Licence Appeal Tribunal File Number: 22-000471/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:
Mwajuma Chikwanine
Applicant
and
Wawanesa Insurance
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Tara L Lemke, Counsel
For the Respondent:
Dave Dhillon, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mwajuma Chikwanine, the applicant, was involved in an automobile accident on December 10, 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, Wawanesa Insurance, 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 an income replacement benefit (“IRB”) in the amount of $387.54 per week from May 17, 2021, to June 16, 2021?
ii. Is the applicant entitled to $3,500.00 for chiropractic treatment proposed by Dr. Stephane Chillis in a treatment plan/OCF-18 (“plan”) dated July 16, 2021?
iii. Is the applicant entitled to $525.00 for a vision therapy assessment proposed by Dr France Corriveau in a plan dated October 27, 2021?
iv. Is the applicant entitled to $1,700.00 for other goods and services ($1,500.00 for vision treatment, $75.00 for assessment, $75.00 for exercise equipment, and $50.00 for documentation) in a plan dated December 2, 2021?
v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the respondent entitled to $500 in costs.
SETTLED ISSUE
3The respondent submits that it has paid the disputed IRB benefit plus applicable interest for the period in dispute. This is confirmed in the applicant’s reply.
RESULT
4The applicant is not entitled to chiropractic treatment.
5The applicant is entitled to a vision therapy assessment in the amount of $525.00, vision therapy in the amount of $1,325.00, and applicable interest as per s.51 of the Schedule.
6The applicant is not entitled to an award under O. Reg. 664.
7The respondent is not entitled to costs.
PROCEDURAL ISSUES
8The respondent has raised two procedural issues,
i. In their submissions, the applicant claims the period for the IRB dispute to be May 17, 2021 to August 16, 2021. An additional nine weeks over the time period noted in the January 25, 2023 case conference report and order issued by the Tribunal setting the parameters for the hearing.
ii. The applicant has submitted section 25 catastrophic injury assessments on May 3, 2023 which was after the disclosure deadline ordered by the Tribunal.
The issues in dispute are determined by the Tribunal as outlined in the Case Conference Report and Order
9I do not consider this to be a procedural issue as the applicant has made no request to broaden the issues in dispute.
10Section 25.0.1 of the Statutory Powers Procedure Act (“SPPA”) gives the Tribunal the right to make orders with respect to the procedures and practices that apply in a proceeding.
11The Tribunal has ordered that the issue in dispute encompasses IRB entitlement from May 17, 2021 to June 16, 2021.
12There has been no motion or request made by either party to expand the issues in dispute beyond the period identified in Tribunal’s order.
13The applicant has submitted in their reply that the date range in the application was an error and that they intended to dispute the expanded date range. However, the applicant had multiple opportunities to address this error. Issues in dispute are thoroughly reviewed at the case conference. The case conference or a motion would be the correct venue to rectify such an error.
14Therefore, I find the time period in dispute remains May 17, 2021 to June 16, 2021 as ordered by the Tribunal.
15As both parties indicate in their submissions that the IRB for the period in dispute has been paid by the respondent, I find that this issue is not in dispute.
The section 25 catastrophic injury assessments are not admissible in this hearing
16Section 25.0.1 of the SPPA gives the Tribunal the power to make orders with respect to the procedures and practices that apply in a proceeding. This includes the right to set disclosure deadlines and enforce those deadlines.
17In a case conference held on November 18, 2022, the Tribunal ordered that all documents not previously disclosed on which the parties intend to rely on at the hearing be disclosed within 180 days.
18The applicant served section 25 catastrophic injury assessment reports on the respondent on May 3, 2023. The applicant then referenced these reports in their submissions to the Tribunal for this hearing.
19The respondent submits that the submissions referencing these late disclosed reports not be considered, as the reports were not served in accordance with the order issued by the Tribunal and they are not relevant as catastrophic injury determination is not an issue in dispute.
20The applicant, in their reply, submits that the respondent is not prejudiced by the inclusion of the reports as they had three months to review the reports prior to the due date for submissions and that LAT Rule 3.1 requires that the rules be liberally interpreted, including varied, to ”facilitate a fair and open process”.
21The Tribunal ordered an initial disclosure deadline of February 16, 2023 and a deadline for disclosure of responsive items of March 18, 2023. Ninety and 120 days following the case conference respectively.
22The s. 25 reports were served on the respondent on May 3, 2023, 46 days following the deadline for responsive items.
23I note that the respondent did not have any opportunity to produce responsive evidence.
24Disclosure dates are not determined in isolation, when documents are disclosed late, the Tribunal must consider the knock-on effects such as the ability of the receiver to meet the remaining procedural deadlines, or, as seen in this instance, how the receiver may be prejudiced by being unable to present responsive evidence.
25In this case, it is procedurally unfair to the respondent if these reports were admitted as evidence without allowing an opportunity for analysis and responsive assessments.
26I also note that the reports were commissioned for the purposes of catastrophic impairment determination, which is not at issue in this hearing.
27If the applicant wished to include these reports as evidence, a motion could have been brought before the Tribunal asking for disclosure to be re-opened and the remaining dates pertaining to this hearing to be adjusted accordingly. This would have provided the respondent ample time to review the reports and commission any reply. No such motion was made.
28For the reasons above, I find that these reports were not served in accordance with the orders of the Tribunal and are therefore not admissible for the purpose of this hearing. As such I will not be considering any submissions made that reference these reports including but not limited to paragraphs 20, 33, 34 and 50 of the applicant’s submissions.
ANALYSIS
Entitlement to treatment plans
29To 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.
The applicant is not entitled to chiropractic treatment
30The applicant has not proven an entitlement to chiropractic treatment.
31The applicant submits that they should be entitled to chiropractic care based on the clinical notes and records of Dr. A. Khan, the applicant’s family physician and an occupational therapy assessment of Ms. E. Coego, occupational therapist, conducted on February 11, 2020.
32The respondent submits that there is no recommendation for chiropractic care evidenced in the contemporaneous medical records of the applicant. The applicant also points to a s. 44 assessment of Dr. D. Simon, orthopaedic surgeon, dated September 24, 2019.
33Having reviewed the clinical notes and records of Dr. Khan and the OT assessment of Ms. Coego, I have not found any recommendation for the applicant to begin or continue chiropractic treatments.
34The records cited by the applicant, do not support the disputed treatment, therefore on the balance of probabilities, the applicant has not met their burden of proof.
35As such, I find that the applicant has not proven an entitlement to chiropractic treatment.
The applicant is entitled to a vision therapy assessment
36I find that the applicant has proven a vision therapy assessment is reasonable and necessary.
37The applicant submits that a vision therapy assessment provided by Dr. F. Corriveau, optometrist, is reasonable and necessary as evidenced by the contemporaneous clinical notes and records of Dr. Khan.
38The respondent submits that in Dr. Khan’s Clinical Notes and Records (“CNRs”), the first reference to vision issues is March 15, 2019 and that the symptoms experienced by the applicant are outside of the scope of practice of an optometrist. The respondent also references a s. 44 psychological report of Dr. T. Ricci, clinical psychologist who assessed the applicant on August 27, 2021.
39Despite not being approved, the applicant completed the assessment, and has provided it as evidence.
40In the assessment, Dr. Corriveau notes that the applicant is suffering from post-trauma vision syndrome which can cause photophobia, associated neuromotor difficulties, and issues with balance, coordination, and posture.
41The applicant first reported symptoms of daily fronto-temporal headaches with disequilibrium to Dr. Khan in the contemporaneous CNRs one month following the accident on January 15, 2019 and has been consistently reporting symptoms of headaches, photophobia and dizziness in subsequent visits.
42While the report of Dr. Ricci notes that the applicant was not experiencing issues with her vision, it is noted that the applicant is experiencing light sensitivity, vertigo and dizziness.
43I do not accept the submissions on the scope of practice of Dr. Corriveau, as she has diagnosed the applicant with an impairment within her scope of practice, which relates to the symptoms the applicant is experiencing.
44The goals of this assessment are to determine the causes of the applicant’s symptoms associated to her vision and to devise a treatment regimen to treat these symptoms. Both of which are accomplished in the completed report.
45When looking at the reasonableness of the cost of this assessment, $525 is well below the maximum guideline set by the Financial Services Regulatory Authority of Ontario for an assessment.
46For the reasons above I find that the applicant has met the legal test and is entitled to $525 for the assessment conducted by Dr. Corriveau.
The applicant is entitled to visual therapy sessions
47The applicant has proven an entitlement to $1,325.00 for visual therapy sessions and the associated activities.
48The applicant submits that this plan is in line with the recommendations made by Dr. Corriveau and is reasonable and necessary on those grounds.
49The respondent submits that as the applicant does not have a diagnosed concussion, it is not possible to bring her visual skills to a pre-concussion level.
50The plan proposed the following:
51While there does not appear to be a formal diagnosis of a concussion, the applicant appears to be exhibiting symptoms of a concussion. These symptoms were reported contemporaneously to her family physician shortly following the accident and have persisted since the accident.
52The goals of the proposed treatment are clear, the reduction and elimination of these symptoms.
53Dr. Corriveau outlines below how the goals will be met:
At the beginning of therapy, we will concentrate our efforts on peripheral awareness, spatial awareness, full body integration, saccades, and pursuits. Once her monocular skills are strong and she had the necessary understanding of visual space, we will then move on to improving her convergence/divergence skills. We will assess visual processing as well and might include work on visual memory, recognition, discrimination, in our vision therapy if needed.
54Dr. Corriveau recommends eight sessions with an assessment following the eighth session to re-evaluate visual skills and provide a more accurate estimate of the number of sessions required to achieve the goals.
55On this basis of Dr. Corriveau’s assessment, I find that it is reasonable and necessary for the applicant to receive eight one-hour sessions of vision therapy and a 30-minute follow-up assessment. I also find the documentation support activity to be reasonable and necessary to accompany the treatment. If additional sessions are warranted after the re-assessment, a new OCF-18 can be submitted with the results of the follow-up assessment.
56There have been no submissions made as to the “exercise equipment” sought in this treatment plan, therefore I do not find that this is reasonable or necessary.
57Therefore, I find that the applicant is entitled to $1,325.00 for services performed by Dr. Corriveau as outlined below:
Interest
58The applicant is entitled to interest on $1,850.00 as per s.51 of the Schedule.
Award
59Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
60It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
61As the applicant has made no submissions to justify an award in this case, I find they are not entitled to one.
COSTS
62I find that the applicant is not liable to pay costs to the respondent.
63Costs are a discretionary remedy that the Tribunal may impose when it is determined that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuant to Rule 19.1 of this Tribunal’s Rules and s. 17.1 of the SPPA.
64In this instance the respondent is requesting $500 in costs due to unreasonable, frivolous, vexatious or bad faith actions on the part of the applicant.
65The respondent has not directed me to sufficient evidence that the applicant’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process.
66Having two preliminary issues raised during a written hearing does not meet the threshold to award costs.
67That is not enough to demonstrate unreasonable, frivolous, vexatious, or bad faith conduct that would rise to the level of awarding costs. Awarding costs against an applicant whose submissions led the respondent to raise a preliminary issue would have a negative impact on individuals accessing the Tribunal system.
68As a result, the applicant is not liable to pay costs to the respondent.
ORDER
69For the reasons above, I order that the applicant:
i. Is entitled to $1,850.00 for visual assessments and therapy;
ii. Is entitled to interest in accordance with s.51 of the Schedule;
iii. Is not entitled to an award under O. Reg. 664; and
iv. Is not liable for costs to the respondent.
Released: May 23, 2024
Julian DiBattista
Vice-Chair