Licence Appeal Tribunal File Number: 22-008994/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:
Vevian Badawi
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Terio Francis, Counsel
For the Respondent: Nicholas Maida, Counsel
HEARD: In Writing
OVERVIEW
1Vevian Badawi, the applicant, was involved in an automobile accident on October 22, 2021, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Non-compliance with the case conference report and order
2The respondent submits that applicant failed to comply with the timelines set out in the Tribunal’s Case Conference Report and Order (“CCRO”) dated June 1, 2023. The CCRO outlined that the parties were to disclose all documents not previously disclosed upon which they intended to reply at the hearing within 90 days of the case conference. The case conference was held April 26, 2023.
3The respondent submits that the following evidence from the applicant’s submissions should be excluded for failing to comply with the 90 day CCRO timeline:
i. TAB 3- Clinical Notes and Records (CNRs) from Dr. Sherif Kodsi, pages 28-36;
ii. Portions of TAB 4 – Clinical Notes and Records from Lifemark, pages 37-59. The respondent seeks to exclude pages 37-54 and pages 56-59;
iii. TAB 5 – Clinical Notes and Records from Dr. Stewart Dief, pages 60-64;
iv. TAB 7 – Elite Specialist Group Chronic Pain Assessment dated November 19, 2023, pages 72-77; and
v. TAB 9 – Elite Specialist Group Psychological Report dated September 25, 2023, pages 83-90.
4The respondent submits that in addition to being served the documents late, some of the documents included in the applicant’s submissions were partially incomplete. Specifically, TAB 2, TAB 7 and TAB 9 did not include the complete CNRs of Dr. Sheriff Kodsi, family physician, and the reports Dr. Stephen Brown, Anesthesiologist, and Dr. Jacqueline Brunshaw, psychologist, respectfully. The respondent argues that to allow the reports of Dr. Brown and Dr. Brunshaw into evidence would be highly prejudicial as both assessors were in possession of documents that were not provided to the respondent until the applicant’s submissions were served.
5The respondent submits in the alternative, if the Tribunal permits the above-noted documents to be included in evidence, then the respondent request that certain adverse inferences be drawn. The respondent specifically requests that the applicant’s injuries and limitations were not caused by the accident, and that the applicant’s health was in good condition.
6On reply, the applicant acknowledges that not all of the evidence was provided in compliance with the CCRO but submits that when the medical reports in TAB 7 and TAB 9 were finalized outside of the timeline they were promptly provided to the respondent. The applicant further submits that to exclude the CNRs of Dr. Kodsi, the applicant’s family physician, would be severely prejudicial, as the CNRs outlines the challenges and limitations of her treatment since the accident.
7Lastly, the applicant submits that the respondent’s submissions were not due until February 9, 2024 and the applicant’s written submissions were provided on January 23, 2024. The respondent had 14 days to review the totality of the evidence prior to responding, and therefore the respondent has failed to identify any potential prejudice or make a request for an extension of time to file its responding submissions.
8Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”) states that if a party fails to comply with any direction with respect to disclosure, the party may not rely on the document as evidence without permission of the Tribunal. Rule 3.1 of the Rules also requires me to facilitate a fair, open, and accessible process to allow effective participation by all parties. Failure to make disclosures as required by the Tribunal frustrates the Tribunal’s ability to determine issues and the parties’ ability to make full and fair submissions.
9I find that the applicant did not comply with the CCRO timelines, failed to request any relief when failing to meet the CCRO timelines, and at no time brought a motion to extend the time to deliver the productions, it was only after the respondent brought a motion that the applicant responded. I also find that the respondent complied with all deadlines in the CCRO. Despite these findings I am not persuaded by the respondent’s submission that permitting the applicant’s submissions would be prejudicial, as I am not persuaded that the applicant impeded the respondent’s ability to know the case to be met and to adequately respond to the issues in dispute. The respondent received the applicant’s submissions on January 23, 2024, and had 14 days to review and respond.
10As a result, I am denying the relief sought by the respondent. I will admit the documents and submissions into evidence, and accord it whatever weight that I deem appropriate in the context of rendering my decision.
ISSUES
11The following issues are to be decided:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 29, 2021 to date and ongoing?
ii. Is the applicant entitled to $2,200.00 for minor injury guideline treatment and supplementary goods, proposed by Mackenzie Medical, in an the OCF-23 dated June 27, 2022?
iii. Is the applicant entitled to $3,622.73 for physical therapy, proposed by Mackenzie Medical in a treatment plan June 7, 2022?
iv. Is the applicant entitled to special award?
12As per the applicant’s submissions issue [i] as it relates to the applicant’s income replacement benefit is withdrawn.
RESULT
13I find that:
i. The applicant is not entitled to the MIG treatment and supplementary goods in the amount of $2,200.00;
ii. The applicant is entitled to physical therapy in the amount of $3,622.73;
iii. The applicant is not entitled to a special award.
ANALYSIS
Is the treatment plan reasonable and necessary?
14Sections 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 as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
15The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plans are reasonable and necessary on a balance of probabilities.
MIG treatment and supplementary goods in the amount of $2,200.00
16The applicant submits that the OCF-23 completed by Mir Nabavi, chiropractor, at the Mackenzie Medical Rehabilitation Centre Inc, dated June 27, 2022, is reasonable and necessary. The OCF-23 is for MIG treatment in the amount of $1,800.00 and supplementary goods in the amount of $400.00. The supplementary goods include: TENS unit, pack of replacement electrodes, activ8 heat/cold pack, 4oz tube of biofreeze or cryoderm, theraband (5 colours). The applicant relies on the CNRs of Dr. Kodsi and Mr. Kose Wong, physiotherapist, both recommending physiotherapy, exercises, and manual therapy. The applicant also relies on the chronic pain syndrome diagnosis by Dr. Brown in the chronic pain assessment, dated November 19, 2023.
17The applicant further submits that on December 13, 2023, the respondent deemed the applicant’s injuries to fall outside of the MIG, and despite this the applicant has not yet received a revised denial of the OCF-23 to an approval.
18Relying on section 40(5) and 40(6) of the Schedule, the respondent submits that the applicant’s argument is incorrect in law. Section 40 (5) of the Schedule states that “an insured person shall submit an amended treatment confirmation form if, during the course of treatment under the Minor Injury Guideline, he or she, changes the health practitioner who is responsible for provided goods and services described in the treatment confirmation form.” Section 40 (6) of the Schedule states that “the insurer is liable to pay for goods and services described in an amended treatment confirmation form only to the extent the goods and services have not already been provided in accordance with the Minor Injury Guideline.”
19The respondent submits that it received and approved an OCF-23 from Lifemark dated November 3, 2021, proposing $1,800.00 in MIG services and $400.00 in supplementary goods. The applicant received the proposed OCF-23 treatment, and it was paid by the respondent. Lifemark submitted an OCF-18 dated January 13, 2022, indicating that the applicant’s injuries were predominately minor and proposing further physical treatment. The OCF-18 was approved, and the respondent submits that the MIG was exhausted.
20The respondent further submits that the OCF-23 submitted by Mackenzie Medical Rehabilitation Centre Inc, dated June 27, 2022, recommends the same treatment as the original OCF-23 from Lifemark.
21I find that the second OCF-23 submitted by Mackenzie Medical on June 27, 2022, should not be paid to the applicant under section 40(5) and section 40(6) of the Schedule. The original OCF-23 submitted by Lifemark and the OCF-18 confirmed that the applicant’s injuries were predominately minor and treatment was still under the MIG. The applicant exhausted the MIG prior to the submission of the OCF-23 by Mackenzie Medical.
22Section 40(5) requires that an amended OCF-23, treatment confirmation form, be completed if an insured changes treating practitioners during the course of treatment under the MIG. Section 40(6) states that the respondent shall pay for any goods and services that have not already been provided in accordance with the MIG. I accept that the applicant changed treating practitioners and provided an amended OCF-23 to the respondent, and the respondent is bound by the section 40(6) requirement to the extent that any outstanding goods and services remain under the MIG. The respondent provided evidence that the MIG limit was exhausted during the treatment at Lifemark before changing treating practitioners.
23I find that the OCF-23 from Mackenzie Medical is not payable as the applicant had already received and exhausted the MIG limit before changing clinics.
Physical therapy in the amount of $3,622.73
24The applicant submits that the treatment plan is reasonable and necessary. The applicant relies on the CNRs of Dr. Kodsi that reference persistent stiffness and pain and the recommendation of massage therapy and exercises. The applicant also relies on the recommendation of physiotherapy and manual therapy by both Dr. Brown and Mr. Wong. The goal of the treatment plan is to reduce pain, increase strength and range of motion and to allow the applicant to return to activities of normal living.
25The respondent submits that the medical evidence does not support the reasonableness and necessity of the proposed treatment. The respondent relies on the applicant’s admissions during the July 24, 2023, physical medicine and rehabilitation specialist assessment with Dr. Alborz Oshidari, physiatrist, when she reported that she only went to Mackenzie Medical for treatment on the recommendation of her lawyer, and she was not happy with the treatment she received. The respondent also cites that the applicant advised Dr. Fabio Salerno, psychologist, during a psychological assessment that she only experienced pain reduction of one hour after performing the exercises at the clinic.
26I agree with the applicant. I find that the applicant has provided persuasive evidence to demonstrate that physical therapy is reasonable and necessary. The proposed treatment aligns with the majority of the recommendations the applicant had received from various medical professionals, including her family physician Dr. Kodsi, Dr. Brown and Mr. Wong. I find the medical evidence to be more persuasive than the statements made by the applicant to Dr. Oshidari and Dr. Salerno during assessments unrelated to the OCF-18.
27I find that the applicant is entitled to the treatment plan for physical therapy.
AWARD
28The applicant sought an award under s. 10 of Reg. 664. Under s. 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. The applicant does not provide persuasive evidence that the respondent withheld any services. No award is granted.
ORDER
29I find that:
i. The applicant is not entitled to the MIG treatment and supplementary goods in the amount of $2,200.00;
ii. The applicant is entitled to physical therapy in the amount of $3,622.73;
iii. The applicant is not entitled to a special award.
Released: November 20, 2024
Monica Ciriello
Vice-Chair