Licence Appeal Tribunal File Number: 21-013480/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Roberto Reyes
Applicant
and
The Co-Operators Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Adam O'Brodovich, Counsel
For the Respondent:
Jason Goodman, Counsel
Court Reporter:
Michelle Gordon
Interpreter (Tagalog language):
Mary Ann San Juan
HEARD: by Videoconference:
May 1-2, 2023
OVERVIEW
1Roberto Reyes, the applicant, was involved in an automobile accident on June 19, 2020, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY MATTER
2The respondent submitted a Notice of Motion, dated April 26, 2023. The motion sought an order precluding the applicant from calling any witnesses to give evidence at the hearing, owing to a lack of compliance with the deadlines specified in the case conference report and order on this matter (released November 30, 2022), and a lack of compliance with Rule 10 of the Tribunal’s Common Rules of Practice and Procedure (October 2, 2017) (the “Rules”). The respondent also requested an order precluding the applicant from relying on any document not served in accordance with the production deadlines specified in the case conference report and order.
3The applicant did not provide a written submission or evidence on the respondent’s motion prior to the hearing.
4At the start of the hearing, the parties mutually resolved the witness aspect of the motion by narrowing the issues in dispute and consenting to a change in hearing format. The parties agreed that they would make oral submissions by videoconference and that the documents filed by the parties in accordance with the case conference order would be entered into evidence on consent. Rule 12 permits the Tribunal to hold, among other things, a combination of a written hearing and a videoconference hearing, and I ordered a change of format to that agreed to by the parties given their consent and the uncomplicated nature of the issues in dispute. As part of this arrangement, the applicant withdrew issues no. 2, 4(i) and (v), 5(i), (ii), and (iv), 6, 7, and 8 as listed in the case conference report and order.
5Pertaining to the production issue, I provided consent for the applicant to rely on the evidence he submitted—which was not in compliance with the case conference order—and reserved a finding on the weight I would afford this evidence. My reasons for this follow.
6At the case conference, held on October 21, 2022, the parties were ordered to exchange the documents and authorities they intended to rely on at least 30 calendar days prior to the hearing. The applicant provided the respondent with its documents brief five days before the hearing, on April 26, 2023, contrary to the Tribunal's order.
7However, I do not agree with the respondent’s claim that the applicant’s late submission fails to give counsel “the appropriate time to meet the case being presented.” This is because the respondent failed to show me how allowing the applicant to rely on his evidence would cause prejudice.
8Although the applicant's documents brief was 1,988 pages, I was not advised which of these documents were already in the possession of the respondent and which, if any, had never been produced before. If the respondent wishes to allege that it was prejudiced by the late disclosure, then this is information that is necessary in order to make that finding. I do not accept the respondent's allegation that it has been prejudiced based only on the finding that the disclosure was late.
9Without any clear evidence of harm to the respondent’s case caused by the lateness of the applicant’s disclosures, and without being able to assess the relevance of the evidence to the applicant’s appeal without having it put before me, I find it proper to give the applicant consent to rely on its evidence.
10That said, I agree the parties need to exercise diligence and comply with the orders of the Tribunal. I also considered that, during the applicant’s hearing submission, it was possible evidence may be presented by the applicant that is indeed news to the respondent and might prejudice its defence of the applicant’s claim. As such, I left it open to the parties to provide submissions on weight should the respondent claim that any specific evidence introduced by the applicant was prejudicial.
PRELIMINARY ISSUE
11The respondent claims the applicant is excluded from receiving an income replacement benefit (the “IRB”) per Section 31(1)(a)(i) of the Schedule. This Section provides that the respondent is not required to pay an IRB to a person who was the driver of an automobile at the time of the accident, if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy.
The insurer is not required to pay an IRB per Section 31(1)(a)(i) of the Schedule
12Neither party disputes the applicant’s Ducati motorcycle meets the definition of automobile in this context, nor that this motorcycle was the automobile involved in the accident that gives rise to the applicant’s claim, nor that the applicant was operating it at the time of the accident. As such, the dispute here is very narrow and only pertains to whether the applicant knew—or ought reasonably to have known—that he was operating his motorcycle without insurance. I find that he did, and that he is therefore excluded from receiving an IRB pursuant to Section 31(1)(a)(i) of the Schedule.
13The respondent relies on several Statutory Conditions (the “SC”) at O. Reg. 777/93 for the period September 1, 2020, to October 13, 2021 (the “Regulation”) under the Insurance Act to meet its burden of proof. I have addressed these below.
Termination of the insurance contract was effective June 16, 2020
14The first is SC 11 (1.1) of the Regulation, which says “if an insurer gives a notice of termination (by registered mail or personal delivery) for a reason other than non-payment of the whole or any part of the premium due … the notice of termination shall terminate the contract no earlier than, the 15th day after the insurer gives the notice … by registered mail.”
15For the reasons below, I find the respondent terminated the applicant’s insurance contract effective June 16, 2020.
16The respondent submitted into evidence, a termination letter (dated May 29, 2020), which was sent by registered mail to the applicant. The letter states the respondent was unable to provide insurance coverage, and that the policy would become invalid with 15 days. The respondent also presented in evidence, a letter from Canada Post (dated April 13, 2023) that confirms the respondent’s termination letter was delivered on June 4, 2020. The postal communication identifies the same tracking number that appears on the respondent’s registered mail, and the applicant did not dispute the termination letter was, in fact, delivered. I therefore accept the termination letter was delivered to the applicant as indicated by Canada Post.
17The applicant maintains his policy was cancelled due to lack of payment, but I do not accept this is the case. This is because the respondent’s termination letter indicates notice was due to several “risk selection” factors—including unreceived endorsements and failure to provide a signed application—that did not include non-payment of premium.
18Although I accept the applicant’s evidence in the Examination Under Oath (the “EUO”) transcript—which indicates he recalls his girlfriend had a conversation about non-sufficient funds on the day the termination notice was mailed—I am not satisfied that non-payment of the whole or part of any premium due on his motorcycle policy contributed in any way to the termination of that contract. The conversation, as I interpret from the evidence, was with the insurance broker used by the applicant’s girlfriend, not the respondent. Further, as earlier mentioned, the respondent’s termination letter mentions nothing about payment issues as a contributing reason for termination. This leads me to conclude that payment issues were discussed only with the broker and had nothing to do with the respondent at the time the decision was taken to terminate the applicant’s policy.
19The respondent also points to SC 11(5) of the Regulation, which says,” … the day on which the insurer gives the notice by registered mail shall be deemed to be the day after the day of mailing.”
20The evidence indicates the notice letter was mailed on May 29, 2020. Given that this was a Friday—and taking notice that letters are generally not circulated on weekends—the letter would therefore be deemed given on the following Monday, which was June 1, 2020. As such, the applicant’s policy became invalid at 12:01 on June 16, 2020—three days before the accident. The applicant did not challenge this timeline in his submission.
Written notice provided to the applicant
21As well, the respondent relies on SC 12 of the Regulation, which says: “… written notice may be given to the (applicant) named in this contract … by registered mail addressed to the insured at the insured’s latest post office address as notified to the insurer.”
22I find the respondent has shown compliance with SC 12 of the Regulation. I note the address on the respondent’s termination letter is the same address the applicant confirmed he was living at when the accident occurred—and that he had lived at for the past decade—during his EUO. The respondent also produced an application for accident benefits (the “OCF-1”) that indicates the applicant continued to report living at the same address after the accident until at least July 27, 2020.
23I do not consider it important that the applicant’s EUO reported he was staying with his girlfriend at a different address for visits of short duration at the time of the accident. This is because I saw no evidence that the applicant changed his post office address—and alerted the respondent—to that of his girlfriend’s residence prior to the accident. Therefore, I find the address used by the respondent to send its termination letter remained valid up to the accident.
Is the test subjective or objective?
24To assess whether the applicant ought to have reasonably known he was uninsured at the time of the accident, the applicant argued that “what matters is what the applicant understood the coverage to be” (i.e., a subjective test). The applicant relied on Darrin Vaillancourt v. Intact Insurance Company, (2021) CanLII 104550 (ON LAT) to support his position.
25The respondent argued that a contextually objective test was required, and relied on the reconsideration that overturned the Vaillancourt decision, which is Darrin Vaillancourt v. Intact Insurance Company, (2022) CanLII 78848 (ONLAT).
26The Tribunal’s reconsideration decision found that the test is not subjective as the applicant argues, but is an objective one. The Tribunal held, and I agree, that the decision-maker must assess what an ordinary rational person, of the age, and background of the applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage on the motorcycle.
27The respondent submits that the applicant:
“… as a grown, literate adult, who has lived in Ontario for decades prior to this accident and who held a valid Ontario driver’s licence at the time of the June 19, 2020 accident, and by his own admission drove an automobile regularly before the accident, knew or ought to have know that he required automobile insurance in order to legally operate a vehicle on public highways in Ontario.”
The applicant was aged 50 years at the time of the accident, so I accept he was a grown adult. I also accept the applicant is a literate (i.e., learned) individual because, by his own report, he is a post-secondary graduate who studied science and nursing in his birth country. In terms of his background, the applicant reports emigrating from his home country to Canada in 1995; obtaining citizenship in 2000; and living in Ontario for at least 14 years up to the time of the accident. Further, he is a licensed driver in the province of Ontario who claims to have driven “regularly” before the accident, which I interpret to mean he has previous driving experience.
28The applicant raised the issue of a language barrier as a contextually objective factor I should consider. However, I was not provided with sufficient evidence to convince me the applicant’s ability to read English was so limited that he needed to rely on others to interpret his mail for him. Further, the applicant’s main argument is that he did not receive the letter, and this causes me to discount the importance attached to the applicant’s ability to read the letter.
29In fact, the applicant argues he was unaware of the respondent’s termination letter up to the time of the accident, and that this is why he did not know his motorcycle was uninsured the day of the accident. The applicant explained, in the EUO, that he does not check the mail sent to him, and that it is common practice for his sister to retrieve and give him the mail that comes to him at his address. The applicant generally agreed his sister is likely to ensure he gets his mail. However, the applicant could not specifically recall his sister giving him the respondent’s termination letter, and added that his girlfriend makes all the insurance arrangements.
30I accept the applicant did not know he was uninsured at the time of his accident because he did not see the respondent’s termination letter prior to the accident. However, the applicant still ought reasonably to have known his insurance was invalid because the respondent complied with all legal requirements to advise him of such. The respondent’s termination notice was complete—though the applicant claims to have never received, read, or even heard of it prior to the accident—once the registered letter arrived at the post office. That the applicant puts the onus on his sister to give him his mail—and that he does not recall getting the respondent’s termination letter from her—does not convince me otherwise because the risk of this arrangement (i.e., how the applicant gets his mail once it is delivered) falls solely on the applicant. An otherwise valid notice of cancellation does not become invalid simply because the applicant chooses not to take ownership of checking his own mail.
31I therefore find the respondent has proven, on a balance of probabilities, that the applicant ought reasonably to have known he was operating his motorcycle while it was not insured under a motor vehicle liability policy. As such, the respondent is not required to pay an IRB per Section 31(1)(a)(i) of the Schedule, and it is therefore unnecessary to determine the applicant’s entitlement to same on the merits.
ISSUES
32The issues in dispute are:
i. Is the applicant entitled to the assessments proposed by Toronto Healthcare Inc., as follows:
a) $720.28 ($1,506.16 less $785.88 approved) for assistive devices, in a treatment plan dated September 1, 2020;
b) $1,080.00 ($3,168.80 less $2,088.80 approved) for physiotherapy services, in a treatment plan dated October 13, 2020;
c) $2,200.00 for a psychological assessment, in a treatment plan dated October 22, 2020;
d) $477.92 ($627.92 less $150.00 approved) in a treatment plan dated February 18, 2021;
e) $1,753.12 ($3,734.82 less $1,981.70 approved) in a treatment plan dated February 26, 2021;
f) $1,398.72 for a driving rehabilitation assessment, in a treatment plan dated February 26, 2021;
g) $4,809.72 for goods and services, in a treatment plan dated March 2, 2021;
h) $2,413.51 for physiotherapy services, in a treatment plan dated April 22, 2021;
i) $2,000.00 for goods and services, in a treatment plan dated May 18, 2021;
j) $2,028.27 for physiotherapy services, in a treatment plan dated July 14, 2021;
k) $2,000.00 for shockwave therapy, in a treatment plan submitted on July 21, 2021; and
l) $1,754.18 for physiotherapy services, in a treatment plan dated September 8, 2021?
ii. Is the applicant entitled to assistive devices in the amount of $564.01, proposed by Innovative OT Services in a treatment plan dated December 14, 2020?
RESULT
33The applicant is not entitled to any of the disputed medical benefits.
ANALYSIS
The treatment plans are not reasonable and necessary
34I find the disputed treatment plans are not reasonable or necessary for the reasons that follow.
35Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment because of an accident, and the medical benefit is a reasonable and necessary expense incurred by the applicant because of the accident.
36The applicant bears the onus to demonstrate that each treatment plan in dispute is reasonable and necessary. The reasonableness and necessity of treatment must be held to an established standard which requires:
i. The treatment goals as identified must be reasonable;
ii. The treatment goals can be met to a reasonable degree; and
iii. The overall costs of achieving those goals are reasonable.
37In general, the applicant’s submissions on the disputed treatment plans lacked detail. The applicant provided little information about the plans themselves, and failed to pinpoint sufficient medical evidence to meet his burden of proof. Specifically, the applicant did not adequately address the reasonableness of the treatment goals, how the applicant’s progress on these goals would be measured, or provide a rationale for the cost of most of the plans.
Assistive devices: remaining balance of $720.28
38This is a treatment plan recommended by Dr. Domenic Minnella (chiropractor) on September 1, 2020. The applicant did not convince me that this treatment plan is reasonable and necessary. The applicant’s submission failed to speak to treatment goals or provide sufficient evidence of how the assistive devices will meet these goals. There was no submission on the reasonableness of the costs. In fact, the applicant argued only that the respondent denied certain items—a cervical pillow, walker, wheelchair, bath bench and shower head—because more documents were needed, and that the physiatrist and occupational therapy reports justified these items. I was not pointed to any specific evidence in these reports to consider.
Physiotherapy: remaining balance of $1,080.00
39This is a treatment plan recommended by Dr. Minnella on October 13, 2020. The applicant failed to prove this treatment plan is reasonable and necessary. The applicant’s submission broadly referenced two Insurer’s Examination reports to refute the respondent’s position that the medical evidence does not mention back pain. However, the applicant did not pinpoint the evidence he relies on in these reports to prove back pain because of the accident, and he did not supply sufficient evidence to show the treatment recommended in this plan was needed to address back pain. Further, the applicant made no mention of the treatment goals, performance measures, or cost rationale.
Psychological assessment: cost $2,200.00
40This is a treatment plan proposed by Dr. Jacqueline Brunshaw (psychologist) on October 22, 2020. The applicant failed to prove this treatment plan is reasonable and necessary. The applicant argued there was no evidence that a comprehensive psychological assessment had been done despite a contrary finding made by Dr. Helene Mik (psychiatrist) in an Insurer’s Examination report dated July 29, 2021. This rationale is insufficient to prove the reasonableness and necessity of the proposed treatment plan for psychological assessment. The applicant did not provide any evidence-supported submissions on the plan’s goals, progress monitoring or costs for me to consider. Further, the applicant did not point me to any evidence of psychological impairments resulting from the accident.
Medical benefit: remaining balance $477.92
41This is a treatment plan put forward by Dr. Minnella on February 18, 2021. The applicant failed to prove this treatment plan is reasonable and necessary because he did not specify what type of treatment plan this is, the accident-related injuries or impairments it addressed, or make any reference to its goals or progress measures. In fact, the applicant submitted only that the disputed cost constituted the difference between what the respondent believed was reasonable to pay and the actual amount billed. The applicant did not offer a submission on the reasonableness of the billed cost.
Medical benefit: remaining balance $1,753.12
42This is a treatment plan recommended by Dr. Brunshaw on February 26, 2020. The applicant failed to persuade me as to its reasonableness and necessity because he submitted only that the respondent lowered the amount paid from the billed rate. No submission was made by the applicant on what the treatment plan is for, the reasonableness of the billed rate, and, again, I was not pointed to any evidence concerning the reasonableness of the plan’s goals or performance measures.
Driving assessment: cost $1,398.12
43This is a treatment plan recommended by Dr. Brunshaw on February 26, 2021. The applicant’s submission offered only a clarification that the plan was a driving assessment with a qualified examiner and not a treatment as interpreted by Dr. Mik. No submission was made on the reasonableness of the treatment plan goals, performance measures or cost. The applicant did not provide a sufficient rationale for why a driving assessment was needed. As such, I was not convinced this treatment plan was reasonable and necessary.
Bone growth stimulator: cost $4,809.72
44This is a treatment plan recommended by Dr. Oleg Livshin on March 2, 2021. The applicant explained that a bone growth stimulator was a safe, non-surgical treatment prescribed to help closed fractures, and that its purpose is to improve healing and prevent disability. This is consistent with the treatment plan in evidence.
45The applicant also noted the respondent’s medical examiners failed to offer an opinion on this treatment plan and did not address it as part of their reports. The respondent was silent on the assessment of this treatment plan by its examiners, but noted no medical records or imaging had been produced to show complications in the applicant’s ankle fracture that merited a bone growth stimulator.
46I find the applicant failed to produce sufficient medical evidence of an ongoing ankle injury and limitations caused by the accident. The applicant’s submission did not point me to medical evidence that convinced me his fracture had not healed and was posing functional limitations that required stimulation of bone growth. In fact, the respondent pointed me to the EUO, where the applicant testified that by 2022, he was able to physically go out to a store, whereas this was not possible in 2021. To me, this evidence is more consistent with healing and functional improvement than disability, and diminishes the necessity of a bone growth stimulator to achieve the goals of the treatment plan. Further, the applicant did not make a submission on the reasonableness of the progress measures, or the cost of the plan. I therefore find the applicant’s evidence is insufficient for me to conclude that Dr. Livshin’s proposed treatment plan is reasonable and necessary.
Physiotherapy: cost $2,413.51
47This is a treatment plan recommended by Dr. Minnella on April 22, 2021. The applicant failed to show this plan is reasonable and necessary because he made no submissions on the reasonableness of the plan’s goals, progress measures or cost. In fact, the applicant simply provided a reference point for the treatment plan in his evidence brief.
Medical benefit: cost $2,000.00
48This is a treatment plan proposed by Dr. Dimitri Louvish (physician) on May 22, 2021. The applicant did not specify what this treatment plan was for. The applicant did not address the reasonableness of the treatment plan’s goals. The applicant made no submissions on whether the plan’s progress measures, or costs, were reasonable. In fact, when addressing this treatment plan, the applicant mentioned only that a full recovery from his injuries had not been achieved, and based this opinion on consistent complaints of pain as well as the support of “Dr. Ghotbi” for further treatment. I was not pointed to evidence of the pain complaints and treatment support cited by the applicant. There was no medical basis offered for Dr. Ghotbi’s opinion. In my view, the applicant’s submission is too limited—and unsubstantiated—to establish the reasonableness and necessity of this treatment plan.
Physiotherapy: cost $2,028.27
49This treatment plan was recommended by Dr. Minnella on July 14, 2021. The applicant submitted this plan was reasonable and necessary because Dr. Ghotbi said treatment was required for “various injuries” the same month that Dr. Minnella proposed the plan. However, the applicant failed to point me to Dr. Ghotbi’s evidence on this matter, and made no submissions on the plan’s goals, measures, or costs. I have no basis to conclude the injuries referenced by Dr. Ghotbi are relevant to the treatment proposed in this plan. I therefore cannot conclude this plan is reasonable and necessary because the applicant did not provide sufficient evidence to convince me of such.
Shockwave therapy: cost $2,000.00
50This treatment plan was put forward by Dr. Minnella on July 21, 2021. The applicant failed to prove this treatment plan is reasonable and necessary. The applicant’s submission claimed the applicant has chronic pain issues, and that shockwave therapy was proposed as a non-invasive way to assist with soft tissue pain and heal injured tendons and ligaments in chronic pain cases. However, the applicant did not pinpoint the brief location of the evidence he relied on to substantiate his claim, or otherwise produce medical records to prove this therapy would benefit his injuries. Further, the applicant made no mention of the treatment goals, performance measures, or cost rationale.
Physiotherapy: cost $1,754.18
51This treatment plan was recommended by Dr. Minnella on September 8, 2021. The applicant failed to prove this treatment plan is reasonable and necessary because he did not address the reasonableness of the plan’s goals, progress measures or costs. In fact, the applicant’s submission was that 12 more weeks of further treatment was needed. This submission is inadequate and provided no medical evidence to support the need for further physiotherapy treatment to address his accident-related injuries.
Assistive devices: cost: $564.01
52This treatment plan was proposed by Lori Canes (occupational therapist) on December 14, 2020. The applicant submitted that surveillance evidence shows he needs a wheelchair. This submission is not sufficient to establish the reasonableness and necessity of this treatment plan. The location of the surveillance evidence relied upon by the applicant was not pinpointed in the evidence brief. There was no mention of the plan’s goals, or how the effectiveness of the wheelchair would be monitored. I have no basis to establish the reasonableness of the proposed cost. As such, I cannot conclude this treatment plan is reasonable and necessary.
ORDER
53I find the applicant is not entitled to any of the disputed medical benefits.
Released: September 18, 2023
Michael Beauchesne
Adjudicator