treatment recommended by West Niagara Psychology Centre in a treatment plan ("OCF-18") submitted on October 12, 2016, and denied on October 24, 2016?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $8,675.17 for other goods and services recommended in a treatment plan by Bayshore Therapy and Rehab that was denied between August 23, 2017 and November 28, 2017?

iii. Is the applicant entitled to reimbursement for transportation expenses in the amount of $1,307.90 ($1,917.50 less $609.60 previously approved) for mileage, referred to in an OCF-6 submitted on October 15, 2017 and denied on November 14, 2017?

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

v. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

7I find that:

i. The applicant is entitled to the OCF-18 for psychological treatment and interest if it was incurred before January 1, 2020.

ii. The applicant is not entitled to the remaining OCF-18 as he has failed to demonstrate that the benefit is reasonable and necessary. Further, he is not entitled to the reimbursement of the milage costs outlined in the disputed OCF-6. The applicant is not entitled to interest, nor is he entitled to an award.

Procedural Issue 1 – Missing OCF-18 and OCF-6

8The applicant failed to provide copies of the OCF-18 for issue (ii) and the OCF-6 for issue (iii) as evidence for the purposes of this hearing. The respondent submits that the applicant has failed to submit the OCF-18s and OCF-6 for issues ii to iii to the Tribunal which is an evidentiary deficit. As such, the respondent submits that the applicant should be precluded from adducing any new evidence in his reply submissions which could have reasonably been included in his initial submissions. The respondent relies on the Court of Appeal decision in Allcock Laight & Westwood Ltd. v. Pattern, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18, to support its position. In his reply, the applicant failed to include the OCF-18 or the OCF-6. I acknowledge that the respondent is entitled to know the case against it, however I find that the applicant should be allowed an opportunity to provide the OCF-18 and OCF-6 for issues ii to iii.

9The respondent has failed to establish that the OCF-18 and OCF-6 are new evidence, and as such it would be prejudiced if these documents were submitted to the Tribunal. The respondent denied the OCF-18 and OCF-6, which form the basis of this dispute and as such, it was aware of the case against it. I find that the Tribunal also has an obligation to allow the applicant an opportunity to submit the OCF-18 and OCF-6 as they form the basis of the parties' dispute. In J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161, the Tribunal on reconsideration determined that the Tribunal is obligated to ask parties to submit information that it believes a party meant to rely upon as evidence that formed the basis of the parties' dispute. As such, the Tribunal reached out to both parties and allowed them to submit the complete OCF-18 and OCF-6 for issues ii to iii until 5:00 PM on August 3, 2023.

Procedural Issue 2 – Additional documentation provided by the applicant on August 2, 2023

10For the reasons outlined below, I will be excluding the additional documentation provided by the applicant on August 2, 2023 as evidence for this hearing.

11On August 2, 2023, the applicant submitted a letter which enclosed the OCF-18 in relation to issue ii and the OCF-6 for issue iii. The applicant further submitted the following additional documentation that were not included in his submissions:

i. Explanation of Benefits ("EOB"), dated November 14, 2017;

ii. EOB, dated November 28, 2017;

iii. Letter from Aviva dated December 5, 2017; and

iv. There were several handwritten notations throughout the documentation submitted.

12In applying Allcock Laight & Westwood Ltd. v. Pattern, Bernard and Dynamic Displays Ltd., I find the respondent would be prejudiced if the Tribunal were to allow this evidence into the hearing as the respondent did not have an opportunity to address this evidence in its submissions. Further, the applicant has not provided any explanation on why this evidence was not submitted with his initial submissions. Moreover, while I acknowledge the respondent was in possession of the EOB's dated November 14, 2017 and November 28, 2017, and letter dated December 5, 2017, it is nonetheless prejudiced as the applicant did not make any submissions on any of this correspondence. As such, the respondent was not aware at the time of its responding submissions, that these documents may be relied upon by the applicant and did not get a chance to address this evidence. In contrast, the OCF-18s and OCF-6 were clearly listed as issues in dispute and the respondent was able to make submissions with respect to this. The respondent was also not aware that the applicant would be relying on handwritten notations in this documentation, as the applicant did not refer to this in his initial submissions.

13As such, the above-referenced evidence will be excluded for the purposes of this hearing.

ANALYSIS

REASONABLE AND NECESSARY

14To receive payment for a treatment and assessment plan under s. 14 and 15 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.

15The respondent submits that more than 10 years have occurred since the accident, and as such, pursuant to s.18(1)(a) of the Schedule, the applicant's claim for medical/rehabilitation benefits cannot succeed. Adopting the interpretation of the legislation proffered by the respondent would be inconsistent with the consumer protection spirit of the Schedule. Section 18(1)(a) states that the applicant may not proceed with a medical or rehabilitation benefit that is incurred more than 10 years after the accident. For the reasons that will follow below, I find that the applicant is entitled to the OCF-18 for psychological treatment if it was incurred before January 1, 2020.

The applicant is entitled to the OCF-18 for psychological treatment

16I find that the applicant has demonstrated on a balance of probabilities that the OCF-18 for psychological treatment is reasonable and necessary based on the report and note of Dr. Terence Semple (psychologist).

17The OCF-18 in dispute is for 15 psychological therapy sessions to be provided by Dr. Bell, psychologist. The goals of the OCF-18 were to reduce and manage anger and irritability, reduce and manage features of low mood, and re-engage in social activities.

18The applicant submits that he has been diagnosed with depression and he requires psychological treatment to restore him to his pre-accident status. To this end, he relies on a report by Dr. Semple, dated July 24, 2017, a further note from Dr. Semple, dated December 4, 2018 and Dr. Chindemi's record, dated November 16, 2016. The applicant further submits that the s.44 psychology report by Dr. Monique Costa El-Hage dated January 4, 2017 should be given little weight as she was unable to provide a clinical opinion or make a psychological diagnosis, yet she determined that the OCF-18 was not reasonable and necessary.

19The respondent submits that the applicant has failed to demonstrate that this OCF-18 is reasonable and necessary. To this end, the respondent relies on the report completed by Dr. El-Hage. The respondent further submits that the applicant's conduct impeded Dr. El-Hage's ability to render a diagnosis, causally connect the alleged psychological challenges to the accident, and make a formal recommendation if the OCF-18 was reasonable or necessary.

20In reply, the applicant submits that the respondent failed to consider the opinion of Dr. Semple which not only endorsed the treatment proposed but in fact explained the applicant's presentation when he was assessed by Dr. El-Hage.

21On December 22, 2016, the applicant met with Dr. El-Hage for a s.44 psychology report. Dr. El-Hage clearly noted in her report that if any additional information became available that she was not aware of, then her opinion may be subject to change. Dr. El-Hage further noted that the applicant's conduct throughout the examination compromised her ability to obtain a complete clinical picture.

22On July 24, 2017, Dr. Semple reviewed the report of Dr. El-Hage and noted that she was unable to provide a clinical opinion or diagnosis as a result of the applicant's conduct throughout the assessment. Dr. Semple noted that the applicant appeared defensive on July 24, 2017 particularly when asked about his personal history. However, Dr. Semple noted that the applicant was cooperative once it was explained why the information was required. Further, Dr. Semple was able to gather information about the applicant's pre-existing history and noted that he had a pre-existing depressive episode more than 20 years ago. More importantly, Dr. Semple recommended 15 sessions of psychotherapy as the applicant was a good candidate and he appeared to be somewhat anxious and had mild depression in response to chronic pain. On December 4, 2018, Dr. Semple noted that the applicant had undergone some psychological treatment in July 2017. Moreover, Dr. Semple noted as therapy had progressed, the applicant experienced episodes of intense depression and he opined that the subject accident resulted in a marked impairment in the applicant's ability to function in his personal relationships and professional role. As such, Dr. Semple concluded that while the applicant responded well to therapy, he had not yet reached his pre-accident status and required further therapy.

23I prefer the evidence of the applicant over the respondent as I find that Dr. Semple, a psychologist recommended psychological treatment on July 24, 2017 and December 4, 2018. In my opinion, Dr. Semple also addressed the concerns raised by Dr. El-Hage and concluded that the applicant had anxiety and mild depression and was a good candidate for psychotherapy. Further, the respondent did not provide the records of Dr. Semple to Dr. El-Hage, which is additional information that could have changed her opinion with respect to whether the applicant sustained a psychological impairment as a result of this accident.

24The parties did not advise whether the OCF-18 for psychological treatment was incurred. In accordance with s. 18(1)(a) of the Schedule, I find that the applicant has demonstrated that he is entitled to the OCF-18 for psychological treatment if it was incurred before the tenth anniversary of the accident (i.e., January 1, 2020).

The applicant is not entitled to the OCF-18 in the amount of $8,675.17

25I find that the applicant has failed to demonstrate that this OCF-18 is reasonable and necessary.

26The OCF-18 in dispute pertains to: 6 Occupational Therapy ("OT") Sessions to provide education; cost of submitting the OCF-18; provider's travel time; preparation service; MVA reports; queen-size mattress; mattress base; 2 quality pillows; Obusforme driver's seat cushion (back rest); tub side clamp on grab bar; ergonomic footrest; lightweight stick vacuum; after market in car Bluetooth system; brokerage telephone, case management; delivery and installation; and ergonomic keyboard and mouse.

27The applicant relies on s.25 Occupational Therapy In-Home Functional Assessment Report by Ms. Lorie-Ann Tirone, occupational therapist, dated October 31, 2017 to support that the OCF-18 for OT sessions and assistive devices are reasonable and necessary. Ms. Tirone further advised that the OT treatment would focus on education regarding assistive device utilization, task modification, energy conservation, proper body mechanics, and sleep strategies.

28The respondent relies on the report by s.44 assessor, Dr. Lisa Slapinski, occupational therapist, dated January 15, 2018 to support that the recommended OCF-18 is not reasonable and necessary.

29While the applicant reports ongoing pain symptomology, he has failed to demonstrate that the 6 OT sessions and the above-referenced assistive devices are reasonable and necessary for the reasons outlined below.

30The recommendations by Ms. Tirone are unpersuasive as many of the assistive devices have already been provided and have been unhelpful in the past. The applicant advised Ms. Slapinski that he previously had a queen size bed and had thrown it out due to discomfort. The applicant has further failed to provide any objective medical evidence from a treating practitioner that supports that the applicant's difficulty sleeping would be reduced with a new mattress. The applicant already advised Ms. Slapinski that he has two pillows that he finds comfortable, and as such, it is unclear how he requires further pillows. The applicant was already provided with a new chair and Ms. Slapinski observed the applicant in his home office and noted that his feet were in ergonomic alignment. The applicant has further already been provided with an ergonomic keyboard and mouse which he advised Ms. Slapinski. Further, Ms. Slapinski observed the applicant used a standard keyboard and mouse without any joint stress or strain. The applicant further advised Ms. Slapinski that he already received a lightweight stick vacuum in 2010 and did not use it because it was inefficient. He further advised Ms. Slapinski that he previously had a Bluetooth system in his car, however in 2016, he bought a new vehicle which was not equipped with a Bluetooth system. The applicant has failed to demonstrate why a further Bluetooth system is reasonable and necessary. The applicant did not advise Dr. Semple or any s.44 assessors that he had difficulty completing work related phone calls in his vehicle due to a lack of a Bluetooth system. Further, Ms. Tirone's s.25 report did not make any recommendations with respect to a Bluetooth system.

31Further, the applicant has failed to provide any objective evidence that supports the Obusforme cushion and tub clamp are reasonable and necessary. The applicant did not advise Ms. Tirone what caused a low tolerance with respect to his ability to drive for longer periods and he did not refer to any evidence that supports a Obusforme Cushion would allow him to drive for longer periods of time. With respect to the tub clamp, Ms. Slapinski observed that the applicant was able to safely transfer to the bathtub floor using the sides for support and no loss of balance was noted. The applicant further advised Ms. Tirone that he had no concerns with respect to tub/shower transfers. While the applicant reported to Ms. Tirone that he had mild balance issues, he has failed to refer to any objective evidence from a treating practitioner that he requires this assistive device because of balance issues with respect to this accident.

32Lastly, the recommended 6 OT sessions are not reasonable and necessary as the applicant has failed to demonstrate that further OT sessions recommended 7 years after the accident will yield significant functional gains. In 2010, the applicant was already provided with some OT treatment and assistive devices and has failed to refer to any objective evidence that supports that further OT sessions will improve his function. While I acknowledge the applicant self-reported to Ms. Tirone that he had difficulties with his housekeeping tasks, work related tasks, and his personal care tasks, he has failed to refer to any objective evidence that supports that this function will be improved with further OT sessions. Moreover, Ms. Tirone was unaware that the applicant had already received OT sessions in 2010 and as such she made these recommendations based on her belief that the applicant never had OT intervention following the accident.

33Accordingly, and for the reasons outlined above, the applicant has failed to demonstrate that this OCF-18 is reasonable and necessary.

The applicant is not entitled to the OCF-6 in the amount of $1,307.90

34The onus is on the applicant to demonstrate that he is entitled to the OCF-6 for milage expenses. The applicant has failed to meet this onus as he has not provided any submissions or evidence on why the OCF-6 would be payable.

35The OCF-6 in dispute listed a number of transportation expenses in relation to different treatment providers. The OCF-6 contained several entries for transportation costs that were within 50 kilometres. There were also several entries that were beyond 50 kilometres.

36Section 14(6)(b) of the Schedule precludes an insurer from having to reimburse the applicant for transportation expenses for the first 50 kilometers of transportation to and from a treatment session unless the applicant has sustained a catastrophic impairment as a result of the accident.

37The applicant did not provide any initial or reply submissions on why he would be entitled to transportation expenses for the first 50 kilometres. There is no evidence before me that the applicant has sustained a catastrophic impairment as a result of the accident. Further, the applicant failed to address which expenses remained outstanding as the respondent already partially approved the OCF-6 and paid $609.60. While I note that there were several entries in the OCF-6 that were beyond 50 kilometers, the applicant has failed to address whether these remain outstanding.

38Further, on August 2, 2023, the applicant attempted to include an EOB, dated November 14, 2017 with respect to the transportation expenses in dispute as evidence for this hearing. However, I have already determined that this evidence will be excluded from this hearing as the respondent did not have an opportunity to address this in its submissions.

39Accordingly, the applicant has failed to meet his evidentiary onus as he has failed to provide any submissions on why these expenses would be payable within the prevue of s.14(2)(g) of the Schedule.

Interest

40Pursuant to section 46 of the Schedule, interest is payable on the overdue payment of benefits. As such, I find that the applicant is entitled to interest on the OCF-18 for psychological treatment if it was incurred before January 1, 2020.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

41I find that the applicant is not entitled to an award. It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order for an award to be awarded, the respondent's conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.

42Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

43Although, I found the applicant is entitled to the OCF-18 for psychological treatment, I do not find the respondent's reliance on the IE report of Dr. El-Hage to amount to behavior that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I find the applicant is not entitled to an award. I acknowledge that the respondent has an ongoing obligation to assess the claim, however I would like to point out that insurers are not required to seek an IE for every piece of new evidence.

ORDER

44For the reasons set out above, I find that:

i. The applicant is entitled to the OCF-18 for psychological treatment and interest if it was incurred before January 1, 2020;

ii. The applicant is not entitled to the OCF-18 for OT sessions and assistive devices or the OCF-6 or interest on this; and

iii. The applicant is not entitled to an award pursuant to Regulation 664.