Licence Appeal Tribunal File Number: 22-000635/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:
Aleeyah Phenglavanh
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Mark S. Grossman, Counsel
For the Respondent:
Sonya E. Reid, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Aleeyah Phenglavanh (the “applicant”) was involved in an automobile accident on September 6, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Wawanesa Mutual Insurance Company (the “respondent”) denied a claim for certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2On August 10, 2023, the respondent filed a Notice of Motion (“NoM”) that the Tribunal scheduled to be heard at the written hearing scheduled for August 25, 2023. In this NoM, the respondent sought the following order:
- To exclude evidence introduced by the applicant with her initial written submissions that was not previously produced to the respondent.
SUBSTANTIVE ISSUE IN DISPUTE
3The substantive issue in dispute is:
- Is the applicant entitled to $2,486.00 for a pain medicine assessment, proposed by Humber River Medical in a treatment plan/OCF-18 denied on December 3, 2021?
RESULTS
4With respect to the preliminary issue, I consent to the inclusion of the letter from Dr. Jagdeep Gupta of Humber River Medical Diagnostics dated March 28, 2023, pursuant to Rule 9.4 of this Tribunal’s Common Rules of Practice & Procedure (the “Rules”).
5With respect to the substantive issue, the applicant is not entitled to the treatment plan in dispute, as she has not demonstrated it to be reasonable and necessary. It follows that she is also not entitled to interest.
ANALYSIS
PRELIMINARY ISSUE
6Although I find that the applicant has contravened the Tribunal Case Conference Report and Order (“CCRO”) dated January 5, 2023 that set this matter down for a written hearing due to the late submission of the letter from Dr. Gupta, I consent to its inclusion pursuant to Rule 9.4 of the Rules.
7In submissions for this NoM filed on August 10, 2023, the respondent submits that the letter from Dr. Gupta is new evidence not filed until August 8, 2023. It takes the position that this correspondence is in contravention of the CCRO, which ordered all documents on which the parties intended to rely upon in the hearing to be exchanged within 60 days of the case conference, which was held on January 5, 2023 (meaning by March 6, 2023).
8In addition, the respondent notes that the CCRO set a deadline for the applicant’s submissions to be filed 30 days before the hearing date. As this hearing date was set for August 25, 2023, the respondent asserts that the applicant’s submissions were due on July 25, 2023. Since this letter was not filed until August 8, 2023, it was submitted in contravention of this deadline set in the CCRO as well.
9For the above reasons, the respondent argues that the late submissions of the Dr. Gupta letter deprived it of the “opportunity to mount a proper defence.” It requests that the letter be excluded from evidence due to a violation of Rule 9.2 of the Rules, which requires an applicant to file all documents at least 10 days before a hearing. The respondent also references Rule 9.4, which states that a party failing to comply with any rules, directions, or orders with respect to the disclosure of documents may not rely on such a document without the consent of the Tribunal.
10In response, the applicant sent email correspondence dated August 16, 2023 opposing the motion claiming that the Dr. Gupta letter had been submitted much earlier than the respondent is asserting. This email included a copy of an email sent to the Tribunal and the insurer on April 3, 2023 that included the Dr. Gupta letter as an attachment.
11I agree with the respondent’s argument that the Dr. Gupta letter was submitted late and in contravention of the CCRO. However, the applicant has substantiated that this letter was filed with both the insurer and the Tribunal on April 3, 2023, not on August 8, 2023 as claimed by the respondent in the NoM. Tribunal records also show that this email and the Dr. Gupta attachment were filed April 3, 2023, as the applicant claims.
12Given the above set of facts, the Dr. Gupta letter was filed roughly one month (April 3, 2023) after the date established in the CCRO for document exchange (March 6, 2023). While this is a considerable period of time, I do not agree with the respondent’s argument that this deprived it of the ability to mount a defence in this matter. The respondent had the Dr. Gupta letter over four months before its hearing submissions were due, which in my view allowed it sufficient time to respond accordingly.
13Due to the reasons detailed above, I provide consent for the Dr. Gupta letter to be entered into evidence, pursuant to Rule 9.4.
SUBSTANTIVE ISSUE
Pain Medicine Assessment Treatment Plan/OCF-18
14I find that the applicant is not entitled to the treatment plan for a pain medicine assessment, as she has not demonstrated it to be reasonable and necessary. As no benefits are owing and overdue, interest is not applicable.
15To be entitled to a treatment plan under ss. 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
16The applicant has submitted negligible evidence to support her claim that this treatment plan should be deemed reasonable and necessary. She did not include the OCF-18 in dispute with her hearing submissions. The applicant actually did not make proper submissions of any sort. Aside from the Dr. Gupta letter, the applicant filed only a single-page letter noting that she wished to “make brief submissions in this matter.”
17If nothing else, this is an accurate statement. All that follows this opening sentence in the applicant’s “written submissions” are brief comments about the applicant’s youthful age at the time of the accident, that she had still not made a full recovery, that it is “of some concern” that the sequelae resulting from the accident had gone on for so many years, and that the applicant should have the benefit of an insurer assessment to seek out answers.
18These brief submissions, in my view, do not meet the applicant’s burden to demonstrate entitlement to the treatment plan in question. First, while the applicant does mention the Dr. Gupta letter in these submissions, it does so in a single line, stating only that this letter is “self explanatory.” An applicant cannot simply submit evidence and leave it up to the Tribunal to connect the dots and make her case. Second, the actual treatment plan and its specifics are not mentioned in this document (nor is the OCF-18 attached, as noted above), leaving it impossible to assess the plan for being reasonable and necessary.
19Accordingly, the applicant is not entitled to the treatment plan in dispute, nor interest.
ORDER
20The applicant is not entitled to the treatment plan in dispute, nor interest.
21The application is dismissed.
Released: January 5, 2024
Brett Todd
Vice-Chair