Overview

1Maria De Barros, the applicant, was involved in an automobile accident on September 29, 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, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties were unable to resolve the matter at the case conference, so the matter proceeded to a written hearing.

Issues

[3] The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $237.54 per week from November 8, 2022, to date and ongoing?
2. Is the applicant entitled to $3,457.00 for physiotherapy services, proposed by Toronto College Rehab in a treatment plan (“OCF-18”) dated February 1, 2022?
3. Is the applicant entitled to interest on any overdue payments of benefits?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is either the applicant or respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice and Procedure (2016 version) (“Rules”)?

4The applicant withdrew the issues outlined in the Tribunal’s case conference report and order, except for the above issues.

Result

[5] After reviewing the parties’ submissions and all of the evidence I find as follows:

1. The applicant is entitled to an IRB in the amount of $4.75 per week, from November 8, 2022, to September 29, 2023, less any post-accident income plus interest.
2. The applicant is not entitled to IRBs beyond September 29, 2023, costs, or an award.
3. The respondent is not entitled to costs.

Procedural Issues

Approval of OCF-18 in Dispute

6The applicant’s submissions addressed whether the OCF-18 dated February 1, 2022, in the amount $3,457.00 for physiotherapy, recommended by Toronto College Rehab (see paragraph 3(2) above) is reasonable and necessary. The respondent argues that the disputed OCF-18 was approved in full on April 8, 2022. It relied on an explanation of benefits and auto insurance invoice which supports that the OCF-18 was approved in full and has been partially incurred. The applicant did not address this in her reply to submissions. I conclude that the issue is not in dispute, and I need not address it further.

Exclusion of Dr. Getahun’s Catastrophic File Review and Application for Catastrophic Designation (“OCF-19”)

7The respondent opposed the applicant’s reliance on the catastrophic file review report and OCF-19 dated October 27, 2023, completed by Dr. Getahun, orthopedic surgeon. The respondent submits that it would be procedurally unfair to allow the applicant to rely on these documents because the applicant first served it with these records on February 12, 2024, which was three days before the applicant’s submissions were due for this written hearing. The respondent requests that this evidence be excluded under Rule 9.4 because it would be procedurally unfair and highly prejudicial to the respondent because it has not had an opportunity to respond to these documents. Consequently, any submissions made by the applicant regarding these documents should also be excluded.

8The applicant acknowledges that she first served the above-noted documents on the respondent on February 12, 2024. The applicant submits that if these documents are not considered it will be grounds for reconsideration because the documents post-date the production deadline and could not have been obtained prior. Further, Rule 9.4 provides the Tribunal with discretion to admit this evidence. The applicant also maintains that it would not be prejudicial or unfair to the respondent to admit this file review and OCF-19 given that it is a review of the medical file, as well as a referral for an OCF-19 in which an OCF-18 was previously submitted to the respondent on October 30, 2023.

9Rule 9.4 provides that if a party fails to comply with any Rules or Orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.

10I note that Rule 9.4 provides me with broad discretion to admit any evidence that is relevant and that prejudice to the other party should be considered in exercising this discretion. I decline the respondent’s request to exclude this evidence on the basis that it has little probative value regarding the issues before me. For example, these documents do not address the applicant’s inability to work or functional limitations – they simply provide a file review of the medical documents and confirm that an OCF-19 has been submitted. Therefore, I find the respondent is not prejudiced by my considering this evidence. However, due to the applicant’s late service of these documents and lack of probative value I have given this evidence little weight.

Exclusion of Evidence, Submissions and Authorities in Reply

11The respondent brought a motion seeking to exclude evidence, case law and submissions first referred to and served on it in the applicant’s reply to submissions. The respondent submits that the letter of Dr. Obaji, the applicant’s family doctor dated March 6, 2024, should be excluded because it post-dates its submissions by five days. Further, the applicant also first served an income statement from 2022 on it in reply. The respondent submits that the applicant has never previously served these records on it and is attempting to split her case which is not permitted on reply. Further, the applicant already had the financial statement from 2022, at the time her initial submissions were due and has provided no explanation about why this document was not previously disclosed or why it should be admitted.

12The respondent also submits that the applicant made new legal arguments which should have been made at first instance by relying on the decisions in Ismail v. Fleming, 2018 ONSC 6140 and Arulanantham v. Devine, 2020 ONSC 803 in reply which also should not be considered. The respondent also requests that paragraphs 6, 7, 8, 9, 10 and 13 of the applicant’s reply submissions be struck. The respondent argues that reply submissions are intended only for arguments and evidence that a party could not have anticipated as being relevant in their initial submissions, not an opportunity to introduce new evidence. The respondent submits that these rules are to prevent prejudice and unfair surprise and delay in the presentation of evidence.

13The applicant submits that her reply submissions were proper reply and that the updated letter of Dr. Obaji and income statement are required to rebut the respondent’s arguments. Further, the applicant maintains that she could not have predicted the respondent’s position that both the accident and the applicant’s injuries were minor. The applicant relies on the Tribunal’s decision in Spence v Aviva General Insurance, 2023 CanLII 84381 which supports that new evidence brought solely to rebut a defense that an applicant could not have anticipated is allowed.

14I agree with the respondent that the applicant’s reply submissions were not proper reply in that the letter of Dr. Obaji and income statement from 2022 should have been included in the applicant’s initial submissions. I do not accept the applicant’s argument that she could not have obtained the letter of Dr. Obaji prior to the deadline of her initial submissions. Further, no explanation was provided for why she did not include the 2022 income statement in her initial submissions. In my view, the applicant was asked about her post-income and pre- and post-accident medical conditions when she was cross-examined on her affidavit. Consequently, she should have anticipated that the respondent would make these arguments. Having said that, I decline to exclude these documents because they are relevant to the issue in dispute. However, as a result of the late service of these documents and lack of an explanation for the delay in obtaining or serving this evidence it will be given little weight. Further, I decline to exclude the case law relied upon by the applicant as the same rules pertaining to evidence do not apply to case law. Further, I find the decisions relied upon by the applicant did not address anything novel that will change the outcome of this decision.

Analysis

Is the applicant entitled to an IRB in the amount of $237.54 per week from November 8, 2022, to date and ongoing?

PRE-104 IRBS

15I find the applicant has established that she is entitled to an IRB from November 8, 2022, to September 29, 2023.

16Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6 of the Schedule provides that, at the post-104-week mark, the applicant must prove she has a complete inability to engage in any employment for which she is suited by education, training, or experience.

17At the time of the accident, the applicant was 63 years old. The applicant’s pre-accident medical history is significant for fibromyalgia, arthritis, chronic neck and lower back pain, and carpel tunnel. The pre-accident medical records also support that she had some functional limitations as a result of these conditions.

18Prior to the accident, the applicant worked part-time as a cleaner. She worked four-hour shifts, five days a week for a total of twenty hours per week. Her job was physical, and the essential tasks of her employment included lifting and emptying garbage bins, vacuuming and dusting. I accept that carrying out her job duties required prolonged walking, standing, repetitive bending and arm movements such as lifting, pushing, and pulling, twisting, and walking up and down stairs.

19The applicant submits that as a result of her accident-related physical and psychological impairments she sustained a substantial inability to carry out the essential tasks of her employment. The applicant relies on the clinical notes and records (“CNRs’) of Dr. Obaji, Toronto College Rehab, the psychological report of Dr. Lopo dated June 16, 2022, and chronic pain assessment of Dr. Karmy dated May 1, 2023. She also submitted affidavit evidence in which she was cross-examined about her post-accident impairments and inability to carry out her employment tasks. The applicant also argues that the insurer examination (“IE”) reports of both Dr. Weisleder, orthopaedic surgeon dated September 23, 2022, and Dr. McCutcheon, psychologist dated November 8, 2022, do little to disprove her entitlement to an IRB. Both assessors diagnosed her with accident-related impairments and provided little analysis that support their conclusions that she does not meet the disability test for entitlement to the benefit.

20The respondent submits that the applicant’s post-accident complaints about her impairments and limitations are unreliable as she claims that she did not have any functional limitations pre-accident which are contradicted by her medical records, which show serious and debilitating conditions. Further, it submits that there are numerous inconsistencies between the medical records and her self-reports which were acknowledged by her when she underwent cross-examination on her affidavit. The respondent relies on the aforementioned IE reports in support of its position.

21I find the applicant has met her onus in proving on a balance of probabilities that she meets the pre-104 test for IRBs for the following reasons.

22First, although the applicant had a significant pre-accident medical history with some functional limitations, these did not interfere with her ability to work pre-accident. Although there was a reference in the pre-accident CNRs of Dr. Keesal which recommended she be off work for a brief period of time, I find the pre-accident income tax assessments support that she was earning consistent income in the years leading up to the accident, despite having the aforementioned medical conditions.

23Second, I find the totality of the medical evidence supports that the applicant was a vulnerable person who sustained soft-tissue injuries, as a result of the accident, which also exacerbated her pre-existing low back pain and resulted in a psychological impairment. I find on a balance of probabilities that the combination of the applicant’s accident-related impairments, coupled with her age and complex pre-accident medical history has led to her suffering from a substantial inability to carry out the essential tasks of her employment as a cleaner within the first 104 weeks after the accident.

24The applicant’s family doctor’s CNRs support that post-accident she complained of pain in her neck, low back, and bilateral shoulders. In October 2021, her doctor supported that she be off work for a few weeks. In December 2022, the applicant reported to her doctor that she is still unable to work as a result of her accident-related pain. On March 2, 2023, the doctor notes that her symptoms of back pain were pre-existing but worsened since the accident. Although the applicant’s family doctor’s CNRs reflect her self-reports I find that she was consistent in reporting her pain complaints throughout the records and her inability to work.

25Overall, I find the expert reports relied upon by both parties unhelpful as far addressing the disability test for the applicant’s entitlement to an IRB. I find the respondent’s assessors underestimate the applicant’s impairments and functional limitations and Dr. Karmy, the applicant’s assessor, overestimates them. Consequently, where there are consistent reports and findings about impairments supported by limitations, I have accepted those findings. I find the applicant’s complaints to her family doctor consistent with her reports to Dr. Weisleder. The report notes that she had not returned to work and requires assistance getting dressed and with household chores. Dr. Weisleder diagnosed the applicant with sustained cervical strain, right shoulder strain, left shoulder strain, thoracic strain, and lumbar strain as a direct result of the accident. Further, the doctor states that the applicant has impaired range of motion (“ROM”) in her neck and shoulders which are a direct result of the accident. The doctor also determined that the impairment of the lumbar spine is partially due to injuries sustained in the accident and partly pre-existing and that her pre-existing low back pain was aggravated by the accident.

26Despite acknowledging that the applicant’s pre-existing low back pain was aggravated by the accident, and that the applicant had limited ROM in her neck and shoulders, the doctor concludes that prognosis is good for functionality of daily activities and employment. I find the doctor fails to explain how this conclusion was rendered. Moreover, it is inconsistent with the diagnoses and physical examination which revealed restricted ROM. The doctor provides no analysis about what the essential duties of the applicant’s employment are. I find that the applicant’s limitations with ROM in her shoulders and neck would result in a substantial inability to carry out the essential tasks of her employment as a cleaner as her job requires her to lift, carry and reach for sustained periods of time. Although the applicant acknowledged that she had struggled with certain tasks at work pre-accident she was still able to consistently work. This is supported by the income tax assessments from three-years pre-accident.

27I agree with the respondent that the numerous diagnoses listed in Dr. Karmy’s chronic pain assessment are excessive and most are not supported by the pre- and post-accident CNRs. However, I accept parts of the report where the doctor discusses the applicant’s physical impairments and functional limitations because it is consistent with the other medical evidence. For example, the report notes that the applicant’s bilateral shoulder pain is aggravated by pushing, pulling, heavy lifting, carrying, reaching overhead and repetitive arm movements. Her upper, mid, and lower back pain is exacerbated by twisting, bending, prolonged standing, sitting and walking. Dr. Karmy then discusses the various tasks of the applicant’s employment and notes that the applicant has not been able to return to work and has lost her income. Although Dr. Karmy does not address the legal test for entitlement, I find the report supports that she has functional limitations which would result in a substantial inability to carry out the substantial tasks of her employment as a cleaner due to ongoing pain and restricted ROM.

28The applicant has also been diagnosed with accident-related psychological impairments by both parties’ assessors which were considered to be valid. Dr. Lopo, the applicant’s assessor, diagnosed her with Somatic Symptom Disorder with Predominant Pain, persistent and severe, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. The applicant reported getting six hours of sleep per night, sadness, and depression and that she has not been able to return to work as she cannot produce the same quality and was let go. While I agree with the respondent that the applicant’s employment file would have been helpful in supporting this, the fact that it was not produced does not discredit her claim. Dr. Lopo’s report notes that the applicant is significantly focused on her physical pain and feels helpless about her condition. The doctor concludes that her pain-focused behaviour and magnification of physical pain substantially impair her daily life.

29Dr. McCutcheon’s IE notes that the applicant reported being unable to work post-accident because of physical pain. The applicant acknowledged that she suffered from anxiety pre-accident but that it did not result in any functional limitations. The doctor states that the applicant was experiencing some moderate depressive and anxious symptoms in the context of ongoing pain and physical concerns and worries about her mental health, ability to work and finances. Dr. McCutcheon also diagnosed the applicant with Adjustment Disorder, with Mixed Anxiety and Depressed Mood as a result of the accident. However, the doctor concludes that the impairment is not of a sufficient incapacitating degree, and therefore, from a psychological perspective she does not suffer a substantial inability to perform the essential tasks of her employment.

30I also find Dr. McCutcheon’s conclusion lacking as far as providing the rationale for why the applicant’s psychological impairment does not result in a substantial inability to perform the essential tasks of her employment. I find on a balance of probabilities that the applicant’s accident-related psychological impairment likely contributed to her inability to return to work post-accident. However, I have already determined that she has a substantial inability because of her physical impairment so her psychological impairment is not determinative of the issue.

31For all of the above-noted reasons, the applicant has met her onus in proving her entitlement to an IRB up to the 104-week mark. The respondent submits that the calculation of the applicant’s entitlement to an IRB is subject to the ramp down provided in s. 8(1) of the Schedule because she turned 65 on October 28, 2022. The applicant did not make any submissions on this point, nor did the respondent provide a calculation.

32Section 8 (1) of the Schedule provides that if a person receiving an IRB immediately before his or her 65th birthday, the weekly amount of the benefit is adjusted, on the latter of the day of the person’s 65th birthday and the second anniversary of the day the person began receiving the benefit, in accordance with the following formula: C x 0.02 x D. “C” is the amount of IRB before deducting post-accident income and “D” is the number of years during which the applicant qualified for IRBs before the adjustment is made. In the applicant’s case, the formula is $237.54 x. 0.02 x 1, in which her weekly IRB is $4.75 per week, from November 8, 2022, to September 29, 2023, less any post-accident income.

Post-104 IRBS

33The applicant has not established that she meets the complete inability test for post-104 IRBs.

34The applicant submits that her entitlement to post-104 IRBs is not in dispute because the respondent has not conducted any IEs denying the applicant’s post-104 entitlement to the benefit. The applicant argues that because the respondent did not lead any evidence to support, she is not entitled to post-104 IRBs she is automatically entitled to payment of same.

35The respondent disagrees because the Tribunal’s order notes that her ongoing entitlement to an IRB is in dispute. Further, the respondent’s IEs determined that she does not meet the pre-104 test. The respondent asserts that the applicant’s position makes little sense because the 104-week anniversary has long passed, and the applicant’s affidavit addresses the complete inability test. It submits that the burden of proof is on the applicant. It is not up to the respondent to disprove it. I agree.

36The applicant’s argument that she is automatically entitled to post-104 IRBs if I determine she meets the pre-104 test is unsupported by any jurisprudence. It is well established that it is the applicant’s onus to prove ongoing entitlement to benefits.

[37] The only evidence I have before me in support of the applicant’s post-104 IRBs are the statements made in her affidavit. She submits that she meets the complete inability test for the following reasons: (a) Her attempts to return to work were unsuccessful; (b) There has been little improvement in her symptoms; (c) She has a high school education; (d) The only work experience she has is as a cleaner so she could only do similar occupations. Her various diagnoses prevent her from being employed in similar work.

38I find that the applicant has not proven that she meets the post-104 test for IRBs. I find that she is asking that I make assumptions based on the statements made in her affidavit. There is little evidence before me to support that the applicant has any ongoing impairments during the post-104 time period to support that she meets the complete inability test. For example, I do not have any vocational reports and the only recent medical evidence the applicant relied on was Dr. Getahun’s CAT file review and OCF-19. As indicated above, I have given this evidence little weight because of its late service. Further, the file review report does not discuss the applicant’s employment history in any detail. The statements made in the applicant’s affidavit are not supported by any persuasive evidence. For these reasons, I find that the applicant has not met her onus in proving that she has a complete inability to engage in any employment for which she is suited by education, training, or experience.

Is the applicant entitled to interest on any overdue payments of benefits?

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to payment of interest on IRBs up to the 104 mark because I have determined that the benefit is overdue.

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

40The respondent is not liable to pay an award.

41The 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 claimed an award in her reply to submissions because of the respondent’s motions to exclude various documents in this proceeding. The applicant is not entitled to an award because she made no submissions to support that the respondent unreasonably withheld or delayed the payment of benefits. I find the applicant has confused her request for an award with her request for costs which are separate issues which I will address now.

Is either party entitled to costs pursuant to Rule 19?

42Rule 19.1 provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

43The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award and is an exceptional remedy.

[44] Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and the amount of costs. The Tribunal shall consider all relevant factors including: (a) The seriousness of the misconduct; (b) Whether the conduct was in breach of a direction or order issued by the Tribunal; (c) Whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process; (d) Prejudice to other parties; and (e) The potential impact an order for costs would have on individuals accessing the Tribunal system.

45I find that neither party is entitled to costs for the following reasons.

46The applicant sought an order for costs because the respondent brought two motions seeking to preclude the applicant from presenting evidence or requesting that the Tribunal draw an adverse inference for the applicant’s failure to produce certain records. I find that this is not grounds for an order for costs because the applicant a) did not comply with the timelines for exchanging productions outlined in the Tribunal’s order and made late requests for documents she agreed to produce after the deadline set out in the order had passed; b) served new evidence on the respondent for the first time one month prior to the deadline for her written submissions; and c) served new evidence for the first time in reply submissions. I find the applicant’s own actions prompted the respondent to bring these motions.

47I find that it is the applicant who has acted unreasonably by not complying with the deadlines provided in the Tribunal’s order, by a lack of preparation because evidence was served late or for the first time in reply to submissions which resulted in unnecessary motions.

48I find that the applicant’s conduct interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process as it resulted in the need for additional time and resources to review multiple pages of motion materials to address these cost submissions. I also find the respondent was prejudiced by the applicant’s inability to produce the records and or late service of records as it required it to bring motions to address the procedural unfairness. Having said that, the case law establishes that an order for costs is not meant to punish a party as to do so would be a barrier to other individuals accessing the Tribunal’s system. However, at the same time individuals accessing the Tribunal’s system need to be reassured that the Tribunal can maintain its own process and that that process will be respected.

49Having said that, although I find that the applicant did not provide all of the documents outlined in the Tribunal’s order, I find that she did not do so deliberately. She did make some efforts (although late) to request outstanding records in order to comply with the Tribunal’s order. Further, although I find that it was inappropriate for the applicant to file new evidence in reply to submissions which should have been raised at first instance, I find this is not conduct that meets the threshold for costs.

50For the above-noted reasons, neither the applicant nor the respondent is entitled to costs.

Order

[51] For all of the above-noted reasons, I order as follows:

1. The applicant is entitled to an IRB in the amount of $4.75 per week, from November 8, 2022, to September 29, 2023, less any post-accident income plus interest.
2. The applicant is not entitled to IRBs beyond September 29, 2023, or costs or an award.
3. The respondent is not entitled to costs.