Licence Appeal Tribunal File Number: 22-000123/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:
Nimo Ayanlle
Applicant
And
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Zachary Berg, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nimo Ayanlle (the “applicant”) was involved in an automobile accident on July 22, 2016, 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 Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUES
The respondent seeks to exclude evidence filed late by the applicant
2I find the applicant may rely on the section 25 psychological assessment report by Dr. Mohammed El-Saidi (psychiatrist), dated June 1, 2023. As a matter of procedural fairness, the respondent may rely on the psychological Insurer’s Examination (the “IE”) by Dr. Ariel Zielinsky (psychiatrist), dated June 28, 2023.
3On September 8, 2023, the respondent brought a motion to strike Dr. El-Saidi’s report because it was submitted by the applicant on June 29, 2023, which is after the Tribunal-ordered deadline for productions. The respondent says the applicant will not be prejudiced by excluding the report because a psychological report is of little value in assisting the Tribunal to understand treatment plans (the “OCF-18s”) that deal with physical injuries (i.e., OCF-18s for physiotherapy and a chronic pain assessment).
4The applicant’s submissions argue that Dr. El-Saidi’s report is relevant to the issues, will help establish that the applicant’s injuries fall outside the Minor Injury Guideline (the “MIG”), and speaks to the reasonableness and necessity of the disputed OCF-18s. The applicant adds that should the Tribunal not admit Dr. El-Saidi’s report, it should also not admit the respondent’s IE as a matter of procedural fairness.
5I find that Dr. El-Saidi’s report was late-filed with the Tribunal because it was submitted more than 90 days after the case conference, which was the production due date ordered for documents not previously disclosed. However, I disagree this presents prejudice to the respondent because it obtained its own psychological report prior to this matter being heard, and was also able to respond to Dr. El-Saidi’s report in its submissions. While I accept both psychological reports may have limited value in this matter, I prefer to assess the relevance of this evidence myself by admitting the reports to see whether they help me gain a fuller understanding of the issues in dispute, or merit little weight as proposed by the respondent.
ISSUES
6The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?
ii. Is the applicant entitled to physiotherapy treatment in the amount of $3,795.18, proposed by Wanless Rehab and Wellness Centre in an OCF-18 submitted on May 31, 2021, and denied on June 14, 2021?
iii. Is the applicant entitled to a chronic pain assessment in the amount of $2,686.00, proposed by Dr. Dahir Hashi in an OCF-18 submitted on September 24, 2021, and denied on October 1, 2021?
iv. Is the respondent liable to pay an award under section 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?
RESULT
7The applicant remains in the MIG. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for physiotherapy services for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending on June 15, 2021. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for a chronic pain assessment for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending the day of this decision. The respondent is not liable to pay an award.
ANALYSIS
The applicant has not demonstrated she should be removed from the MIG.
8I am not convinced the applicant has met her onus to show removal from the MIG is warranted.
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if she is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
10For this matter, the applicant says she should be removed from the MIG because of chronic pain, psychological injuries, and a pre-existing condition.
The applicant did not sustain chronic pain syndrome or chronic pain with functional impairment as a result of the accident
11I find the applicant has not demonstrated she should be removed from the MIG because of chronic pain syndrome or functional impairment resulting from accident-related chronic pain.
12The Tribunal has consistently held that for chronic pain to be found to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.
13The applicant submits the accident caused her to suffer a complete inability to carry on a normal life, as well as a substantial inability to perform housekeeping and home maintenance. Her submissions point to medical evidence of a variety of strain and sprain-type injuries that caused her to experience chronic pain and resulted in functional impairments. The applicant relies on the clinical notes and records of Dr. Ali Kassim (family physician), Brampton Civic Hospital, and Richvale Medical Centre as well as a chronic pain assessment by Dr. Tajedin Getahun (orthopaedic surgeon), the certificate of disability (the “OCF-3”) completed by Dr. Frempong Elvin (designation not specified), and multiple imaging reports.
14The respondent relies on the IEs of Drs. Jacqueline Auguste (orthopaedic surgeon) and Dr. Pravesh Jugnundan (general practitioner). The respondent argues that the applicant failed to make submissions concerning her removal from the MIG, and that both Drs. Auguste and Jugnundan determined the applicant’s injuries fall within the MIG. The respondent’s submissions also claim there is insufficient contemporaneous evidence to support the applicant’s claims of chronic pain syndrome or functional impairment owing to accident-related chronic pain.
15I will first deal with functional impairment arising from accident-related chronic pain.
16I agree with the respondent’s position that there is a lack of contemporaneous medical evidence to support the applicant’s claims of chronic pain-related functional impairment. The accident happened in July 2016, and the bulk of the medical evidence put forward by the applicant is from March 2018 onwards. I find the IE report of Dr. Auguste presents a persuasive benchmark for the applicant’s function in the first eight months after the accident. Dr. Auguste performed an in-person physical examination of the applicant on March 1, 2017. This examination pertained to all physical injuries noted in the Brampton Civic Hospital report, which was completed the same day as the accident and documented injuries to the applicant’s left shoulder, left humerus, and left elbow. The IE also investigated the injuries listed on the OCF-3 (dated August 9, 2016), which included sprain and strain of the applicant’s cervical spine as well as dislocation sprains and strains of the joints and ligaments in her knee and hip. Pain in the applicant’s chest and shoulder joint, as well as chronic post-traumatic headaches, were also listed on the OCF-3.
17I find Dr. Auguste observed full range of motion in the applicant’s cervical spine, shoulders, knees, and hips, as well as her lumber spine, elbows, wrists, and fingers. Dr. Auguste described her examination of the applicant’s chest as unremarkable. Dr. Auguste concluded there was no evidence of musculoligamentous, osseous, or neurological impairment resulting from the applicant’s accident-related injuries. In my view, this medical evidence does not support the applicant’s claims of functional impairment arising from accident-related chronic pain.
18I am not convinced the two contemporaneous medical imaging tests mentioned in the parties’ submissions are evidence of functional impairment arising from accident-related chronic pain. The first—an ultrasound of the applicant’s left arm that was completed on November 19, 2016—produced an impression of either an inflamed cyst or small hematoma caused by trauma. Dr. Auguste addressed this condition in her IE, describing what appeared to be scar tissue or a small hematoma secondary to the bruising the applicant suffered in this area. The second imaging test was completed that same day and investigated the applicant’s left shoulder. Dr. Auguste’s report confirms an impression of a low-grade partial thickness tear of the applicant’s supraspinatus (rotator cuff), and it is well established that a partial tear falls within the Schedule’s definition of a minor injury.
19While I accept these are accident-related injuries that contributed to the applicant’s pain complaints, I find there is little medical evidence to support ongoing functional impairment arising from this pain, given:
i. the physical examination results documented by Dr. Auguste in March 2017;
ii. the fact that the applicant’s treatment at the Platinum Care Clinic ended several months later in July 2017;
iii. Dr. Elvin’s anticipation that the applicant’s disability should resolve in nine to 12 weeks; and
iv. the applicant’s corroborating report to Dr. Auguste of returning to work two months after the accident—first on modified duties before transitioning to her full duties on a full-time basis—as a housekeeper in a retirement home.
20Turning now to chronic pain syndrome, I am not persuaded by Dr. Getahun’s chronic pain report of May 22, 2022. Dr. Getahun relies on the diagnostic criteria in the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”) to inform his diagnosis. I agree with the applicant’s position in her reply submissions that the Tribunal is not bound by the Guides when making a finding on chronic pain syndrome. However, in this case, I find Dr. Getahun bases his diagnosis entirely on the Guides’ criteria. And while Dr. Getahun indicates the applicant satisfies five of the six criteria, I agree with the respondent’s position that Dr. Getahun does not provide a basis for his findings. The applicant goes on to perform her own analyses of Dr. Getahun’s opinion for each criterion in her reply submissions, but I am not convinced the evidence she points to, is what Dr. Getahun places weight on, when he assesses the applicant as meeting five of the six criteria in the Guides.
21For example, the first criterion deals with prolonged use, abuse, and dependence associated with prescription drugs and substances. The applicant explains she has used ibuprofen (and specifically Advil) longer than recommended, but Dr. Getahun’s report make no mention of Advil in the medications section or otherwise. For the second criterion that deals with excessive dependence on others, the applicant submits that Dr. Jugnundan’s report says the applicant relies on her husband and children to manage basic tasks around the home; however, Dr. Getahun’s report only refers to diagnoses offered by Dr. Jugnundan, and does not comment on the dependency implications of these diagnoses. The applicant says she satisfies the third criterion about pain avoidance associated with physical activity and deconditioning because Dr. Auguste’s March 2017 assessment says her pain and stiffness have resulted in her using her right hand for cleaning tasks. But again, Dr. Getahun’s report does not mention this evidence. I therefore do not accept Dr. Getahun’s chronic pain syndrome diagnosis because he does not substantiate it in his report with medical evidence that persuades me at least three of the six chronic pain criteria in the Guides are met.
22In conclusion, I find the evidence contemporaneous to the accident does not support functional impairment or disability arising from chronic pain. The evidence pointed to by the applicant from March 2018 onwards is preceded by an eight-month period where the applicant does not refer to, or provide medical evidence of ongoing pain, functional impairment, or treatment for such. I find this gap in medical evidence is of sufficient duration to disconnect the applicant’s later (i.e., post-February 2018) complaints of injuries, pain, and impairment from the accident, and does not support pain or functional impairment that has been continuous since the accident. Dr. Getahun’s report does not provide a convincing basis for diagnosing chronic pain syndrome in accordance with Guides’ criteria, which he relies upon exclusively to inform his diagnosis.
23Taken together on balance, I find the evidence here does not meet the applicant’s onus to show chronic pain syndrome or chronic pain with functional impairment arising from accident-related injuries. I am therefore not convinced the applicant should be removed from the MIG on this basis.
The applicant does not have pre-existing conditions that preclude maximal recovery of her accident-related injuries
24I find the applicant has not met her onus to show her accident-related injuries were precluded from maximal recovery by a pre-existing condition.
25The applicant’s submissions point to an imaging test completed on December 21, 2012, that shows osteopenia in her lumber spine and femoral neck, which presents an increased risk of fracture. The applicant also claims pre-existing headaches, chest pain, and neck pain. The respondent’s position is that the applicant reported she had no injuries prior to the accident, and shared no relevant medical history with Dr. Auguste in March 2017.
26While I accept the imaging test produced by the applicant shows osteopenia that pre-existed the accident, I am not convinced this condition precludes maximal recovery from her accident-related injuries. This is because the applicant did not point to a medical opinion that indicates osteopenia precludes her accident-related injuries from maximal recovery under the MIG, which is the requirement for removal under section 18(2) of the Schedule. Further, I was not pointed to evidence that any of the applicant’s accident-related injuries involved fractures owing to osteopenia. I do not agree that headaches, chest pain, or neck pain pre-existed the accident because the applicant did not point me to this evidence in her submissions.
27In her reply submissions, the applicant speaks to a pre-existing degenerative condition referenced in the respondent’s submissions that was asymptomatic (i.e., stable) prior to the accident, but became symptomatic after the accident. However, the applicant did not indicate whether this condition was the osteopenia she referenced in her initial submissions, or a different condition altogether. The applicant did not point to this condition in evidence and referenced only the respondent’s submissions. Further, the applicant did not point to medical evidence that showed this condition was aggravated by the accident, or a medical opinion that this condition precludes maximal recovery of the applicant’s accident-related injuries.
28Taken together on balance, I find this evidence falls short of the applicant’s onus to prove a pre-existing condition should take her out of the MIG.
The applicant did not sustain a psychological impairment as a result of the accident
29I am not convinced the applicant sustained a psychological impairment resulting from the accident.
30The applicant’s submissions say she was diagnosed with major depressive disorder, post-traumatic stress disorder, and somatic symptom disorder arising from the accident. Her reply submissions reiterate that the OCF-3, an April 2018 clinical note in Dr. Kassim’s records, and Dr. Getahun’s report, all provide evidence of psychological symptoms. The applicant also relies on Dr. El-Saidi’s report of June 1, 2023.
31The respondent says that prior to Dr. El-Saidi’s assessment, the applicant did not reference any complaints of accident-related psychological issues in the nearly seven years that have passed since the accident. The respondent relies on the IE performed by Dr. Zielinsky on June 15, 2023, which found no evidence of psychological impairment.
32I find that the diagnoses offered by Dr. El-Saidi are not supported by sufficient contemporaneous evidence of psychological impairment, and that Dr. Zielinsky’s findings are better supported by the bulk of the evidence in this case. The applicant points to only two occasions where she claims to have reported psychological symptoms—one in 2017 and the other in 2018. But the applicant’s submissions do not specify what these symptoms are, and I am not pointed to where Dr. El-Saidi may have considered these symptoms in his report. In fact, I see no indication in Dr. El-Saidi’s report that he conducted a file review of previous medical documents, and the applicant does not point to any previous referrals made for psychological assessment or treatment by her assessors or providers contemporaneous to the accident.
33I disagree that Dr. Getahun’s May 2022 report indicates the applicant suffers from anxiety. Rather, the applicant reports no history of psychological diagnoses and Dr. Getahun does not attribute the development of psychosocial sequelae—such as anxiety, fear, avoidance, depression, and non-organic illness behaviours—to the applicant. I prefer Dr. Zielinsky’s report because, unlike Dr. El-Saidi, it is evident he conducted a file review in addition to performing psychometric testing.
34On balance, I find the applicant did not sustain a psychological impairment arising from the accident and do not agree she should be removed from the MIG for this reason.
OCF-18 for physiotherapy treatment in the amount of $3,795.18
The respondent failed to meet its obligations under section 38(8) of the Schedule
35I find the respondent did not give the applicant notice of its decision on the disputed OCF-18 for physiotherapy services within 10 business days of receipt as required by the Schedule.
36Section 38(8) of the Schedule says that within 10 business days after it receives an OCF-18, the insurer shall give the insured person a notice that conveys whether or not it is approving the OCF-18. The consequences of failing to provide the notice within the prescribed period is made out in section 38(11), which provides that the insurer is prohibited from relying on the MIG and shall pay all the goods, services, assessments, and examinations described in the OCF-18 that were incurred during the period of non-compliance.
37The applicant contends she submitted the OCF-18 at issue on May 31, 2021, and that the deadline for response was therefore June 14, 2021. She adds that the respondent has never provided a fax confirmation for its June 14, 2021, denial letter.
38The respondent argues that it provided notice to the applicant’s counsel via email on June 14, 2021, and that the notice was also mailed to the applicant that same day. The respondent submits that applicant’s counsel consented to receiving the notice via email, and relies on section 64(1) of the Schedule, which states a required notice can be sent via electronic means.
39I am satisfied that notice was due to the applicant on June 14, 2021, and that the respondent failed to do so. Section 38(8) of the Schedule specifies that notice is due to the insured person. The Schedule’s definition of an insured person does not include counsel. I find the notice provided to the applicant was done via ordinary mail as the respondent did not indicate it was sent via registered mail or provide evidence of such. Section 64(18) of the Schedule provides that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. This means notice occurred on June 22, 2021, which is outside the 10-day period established at section 38(8).
40Accordingly, per section 38(11) of the Schedule, I find the respondent cannot rely on its position that the MIG applies to this OCF-18, and shall pay for all goods, services, assessments, and examinations described in the OCF-18—plus interest on any overdue benefits pursuant to section 51 of the Schedule—that were incurred from the 11th business day after the day the insurer received the application up to and including June 22, 2021, which is the day the insurer is deemed under section 64(18) of the Schedule to have provided notice that complies with section 38(8).
OCF-18 for a chronic pain assessment in the amount of $2,686.00
The respondent’s notice of October 1, 2021, does not comply with section 38(8) of the Schedule
41I find the medical reasons provided in the respondent’s notice (dated October 1, 2023) that pertain to the disputed OCF-18 for a chronic pain assessment are insufficient.
42The requirements for the respondent’s notice are found at section 38(8) of the Schedule.
43Section 38(8) of the Schedule says if an insurer does not agree to pay for any items proposed in an OCF-18, it must provide a notice to the insured person that conveys the medical reasons and all the other reasons for denying all or part of the OCF-18. The consequences of failing to provide these reasons is made out in section 38(11), which provides that the insurer is prohibited from relying on the MIG and shall pay all the goods, services, assessments, and examinations described in the OCF-18 that were incurred during the period of non-compliance.
44The applicant says the respondent’s notice of October 1, 2021, fails to provide medical reasons and any other reasons for its denial decision. The applicant explains that the rationale offered by the respondent should be clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the decision, and that the reasons provided by the respondent fall short of this standard. The applicant describes the respondent’s notice as broad and ambiguous without reference to medical records, the identity of the assessor, or specific details of the applicant’s medical condition.
45The respondent argues that the notice indicates the OCF-18 was denied because Dr. Auguste completed an IE and concluded the applicant’s injuries were minor in nature and had reached maximal medical improvement. The respondent contends these are, in fact, specific details about the applicant’s medical condition that formed the basis of denial, and that an unsophisticated person would understand that treatment was denied because the doctor performed an assessment and found that maximal recovery had been achieved.
46I agree with the applicant’s position here. It is well-settled that the insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. According to Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), the refusal to pay the benefit must contain straightforward and clear language directed towards an unsophisticated person and must provide valid or other reasons for the denial. Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what the reasons mean when read by an unsophisticated person.
47In my view, this means the respondent’s notice, at the very least, should explain what the insured person’s medical conditions are and why for example, those conditions do not justify removal from the MIG. An individual might not understand why their medical conditions are considered to be minor or at maximal medical improvement if they are not provided with more context. By providing this information, the insured person will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.
48I am not convinced the respondent’s reasons are meaningful in this context. The OCF-18 lists physical injuries consisting of sprain and strains to the applicant’s cervical spine, knee, hip, and shoulder joint, as well as low back and chest pain, and chronic post-traumatic headache. None of these conditions are documented in the notice. While the insurer points to an IE examination completed by Dr. Auguste—along with all the medical reports received to date—I find the notice does not explain why Dr. Auguste deemed the applicant’s injuries to be minor in nature, or why she believed they had reached maximum medical improvement. The notice does not give an overview of what information in the unspecified medical reports it relies on to support its decision. The notice indicates that the treating practitioner’s medical opinion weighed on the respondent’s decision to deny the OCF-18, but does not identify who this person is, specify the medical opinion, or indicate which of all the medical reports received to date contain this information. In my view, this reasoning is not consistent with the principles established in Smith.
49Further, I find this deficiency is not remedied in the respondent’s subsequent notice of October 4, 2021, which provides the same medical reasons in its previous notice for requiring an IE under section 44 of the Schedule.
50The third and final denial notice pertaining to this OCF-18 that is disputed by the applicant is dated November 17, 2021. It invites the applicant to review the IE report (provided with the notice) by Dr. Jugnundan, who, upon performing an IE and reviewing the OCF-18, determined a chronic pain assessment was not reasonable and necessary for the injuries sustained in the accident. I find this notice, like the first two, falls short of providing meaningful reasons in the context of Smith. The notice does not explain why Dr. Jugnundan disagreed the OCF-18 is reasonable and necessary. In my view, providing the IE report with the notice does not satisfy the respondent’s obligation to provide meaningful reasons in its notice if it does not point to the relevant aspects of the supporting documentation it relies on.
51Taken together on balance, I find this evidence demonstrates the respondent’s notice is deficient and does not comply with section 38(8) of the Schedule. Accordingly, the respondent may not rely on the MIG and shall pay all the incurred goods, services, assessments, and examinations described in the OCF-18—plus interest on any overdue benefits pursuant to section 51 of the Schedule—starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice that complies with the requirements set out in section 38(8). As of the date of this decision, I have not been pointed to evidence of a compliant notice for this OCF-18.
52As I have determined that the respondent provided deficient medical reasons in each of the three notices at issue in this dispute, it is not necessary to address the applicant’s submissions concerning section 38(9) of the Schedule as it applies to the notice dated November 17, 2021.
Award
53I find the respondent is not liable to pay an award.
54The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
55The applicant submits that the burden of proof for entitlement to an award can be discharged through the Tribunal’s analysis of the totality of medical and other evidence concerning the applicant’s medical conditions, ongoing pain, psychological impairments, and the need for medical rehabilitation benefits. The applicant adds that the respondent disregarded this evidence for years, and that this—in concert with the respondent’s multiple failed attempts to remedy deficit notices—amounts to unreasonably withholding or delaying payment of the OCF-18s in dispute.
56The respondent argues that the applicant makes no coherent argument as to award entitlement, and mischaracterizes delayed responses and deficient notices as amounting to unreasonably withheld or delayed payments.
57In her reply submission, the applicant asserts the respondent did not produce the adjuster log notes in compliance with the Tribunal’s order, and that its reliance on select excerpts of these notes indicates it chose not to comply.
58While I agree that certain of the respondent’s notices failed to comply with the Schedule as indicated earlier in this decision, I find this does not amount to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate when taken in context. Further, the respondent conducted multiple IEs to re-evaluate the applicant’s medical status under the MIG during the claim, which I find does not support her claim that the respondent disregarded the medical evidence provided by the applicant. I do not place weight on the applicant’s disclosure arguments that pertain to the adjuster log notes because she did not point me to evidence that proves the respondent’s disclosures did not comply with the Tribunal’s orders. On the contrary, the respondent’s sur-reply pointed to evidence that showed adjuster log notes up to November 14, 2022, were disclosed as ordered by the Tribunal. Further, I was not pointed to evidence that the applicant previously filed a motion to remedy its concerns about the respondent’s log note disclosure, which underscores why I afford the applicant’s submissions little weight.
59On balance, I am not satisfied the applicant has shown that payment of the disputed OCF-18s was unreasonably delayed or withheld.
COSTS
60I find the applicant is not entitled to costs.
61The respondent filed a motion, dated September 8, 2023, to exclude evidence filed late by the applicant. I addressed this motion earlier in my decision as a procedural issue. The applicant’s response to this motion seeks an order for the costs incurred to produce her response. The respondent did not reply to the applicant’s request for costs.
62I decline to award costs to the applicant in this case. Rule 19.3 of the Licence Appeal Tribunal Rules (the “Rules”) specifies a submission on costs shall set out the amount being requested. This was not done. Rule 19.4 specifies that a submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith. The applicant failed to do this as well. As such, I see no basis on which to conclude the applicant should be awarded costs.
ORDER
63The applicant remains in the MIG. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for physiotherapy services for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending on June 15, 2021. The applicant is entitled to costs incurred, plus interest, on the OCF-18 for a chronic pain assessment for the period starting on the 11th business day after the day the insurer received the OCF-18 and ending the day of this decision. The respondent is not liable to pay an award. The applicant is not entitled to costs.
Released: February 15, 2024
Michael Beauchesne
Adjudicator