Zegas v. Aviva Insurance Company of Canada, 2024 CanLII 108241

Zegas v. Aviva Insurance Company of Canada, 2024 CanLII 108241

Citation: Zegas v. Aviva Insurance Company of Canada, 2024 ONLAT 22-004942/AABS

Licence Appeal Tribunal File Number: 22-004942/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:

Maria Zegas

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Nicole Walker, Counsel

For the Respondent:

Aleah Thomas, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Maria Zegas (the “applicant”), was involved in an automobile accident on August 6, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by 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.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to chronic pain program services in the amount of $9,024.34, proposed by Prime Healthcare Inc., in a treatment plan (“OCF-18”) dated May 16, 2021?

ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to the OCF-18, interest, or an award.

PROCEDURAL ISSUE

The parties request relief owing to late disclosures and submissions

4The respondent seeks relief for discloses that were provided by the applicant outside the due dates specified in the case conference report and order (“CCRO”) for this matter. In return, the applicant seeks relief for written submissions she says the respondent filed after the due date specified in the CCRO. I find the respondent did not properly put its request to exclude evidence before the Tribunal. I further find the applicant failed to demonstrate that striking the respondent’s submissions is a proportional remedy for missing its filing deadline, or that I should assign weight to the respondent’s non-compliance when considering her award claim.

5The Licence Appeal Tribunal Rules (“Rules”), at Rule 15.5, requires the Tribunal to apply the whole of Rule 15 to any motion filed with the Tribunal after August 21, 2023. Rule 15.1 compels a party bringing a motion to file a notice on the prescribed form and serve that notice on the other party.

6The respondent requests that the clinical notes and records of Baycrest Hospital be excluded, as well as any submissions made by the applicant that rely on this evidence. The respondent submits the applicant did not provide these records in accordance with the deadlines established by the Tribunal on February 18, 2023. The respondent alludes to “trial by ambush” and says these records were served nearly three and a half months after the deadline, which was 80 days from the case conference held on January 18, 2023. The respondent seeks relief under Rule 9.4 and relies on 18-002569 v. Aviva Insurance Canada, 2019 CanLII 22214 ON LAT (”Aviva”) to show the Tribunal may exclude late-served evidence without the other party having to demonstrate prejudice.

7The applicant agrees that the Baycrest evidence was served late on July 20, 2023, but argues the disclosure was nevertheless served as soon as practicable (i.e., the same day the applicant obtained these clinical notes and records). The applicant explains that the respondent was made aware of these records at the case conference, and that she acted prudently to obtain them. The applicant adds that despite the lateness of the Baycrest evidence, the respondent still had two months prior to its deadline submission to consider the evidence and did not request an adjournment to afford itself more time to review and respond to this material. The applicant relies on H.O. v Aviva Insurance Company of Canada, 2020 CanLII 42669 ON LAT (“H.O.”) to show that the time the respondent was afforded to review the Baycrest records does not amount to “trial by ambush” as proposed by the respondent.

8The applicant’s reply goes on to indicate that the respondent’s submissions were also late, leaving the applicant only three days to prepare her reply. The applicant requests the Tribunal not consider the respondent’s submissions, or alternatively consider the lateness of the submissions as evidence that supports her award claim.

9I find the respondent did not comply with Rule 15, which it is required to do because, in my view, its request constitutes a motion that was filed after August 21, 2023. The respondent opted to advance its motion as part of its written submissions instead of properly filing a notice on the prescribed form and serving that notice on the other party. Given that the respondent was served with the late evidence that forms the thrust of its grievance about two months prior to the scheduled written hearing date, I am satisfied there was ample time to comply with Rule 15, which the respondent did not do. Therefore, I decline to consider the respondent’s request.

10I allow the respondent to rely on its entire submissions. While I accept they were filed late, the applicant failed to persuade me that striking the respondent’s submission is a proportional remedy. For example, the applicant did not request or require additional time to prepare her reply in light of the respondent’s non-compliance, nor did the applicant demonstrate that her own reply suffered owing to reduced preparation time. I further decline the applicant’s alternate remedy because she failed to persuade me that a nexus exists between a late submission and an award for unreasonably withheld or delayed benefit payments.

ANALYSIS

The OCF-18 for a chronic pain program

11I find the applicant has not demonstrated entitlement to the disputed OCF-18.

12To receive payment for a treatment and assessment plan under sections 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.

13For context, the disputed OCF-18—completed by Dr. Chad Hefford (chiropractor) on April 30, 2021, and certified by Dr. Grigory Karmy (physician) on May 16, 2021—is an omnibus affair. It proposes 13 goods and services that include:

i. Mental health and addictions interventions by Dr. Andrew Shaul (psychologist) at a cost of $200.00 for an initial assessment, a consultation with treatment providers at a cost of $141.55, a review of file materials at a cost of $141.55, and psychological treatment (i.e., counselling) at a cost of $1,795.36 for eight sessions;

ii. Chiropractic interventions by Dr. Hefford that include an initial total body assessment and documentation review at a cost of $200.00, chiropractic rehabilitation at a cost of $2,030.58 for 18 sessions; a functional exercise program at a cost of $1,260.00 for 18 sessions, and spinal decompression therapy at a cost of $1,200.00 for eight sessions;

iii. Acupuncture at multiple body sites by Ms. Tetyana Koval (acupuncturist) at a cost of $540.00 for 18 sessions;

iv. Massage therapy at multiple body sites by Mr. Lev Kaoutski (massage therapist) at a cost of $810.00 for 18 sessions;

v. A medical follow-up assessment by Dr. Karmy at a cost of $350.00;

vi. A medical progress report by Dr. Karmy at a cost of $250.00; and

vii. Transportation (if necessary) with no costs proposed.

Part 6 of the OCF-18 lists the applicant’s accident-related injuries as chronic post-traumatic headache; cervical disc disorder with radiculopathy; dislocation, sprain and strain of the joints and ligaments of the thorax, lumber spine, pelvis, and shoulder girdle; anxiety disorders, and depressive episodes. The treatment goals of the OCF-18 as listed at Part 9 include pain reduction, an increase in strength, and increased range of motion to achieve a return to activities of normal living. The OCF-18 proposes that progress on these goals will be measured by follow-up assessments, functional testing, and psychological testing at specific intervals.

14The applicant submits she continues to suffer from chronic physical and psychological pain as a result of the accident. She relies on diagnoses offered by Dr. Karmy that include:

i. Chronic pain syndrome;

ii. Post-traumatic fibromyalgia with persisting symptoms following mild traumatic brain injury;

iii. Chronic post-traumatic headache;

iv. Chronic mechanical pain involving her left jaw and neck with possible radiculopathy, both shoulders, upper and lower back, and left knee;

v. Sacroiliac joint dysfunction; and

vi. Multiple psychological disorders including sleep, adjustment (with anxiety and depressed mood), and phobia (driving and passenger anxiety).

15The applicant argues that the respondent should have approved the disputed OCF-18 because it had earlier approved a separate OCF-18 for a chronic pain assessment based on the applicant’s injuries and ongoing symptomology. She asserts her family physician referred her to a psychiatrist and that she has repeatedly been prescribed physical treatment. The applicant reasons that she should therefore be given the opportunity to improve her medical condition with the treatments proposed in the disputed OCF-18. The applicant relies on the evidence of Dr. Fariz Remtulla (physician), Dr. Simon Colla (the applicant’s previous family physician), Dr. Jeffery Pelchovitz (the applicant’s current family physician), Dr. Igor Wilderman (physician), Dr. Peter Waxer (psychologist) and Dr. Robert Madan (psychiatrist).

16The respondent contends that the treatment goals of the OCF-18 cannot reasonably be met by the proposed interventions. The respondent denies that the applicant sustained the impairments listed in the treatment plan as a result of the accident, and explains there is no way to reasonably measure progress for injuries the applicant did not sustain. The respondent goes on to say that even if the applicant’s injuries were accident related, she has reached maximum medical recovery from a physical perspective.

17The respondent also submits that the overall costs are not reasonable because the proposed psychological and physical therapies constitute a duplication of services and costs. The respondent explains that similar services have already been provided to the applicant with little to no measured or reported success. The respondent also says that some of the proposed services are being simultaneously offered to the applicant. The respondent reasons that the applicant has already undergone psychological and chronic pain assessments, and is already being offered psychological supports. The respondent relies on the section 44 Insurer’s Examinations (“IE”) completed by Dr. Lori Feigelson (physiatrist) and Dr. Cheryl Bradbury (psychologist) in September 2021 and March 2022, respectively, as well as the evidence of Dr. James Seligman (physician), Dr. Zoltan Egri (physician), Dr. Colla, and the records of both North York General Hospital and Lifemark (i.e., physiotherapy provider).

The applicant’s case is hampered by a lack of contemporaneous evidence to substantiate the reasonableness and necessity of the physical treatment proposed in the OCF-18

18I find the applicant has not substantiated the reasonableness and necessity of chiropractic treatment, acupuncture, and massage therapy as proposed in the disputed OCF-18.

19The applicant pointed to little evidence that supports her need for chiropractic treatment, acupuncture, and massage therapy during the intervening 21 months that separate the August 2019 accident from the OCF-18 completed in May 2021.

20The note made by Dr. Remtulla on August 7, 2023 (i.e., the day after the accident) is not persuasive. Dr. Remtulla recommended that a typical treatment course for the applicant’s symptoms would include physiotherapy and massage therapy; Dr. Remtulla does not recommend chiropractic treatment or acupuncture as proposed in the OCF-18 and the OCF-18 does not propose physiotherapy as recommended by Dr. Remtulla.

21I placed little weight on the evidence of Dr. Colla because it was not relevant to the reasonableness and necessity of the disputed OCF-18. Dr. Colla’s August 2019 note, as referenced by the applicant, does not offer a medical opinion on treatment and speaks largely to the circumstances of the accident in dramatic fashion with no indication that he performed any investigations to qualify the applicant’s complaints about being upset, losing teeth, being unable to eat, or experiencing pain everywhere.

22I did not consider the reports of Drs. Karmy or Wilderman because the applicant did not pinpoint this evidence in accordance with the CCRO. The applicant referred to a chronic pain assessment report completed by Dr. Karmy on April 21, 2021, and an independent medical evaluation report completed by Dr. Wilderman on November 17, 2020. While the applicant provided details of diagnoses and treatment recommendations made by both physicians that, in my view, supported the OCF-18 on the face of it, I was unable to place weight here because the applicant failed to specify where this evidence was located in the 42 pages that comprise these two reports. The CCRO for this matter indicates that the index for the evidence brief shall contain, in addition to the tab number, the page number of the brief that the document is located at. The applicant did not do this. The CCRO also stipulates that submissions shall make reference to the evidence and law by tab and page number. The applicant also failed to do this. In fact, the applicant did not consecutively page number her evidence brief as required by the CCRO. Given the inefficiencies associated with searching for evidence that is not referenced in accordance with the CCRO, I declined to review these reports.

23For the same reasons, I afforded little weight to the evidence of Dr. Pelchovitz. I note that Tab 10 of the applicant’s evidence brief—which the index describes as the clinical notes and records of Dr. Pelchovitz—is comprised of 79 pages. The applicant fails to pinpoint—in accordance with the CCRO—the specific pages where Dr. Pelchovitz documents his June 2020 and October 2020 observations about chronic pain in the applicant’s neck, back, and left arm, as well as a mild benefit from Naproxen she takes for chronic pain. In any event, the applicant’s submissions do not support recommendations for chiropractic treatment, massage therapy, or acupuncture made by Dr. Pelchovitz.

24In summary, the applicant’s evidence in support of the physical treatment proposed by Drs. Hefford and Karmy comes down to one recommendation for massage therapy made 21 months prior to the completion of the disputed OCF-18. In my view, this is insufficient to show the physical treatment aspects of the OCF-18 are reasonable and necessary. The applicant did not direct me to evidence that shows either of her family physicians recommended or made referrals for chiropractic treatment, massage therapy, or acupuncture from the time of the accident to the completion of the OCF-18. I was pointed to little evidence of ongoing complaints made to the applicant’s family physicians about the physical injuries specified in the OCF-18. I was not directed to evidence that supports the applicant’s claim of attending various physical treatments since the accident, or that persuaded me the proposed treatments would reasonably reduce her pain, increase her strength, or improve her range of motion. As such, I disagree that the applicant has demonstrated her entitlement to the physical treatments proposed in the disputed OCF-18 because she failed to show they are reasonable and necessary.

The applicant failed to show psychological assessments and counselling is reasonable and necessary

25I find the applicant’s submissions and evidence pertaining to the reasonableness and necessity of the psychological services proposed in the disputed OCF-18 fall short of her evidentiary burden.

26I accept that Dr. Remtulla’s note of the applicant’s visit on August 7, 2019—which assesses anxiety and possible post-traumatic stress disorder—indicates it would be beneficial to start psychology treatment right away. However, it did little to persuade me because while the applicant’s family physician (Dr. Colla) documented the following week that the applicant was “very upset,” I was not directed to any referrals made to psychological assessment or counselling by Dr. Colla at that time or thereafter. In fact, the first indication of psychological intervention raised in the applicant’s submissions comes some eight months later when she was assessed by Dr. Waxer in April and May of 2020. I was not pointed to who made the referral to Dr. Waxer and placed little weight on his diagnoses (i.e., persistent somatic symptom disorder with predominant pain; a situational phobia involving vehicular travel; and a chronic adjustment disorder with mixed anxiety and depressed mood) because submissions are not evidence and the applicant’s submissions do not pinpoint this evidence in Dr. Waxer’s 11-page report. For the same reason, I placed little weight on Dr. Waxer’s opinion that the applicant’s “current level of emotional distress constitutes a substantial psychological impairment interfering with her efforts to return to her previous active retirement lifestyle.”

27Similarly, Dr. Waxer’s February 2021 recommendation for ongoing cognitive behavioural strategies to manage chronic pain, anxiety, sleep improvement and relapse prevention did not assist the applicant’s case because she failed to pinpoint this evidence in Dr. Waxer’s 10-page progress report. I also discounted Dr. Waxer’s opinion that the applicant was “actively participating in treatment and continues to be positive and hopeful about her recovery” because this too was not cited in accordance with the CCRO to ensure an effective and efficient hearing process.

28I did not afford much weight to the applicant’s psychological condition as documented in the records and reports of Drs. Pelchovitz, Wilderman or Karmy. The applicant did not pinpoint where, in her evidence brief, Dr. Pelchovitz documented the applicant’s health worries and sleep difficulties in March 2020. The applicant’s submissions speak to “signs of” depression, anxiety and post-traumatic stress disorder noted by Dr. Wilderman in November 2020, but do not direct me to the location of this evidence in his 24-page report. Similarly, the applicant’s submissions fail to show me where Dr. Karmy offers diagnoses of a sleep disorder, adjustment disorder with mixed anxiety and depressed mood, and a vehicular phobia in his 18-page report of March 2021. The applicant does not pinpoint the location of Dr. Karmy’s recommendations for a psychological assessment and counselling to manage her impairments.

29The failure of the applicant to properly cite her evidence in her submissions also hindered her reliance on the report of Dr. Madan, which forms part of the 20-pages of hospital records produced by Baycrest Geriatric Psychiatry Community Service (“Baycrest”). The applicant’s submissions about her family physician’s November 2022 referral to Baycrest due to her depression was not cited in evidence. Her submissions that pertain to Dr. Madan’s January 2023 assessment and pharmacotherapy recommendations—which reportedly determined she had post-traumatic stress disorder, major depressive disorder, panic disorder, panic attacks, and claustrophobia—were not pinpointed in the hospital records of Baycrest. Even if the applicant did properly refer me to this evidence such that I considered it, I likely would have assigned the assessment less weight because the applicant’s submissions did not direct me to aspects of Dr. Madan’s report that qualify his conclusions or show his analysis, such as interview observations, objective testing, or the medical history he may have relied on to inform his diagnoses and treatment recommendations. As such, Dr. Madan’s report did not contribute much to establishing the reasonableness and necessity of the disputed OCF-18.

30I find it unnecessary to consider the remaining aspects of the disputed OCF-18 (i.e., the medical follow-up assessment and progress report) because their relevance is tied to entitlement of at least one of the proposed services, none of which are reasonable and necessary. I also decline to weigh the applicant’s submissions on the respondent’s IE reports because her submissions do not pinpoint the evidence she relies on to make her arguments: (1) that Dr. Feigelson offered a contradictory opinion to the applicant’s treating and assessing physicians despite recognizing her pain and functional limitations; and (2) that Dr. Bradbury determined the accident caused psychological adjustments and agreed the applicant would benefit from further psychological treatment.

31Given that the applicant’s evidence does not meet her onus, I have not considered the respondent’s arguments or evidence. However, I would point out that if the applicant had persuaded me as to her entitlement to the disputed OCF-18, I would likely have not considered the respondent’s submissions because they too were deficient. The respondent’s index for its evidence brief did not provide page numbers for each document in addition to tab numbers; the submissions did not make reference to the evidence and law by tab and page number; and the respondent did not consecutively page number its evidence brief as required by the CCRO.

Interest

32Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue benefits, so interest does not apply.

Award

33The applicant sought 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. Given there is no evidence of unreasonable withholding or delay of benefits in this case, the respondent cannot be found liable to pay an award.

ORDER

34The applicant is not entitled to the OCF-18, interest, or an award.