Citation: Abdi v. Intact Insurance Company, 2024 ONLAT 22-008159/AABS

Licence Appeal Tribunal File Number: 22-008159/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:

Safiya Abdi

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Modasir Rajabali, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Safiya Abdi, (the “applicant”), was involved in an automobile accident on January 27, 2017, 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 Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with the cost of a psychological assessment in the amount of $2,400.00 on the basis that she failed to comply with section 44 of the Schedule per section 55(1)2 of the Schedule?

SUBSTANTIVE ISSUES IN DISPUTE

3The substantive issues in dispute are:

i Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii Is the applicant entitled to $2,400.00 for a psychological assessment, proposed by HAL Disability Management Inc., in a treatment plan submitted November 5, 2021?

iii Is the applicant entitled to $2,686.00 for a chronic pain assessment proposed by HAL Disability Management Inc., in a treatment plan submitted September 22, 2021?

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

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

vi Are the parties entitled to their costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”)?

RESULT

4With respect to the preliminary issue, I find that the applicant is not barred from proceeding with the substantive issue in dispute, as detailed below.

5With respect to the substantive issues, I find that:

a. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

b. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $2,400.00 for a psychological assessment, proposed in a treatment plan submitted on November 5, 2021. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

c. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $2,686.00 for a chronic pain assessment, proposed in a treatment plan submitted on September 22, 2021. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

d. The respondent is not liable to pay an award.

e. Neither party is entitled to costs.

PROCEDURAL ISSUES

The respondent’s sur-reply submissions

6On January 8, 2024, the respondent filed its sur-reply submissions without a Notice of Motion. In the first paragraph of these submissions, the respondent also asked for the leave of this Tribunal to file the sur-reply submissions because the applicant made new arguments and provided new evidence in reply that were not in her initial submissions.

7On January 10, 2024, the applicant advised that she opposed the filing of these sur-reply submissions on three main grounds. First, she argues that the respondent has not provided any particulars of its allegations that she provided new evidence or new arguments in reply, and instead is using these submissions as an opportunity to bolster its previous submissions. Second, the applicant relies upon the authority of Godber v. Aviva Insurance Company, 2021 CanLII 69333 (ON LAT) (“Godber”) where the Tribunal held that sur-reply submissions should be provided in limited or exceptional circumstances. Finally, she argues that she would suffer prejudice if these sur-reply submissions were admitted.

8In addition to not filing a Notice of Motion, which is required under Rule 15, I find that the respondent has not established why sur-reply submissions are required. I acknowledge that the respondent argues that the applicant has raised new arguments, and evidence in her reply submissions, however it provides no examples or particulars of same. I am also persuaded by Godber and the test that it particularizes the exceptional circumstances as to when a sur-reply may be warranted.

Sur-reply submissions may only be necessary when a party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute.

9Here, the respondent has provided no particulars of its allegations that the applicant introduced new arguments and evidence in her reply submissions. I find that the facts in this matter do not warrant a sur-reply, and it is not admitted into the record.

10The applicant also requested costs under Rule 19 of the Rules as a result of the respondent filing sur-reply submissions and I will address this below.

ANALYSIS

The applicant is not barred from proceeding with the cost of a psychological assessment

11I find that the applicant is not barred from proceeding forward with the cost of a psychological assessment due to her failure to attend the scheduled insurer’s examinations (“IEs”) on December 29, 2021 and February 9, 2022.

12Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to evoke its rights to an IE.

13The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

a. the medical and any other reasons for the examination;

b. whether the attendance of the insured person is required at the examination;

c. the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

d. if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

14Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.

15The respondent argues that the applicant is statute barred from proceeding forward with the cost of a psychological assessment because she did not attend two scheduled IEs on December 29, 2021 and February 9, 2022. To this end, it relies upon two Notice of Examination (“NOE”) dated November 15, 2021 and January 12, 2022, which it argues are compliant with s. 44(5).

16The applicant argues that the respondent used identical, and boilerplate language when providing its medical and other reasons in its NOEs, dated November 15, 2021 and January 12, 2022. She further argues that the respondent has not included specific details about her condition that formed the basis of its decision, nor did it identify which specific information it required about her condition, that it did not have, but required. Ultimately, the applicant argues that she is not statute-barred under s. 55, as the respondent was non-compliant with s. 44(5).

17The Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. The respondent must first prove that the NOEs comply with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55. When seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute and any section it relies upon. The reasons must be clear enough so that the applicant can make a well-informed decision on whether to attend the examination.

18In the November 15, 2021, NOE, the respondent provided the following medical and any other reason for the examination:

This request for a psychological assessment is being submitted 4.5 years post MVA. Upon review of the medical documentation received to date, there is no indication you have suffered a psychological impairment, as a result of the motor vehicle accident. As such we require an Insurer's examination to determine if the above provisioned assessment is reasonable, necessary or essential.

19I find that this NOE does not comply with s. 44(5) of the Schedule. While the NOE notes the type of examination and refers to the type of assessment, it fails to refer to the applicant’s medical conditions.

20It 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. Indeed, no specific details about the applicant’s diagnosis, or prognosis were provided. Nor did the respondent identify what information it reviewed in making its determination or what information it required from the applicant. Thus, in my view, this correspondence was not clear enough to allow the applicant to make a well-informed decision on whether to attend the examination.

21I further acknowledge the respondent’s reliance upon the authority of 17-002921 v. Aviva Insurance Canada, 2018 CanLII 76416 (ON LAT) for the proposition that an applicant must demonstrate that a deficient notice caused her to be “misled or confused by the documents or was unable to understand them.” I am not bound by this authority, nor do I find it persuasive. As explained above, the respondent cannot rely on s. 55(1)2 to bar the applicant’s application unless it has provided her with sufficient notice, which it has not. In order for an insurer to invoke its s. 44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5). If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.

22Now turning to the subsequent NOE dated January 12, 2022, I find this NOE did not cure the previous deficient notice.

23In its NOE, dated January 12, 2022, the respondent provided the following medical and any other reason for the rescheduled examination:

This request for a psychological assessment is being submitted 4.5 years post MVA. Upon review of the medical documentation received to date, there is no indication you have suffered a psychological impairment, as a result of the motor vehicle accident. As such we require an Insurer's examination to determine if the above provisioned assessment is reasonable, necessary or essential.

24Again, no specific details about the applicant’s diagnosis, or prognosis were provided. Nor did the respondent identify what information it reviewed in making its determination or what information it required from the applicant. Accordingly, this notice is non-compliant with s. 44(5), and does not cure the previous deficient notice.

25Given that I have found that the NOEs were deficient, it is not necessary for me to embark on an analysis as to whether the IE was reasonably necessary and whether the applicant had a reasonable explanation for her non-attendance.

26For the reasons cited above, I find that the applicant is not barred from proceeding with respect to entitlement to the cost of a psychological assessment.

The Minor Injury Guideline

27Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

28An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have 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 they are 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.

29In all cases, the burden of proof lies with the applicant.

30The applicant argues that she should be removed from the MIG on three grounds:

i. She has chronic pain leading to functional impairments.

ii. She has psychological impairments.

iii. She should be removed from the MIG by virtue of s. 38(11) of the Schedule.

31Meanwhile, the respondent argues that the applicant’s injuries are within the MIG definition, and that there is no objective evidence that she suffers from chronic pain syndrome or a psychological impairment.

The applicant is not removed from the MIG on the basis of chronic pain

32I find that the applicant has not established on a balance of probabilities that she should be removed from the MIG due to chronic pain.

33The applicant argues that as a result of the accident, she has ongoing pain and dysfunction in her back, neck, right knee, and left clavicle. The applicant further argues that her injuries have developed beyond simple soft tissue injuries under s. 18(1) of the Schedule, because she was diagnosed with chronic pain, which removes her from the confines of the MIG. To this end, she relies upon a Disability Certificate (“OCF-3), completed by Dr. Dahir Hashi, chiropractor, dated February 1, 2017, and a s. 25 Chronic Pain Evaluation, by Dr. Tajedin Getahun, orthopaedic surgeon, dated January 13, 2023.

34The respondent argues that the applicant made no complaints of pain to her family physician, Dr. Shaukat Hussein until January 22, 2021, who also did not diagnose her with chronic pain, and that the applicant has not demonstrated that she is functionally disabled. To this end, it relies upon the clinical notes and records (“CNRs”) of Dr. Hussein.

35I find that the physical injuries identified in the applicant’s OCF-3 are mostly sprain and strain type injuries to the thoracic and lumbar spine. The OCF-3 also identifies WAD-1 to the neck, which also falls within the definition of a minor injury under s. 3(1). The remaining injury listed is dislocation of joints and ligaments of knee. Significantly, the applicant has neither made submissions or directed me to evidence to establish whether this dislocation was a partial or complete dislocation. Thus, this OCF-3 does not demonstrate that the applicant should be removed from the MIG.

36I also place little weight on the s. 25 report by Dr. Getahun for the following reasons.

37I am alive to the applicant’s position that Dr. Getahun’s opinion should be preferred by this Tribunal because he diagnosed the applicant with chronic pain based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”), and a thorough physical examination. I disagree.

38First, the applicant was not diagnosed with chronic pain as argued, but rather was diagnosed with chronic strain by Dr. Getahun. Second, contrary to the applicant’s arguments, Dr. Getahun did not address the AMA Guides in his report, instead, he based his conclusions on the applicant’s past medical history, physical examination, and a review of limited amount of documentation.

39Second, the physical examination conducted by Dr. Getahun was largely unremarkable, albeit there was mild restricted range of motion with flexion in the cervical spine, tenderness in the thoracic, and lumbar spine, and patellofemoral crepitus in the knees. However, Dr. Getahun did not address in his report whether these physical findings resulted in a functional impairment or disability for the applicant.

40Third, Dr. Getahun did not address the effect of the pain on the applicant’s function or whether it is bearable without treatment. I acknowledge that the applicant argues that Dr. Getahun opined that she continued to be limited with her work, school and at home activities because of her pain. I do not concur. Rather, Dr. Getahun concluded that due to the passage of time since the accident, the applicant’s injuries were entering the chronic phase, and provided no opinion on how this pain affected the applicant’s function.

41While I further acknowledge that the applicant self-reported that she stopped track running, basketball, and needed help with laundry, Dr. Getahun provided no opinion with respect to her functional ability, or how her pain affected these activities. Likewise, the applicant’s family physician, Dr. Hussein has also not opined that the applicant has an functional impairment as a result of this accident. Notably, on January 22, 2021 and April 11, 2023, Dr. Hussein noted that the applicant had normal extension, flexion, and range of motion of her back.

42Finally, the applicant argues that she should be removed from the MIG on the basis of her chronic pain diagnosis alone. To support this position, she relies upon the Financial Services Commission of Ontario (“FSCO”) case of Ali and Ferozuddin and Certas (FSCO A13-002459 and A13-002460, March 23, 2016), where it was held that the MIG was not meant to address chronic pain as a clinically, associated sequela, and the applicant was removed from the MIG as a result.

43I am not bound by FSCO decisions, and I also agree with the respondent’s position that an applicant is not automatically removed from the MIG as a result of any ongoing pain alone at any level. Typically, ongoing pain also must be accompanied by some functional impairment or disability and it must be of a severity that it causes suffering, distress or is accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain would be sufficient to remove an applicant from the MIG. In my opinion, it is a burden that the applicant has not met here.

44For the above reasons, I find that the applicant has not established that she suffers from chronic pain with a functional impairment warranting removal from the MIG.

The applicant is not removed from the MIG on the basis of her psychological impairments

45I find that the applicant’s claims that she suffers from a psychological impairment as a result of the accident have not been supported by sufficient evidence to warrant removal from the MIG.

46The applicant submits that as a result of the accident, she has decreased energy, low mood, including episodes of persistent sadness and crying, situational anxiety, and paranoia when in vehicles, and photophobia. She relies upon the CNRs of her family physician, Dr. Hussein, dated January 22, 2021 and April 11, 2023, and an pre-screen assessment conducted by Ms. Valda Lopa, psychologist, on September 28, 2021.

47The respondent argues that the applicant has not been diagnosed with a psychological impairment by a health practitioner following the accident.

48I find that the applicant has not met her onus to prove an accident-related psychological impairment warranting removal from the MIG. First, the CNRs of Dr. Hussein do not indicate that the applicant reported any psychological symptoms in the period after the subject accident. Nor did Dr. Hussein diagnose the applicant with a psychological impairment, refer her for psychological treatment, or prescribe any medication for her psychological conditions. Indeed, in the CNR of January 22, 2021, Dr. Hussein noted that this was the first time the applicant had reported the subject accident to him, and the applicant did not present with any psychological complaints. Likewise, in the April 11, 2023 CNR, the applicant reported pain complaints and fatigue.

49I also place little weight on the pre-screen report conducted by Ms. Lopo for the following three reasons. First, Ms. Lopo did not conduct any psychometric testing, and relied solely on the applicant’s self-reporting to arrive at her conclusion that the applicant has significant psychopathology. Second, the pre-screen interview is unsupported by other contemporaneous medical evidence, like the lack of complaints to Dr. Hussein. Third, Ms. Lopo, did not review any medical evidence.

50In conclusion, the applicant has not established on a balance of probabilities that she should be removed from the MIG on the basis of a psychological impairment.

Section 38(11)

50The applicant argues that her injuries should not fall within the MIG as the respondent was non-compliant with s. 38(8). As such, she submits that the Tribunal must apply the consequences of s. 38(11), which includes removing the applicant from the MIG. To support her interpretation, she relies upon the FSCO decisions of Ferawana v. State Farm Mutual Automobile Insurance Co., 2016 CarswellOnt 14392, and Augustin v. Unifund Assurance Company, 2013 ONFSCDRS 141.

51Sections 38(8) and (11) set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and all of the other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

52I am not bound by the authorities cited by the applicant. However, while the parties did not refer me to this decision by the Divisional Court, I am bound by it, see: Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng”).

53In Zheng, the Divisional Court held that s. 38 refers to the specific treatment plan in question, and s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination. An improper denial therefore does not result in the applicant being removed from the MIG entirely. I accordingly do not accept the applicant’s argument. I will, however, address the issue of s. 38(8) with respect to the individual treatment plans below.

54As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

55However, the applicant submits that the respondent’s denials contravened s. 38(8) of the Schedule. I will now address whether the treatment plans in dispute are payable by virtue of s. 38(11).

56The applicant submits that the respondent used almost identical boilerplate, generic language in the Explanation of Benefits (“EOBs”), dated October 8, 2021 and November 15, 2021. The applicant further argues that these denials did not mention her medical conditions, and therefore the respondent was non-compliant with s. 38(8).

57Problematically, the respondent’s submissions do not directly address s. 38(8) or whether the EOBs were compliant. Instead, the respondent argues that the applicant has not adduced evidence that the OCF-18s were incurred or recommended by her treatment providers. Further, it vaguely submits that the applicant has not led evidence that she incurred the OCF-18s during the non-compliant period, yet it does not point me to correspondence that cured the deficient EOBs.

The respondent was non-compliant with s. 38(8) of the Schedule with respect to the OCF-18 for a psychological assessment, submitted on November 5, 2021

58I find that the EOB, dated November 15, 2021, was non-compliant with s. 38(8) of the Schedule.

59I have already detailed the contents of an NOE, dated November 15, 2021 at paragraph 18 above. The EOB, dated November 15, 2021, had the same reasons outlined for denying the cost of a psychological assessment.

60I find that this EOB does not comply with the requirements pursuant to s. 38(8), as it failed to provide adequate medical reasons to deny the cost of a psychological assessment. The reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule as no specific details about the applicant’s diagnosis, or prognosis was provided. Nor did the respondent identify what information it reviewed in making its determination or what information it required from the applicant. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial. The respondent has also not pointed me to correspondence that cures this deficient EOB.

61As noted above, the respondent vaguely submitted that the applicant has not led evidence that she incurred the treatment plan during the non-compliant period, and it refers me to the authority of Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (“Catic”). I am also bound by: Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”).

62In Suarez, the Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial.

63This can be distinguished from the Divisional Court decision of Catic, where the court held that treatment must be incurred, in cases where a deficient notice was subsequently corrected by a proper notice. In such situations, only those goods and services that are incurred during a shall-pay period by the applicant are payable by an insurer. In the matter at hand, as the insurer did not lead evidence to establish that the deficient notice was cured, I find that the Divisional Court’s reasoning in Suarez is applicable.

64As such, I find the treatment plan for a psychological assessment to be payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The respondent was non-compliant with s. 38(8) of the Schedule with respect to the OCF-18, for a chronic pain assessment, submitted on September 22, 2021

65I find that the respondent’s EOB, dated October 8, 2021, was non-compliant with s. 38(8) of the Schedule.

66In this EOB, dated October 8, 2021, the respondent provided the following reasons for denying the treatment plan for a chronic pain assessment:

This request for a chronic pain assessment is being submitted 4 1/2 years post MVA. A review of the file indicates that there is no compelling medical evidence to support that Ms. Abdi's injuries are outside of the MIG or that the treatment claimed is reasonable and necessary. Therefore, a medical opinion is required to determine if a chronic pain assessment is reasonable and necessary for the injuries sustained.

67In my view, this EOB does not comply with the requirement under s. 38(8). While the respondent notes that it conducted a file review, it does not advise the applicant which documentation it reviewed, or why it doesn’t support that the proposed assessment is reasonable and necessary. Nor, did the respondent provide specific details about the applicant’s diagnosis, prognosis, or identify what information it required. As such, I find that this EOB is not clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial. This also does not serve the Schedule’s consumer protection goal.

68Accordingly, the treatment plan for a chronic pain assessment is payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The respondent is not liable to pay an award

69I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the treatment plans for the cost of a psychological assessment and chronic pain assessment.

70Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

71The applicant in her initial submissions argued that the respondent has a responsibility to carefully consider all of the available information, and to handle it in a fair and even-handed manner, which it did not do so. She argues that the respondent breached its fiduciary duty by not considering new medical information as it became available.

72The respondent argued that the applicant is non-compliant with the Case Conference and Order (“CCRO”), released on April 23, 2023, as she did not provide particulars of her award claim by July 1, 2023. In any event, the respondent argued that the applicant has not established that she is entitled to an award.

73In her reply submissions, the applicant did not address the issue of non-compliance with the CCRO, and instead provided further arguments on why she is entitled to an award.

74I find that the applicant’s reply was improper with respect to raising new arguments for an award. It is well settled that the purpose of reply submissions is for the party who bears the onus in the dispute to respond to any issues that were raised in the opposing party’s submissions, which could not have been reasonably raised in initial submissions. Reply submissions do not present an opportunity to raise new issues that should have been addressed in initial submissions, or, as it relates to the subject proceeding, to restate submissions, evidence and arguments. Therefore, I will not consider the applicant’s reply submissions with respect to the new arguments for an award, but I will consider the arguments made properly in the initial submissions.

75I acknowledge that the applicant was non-compliant with the CCRO, however I find that she has not established that the high threshold for an award has been met. While the applicant argues that the respondent did not consider new evidence as it became available, she did not direct me to evidence to support this proposition. It is well-settled that submissions are not evidence. As such, I find an award is not appropriate.

Neither party is entitled to costs

76I find that the applicant and respondent have not established costs are warranted.

77According to Rule 19, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.

78The respondent argues that it is entitled to costs as there is a lack of evidentiary support for the applicant’s case. Therefore, it argues that the applicant’s claim is unreasonable and frivolous.

79The applicant argues that $500.00 should be awarded in costs because the respondent unreasonably submitted sur-reply submissions without contacting her legal representative or filing a motion with the Tribunal. She further argues that this behaviour frustrated the Tribunal’s capacity to maintain an efficient proceeding and was disrespectful to her.

80I will start with the respondent’s request for costs first.

81An applicant has a right under the Schedule to bring an application to the Tribunal within two years of a denial by an insurer and if the applicant is unable to prove her claim, that does not mean the insurer is entitled to its costs under Rule 19. The behaviour of the party must be shown to have been unreasonable, frivolous, vexatious, or in bad faith.

82I am not persuaded of a course of conduct in this case that can be considered to be anywhere near the threshold of unreasonable, frivolous, vexatious or in bad faith. While I found that the applicant is not removed from the MIG, this is not grounds to award costs under Rule 19.

83Applicants may initiate applications where they believe they are entitled to benefits. Respondents have the right to raise appropriate defences in response to those applications. The Tribunal should not deter applicants from filing applications that may have merit. The respondent’s interpretation of what is unreasonable, frivolous, vexatious or in bad faith in this matter would discourage applicants from filing valid applications and have a negative impact on access to justice.

84I also find that the applicant has not demonstrated that the high threshold for costs has been met. While I am alive to her position, that the respondent did not file a Notice of Motion or contact her prior to filing its submissions, this alone does not establish unreasonable, vexatious, frivolous, or bad faith conduct on the part of the respondent.

85To summarize, I decline to award costs to either party.

ORDER

86For the reasons outlined above, I find that:

a. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

b. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $2,400.00 for a psychological assessment, proposed in a treatment plan submitted on November 5, 2021. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

c. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $2,686.00 for a chronic pain assessment, proposed in a treatment plan submitted on September 22, 2021. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

d. The respondent is not liable to pay an award.

e. Neither party is entitled to their costs.