Citation: Brown v. Zenith Insurance Company, 2024 ONLAT 22-002345/AABS

Licence Appeal Tribunal File Number: 22-002345/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:

Nicole Brown

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Omar Duhaney, Paralegal

For the Respondent:

Amanda Colarossi, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Nicole Brown (the “applicant”) was involved in an automobile accident on October 8, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Zenith Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PROCEDURAL ISSUE

The applicant’s initial late submissions will be considered by the Tribunal

2I will not exclude the applicant’s initial submissions that were served/filed on July 13, 2023, eight days after the deadline for submissions.

3The Case Conference Report and Order (“CCRO”), dated February 1, 2023, was clear that the deadline for the applicant’s initial submissions was July 5, 2023.

4Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.

5The respondent submits that the applicant’s initial submissions were due on July 5, 2023, in accordance with the CCRO, and she did not serve her submissions until July 13, 2023, eight days after the deadline passed. As a result, the respondent requests that the applicant’s submissions should not be considered for the purposes of this hearing.

6The applicant submits that the respondent has not established that it sustained prejudice as a result of the applicant’s late submissions. The applicant further submits that the respondent was able to respond to the applicant’s submissions and the evidence tendered was already served on the respondent in advance of the hearing.

7The respondent has not directed me to evidence of prejudice that was caused by this slight delay. I find that the applicant would suffer significant prejudice if her submissions/evidence were excluded for the purposes of this hearing, as the evidentiary onus rests with her to demonstrate that the proposed OCF-18 is reasonable and necessary. Lastly, the negligible impact of such contraventions is outweighed by the consumer protection mandate of the Schedule, which is best served by hearing all submissions from applicants whenever reasonable and whenever possible.

8Moreover, if the respondent required additional time to review the material, it could have filed a motion with the Tribunal under Rule 15 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”) and requested an extension of time to file its responding submissions, which in my view would have been a more reasonable remedy in these circumstances. The respondent chose not to do so.

9To sum up, I will consider the applicant’s late filed submissions for the purposes of this hearing.

ISSUES

10The issues in dispute are:

1. Is the applicant entitled to physiotherapy treatment in the amount of $6,200.00, proposed by Rooted Shala Physiotherapy Center Corporation in a treatment plan/OCF-18 (“OCF-18”) submitted on April 13, 2021, and denied on April 27, 2021?

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

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

4. Is the applicant liable to pay $500.00 in costs pursuant to Rule 19 of the Rules?

RESULT

11I find that:

i. The applicant is entitled to the OCF-18, submitted on April 13, 2021, for physiotherapy treatment, plus interest;

ii. The respondent is not liable to pay an award; and

iii. The applicant is not liable to pay costs.

ANALYSIS

The OCF-18 in the amount of $6,200.00 for physiotherapy treatment, submitted on April 13, 2021, is reasonable and necessary

12I find that the applicant has met her burden of proof to demonstrate that the proposed OCF-18 for physiotherapy services is reasonable and necessary.

13To 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.

14The goals of the disputed OCF-18 include: pain reduction, increased strength, for the applicant to return to her activities of normal living, to return to her modified work activities and return to her pre-accident work activities.

15The applicant submits she has whiplash associated disorder with complaints of neck pain, fibromyalgia, cervicalgia, and major depression from this accident. The applicant submits that the goals of the OCF-18 include pain reduction and the restoration of functional ability in the areas affected by injury. The applicant further submits that the goals are reasonable and necessary in light of the medical evidence relating to the applicant’s injuries. To this end, the applicant relies on the records of her treating family physician, Dr. Joel Kailia.

16The respondent submits that the applicant has not met her evidentiary onus as she has not provided other evidence to support the services proposed in the disputed OCF-18 are reasonable and necessary. The respondent submits that the applicant has sustained soft tissue injuries that do not require further treatment. To this end, the respondent relies on the s. 44 Orthopaedic Independent Medical Evaluation, dated August 23, 2021, completed by Dr. Randall Locht, orthopaedic surgeon.

17I agree with the applicant that the proposed physiotherapy services are reasonable and necessary. I place greater weight on the contemporaneous medical record. While I am alive to the respondent’s submissions that the applicant has not provided medical evidence or explanation to indicate why the OCF-18 is reasonable and necessary, I disagree. The applicant produced correspondence from her treating physician, Dr. Kailia dated September 20, 2022. Dr. Kailia noted that he was the applicant’s treating physician in regard to her chronic pain since May 2016. Moreover, Dr. Kailia noted that since the accident, the applicant had developed symptoms and signs consistent with the diagnosis of fibromyalgia, central sensitization syndrome, grade 3 whiplash affective disorder, and major depression. Further, Dr. Kailia noted that he has advised the applicant to get weekly treatment with a physiotherapist, and the applicant struggled as the accident was out of province.

18Moreover, Dr. Kailia noted that the applicant diligently underwent treatments that she paid out of pocket, however fibromyalgia is typically lifelong, and she will continue to need more treatments for the foreseeable future. As such, Dr. Kailia, recommended that the applicant continue to get weekly sessions of acupuncture, physiotherapy, massage, counselling, and osteopathy. As the applicant’s primary care physician for chronic pain, I place significant weight on Dr. Kailia’s recommendations.

19The applicant has also demonstrated that physiotherapy will provide pain relief. The applicant advised Dr. Locht on August 23, 2021, that she had been attending physiotherapy, massage therapy, and acupuncture on a reasonably regular basis up to one month ago. Moreover, the applicant reported that she felt fatigued following each physiotherapy session, however there was a definite positive response to her pain which could last several days.

20I am also not persuaded by Dr. Locht’s recommendation that the applicant can manage her permanent residual nonspecific soft tissue injuries with a use of a self-managed exercise program, heat, and self-massage. I note that on July 17, 2019, Dr. Belinda Van Der Berg, applicant’s family physician recommended exercise therapy for the applicant, however she also recommended that the applicant should go back to Dr. Kailia, who treats her for her pain. As noted above, Dr. Kailia has recommended ongoing physiotherapy. It is well-settled that pain reduction is a legitimate goal of treatment. Accordingly, I find that the applicant has demonstrated the goal of pain relief is reasonable and will be met to a reasonable degree.

21The respondent relies on the report of Dr. Locht who concluded that the OCF-18 is not reasonable and necessary as the applicant has reached maximum medical recovery in regard to her nonspecific soft tissue injuries. However, Dr. Locht also noted that the applicant’s chronic widespread pain may be due to a central nervous system and peripheral nervous pain perception pathway sensitization due to dysregulation of her central nervous system. Dr. Locht also stated that the applicant’s chronic widespread pain was likely masking an undetermined degree of residual tissue pain as a result of this accident. I find it significant that Dr. Locht repeatedly opined that it was not within his scope of expertise to provide an opinion with respect to the applicant’s chronic widespread pain prognosis or recovery process. Accordingly, his opinion that the treatment recommended in the OCF-18 is not reasonable and necessary is not persuasive.

22To sum up, I prefer the evidence of Dr. Kailia who diagnoses the applicant with fibromyalgia and central sensitization syndrome and recommends physiotherapy to treat those conditions.

23I also disagree with the respondent’s position that the applicant does not require further physical treatment as her social media shows that she has been tobogganing and hiking since the accident. In my view, the respondent has not shown how the activities as depicted on the applicant's social media account impact the applicant's diagnosis or the treatment required as the result of her above-noted impairment. As already stated, Dr. Kailia, her treating physician has recommended the proposed services to treat her pain and muscle atrophy. As such, I place more weight on the recommendations of the applicant’s treating physician for her chronic pain, than her social media account.

24As the respondent has not raised issues with the proposed costs associated with the OCF-18. I have no reason to think that the costs associated with the treatment are unreasonable.

25In conclusion, I find that the proposed services for physiotherapy are reasonable and necessary.

The respondent has not demonstrated that s. 47(2) of the Schedule is applicable

26I find that the respondent has not established that the payment of the disputed OCF-18 is reasonably available under any insurance plan or law or under any other plan or law.

27Pursuant to s. 47(2) of the Schedule, the onus is on the respondent to advance submissions and evidence that establishes that an insurance plan or any other plan were reasonably available to fund the disputed OCF-18.

28The respondent submits that a GoFundMe account constitutes an insurance plan or any other plan, and the applicant raised $14,330.00 from a GoFundMe account. The respondent further submits that on March 2, 2022, the applicant provided an update on her account stating that she had used approximately $8,000.00 of the funding towards rehabilitation, including physiotherapy. As such, the respondent submits that the proposed OCF-18 should be funded using the $8,000.00 received by the applicant from her GoFundMe account.

29The applicant submits that she lives in British Columbia whereby they do not employ the use of the Health Claims for Auto Insurance System (“HCAI”). As such, the applicant created the account to fund numerous types of treatment.

30I find that the respondent has not established that the applicant’s GoFundMe account constitutes as an insurance plan or other plan pursuant to s. 47(2) of the Schedule. The respondent has provided no rationale or authorities on how a GoFundMe account would fall under these categories. In my view, funds raised through a GoFundMe account are akin to receiving funds from a charity or a gift from a friend, and this is different than an insurance plan. Gifts, charities, etc. are different than an insurance plan because an insurance plan creates an entitlement to a benefit in exchange for payment of premiums.

31Adopting the interpretation of the legislation proffered by the respondent would be inconsistent with the consumer protection spirit of the Schedule. I do not believe that it was the intent of the legislature that funds raised through voluntary fundraising would constitute an insurance plan or other plan under s. 47(2), otherwise it would have been clearly expressed in the legislation.

32As such, I find that the respondent has not met its burden to prove that a GoFundMe account constitutes as an insurance plan or other plan. As such, s. 47(2) is not applicable.

The applicant is entitled to Interest

33Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. Contrary to the respondent’s submission that interest is only payable on benefits that the Tribunal determines are improperly denied, the applicant is entitled to interest on the disputed OCF-18, as it has been found reasonable and necessary. As the respondent did not pay the OCF-18 within the time required under the Schedule, the applicant is entitled to interest as payment for the OCF-18 is overdue.

The respondent is not liable to pay an Award

34I find that the applicant has failed to meet her evidentiary onus to establish that she is entitled to an award or interest.

35Pursuant 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 this criteria.

36It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.

37The applicant submits that the respondent acted unreasonably in relying solely on Dr. Locht’s report, even though Dr. Locht himself stated he did not possess the relevant expertise to provide a medical opinion regarding the prognosis of chronic widespread pain.

38The respondent submits that it has not unreasonably withheld or delayed payments to the applicant and that it relied upon the s. 44 report of Dr. Locht. The respondent also submits that the OCF-18 in dispute is for physical treatment and rehabilitation, and as such it is within the realm of an orthopaedic surgeon to provide an opinion with respect to this.

39I agree with the respondent, that as the OCF-18 was for physiotherapy services, it was not unreasonable, excessive, imprudent, stubborn, inflexible, unyielding or immoderate for the respondent to retain an orthopaedic surgeon to determine whether the proposed services are reasonable and necessary. Moreover, Dr. Locht did review the available medical documentation from both Dr. Kailia and Dr. Belinda Van Der Berg. The applicant also did not provide evidence of when she sent over the letter of Dr. Kailia, dated September 20, 2022, to the respondent. As such, the applicant has not provided sufficient evidence, to demonstrate that the respondent disregarded compelling medical evidence which resulted in the respondent unreasonably withholding or delaying payment for the disputed OCF-18. Accordingly, the respondent is not liable to pay an award.

The applicant is not liable to pay costs

40I find that the applicant is not liable to pay costs to the respondent.

41According to the provisions of s. 19 of the Rules, 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.

42Here, the respondent requests for $500.00 in costs in its written submissions. It argues that the applicant disregarded the Tribunal’s process by submitting her case conference brief late and her written submissions eight days late.

43In reply, the applicant did not directly address this issue, and just stated that the application should not be dismissed with costs.

44In any event, I find that the respondent has not established the high threshold for costs is warranted. Moreover, the respondent has not directed me to evidence of prejudice that was caused by this delay. As such, I am not persuaded the threshold for costs has been met. Thus, no costs shall be awarded.

ORDER

45For the reasons outlined above, I find that:

i. The applicant is entitled to the disputed OCF-18 with interest;

ii. The respondent is not liable to pay an award; and

iii. The applicant is not liable to pay costs.