Citation: Ali v. Aviva Insurance Company of Canada, 2024 ONLAT 22-013491/AABS

Licence Appeal Tribunal File Number: 22-013491/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:

Waheed Ali

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Joshua Gautreau, Counsel

For the Respondent:

Hooman Zadegan, Counsel

HEARD: In Writing

OVERVIEW

1Waheed Ali, the applicant, was involved in an automobile accident on June 26, 2018, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Background

2The applicant is currently 60 years old, married, right-handed, and has two adult children. He has not worked for many years due to a complex medical history including trigeminal neuralgia, and chronic pain requiring the daily use of Percocet medication. The applicant has been receiving LTD and CPP disability benefits since around 2014.

3On June 26, 2018, the applicant was the seat-belted front passenger in a vehicle that was rear-ended while stopped. No airbags were deployed, the applicant was not taken to hospital, and he was able to exit the vehicle without assistance. The applicant described using his left arm to brace himself against the dashboard, and felt almost immediate pain in his left shoulder, chest, and an exacerbation of neck pain. The applicant attended hospital the day after the accident and complained of chest, neck, and head pain according to hospital reports. X-rays of the neck at the time revealed degenerative changes.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $2,717.30 per month from March 10, 2021 to date and what amount has been incurred?

ii. Is the applicant entitled to $3,533.35 for occupational therapy services and assistive devices proposed by Health Bound Health Network in a treatment plan/OCF-18 (“plan”) dated February 18, 2021 and denied on March 10, 2021?

iii. Is the applicant entitled to $3,088.64 for chiropractic services proposed by Health Bound Health Network in a plan dated June 10, 2021?

iv. Is the applicant entitled to $2,866.01 for chiropractic services proposed by Health Bound Health Network in a plan dated March 24, 2021 and denied on June 25, 2021?

v. Is the applicant entitled to $3,715.00 for physiotherapy services proposed by Health Bound Health Network in a plan dated September 15, 2021?

vi. Is the applicant entitled to $5,058.00 for cannabis medication services proposed by Health Bound Health Network in a plan dated July 20, 2021 and denied on October 25, 2021?

vii. Is the applicant entitled to $3,088.64 for chiropractic services proposed by Health Bound Health Network in a plan dated January 3, 2022 and denied January 20, 2022?

viii. Is the applicant entitled to $3,847.20 for psychological services proposed by Sharif Zadeh, psychologist, in a plan dated May 11, 2023 and denied June 22, 2023?

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

x. Is the applicant entitled to costs?

RESULT

5The applicant is not entitled to attendant care benefits from March 10, 2021 to date, and no amount has been incurred.

6The applicant is not entitled to $3,533.35 for occupational therapy services and assistive devices.

7The applicant is not entitled to chiropractic and physiotherapy services in the amounts of $3,088.64 in a plan dated June 10, 2021, $2,866.01 in a plan dated March 24, 2021, $3,715.00 in a plan dated September 15, 2021, or $3,088.64 in a plan dated January 3, 2022.

8The applicant is entitled to $5,058.00 for cannabis medication services.

9The applicant is entitled to $3,847.20 for psychological services.

10The applicant is entitled to interest related to the cannabis medication services and psychological services.

11The applicant’s request for costs is denied.

PROCEDURAL ISSUES

12In his submissions the applicant refers to substantive issue iii. as $3,088.64 for chiropractic services proposed by Health Bound Health Network, and not $2,394.00 for physiotherapy services as listed in the Tribunal’s case conference report and order (“CCRO”) dated June 19, 2023.

13The respondent submits that the applicant recognizes that he made an error, but he failed to bring a Motion over the weeks following the case conference to correct the error in the CCRO. The respondent argues that the $2,394.00 described in the Tribunal application was actually a smaller sum contained within a larger treatment plan totalling $3,088.64. This, however, has not been clarified in the applicant’s submissions. The respondent submits that the applicant’s error should preclude his ability to pursue these services.

14In his reply submissions the applicant notes that the Tribunal has the discretion to allow this issue correction, and that the issue will be limitation barred if not allowed to proceed despite the clear intention to have inadvertent error in the original application corrected.

15I have allowed for the correction of substantive issue iii as reflected above. While I agree that the applicant should have brought a Motion to have the error corrected after receiving the CCRO, the respondent has not demonstrated that it will be prejudiced by correcting the error. I find that the applicant, on the other hand, will be prejudiced should the issue be struck from consideration and each party has had the opportunity to provide submissions related to the corrected issue in dispute.

ANALYSIS

ACBs

16I find that the applicant has not established, on a balance of probabilities, that he is entitled to ACBs in the amount of $2,717.30 per month from March 10, 2021 to date.

17Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

18Section 3(7)(e) of the Schedule provides that the expenses are not incurred by an insured person unless: (i) they have received the goods or services to which the expense relates; (ii) they have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expense; and (iii) the person who provided the goods and services (a) did so in the course of the employment, occupation, or profession in which he or she ordinarily have been engaged, but for the accident, or (b) sustained an economic loss as a result of providing the goods or services to the insured person.

19The onus is on the applicant to demonstrate that he required the care of an aide or attendant and that he incurred the expense of hiring one. The applicant may still be entitled to ACBs despite not hiring an aide or attendant, if he can show that the expense was not incurred because the respondent unreasonably withheld or delayed payment of the benefit pursuant to s. 3(8) of the Schedule.

20The applicant submits that Boris Potoyants, occupational therapist, completed a Form 1 on February 9, 2021 recommending entitlement to $2,717.30 per month for attendant care. Specifically, Mr. Potoyants recommended 140 minutes per week for dressing/undressing, 150 minutes per week for grooming, 1050 minutes per week for preparing/serving and feeding meals, 875 minutes per week for bathroom/bedroom/clothing care and cleaning, 60 minutes per week for controlling medication supply, and 210 minutes per week for bathing. The applicant submits that Ms. Potoyants considered the applicant’s antalgic gait, restricted ranges of motion in the neck, shoulders, back, and left lower extremity secondary to pain. He also considered that the applicant’s pain limited his ability to lift, carry, push/pull, bend at the waist, sit/stand for a prolonged period, walk, and that the applicant was limited by paresthesias in his left upper and lower extremities, the exacerbation of his pre-existing trigeminal neuralgia, his reliance on a cane to ambulate, and his inability to engage in leisure activities.

21The applicant acknowledges that he had functional limitations prior to the accident associated with his medical history, but according to the applicant and his spouse’s CAT assessment collateral interview, he became more limited in his function due to increased post-accident pain and reliance on more daily Percocet medication, reduced mobility, reduced sensation in his hands and legs, and a reliance on a cane that he did not have before the accident.

22The applicant argues that the proposed attendant care was denied by the respondent based on the s. 44 assessment report of occupational therapist Robert Campos dated April 27, 2021, even though his findings contradict those in the OHIP records, the s. 25 assessment reports, and the respondent’s catastrophic impairment (“CAT”) determination assessments that were completed 9 months later. Specifically, the applicant’s family doctor, Dr. Andrei Hirsch’s clinical notes dated February 26, 2020, reflect that the applicant was unable to function at a normal level in day-to-day life as a result of the accident, and Dr. Stephen Brown, chronic pain specialist, found in September 2020 that the applicant’s neck and left upper extremity symptoms limited his ability to clean, do laundry, prepare food, vacuum, and do anything that involved heavy lifting or using his left hand. The applicant submits that Mr. Campos did, however, note the applicant’s self-report that he needed post-accident assistance from his wife for showering, dressing, and applying creams to his body, for cooking, and laundry.

23The respondent submits that the s. 44 occupational therapy in-home assessment of Mr. Campos demonstrates that prior to the accident the applicant’s wife helped him with toenail care, showering, dressing, and applying creams to his body due to trigeminal neuralgia pain in his left shoulder and face with any bending. The respondent also pointed me to the applicant’s self-report that he could manage these tasks himself most of the time before the accident and that he still can after the accident if he can take his time.

24The respondent also argues that according to Mr. Campos, the applicant reported that after the accident he could take his medications and get them from the pharmacy independently, he could brush his teeth, feed himself, and get to the bathroom on his own. The applicant was also the one who reported to Mr. Campos that prior to the accident his wife was responsible for most of the cleaning, laundry, and making the bed. Since the accident, the applicant reported that he can make tea, wash small items, and can carry light groceries when he goes grocery shopping with his wife.

25To further support the respondent’s position, it argues that the applicant disclosed to Mr. Campos that he had resumed driving at the same frequency he drove prior to the accident, he could socialize with friends and family just not as often after the accident, he could walk his dog a few times per week, and he could go to temple twice per month as opposed to weekly before the accident. It submits that this is consistent with Mr. Campos’ conclusion that the applicant was able to perform his self-care tasks independently as long as he was using proper movement and pacing, and that is why Mr. Campos assessed the applicant at $0.00 per month for entitlement to attendant care.

26The respondent further submits that the Form 1 completed by Mr. Potoyants fails to compare the applicant’s pre- and post-accident functioning which is essential in this case. The report contradicts the applicant’s admission that he was already getting help for toenail care and dressing before the accident from his wife. According to the respondent, given the fact that the applicant required help with such basic tasks before the accident, it would follow that he would obviously not have had the capacity to do more physical activities that he now argues he needs attendant care services for, such as cooking and cleaning.

27I agree with the respondent that the evidence presented does not support the applicant’s submission that before the accident he enjoyed playing golf, cricket, soccer, lawn tennis, and going fishing. I am persuaded by, and have given more weight to, Mr. Campos’ report which includes a detailed pre- and post-accident comparison of function. I am also persuaded by his observations that the applicant could sit for 30 minutes with minimal shifting, ascend and descend 12 stairs in his home, half-squat without support, transfer independently, and bend from standing without support to pick up and carry his 18 lb dog from the floor. Mr. Potoyants, on the other hand, reported that the applicant was completely independent with all activities of daily living before the accident, including heavy cleaning, outdoor maintenance, showering, dressing, and grooming, which is not consistent with the medical record. Mr. Potoyants also reported that the applicant was very active before the accident, playing sports and going for long walks, which is also inconsistent with the other medical evidence before me. Specifically, on July 20, 2021, general practitioner, Dr. Frank Loritz, reported that the applicant had not been involved in any sporting activities for at least 7 years.

28The applicant also relies on the chronic pain assessment report of Dr. Stephen Brown dated September 20, 2020, but I find that Dr. Brown relies on the applicant’s unlikely self-report that after the accident he was less able to do things he enjoyed doing before the accident such as playing golf, tennis, and cricket, and that he dramatically reduced his social engagements. I find, given this unlikely self-report, that Dr. Brown was not presented with a clear picture of the applicant’s pre-accident level of function and his tolerance for activities of daily living to be able to accurately assess the impact on the applicant’s post-accident condition.

29I have also considered Dr. Hirsch’s February 26, 2020 clinical notes which indicate that the applicant was unable to function at a normal level in his day-to-day life. Dr. Hirsch does not, however, specify what aspects of the applicant’s daily life are impacted, if this is a result of the applicant’s accident-related injuries or pre-accident condition, or if it is related to the applicant’s anxiety, which was another reason for the applicant’s consultation with Dr. Hirsch that day.

30To date, the applicant has provided no expense claim form or invoice demonstrating that he incurred the expense of an aide or attendant. Apart from submissions that the applicant’s spouse has provided him with assistance since the time of the accident, the applicant has not submitted any evidence of an economic loss that his spouse sustained as a result of providing attendant care. Accordingly, I find that the applicant has not met his burden of proof to demonstrate entitlement to ACBs.

31Given this finding, the applicant’s only path to receiving payment for ACBs is for me to deem the expenses to be incurred, pursuant to s. 3(8) of the Schedule. Pursuant to s. 3(8), the Tribunal may deem an expense to be incurred if it finds that the insurer unreasonably withheld or delayed payment of the benefit. I find that this is not a case to deem the expense to be incurred because I find no evidence indicating that ACBs were unreasonably withheld or delayed, or that they were reasonable and necessary.

32While I accept that the applicant’s pre-existing chronic conditions and pain were exacerbated by the accident, I am not convinced, on a balance of probabilities, based on the comparison of the applicant’s pre- vs post-accident function that his accident-related injuries warrant the services of an aide or attendant as proposed.

33I find, on a balance of probabilities, that the applicant is not entitled to $3,533.35 for occupational therapy services and assistive devices.

34The treatment plan proposed by Mr. Potoyants calls for 5 sessions of counseling, 5 sessions of communication with the applicant and treatment providers, 2 hours of documentation, 2 hours of preparation, 5 hours of provider travel time. The plan also proposes a body pillow, body pillow cover, bed rail with installation, raised toilet seat with installation, tub rail with installation, shower chair, long-handled brush, grab bar with installation, sock aid, additional documentation in the amount of $200.00, shipping, and file management in the amount of $80.00. The goals of the plan are listed as pain reduction, increased strength, and to improve management of activities of daily living.

35To 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.

36The applicant submits that the proposed plan was denied based on the assessment report of Mr. Campos, who relied on the report of physiatrist, Dr. Alborz Oshidari, dated June 5, 2019, despite OHIP records indicating the applicant’s limitations and a contrary opinion from the respondent’s own CAT occupational therapy assessment report of Zainab Bukhari, dated July 11, 2022. The applicant also argues that Dr. Hirsch recommended assistive devices for sleep on May 26, 2023.

37The respondent relies on the in-home assessment of Mr. Campos who highlighted the applicant’s good functional capacities. The respondent submits that Ms. Campos even referenced the s. 44 multi-disciplinary reports of Dr. Oshidari, physiatrist, Dr. Adit Margaliot, neurologist, and Dr. Arpita Biswas, psychologist, who opined on June 21, 2019 that the applicant did not suffer impairments in relation to the accident. The respondent also argues that the applicant did not incur any of the proposed treatment apart from $200.00 for the completion of the treatment plan itself.

38Though the applicant submits that Dr. Oshidari’s report should not be relied upon because of previous investigations with the College of Physicians and Surgeons of Ontario for errors in his medical reports, I find that Dr. Oshidari’s report is only one piece of evidence that I have considered as part of the totality of evidence presented. Having reviewed Dr. Hirsch’s clinical note dated May 26, 2023, I can only decipher that a new pillow is recommended. Dr. Hirsch makes no other identifiable recommendations for assistive devices as asserted by the applicant, and none of the assistive devices proposed are listed. I do agree, however, that Mr. Bukhari found that the applicant had post-accident functional limitations, but I find that the applicant’s self-reported pre-accident limitations were inconsistent and did not provide Mr. Bukhari with an accurate picture of his pre- compared to post-accident function and limitations. For example, the applicant reported to Mr. Bukhari that before the accident he was completely independent with all self-care and housekeeping tasks, including cleaning and laundry, and that he engaged in various sports including cricket/golf/tennis before the accident.

39I find that the applicant’s self-report is inconsistent with the medical record. Because of these inconsistencies I have placed little weight on the applicant’s self-report as I find it is not reliable. While I accept that the applicant has some post-accident limitations, I am not satisfied on a balance of probabilities that any accident-related limitations render the proposed occupational therapy services and assistive devices reasonable and necessary, based on the evidence presented.

40I find, on a balance of probabilities, that the applicant is not entitled to the proposed chiropractic and physiotherapy services from Health Bound Health Network in the amounts of $3,088.64 dated June 10, 2021, $2,866.01 dated June 25, 2021, $3,715.00 dated September 15, 2021, and $3,088.64 dated January 3, 2022.

41The treatment plans dated June 10, 2021 and January 3, 2022 propose the same 12 sessions of physiotherapy for a total cost of $2,394.00, 12 sessions of planning, 12 sessions of contact and file management, 12 sessions of towel service, and $200.00 for completion of the treatment plan.

42The treatment plan dated June 25, 2021 proposes 9 sessions of supervised aquatherapy.

43The treatment plan dated September 15, 2021 proposes 17 sessions of manipulation, therapy, exercise, heat/cold, education, and $200.00 for completion of the treatment plan.

44The goals of the proposed treatment plans include pain reduction, increased strength and range of motion, return to activities of normal living, and prevention of chronicity.

45The applicant submits that the denials of the proposed treatment plans for chiropractic/physiotherapy and aquatherapy services are based on the problematic assessment opinions of physiatrist Dr. Oshidari, which are contrary to the medical record and the respondent’s own CAT assessments. The applicant argues that the medical evidence supports an accident-related diagnosis and that the proposed modalities are reasonable and necessary.

46The respondent submits that similar proposed treatment was reviewed by Dr. Oshidari in 2019 and found not to be reasonable or necessary because the applicant had reached maximum medical improvement for any accident-related problems.

47I am not persuaded by the applicant’s submissions. The clinical notes of Dr. Hirsch dated May 14, 2021 note no improvement in the applicant’s pain despite treatment, including physiotherapy. On July 17, 2021 Dr. Hirsch noted that the applicant was attending aquatherapy once a week, but there was no indication that it was helping the applicant’s pain or that it was recommended. On September 29, 2021, Dr. Hirsch reported that the applicant had persistent symptoms of pain and difficulty sleeping, and by October 15, 2021 Dr. Hirsch indicated that the applicant was not getting better and taking too many pills despite the treatment he had received.

48I rely on the consistent medical evidence that the proposed services did not achieve the proposed goals in the past. In July 2021, Dr. Loritz reported that the applicant had been participating in physiotherapy/chiropractic and exercise treatment since the time of the accident at Health Bound Network with only temporary relief of up to two days. The applicant reported to Dr. Loritz that the treatment efficacy had also reached a plateau. This is supported by the clinical notes of physiotherapist Leslie Soever at Toronto General Hospital dated June 2, 2019 which indicates that the applicant had already attended 30 weeks of physiotherapy since the accident, including exercises and stretches without significant pain relief. On May 28, 2019, physiotherapist Christopher Hawke of Toronto General Hospital noted that the applicant’s left shoulder pain was actually worsening despite the treatment he was receiving, and Mr. Campos’ report dated April 2021 notes that the applicant had started attending aquatherapy a few months after the accident. I find that this is consistent with Dr. Hirsch’s clinical notes that the proposed treatment had already been trialed without lasting benefit.

49I find that on a balance of probabilities the proposed treatment plans are not reasonable and necessary. The plans propose previously trialed treatments that have not achieved the goals set out in the proposed plans. This is according to both the applicant’s self-report and the records of his OHIP and non-OHIP medical providers.

50I find, on a balance of probabilities, that the applicant is entitled to $5,058.00 for cannabis medication services proposed by Health Bound Health Connection.

51The applicant submits that the conclusion of Dr. Loritz that the proposed treatment is not reasonable and necessary is not supported by the OHIP records. The applicant also submits that Dr. Loritz admits that the applicant’s chronic pain has been exacerbated by the accident, and that medical cannabis therapy is an appropriate intervention for his chronic pain.

52The respondent argues that Dr. Loritz found that the applicant had achieved maximal medical improvement related to his accident-related injuries, which is consistent with the earlier findings of Dr. Oshidari. The respondent also submits that the applicant reported to Dr. Loritz that his treatment efficacy had reached a plateau.

53I am persuaded by the applicant’s evidence, on a balance of probabilities, that a trial of cannabis medication is reasonable and necessary as proposed. Dr. Loritz agreed that the applicant’s accident-related injuries likely contributed in an incremental fashion to his pre-accident medical condition. Dr. Loritz also concluded that the applicant had reached maximum medical improvement based on the fact that the applicant’s post-accident treatments to the date of his July 2021 report had only been providing temporary symptomatic relief and that their efficacy had reached a plateau. I find, however, that medical cannabis had not been trialed at the time of Dr. Loritz’ report as a treatment option. Dr. Loritz also admitted that a trial of cannabis therapy would be considered reasonable and necessary in an attempt to manage the applicant’s longstanding and ongoing medical condition, but he denied the proposed plan because he found that the applicant’s injuries had only incrementally contributed to his overall condition, which is a subjective opinion.

54Based on the agreed finding that the applicant’s accident-related injuries exacerbated his pre-existing chronic pain, the fact that medical cannabis had not previously been trialed at the time it was proposed, and the acceptance that medical cannabis may be considered reasonable and necessary to manage longstanding pain when other treatments have not been effective, I find that the proposed treatment plan is reasonable and necessary.

55I find that on a balance of probabilities the applicant is entitled to $3,847.20 for psychological services as they are reasonable and necessary.

56The treatment plan proposed by Dr. Bita Sharifzadeh, psychologist, calls for 12 hours of counseling, 12 sessions of preparation service, 3 hours of psychological testing, 3 hours of documentation, $50.00 for educational material, and $200.00 for the completion of the OCF-18. The goals of the plan are pain reduction and a return to activities of normal living.

57The applicant submits that the respondent ignored the most recent s. 44 CAT assessment report of Dr. Shreekant Sharma, psychiatrist, dated February 4, 2023 whereby the applicant was diagnosed with a chronic adjustment disorder as a result of the accident. The applicant argues that the respondent is estopped from holding the position that the applicant does not have a psychological diagnosis.

58The respondent submits that the first time the applicant has proposed psychological services was nearly 5 years after the accident, in the absence of any change in circumstances at that time that might have indicated the need for new services. The respondent acknowledges that Dr. Sharma diagnosed the applicant with an adjustment disorder, but the applicant also reported to Dr. Sharma that he was happy on a day to day basis, he still had interest in recreational activities but pain limited what he could do, he was not afraid to drive, he was not an anxious passenger, he did not report intrusive thoughts or hypervigilance, and had no other symptoms of post-traumatic stress disorder. According to Dr. Sharma, the applicant had only mild symptoms and he had multiple pre-existing medical diagnoses. The respondent argues that a diagnosis of this nature does not indicate that someone would require psychological therapy. The respondent also relies on the s. 44 psychological assessment report of psychologist Dr. Arpita Biswas dated June 21, 2019, which found no psychological impairment. Additionally, the applicant was able to travel to Trinidad in 2023 for 16 days, and he travelled to Cuba on vacation for 10 days in 2022.

59I find that the applicant has consistently reported increased pain since the accident and subsequent anxiety over the lack of improvement despite treatment and I accept that this has weighed on the applicant’s mental health over time. The clinical notes from Dr. Hirsch support this, as does the report of Dr. Sharma. For example, on November 19, 2021 Dr. Hirsch noted that the applicant was worried and anxious about the future because of his ongoing symptoms and increased pain since the accident. The applicant’s self-report is echoed in many of Dr. Hirsch’s subsequent clinical notes leading up to the proposed psychological treatment. On June 6, 2022, Dr. Hirsch noted that the applicant could be suffering from post-traumatic stress disorder and he recommended counseling.

60I find the fact that the applicant was able to travel on two occasions following the accident does not negate his psychological symptoms. I am also mindful that Dr. Biswas did note that the applicant was suffering from adjustment and coping issues related to increased pain following the accident but concluded that they appeared to be subclinical in proportion. However, Dr. Sharma diagnosed the applicant with a psychological condition, as did Dr. Shahzad Shahmalak, psychiatrist, on September 14, 2022.

61As I have already found that the accident exacerbated the applicant’s pre-existing chronic pain, I find on a balance of probabilities that the proposed psychological treatment is reasonable and necessary as a previously untrialed therapy for the mental health component of the applicant’s accident-related injuries and exacerbated pain.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest related to the plans for cannabis medication services and psychological services.

Costs

63I deny the applicant’s request for costs.

64Rule 19.1 of the Licence Appeal Tribunal Rules (“Rules”) 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. The 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 a costs award and is an exceptional remedy.

65The applicant argues in his reply submissions that he should be awarded $500.00 for costs because the majority of his reply submissions had to address misrepresentations of the medical record, of the legal tests, of the initial submissions, and requests for negative inferences by the Tribunal.

66In considering this request, I look to Rule 19.5, which indicates adjudicators shall consider the seriousness of the alleged misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, and the prejudice to other parties. The applicant is given the opportunity for reply submissions to address the respondent’s position and to draw the Tribunal’s attention to inconsistencies or arguments he does not agree with, which is what the applicant has done. I find that the applicant’s argument does not meet the high bar required to award costs.

ORDER

67The applicant is not entitled to attendant care benefits from March 10, 2021 to date, and no amount has been incurred.

68The applicant is not entitled to $3,533.35 for occupational therapy services and assistive devices.

69The applicant is not entitled to chiropractic or physiotherapy services in the amounts of $3,088.64 in a plan dated June 10, 2021, $2,866.01 in a plan dated March 24, 2021, $3,715.00 in a plan dated September 15, 2021, or $3,088.64 in a plan dated January 3, 2022.

70The applicant is entitled to $5,058.00 for cannabis medication services.

71The applicant is entitled to $3,847.20 for psychological services.

72The applicant is entitled to interest related to the overdue payment of benefits related to cannabis medication services and psychological services.

73The applicant’s request for costs is denied.