Bennett v. Aviva Insurance Company of Canada, 2024 CanLII 897

Citation: Bennett v. Aviva Insurance Company of Canada, 2024 CanLII 897

Licence Appeal Tribunal File Number: 21-000237/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:

Andre Bennett

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Andre Bennett, Applicant

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: By Written Submissions

OVERVIEW

1Andre Bennett (the “applicant”) was involved in an automobile accident on September 30, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada (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:

1. Is the applicant entitled to $4,135.80 for medical cannabis, proposed by Dr. Howard Shiffman in a treatment plan/OCF-18 (“treatment plan”) dated June 14, 2021?
2. Is the applicant entitled to $4,508.11 for chiropractic treatment, proposed by Dr. Michael Malatesta in a treatment plan dated June 4, 2021?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not met his evidentiary burden to establish that the treatment plans in dispute are reasonable and necessary. As there are no benefits payable, the applicant is not entitled to interest.

PROCEDURAL ISSUE

The parties failed to deliver their written hearing submissions and evidence in accordance with the timelines ordered by the Tribunal

4The parties failed to serve and file their written hearing submissions and evidence in accordance with the timelines ordered by the Tribunal.

5A 3-day videoconference hearing was initially scheduled for October 18, 19, and 20, 2022. As per a Motion Order dated October 14, 2022, the parties consented to converting the videoconference hearing to a written hearing. The videoconference hearing was vacated, and a written hearing was subsequently scheduled to proceed on August 25, 2023.

6Pursuant to the Motion Order dated October 14, 2022 and a Notice of Written Hearing dated December 29, 2022, the applicant’s submissions and evidence were due on July 26, 2023, the respondent’s submissions and evidence were due on August 11, 2023, and the applicant’s reply submissions, if any, were due on August 18, 2023.

7Neither party served and filed their written hearing submissions and evidence in accordance with the above timelines.

8On or about August 2, 2023, the applicant advised the respondent that he was no longer represented by Jane Conte, counsel.

9On August 4, 2023, the respondent filed a Notice of Motion requesting the following relief: (i) an order for a resumption of the case conference to allow the applicant’s counsel to get off the record and to allow time for the applicant to retain new legal representation; (ii) an order vacating the written hearing; or in the alternative (iii) an order dismissing the application. Pursuant to a Motion Order dated August 21, 2023, the Tribunal denied the respondent’s motion and ordered that the written hearing proceed as scheduled. As for the issue of the applicant’s legal representation, the Tribunal held that Ms. Conte remained the applicant’s counsel of record as she did not properly withdraw from representation pursuant to Rule 24 of the Licence Appeal Tribunal Rules, 2023 (the “LAT Rules”).

10On August 8, 2023, the applicant filed a request to adjourn the written hearing because he no longer had legal representation. Pursuant to an Adjournment Order dated August 24, 2023, the Tribunal denied the applicant’s request for an adjournment.

11Neither party sought a Tribunal order extending the timelines to serve and file their written hearing submissions and evidence. Despite this, on August 24, 2023, the respondent filed its written hearing submissions and evidence, and on August 25, 2023, the applicant filed his written hearing submissions and evidence.

12In his written hearing submissions, the applicant requests that the Tribunal forgive the formalities and consider his late-filed written hearing submissions and evidence.

The parties’ late-filed written hearing submissions and evidence will be considered by the Tribunal

13In the circumstances, I am prepared to consider the parties’ late-filed written hearing submissions and evidence.

14Pursuant to Rule 9.4.5 of the LAT Rules, the deadline for filing and serving submissions and hearing briefs for written hearings are set by order of the Tribunal. Written hearing briefs must be filed with the Tribunal as an indexed, tabbed and consecutively page numbered PDF, and only include the evidence and authorities a party intends to rely on at the hearing.

15As per Rule 9.3 of the LAT Rules, if a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal. When making its determination, the Tribunal may consider any relevant factor, including but not limited to the reasons for non-compliance, whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order, whether the other party opposes the admission of the evidence or testimony, and the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

16Although neither party complied with the timelines ordered by the Tribunal to serve and file their written submissions and evidence, the applicant seeks the Tribunal’s consent to rely on his non-compliant written hearing submissions and evidence. The respondent’s position with respect to this request is unknown.

17I find that as a result of Ms. Conte’s withdrawal of representation, which occurred after July 26, 2023, the parties were forced to engage in various procedural steps days prior to the written hearing. Further, after the Tribunal released the Motion Order dated August 21, 2023 and the Adjournment Order dated August 24, 2023, the parties attempted, albeit late, to remedy the situation by filing written hearing submissions and evidence.

18Given the parties’ breach of the Tribunal’s previous order, it falls within my discretion to determine whether to consider the late submissions and evidence (see: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 23(1) and 25.0.1). In the circumstances, I am prepared to consider the parties’ late-filed written hearing submissions and evidence.

ANALYSIS

The Treatment Plans

19To 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.

20The applicant submits that he sustained injuries as a result of the accident that are not minor, and he denies that his injuries can be treated within the Minor Injury Guidelines (the “MIG”). The applicant further submits that his accident-related injuries have impacted his life, and he notes that he is no longer able to maintain full-time employment as an electrician due to his accident-related injuries. The applicant does not identify his accident-related injuries in his submissions, nor does he tender any favourable objective evidence to support his position.

21The respondent submits that the applicant has not discharged his onus to prove that the disputed treatment plans are reasonable and necessary. The respondent indicates that the applicant sustained soft-tissue injuries to his neck, back, and right wrist as a result of the accident that have resolved. The respondent relies on a general practitioner assessment report dated September 21, 2021 completed by Dr. Howard Platnick, physician.

$4,135.80 for medical cannabis is not reasonable and necessary

22I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated June 14, 2021 in the amount of $4,135.80 for medical cannabis is reasonable and necessary.

23The treatment plan proposes two grams of medical cannabis per day for a period of four months, medication management, instruction and support activity, and documentation support activity for the claim form. The goals of the treatment plan are to reduce pain, to manage the applicant’s pain symptoms, to increase functionality and activities limitation, to initiate and maintain restorative/restful sleep, to increase quality of life, mood, and motivation, and to give the applicant more energy to increase his participation in day-to-day activities and keep his average pain score down.

24I find that the applicant’s submissions and evidence are lacking in demonstrating that the treatment plan is reasonable and necessary. Although the treatment plan indicates that the applicant suffers from chronic pain and a sleep disorder as a result of the accident, the applicant has provided insufficient evidence to support that he suffers from these medical conditions as a result of the accident.

25Indeed, the only medical evidence tendered by the applicant were various insurer examination reports conducted on behalf of the respondent, including two physiatry assessment reports dated April 5, 2018 and October 11, 2018 respectively, both completed by Dr. Steven Baker, physiatrist. In addition, the applicant submitted a physical medicine and rehabilitation specialist assessment report dated September 24, 2019 completed by Dr. Alborz Oshidari, physician, specialist in physical medicine and rehabilitation; a general practitioner assessment report dated March 25, 2021 completed by Dr. Todd Walters, physician; and Dr. Platnick’s report.

26I find that none of the respondent’s assessors opined that the applicant suffered from chronic pain or a sleep disorder as a result of the accident. On April 5, 2018, Dr. Baker diagnosed the applicant with whiplash associated disorder type II, lumbar strain, and bilateral knee contusion. He diagnosed the applicant again on October 11, 2018. He concluded that the applicant suffered from a lumbar spine strain with axial mechanical low back pain as a result of the accident and noted that the applicant’s knee pain may not be related to the accident. On September 24, 2019, Dr. Oshidari diagnosed the applicant with sprain/strain of the lumbar spine and contusion of the knee. On March 25, 2021, Dr. Walters diagnosed the applicant with lumbosacral strain, and a wright wrist contusion and abrasion. On September 21, 2021, Dr. Platnick diagnosed the applicant with cervical myofascial strain (whiplash associated disorder type I), lumbosacral myofascial strain, and right wrist strain/contusion with abrasion.

27Further, although the applicant argues that the above insurer examination reports are clear evidence of strong bias against him, the applicant has not included any objective medical evidence to support his position. Indeed, the clinical notes and records of the applicant’s treating practitioners, and diagnostic imaging reports were not included in the evidentiary record.

28As such, the applicant has not met his evidentiary burden and proven that the treatment plan is payable.

$4,508.11 for chiropractic treatment is not reasonable and necessary

29I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated June 4, 2021 in the amount of $4,508.11 for chiropractic treatment is reasonable and necessary.

30The treatment plan proposes chiropractic treatment, physical rehabilitation treatment, massage therapy, electrotherapy, ultrasound therapy, laser therapy, and various assistive devices including Dr. Cohen’s heatable acuball, Theratherm electric heat pad, ergonomic exercise mat, Biofreeze pain relief gel (16 oz), RangeMaster stretch strap, cervical pillow, and Dr. Cohen’s acuback kit ball 15 and 20. The goals of the treatment plan are to reduce pain, to increase range of motion, to increase strength, to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

31I find that the applicant’s submissions and evidence are lacking in demonstrating that the treatment plan is reasonable and necessary. The applicant has provided insufficient evidence to support that further physical therapy, or any of the devices listed above, is reasonably required. Dr. Oshidari previously considered whether further physical rehabilitation treatment was reasonable and necessary. In his report dated September 24, 2019, Dr. Oshidari indicated that while the applicant has a pre-existing medical condition in relation to his low back pain, the applicant has received extensive treatment for around 20 months and his symptoms have not improved. Dr. Oshidari concluded that since the same treatment has failed to assist him over more than 20 months, repeating the same treatment does not have any benefit and is not reasonable.

32Moreover, the applicant was assessed by Dr. Platnick. In his report dated September 21, 2021, Dr. Platnick indicated that during the physical examination, there were no valid/reproducible signs or indicators to support residual or ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. While he noted reduced cervical and lumbosacral flexion and extension during formal testing, the applicant was observed casually to have better range of motion. Also, Dr. Platnick noted that light single-digit axial load pressure and simulated rotation of the lumbosacral spine produced low back pain, which represented a discrepancy. The applicant had an essentially normal examination. Dr. Platnick did not identify any ongoing or residual accident-related injury or impairment and concluded that the applicant had reached maximal medical improvement. As such, Dr. Platnick found that the proposed treatment plan was not considered reasonable and necessary to treat an injury or impairment residual to the subject accident.

33Accordingly, the applicant has not met his evidentiary burden and proven that the treatment plan is payable.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.

ORDER

35The applicant has not met his evidentiary burden to establish that the treatment plans in dispute are reasonable and necessary. As there are no benefits payable, the applicant is not entitled to interest.

36The application is dismissed.