Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-012078/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:
Annie Ziv
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Karina Dziuba, Counsel
HEARD: By way of written submissions
OVERVIEW
1Annie Ziv, the applicant, was involved in an automobile accident on January 9, 2022, 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, Allstate Insurance Company of Canada, 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 $13,089.00 for dental services, proposed by Dr. Aviv Ouanounou in a treatment plan dated April 21, 2022?
ii. Is the applicant entitled to $1,149.00 for prescription eyeglasses, submitted on a claim form (OCF-6) dated April 18, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant entitled to costs?
RESULT
3The applicant is entitled to $9,509.40 for incurred dental services, as approved by the respondent in an explanation of benefits dated February 29, 2024 and agreed to by the applicant in their written reply submissions to resolve the issue.
4The applicant is not entitled to $1,149.00 for prescription glasses.
5The applicant is entitled to interest on the overdue payment for incurred dental services.
6The applicant is not entitled to an award or costs.
PROCEDURAL ISSUES
Respondent’s request to exclude submissions
7The respondent submits that the applicant’s initial written submissions exceed the page limit ordered by the Tribunal in the case conference and order (“CCRO”) dated June 19, 2023. In the CCRO, the Tribunal ordered a maximum of 12 pages. The respondent argues that the applicant exceeded that page limit by one page and that the last page of the applicant’s submissions should be excluded from the Tribunal’s consideration.
8The applicant submits that her written submissions do not exceed the page limits ordered by the Tribunal, and that the last page only includes her concluding remarks which summarize the relief being sought. The applicant submits that the last page of her submissions does not include anything substantive.
9I agree that the applicant exceeded the page limit ordered by the Tribunal, but by less than half of a page. I also agree that the last half page of the applicant’s initial submission does not include anything substantive. While the applicant is cautioned against exceeding the submission page limits ordered by the Tribunal, I do not find that the respondent is prejudiced by considering the last one half of a page of the applicant’s initial submissions in this case.
10I decline the respondent’s request to exclude the last half of a page of the applicant’s initial submissions.
Respondent’s request to Exclude New Evidence
11The respondent filed a Notice of Motion on February 22, 2024 seeking to exclude evidence relied upon by the applicant in her initial submissions dated February 14, 2024. Specifically, the respondent is seeking to exclude four pages of clinical notes and records from MacKenzie Health, 11 pages of clinical notes and records from Dr. Soong, and a photograph of the applicant’s damaged glasses.
12The applicant argues that the complete file of Dr. Soong was served on June 15, 2023, and the complete records of MacKenzie Health Hospital were served on July 28, 2023. The applicant submits that on November 1, 2023, after the Tribunal imposed final production deadline of August 29, 2023, the respondent requested updated records from Dr. Soong, which was not part of the document exchange listed in the CCRO. In an act of good faith, the applicant served the respondent with updated records from Dr. Soong and MacKenzie Health on December 18, 2023, which was well in advance of the hearing and the 45-day deadline set out in Rule 9.4.2. The applicant argues that this evidence should be admitted because it has probative value.
13In response to the applicant’s submissions, the respondent argues that the applicant did not account for the delay in producing the picture of damaged glasses. The respondent submits that it specifically requested any pictures of the applicant’s damaged glasses as early as April 28, 2022, and was advised that the applicant had disposed of the allegedly damaged glasses.
14I decline the respondent’s request to exclude the limited clinical notes and records from Mackenzie Health, Dr. Soong, and the photograph of the damaged glasses. I accept that the applicant has made previous efforts to provide the evidence from Mackenzie Health and Dr. Soong to the respondent, the respondent has not demonstrated how it will be prejudiced by admitting the evidence, and I find that the disputed evidence has probative value. As a result, I deny the respondent’s motion to exclude evidence.
Withdrawn Issues
15There was a preliminary issue listed in the CCRO dated June 19, 2023, but the respondent advised in its reply submissions that it was withdrawing that preliminary issue.
16The applicant submitted in her initial written submissions that she was withdrawing substantive issues 1, 2, and 4 as listed in the CCRO dated June 19, 2023, on consent. The applicant has been removed from the MIG by the respondent, and the respondent has approved substantive issues 2 and 4 related to chiropractic services and a psychological assessment.
ANALYSIS
17The applicant is entitled to $9,509.40 for incurred accident-related dental treatment as approved by the respondent in an explanation of benefits dated February 29, 2024, and accepted by the applicant in her written reply submissions.
18To receive payment for a treatment and assessment plan under s. 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. The insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident pursuant to s. 15(1) of the Schedule.
19The applicant submits that the treatment plan for dental services was first denied by the respondent on June 15, 2023, almost a year after it was submitted. It was denied a second time by the respondent on October 30, 2023. According to the applicant, the denials were delivered by the respondent after a total of $10,977.00 was incurred. Specifically, on August 10, 2022, the applicant incurred $1,806.00 for removals, extraction, allograft, and labour. On August 16, 2022 she incurred $755.00 for a transitional denture and labour, and on November 30, 2022 she incurred $4,216.00 for implants, surgical installation, and labour. The applicant last incurred accident-related dental expenses in the amount of $4,200.00 on May 16, 2023 for crown implants and labour.
20The respondent submits that $9,509.40 of the incurred amount related was previously approved on February 29, 2024, leaving a disputed amount of $3,579.60. The respondent submits that on June 15, 2023, the applicant submitted proof that she had incurred $9,509.40, which has since been approved. According to the respondent, there has been no indication that the remainder of the proposed dental services has been incurred.
21In response, the applicant submits that she was not notified of the partial approval for the incurred dental expenses the respondent alleges it provided by way of an explanation of benefits dated February 29, 2024. The applicant submits that neither she nor the dental services treatment provider received that explanation of benefits or payment from the respondent. The applicant submits that the first time was aware of the respondent’s partial approval was through the respondent’s submissions.
22In the applicant’s reply submissions, she accepts the respondent’s partial dental services approval in the amount of $9,509.40.
23I find that the applicant has not demonstrated evidence that she required or incurred any additional accident-related dental services after May 16, 2023. The parties agree that the applicant is entitled to $9,509.40 of the proposed $13,089.00, as approved by the respondent for incurred accident-related dental expenses, but I find that the applicant has not proven on a balance of probabilities that she is entitled to remaining amount.
Claim form for damaged glasses
24The applicant is not entitled to $1,149.00 for prescription glasses submitted on a claim form dated April 18, 2022.
25The insurer shall pay for all reasonable expenses incurred by an insured person in replacing or repairing prescription glasses and dental services and dentures that were lost or damaged as a result of the accident as per S. 24 of the Schedule.
26The applicant submits that around December 5, 2022, the respondent requested additional documents including optometrist records of Dr. Allan Hum and Dr. Carolyn Wong, as well as the file from Crystal Vision Optical. The applicant provided the respondent with the requested information on June 15 and July 28, 2023. The applicant submits that the clinical note of Dr. Hum dated February 8, 2022 reflects that the applicant had difficulty focusing on near objects since the accident, on the background of prior cataract surgery. The applicant argues that because of her damaged glasses and vision changes, she incurred $1,175.00 to purchase new prescription glasses. The applicant relies on the physiatry IE report of Dr. Michael Devlin to support that her glasses fell off and were damaged during the accident.
27The respondent submits that the applicant has not provided evidence that she had to replace her glasses as a result of the accident. The respondent also submits that the applicant’s claim for prescription glasses dated April 25, 2022 was submitted almost four months after the accident, which would support that they were not damaged by the accident. Otherwise, the applicant would have needed her prescription glasses sooner.
28The respondent argues that the applicant has furnished two different, convoluted explanations about how her glasses were a necessary expense because of the accident. The applicant submits that her glasses fell off and were damaged, but also that she experienced post-accident vision changes and needed to purchase new prescription glasses as a result.
29The respondent argues that either way, the applicant’s position is not supported by evidence. The photograph of a pair of damaged glasses fails to show that the damage relates to the subject accident, and the photograph does not include a date or time stamp. The respondent also argues that the first time the photograph was produced was with the applicant’s submissions for this hearing, with no explanation for the delay.
30The respondent submits that the applicant did not actually report to Dr. Devlin that her glasses were broken as a result of the accident, and there is no indication in her optometrist records dated February 8, 2022 that her glasses were broken. The optometrist notes only indicate that the applicant had been having difficulty focusing on near objects since the accident, for which no prescription change was recommended.
31I am not persuaded by the applicant’s evidence. The applicant relies on Dr. Devlin’s report, but it only reflects the applicant’s self-report that her glasses fell off during the accident and not that they were damaged. The photograph of damaged sunglasses is also missing a date or time stamp that would corroborate the timing of the damage, and I agree that the optometrist clinical note dated February 8, 2022 makes no mention of damaged glasses. Instead, the optometrist clinical note confirms that the applicant did not require any prescription change at the time.
32For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that it is more likely than not her glasses as were damaged as a direct result of the accident and that the incurred glasses expense is reasonable and necessary.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest applies on the incurred dental treatment as approved on February 29, 2024.
Award
34The 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.
35The applicant submits the proposed dental services and prescription glasses expense were denied by the respondent without considering the available medical evidence or providing sufficient medical opinion supporting that they were not reasonable and necessary. The applicant also submits that the denials were delayed.
36The respondent submits that the applicant did not comply with the CCRO, and the particulars of the special award were not shared with the respondent until the applicant’s hearing submissions. The respondent also submits that the OCF-18 and OCF-6 denials in dispute were based on the documentation on file, and that the applicant has not produced any compelling evidence that would meet the high bar for entitlement to a special award.
37I find that the respondent has not unreasonably withheld or delayed the payment of benefits. The claim for prescription glasses is not payable, and the respondent’s previous partial approval for incurred dental treatment has been accepted by the applicant in her written submissions. Accordingly, I find no award payable.
Costs
38I find that the applicant has not met the high threshold necessary for ordering costs.
39Rule 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.
40The applicant seeks costs in the amount of $500.00 related to the respondent’s late withdrawal of the preliminary issue listed in the CCRO. The applicant submits that she requested that the respondent withdraw the preliminary issue on February 2, 2024, because it was without merit. The applicant did not receive any response, so she was obligated to research, review, and file submissions related to the preliminary issue. It was not until March 1, 2024 when the respondent filed its written submissions that the applicant was made aware that the preliminary issue was no longer being pursued. Despite the applicant’s request, the respondent failed to withdraw the preliminary issue prior to the subject hearing, which caused the applicant to incur legal costs responding to same.
41I find that the applicant has not established that the respondent’s behaviour merits a costs order. While I accept that respondent could likely have advised the applicant that it would not be pursuing the preliminary issue at a sightly earlier date, I find that this conduct does not rise to the level where costs would be warranted, in accordance with the criteria established in Rule 19.5. As a result, the respondent is not liable to pay costs to the applicant.
ORDER
42The applicant is entitled to $9,509.40 for incurred dental services, as approved by the respondent in an explanation of benefits dated February 29, 2024 and agreed to by the applicant in their written reply submissions to resolve the issue.
43The applicant is not entitled to $1,149.00 for prescription glasses.
44The applicant is entitled to interest on the overdue payment for incurred dental services.
45The applicant is not entitled to an award or costs.
Released: November 21, 2024
Tyler Moore
Vice-Chair