Citation: Black v. Aviva General Insurance, 2024 ONLAT 22-000251/AABS

Licence Appeal Tribunal File Number: 22-000251/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:

Georgette Black

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Mikolaj T. Grodzki, Counsel

For the Respondent: Mark Vella, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Georgette Black (“the applicant”) was involved in an automobile accident on October 7, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva General Insurance (“the respondent”) 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 a medical benefit in the amount of $3,405.00 for chiropractic services proposed by Simply Chiro in a treatment plan/OCF-18 dated December 10, 2019?

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

iii. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to the treatment plan, and no interest or award is payable.

4The application is dismissed.

PROCEDURAL ISSUES

Page Limits Exceeded

5The respondent submits that the applicant’s initial submissions did not comply the page limits and spacing requirements set out in the Case Conference Report and Order (“CCRO”). The Tribunal ordered written submissions, double spaced in 12-point font to a maximum of 10 pages. The applicant submitted just over 7 pages single spaced, the equivalent of approximately 14 pages. The respondent submits that it is prejudiced by this failure to comply as it does not have sufficient capacity to respond, and submits that the excess pages beyond page 5 of the submissions should be disregarded.

6In her reply, the applicant submits that the respondent was not prejudiced because in its submissions it addressed and responded to each issue raised by the applicant. The applicant further submits that the page limits are exclusive of evidence and case law, and she included quotes form various caselaw which amounted to approximately two pages, as well as quotes from evidence, therefore she didn’t exceed the page limits one those are excluded.

7I disagree with the applicant that the submissions she made pertaining to case law and evidence are exclusive of the page limit. The CCRO was clear that the page limit for submissions was 10 pages, which includes submissions being made on the evidence and case law to support her position on entitlement. The actual pages of evidence and case law referenced in the submissions is excluded from the page limit.

8The CCRO specified that the hearing adjudicator may not consider submissions which exceed page limits. I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 10-page limits set out in the CCRO. However, in this case, I will admit the non-compliant submissions, and to assign them whatever weight I deem appropriate. I remind the applicant that non-compliance with Tribunal orders is strongly discouraged, and in future the appropriate course of action is to file a timely Notice of Motion if they seek to vary submission page limits.

Motion to Strike Portions of the Reply and Request for Costs

9The respondent filed a Notice of Motion seeking to strike portions of the applicant’s reply submission on the basis that they were improper and a material breach of procedural fairness by introducing new evidence and argument. The respondent submits that paragraphs 9, 12, 13, and 18 should be struck.

10I do not agree that paragraph 9 should be struck. In response to the respondent’s argument that the applicant adduced no evidence in her initial submissions to support the treatment plan in dispute, at paragraph 9 of the reply the applicant lists the numerous specialists she had seen, and notes that several MRIs were performed and 1000s of pages of medical records submitted to the insurer. In my view, the applicant appears to have misunderstood the respondent’s submissions. She appears to have misapprehended the difference between the obligation on an insurer to review and consider evidence in relation to the adjusting of a claim, and the respondent’s submission pertaining to the lack of evidence submitted in the litigation of the claim.

11The applicant included new medical records of Dr. Rabinovitch (para 12) and Dr. Walsh (para 13) in her reply with 31 pages of new evidence and new legal argument with respect to headaches. This evidence and argument were not included with the initial submissions. At paragraph 18 the applicant included new case law regarding defective denial.

12The applicant submits that her arguments were made in response to the respondent’s submissions. The applicant submits that relying on case law is “very proper”, it is frivolous to suggest it is improper, that the respondent’s motion is frivolous, and requests costs of $250.00.

13The right of reply is a limited one. The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in their initial submissions. Parties are expected to make the entirety of their case in their main submission and new evidence as part of a reply is generally not permitted because the respondent does not have the opportunity to respond to new evidence tendered as part of a reply.

14I find that paragraphs 12, 13 and 18 exceed the permitted scope of a reply, as they include both new arguments and evidence that are not specifically raised in response to any arguments made in the respondent’s submissions. The case law at paragraph 18 appears to be a new argument for the basis in which the applicant believes the respondent’s notice was deficient, and not in response to any submissions by the respondent.

15The respondent’s motion is granted in part. Paragraphs 12, 13, and 18 of the reply are struck. The applicant’s request for costs is dismissed.

ANALYSIS

The treatment plan is not reasonable or necessary

16The treatment plan in dispute proposed 75 sessions of chiropractic manipulations with an estimated duration of 52 weeks.

17To 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.

18The applicant has not met her burden to prove that the treatment plan was reasonable and necessary. The applicant points to the fact that she was deemed catastrophically impaired, is in receipt of non-earner benefits, and is incurring attendant care in support of her position. That has little bearing as to whether the specific treatments proposed will address specific impairments that the applicant experienced.

19The applicant submits that the focus should not be on the particulars of the plan, but rather on the fact that the applicant’s impairments significantly impede her useful function. The applicant points to case law that pain reduction and increased functionality are reasonable and necessary goals. However, the applicant’s submissions fail to establish how the plan will accomplish those goals.

20She has adduced no medical evidence contemporaneous to the treatment plan that supports the need for this passive treatment. She provided the notes of Simply Chiropractic, which included a note from the chiropractor, Dr. Stephane Chillis, that it is his opinion that the car accident created her disability. There is no evidence or opinion even from this chiropractor as to why the proposed treatment is necessary. The applicant’s burden to prove that treatment is reasonable and necessary goes beyond showing that the applicant had an impairment. The applicant must provide sufficient detail to explain why the specific treatment requested is reasonable and necessary in relation to the impairments.

21The applicant has further failed to adduce evidence as to how the cost and duration of the plan is reasonable.

22I place weight on the insurer’s examination (“IE”) report of Dr. Mitchell Fox, physiatrist (report dated February 6, 2020). The applicant reported only temporary relief with the chiropractic sessions, lasting about an hour after the session, after which time she returned to her baseline level of pain. Given the very limited benefit this type of treatment provides to the applicant, I find that a further 75 sessions over the span of a full year is not reasonable or necessary.

23Absent objective evidence to support the need for further chiropractic care, where the applicant’s own self-reporting contradicts the efficacy of such treatment, the applicant has not met her onus to prove that the proposed treatment is reasonable and necessary.

s. 38(11) does not apply

24Presumably, upon receipt of the treatment plan, the respondent sent a denial letter to the applicant and advised that it was arranging the insurer’s examination that eventually took place with Dr. Fox. That letter was not before me. The applicant takes issue with the denial letter that was sent after the assessment with Dr. Fox, so the applicable section is 38(14). This section states that, within 10 business days after receiving the insurer’s examination report, it shall provide the insured person with a notice indicating the goods and services described in the treatment plan that it agrees to pay for, those it refuses to pay for, and the medical and other reasons for the insurer’s decision.

25After the assessment with Dr. Fox, the respondent advised that the treatment plan in dispute was denied by letter dated February 7, 2020. The applicant submits that the denial letter was non-compliant with s. 38(14) in that it failed to discuss her injuries and impairments, and doesn’t comply with the notice requirements set out by the Divisional Court in Varriano v. Allstate, 2021 ONSC 8242(“Varriano”).

26The applicant submits that because this denial notice was deficient, pursuant to s. 38(11) the respondent is required to pay for the goods and services described in the treatment plan. While the respondent’s initial denial would be governed by s. 38(8) and the “shall pay” provision of s. 38(11) which expressly points to a denial that fails to comply with s. 38(8), an insurer’s subsequent response following receipt of the IE report is governed by s. 38(14) and (15). Even if I were to find the notice to be deficient, there are no similar “shall pay” requirements for deficient notices under s. 38(14).

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are owed, therefore no interest is payable.

Award

28The 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. Given that I have found that no benefits are payable, no award is payable.

ORDER

29The applicant is not entitled to the treatment plan, and no interest or award is payable.

30The application is dismissed.