Licence Appeal Tribunal File Number: 22-013129/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:
Derek Cadden
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED - DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Marim Hadi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Derek Cadden, the applicant, was involved in an automobile accident on September 28, 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 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:
Is the applicant entitled to a remaining balance of $2,930.26 for psychological treatment, proposed by Centre for Psychological and Counselling Services in a treatment plan ("OCF-18") submitted on November 1, 2022?
Is the applicant entitled to $2,152.08 for chiropractic and massage treatment, proposed by St. Catharines Pain Relief Clinic in a OCF-18 submitted on November 10, 2022?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Rehab Pain Management in a OCF-18 submitted on December 5, 2022?
Is the applicant entitled to medical benefits recommended by Cornerstone Therapy Wellness in the following OCF-18s:
a) $1,310.00 for physiotherapy submitted on February 2, 2023;
b) $1,200.00 for physical therapy submitted on March 18, 2023; and
c) $1,200.00 for chiropractic treatment submitted on May 2, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Are the parties liable to pay costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023, (the "Rules")?
3The Case Conference Report and Order ("CCRO"), released on July 18, 2023 indicated that for issue one, the amount in dispute is $4,959.75. However, both parties have acknowledged that the respondent partially approved the OCF-18 in the amount of $2,029.49, therefore a remaining balance of $2,930.26 remains in dispute.
RESULT
4I find that:
- The applicant is entitled to the following OCF-18s, plus interest in accordance with s. 51 of the Schedule:
a) The November 10, 2022, OCF-18 for chiropractic and massage treatment in the amount of $2,152.08;
b) The February 2, 2023, OCF-18 for physiotherapy in the amount of $1,310.00;
c) The March 18, 2023, OCF-18 for physical therapy in the amount of $1,200.00; and
d) The May 2, 2023, OCF-18 for chiropractic treatment in the amount of $1,200.00.
the applicant is not entitled to the remaining OCF-18s or interest.
The respondent is not liable to pay an award.
Neither party is entitled to costs.
PROCEDURAL ISSUES
The Applicant's Reply Submissions
5On April 5, 2024, the respondent filed a Notice of Motion requesting that paragraphs 3,4,7,8,9 and Exhibits D, E , L, and N of the applicant's reply submissions be struck from the record. To provide context, below is a description of the Exhibits that the respondent is asking to be excluded from the record:
i. Exhibit D: Toronto School of Theology Program Handbook;
ii. Exhibit E: Toronto Centre for Psychotherapy and Counselling Education Curriculum;
iii. Exhibit L: Almonte v. Wawanesa Mutual Insurance Company, 2022 CanLII 45254 ("Almonte"); and
iv. Exhibit N: G.P. v Wawanesa Mutual Insurance Company, 2022 CanLII 45306 ("G.P.").
6It argues that in his reply, the applicant has introduced new evidence, new arguments, provided misleading information, and provided inaccurate information. As a result, it takes the position that the applicant is splitting his case and relies upon the leading case pertaining to the rule against splitting one's case of R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466 ("Krause").
7The applicant argues that his reply submissions do not contain new evidence or new arguments because he directly addressed the respondent's arguments and responded. Moreover, he argues that there is no content in his reply submissions that the respondent could not have reasonably anticipated. In his motion submissions, the applicant also made a number of additional arguments that pertain to the substantive nature of this hearing and requested an order compelling the respondent to produce the referral letters sent to Dr. Bansal.
8In its reply motion submissions, the respondent argues that the applicant's motion submissions attempted to provide further arguments regarding the hearing, and any submissions beyond the potential exclusion of the evidence and striking of the submissions, should not be considered by the Tribunal. I agree, and I will not consider the applicant's motion submissions with respect to the substantive nature of this dispute because he should have made these arguments in his hearing submissions. The motion process is not an avenue to advance new arguments that a party could, but did not make, before the Tribunal during the hearing process. Similarly, I will not be considering the applicant's request for an order to compel the respondent to produce the referral letter sent to Dr. Bansal because he did not file a Notice of Motion, which is the proper avenue to proceed with such a request.
9I find that the applicant's reply submissions with respect to the membership, training, and qualifications of Mr. Sherzad Hidayatullah, psychotherapist, at the middle to the bottom portion of paragraph 3 refer to new arguments and evidence. Thus, Exhibits D and E, and the middle to bottom portion of paragraph 3 of the applicant's reply submissions will be struck from the record.
10While I acknowledge the applicant's argument that the respondent could have reasonably anticipated these submissions, this is not the correct test. As noted above, the leading case on this issue is Krause. In Krause, it was determined that a plaintiff may be allowed to call evidence in rebuttal when the defence has raised some new matter or defence which he could not reasonably have anticipated (see para. 16). The issue is not whether the respondent could have reasonably anticipated the arguments contained in the reply but that a reply may be permitted when it is to address arguments that the applicant could not have reasonably anticipated.
11In this case, I find that the applicant was aware that the hourly rate for Mr. Hidayatullah was in dispute since November 15, 2022, when the respondent denied the OCF-18 for psychological treatment. The applicant also provided initial submissions on the experience and qualifications of Mr. Hidayatullah to justify a higher hourly rate. The applicant has provided no explanation on why Exhibits D and E and his arguments in reply could not have been included in his initial submissions. However, I disagree with the respondent that all of paragraph 3 should be struck from the record. It takes no issue with the beginning of the paragraph and therefore, only the middle and bottom portion of paragraph 3 will be struck.
12Paragraphs 7, 8 and 9 of the applicant's reply submissions will be struck from the record because the applicant could have reasonably anticipated these arguments and addressed them in his initial submissions and they contain new arguments and evidence. Accordingly, Exhibits L and N will also be excluded.
13Paragraph 7 of the applicant's reply submissions was improper because he could have reasonably anticipated that the respondent would argue that the chronic pain assessment was a duplication of services, and should have addressed this in his initial submissions, rather than in his reply submissions. Indeed, in the respondent's denial notice, dated December 29, 2022, it advised the applicant that it was denying the chronic pain assessment because it is a duplication of services, as he already had a chronic pain assessment at NeuPath Centre for Pain and Spine. Therefore, the applicant's reply submissions at paragraphs 7 on why the proposed chronic pain assessment is not a duplication of services will be struck from the record.
14At paragraph 8 of his reply, the applicant cited the authority of Almonte and made arguments on why he suffers from chronic pain or chronic pain syndrome. While I am alive to the applicant's arguments that he can introduce new cases that speak directly to the respondent's misconstrued facts and evidence, I disagree. As noted above, an applicant may submit reply submissions to address arguments that the respondent has raised that he could not have reasonably anticipated, which I find is not the case here. In his initial hearing submissions, the applicant made similar arguments that a chronic pain assessment was warranted because he suffers from chronic pain or chronic pain syndrome, therefore he could have cited the authority of Almonte.
15Correspondingly at paragraph 9, the applicant raised arguments that all of the respondent's denial notices post Dr. Pankaj Bansal's report was non-compliant with s. 38(8) of the Schedule for the first time. The applicant has provided no explanation on why these submissions could not have been made initially, which would have allowed the respondent an opportunity to respond. As such, I find paragraph 9 was improper because it raises new arguments. Likewise, the applicant cited the authority of G.P. to support his position that the respondent's denial letters were non-compliant with s. 38(8). Again, the applicant made arguments pertaining to s. 38(8) with respect to issues one and two in his initial submissions, and why the respondent was non-compliant but has provided no explanation on why this authority could not have been cited with his initial submissions.
16In short, I find the middle and bottom portion of paragraph 3, paragraphs 7, 8 and 9, and Exhibits D, E, L, and N of the applicant's documentary brief will be struck from the record.
17I decline to strike paragraph 4 from the record, because it was a proper reply. In his initial hearing submissions, the applicant argued that Dr. Bansal did not review certain documentation in his report, dated March 29, 2023. In response, the respondent argued that the applicant's position was false and that Dr. Bansal had reviewed the records. As such, the applicant at paragraph 4 of his reply submissions reiterated that Dr. Bansal did not review certain documentation and referred to the evidence again to support this. I will not strike this from the record because the applicant made arguments to refute the respondent's position and pointed to evidence to support this position, which is the purpose of a reply. Especially here, where the respondent argued that the applicant's position was false, and therefore the applicant had to address why his position was correct. Moreover, the applicant could not have reasonably anticipated that the respondent would have taken this position, and therefore he had a right to submit a reply on this point.
18I further acknowledge that the applicant argues that if his reply submissions and evidence are struck from the record, he will suffer significant prejudice because he will not be able to defend the issues in dispute. I disagree, the applicant could have reasonably anticipated the respondent's arguments and should have raised the arguments contained in his reply submissions at the middle/bottom portion of paragraph 3, paragraphs 7, 8, and 9 in his initial submissions. He has not provided any explanation on why these arguments could not have been raised at first instance.
19In sum, the middle and bottom portion of paragraph 3, paragraph 7, 8 and 9 and Exhibits D, E, L, and N of the applicant's documentary brief will be struck from the record. However, I decline to strike paragraph 4 from the record because it was a proper reply.
Page Limit of the Applicant's Initial Submissions
20The CCRO stipulated a 10-page limit for submissions which was also to be double-spaced, and 12-point font.
21In its initial submissions, the respondent argued that the applicant was non-compliant with the CCRO, because his submissions are single-spaced, 11 point font, which is equivalent to 15 pages. Meanwhile, it argues that the CCRO was clear that submissions were to be double-spaced, and 12-point. As such, it argues that the excess pages should not be considered by the Tribunal.
22The applicant argues that footnotes are not included in the page limit and relies upon the Tribunal decision of Elbahja v. Wawanesa Mutual Insurance Company, 2023 CanLII 116485 (ON LAT) where the respondent's submissions beyond the page limit were considered because no actual prejudice was established to the other party.
23I find that the applicant's initial submissions are over the page limit because they were 8 pages in length, single-spaced and 11-point font which is contrary to the CCRO, and would accumulate to 15 pages if it was formatted properly. I also disagree with the applicant's position that footnotes are not included in the page limit because the CCRO stated that the page limit was exclusive of evidence and case law, not footnotes.
24In accordance with Rule 3.1(a) of the Rules, I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
25When weighing procedural fairness and any potential prejudice brought, I find that the applicant would be severely prejudiced if portions of his submissions were otherwise excluded in this matter. The respondent has not established that it has suffered actual prejudice from the applicant's non-compliance because it has made no submissions on prejudice. 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.
26For all these reasons, I will consider all of the applicant's initial submissions, even though it is over the page limit.
ANALYSIS
27To 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 the November 1, 2022, OCF-18 for psychological treatment with a remaining balance of $2,930.26
28I find that the respondent's denial notice dated November 15, 2022, is compliant with s. 38(8) of the Schedule. As such, the applicant has not established that this OCF-18 is payable under s. 38(11). The applicant has also not demonstrated that the remaining balance of $2,930.26 is reasonable and necessary.
29Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.
30The applicant submits that this denial notice is in direct violation of s. 38(8) as the respondent did not identify the goods, services, assessments, and examinations described in the OCF-18 that it did not agree to pay. In particular, he argues that the respondent did not outline the amounts listed in lines two to four of the OCF-18 that it did not agree to pay for.
31The respondent argues that its denial notice was compliant with s. 38(8) because it advised the applicant that it would pay for the psychotherapeutic treatment at a rate of $99.75 per hour.
32I find that the November 15, 2022, denial notice was compliant with s. 38(8), because it was clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. I agree with the applicant that the respondent did not identify the amounts listed in lines two to four of the OCF-18. However, in my view, the respondent's denial notice was compliant with s. 38(8) because it advised the applicant that it would not pay for any of the services listed in lines two and four and provided reasons for this denial. Therefore, the denial notice was clear that the respondent would not pay for any of the services outlined from lines two to four of the disputed OCF-18. Consequently, I find that this denial notice satisfies the requirements of s. 38(8).
33There is no dispute between the parties that the applicant sustained psychological impairments from the accident and requires psychological treatment. Instead, the dispute arises over whether Mr. Hidayatullah is entitled to an hourly rate of $149.61 or $99.75, and whether the proposed planning, service, documentation, support activity, and preparation, service costs are reasonable and necessary.
34The Professional Services Guideline ("PSG") includes reference to psychologists and psychological associates, but not psychotherapists. Mr. Hidayatullah is a registered psychotherapist and the PSG is silent on the maximum hourly rate of a psychotherapist. Thus, the psychotherapist is not covered by the PSG and it is left to the parties to decide on what an acceptable hourly rate for the services. Since the parties are unable to agree on an acceptable hourly rate, it is up to me to determine what that rate would be.
35The applicant argues that Mr. Hidayatullah should be paid $149.61 instead of $99.75 because he is highly qualified to provide psychological treatment and should be entitled to the same rate as a psychologist. The applicant cites two Tribunal decisions, J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) ("J.V.") and A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT), ("A.S.") where the hourly rate for a psychotherapist was determined to be $149.61. Finally, the applicant argues if a registered psychotherapist is providing the same treatment as a psychologist, then the same rate should be paid.
36In contrast, the respondent argues that the following Tribunal decisions are applicable to the factual matrix before the Tribunal: Hawes v. Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT), Han v. Aviva General Insurance, 2023 CanLII 9225 (ON LAT), Barrie v. Intact Insurance Company, 2022 CanLII 45260 (ON LAT), and Liu v. Aviva Insurance Company of Canada, 2023 CanLII 87412 (ON LAT). In these authorities, the Tribunal has declined to award an higher hourly rate for psychotherapists, and instead awarded $99.75 or $58.19.
37Even though I am not bound by any of the decisions relied upon by the parties, I place little weight on the decision of A.S. because the adjudicator solely based the decision on the fact that the type of services being provided (i.e., cognitive behavioural therapy) by the psychotherapist could also be provided by a psychologist and, therefore, the hourly rate of $149.61 was warranted for the psychotherapist. With respect, I disagree with this finding as the PSG distinguishes hourly rates based on the health care profession or provider, not on the type of services provided.
38The authority of J.V. is also distinguishable from the factual scenario before me. In J.V., the adjudicator found that a registered psychotherapist was doing the same work as a psychologist or psychological associate in providing CBT and should be paid the same rate. The adjudicator found that the psychotherapist had specialized training to conduct CBT and was therefore qualified to provide CBT. Based on the evidence of the registered psychotherapist, the adjudicator found that the appropriate rate was $149.61 per hour.
39In the matter before me, the applicant has provided minimal evidence that Mr. Hidayatullah has specialized training in CBT, meanwhile in J.V., the psychotherapist is specifically noted to have specialized training within the area of CBT. I am alive to the fact that the applicant relies on the Curriculum Vitae ("CV") of Mr. Hidayatullah to argue that he is highly qualified to provide psychological treatment. Upon review of the CV, there is minimal evidence before me to support that he is specialized in CBT. Rather, the CV supports that Mr. Hidayatullah has provided CBT in the past, however there is no indication that he has specialized training in CBT. As a result, I find the respondent's determination to approve the OCF-18 at the partial hour rate of $99.75 is reasonable.
40Next, the applicant has not demonstrated on a balance of probabilities that the planning, service, documentation, support activity, and preparation, service costs are reasonable and necessary. I acknowledge that the applicant argues that these services are reasonable and necessary because they are related to the psychological treatment approved by the respondent and relies on the authority of Pauvif v. Aviva General Insurance, 2020 CanLII 122614 (ON LAT) ("Pauvif").
41I am not bound by Pauvif and I do not find it persuasive. In Pauvif, the adjudicator determined that the planning service and documentation support activity was reasonable and necessary based on the OCF-18 and the fact that the respondent had approved the psychological treatment. I disagree with this interpretation, in my view, these costs are not payable automatically because the respondent approved the psychological treatment. Instead, in my view, the applicant has to demonstrate on a balance of probabilities that the proposed costs are reasonable and necessary. Here, the applicant has provided no specific submissions or referred me to evidence to support that these costs are reasonable and necessary. Therefore, he is not entitled to these costs.
42Based on the totality of the evidence before me, the applicant is not entitled on a balance of probabilities to the remaining balance of $2,930.26 for the disputed OCF-18.
The applicant is not entitled to the December 5, 2022, OCF-18 for a chronic pain assessment in the amount of $2,200.00
43I find that the proposed chronic pain assessment is a duplication of services, and therefore is not reasonable and necessary.
44The applicant argues that he has been diagnosed with chronic pain and chronic pain syndrome by two pain specialists, Drs. Biruk Yitbarek Habteselassie and Nadir Al-Jazrawi.
45The respondent argues that the proposed chronic pain assessment is a duplication of services because no significant changes in the applicant's condition occurred between the assessments of Drs. Habteselassie and Al-Jazrawi.
46I find that the applicant has not provided any evidence on why an additional chronic pain assessment is needed. Seven months before the OCF-18 was submitted (April 30, 2022), the applicant was assessed by Dr. Habteselassie who diagnosed the applicant with: chronic low back pain, chronic neck pain, chronic bilateral shoulder pain, and right hip pain. As a result, Dr. Habteselassie recommended lifestyle changes, chronic pain self-management program, physiotherapy, imaging, medicine, and nerve block injections. The applicant has not directed me to evidence that supports he pursued these recommendations beyond physiotherapy. In his report, Dr. Habteselassie did not recommend any further assessments. As such, I find that the applicant has not met his burden to establish on a balance of probabilities that the chronic pain assessment is reasonable and necessary.
The applicant is entitled to the OCF-18s for chiropractic, massage, physical therapy and physiotherapy services
47I find that the respondent was noncompliant with s. 38(8) of the Schedule as the denial notice was sent two days late, however I find that the denial notice sent on November 25, 2022, was compliant with section 38(8) of the Schedule. I also find that the applicant established that the proposed OCF-18s for chiropractic, massage, physical therapy, and physiotherapy services are reasonable and necessary.
48I find that the respondent was initially non-compliant with section 38(8) of the Schedule as the denial notice was sent after 10 business days. The OCF-18 was submitted on November 10, 2022, and the 10 business days elapsed on November 23, 2022. The respondent did not send a denial notice until November 25, 2022, therefore it was two days late.
49This deficiency was cured by its denial notice, dated November 25, 2022. In its November 25, 2022, denial notice, the respondent advised the applicant that it was denying the OCF-18 in the amount of $2,152.08 because the original diagnosis by Therese Agaby was that the applicant's whiplash, and sprain/strain injuries would resolve within six weeks, and therefore an insurer's examination was required to assess whether the OCF-18 was reasonable and necessary.
50The respondent's denial notice provided specific reference to the applicant's medical condition, being that the applicant sustained whiplash and sprain/strain injuries that should have resolved within six weeks, which formed the basis for the respondent's decision. I find that the reasons cited by the respondent were clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision.
51The applicant did not provide submissions or tender evidence on whether he incurred the OCF-18 from November 24, 2022, to November 25, 2022. As such, the applicant has not met his evidentiary onus to demonstrate that the OCF-18 for chiropractic and massage treatment, submitted on November 10, 2022, is payable pursuant to s. 38(11) of the Schedule.
52I find that the applicant has established that the proposed services are reasonable and necessary for the following reasons.
53First, the applicant has been diagnosed with both chronic pain and chronic pain syndrome by two pain specialists, Drs. Habteselassie and Al-Jazrawi, and has consistently reported to Dr. Habteselassie and providers at Cornerstone Therapy and Wellness and St. Catherines Pain Relief Clinic that physiotherapy, massage, and chiropractic treatment was marginally effective, made him feel better, and increased his range of motion. It is well-settled that pain relief and increased range of motion are legitimate goals of treatment.
54I acknowledge the respondent's position that on April 1, 2021, Dr. Jaskaren Dhaliwal, the applicant's family physician noted that the applicant had full and normal back range of motion. However, Dr. Dhaliwal also assessed the applicant's neck and noted there was pain to palpation of the right scalene and there was no indication that the applicant had full range of motion in his neck.
55In any event, I place more weight on the relatively contemporaneous clinical notes and records ("CNR") of Dr. Habteselassie who opined that the applicant's range of motion in his back was restricted by 50% due to pain on April 30, 2022.
56The goal of returning to his activities of daily living has not been achieved but rather the applicant continues to have restrictions with his regular daily activities, work, and housework. I am alive to the respondent's arguments that the applicant told Neupath Centre for Pain and Spine that he had little limitations in activities such as bowling or playing golf, however the applicant also reported that because of his pain he was limited with his regular daily activities and work most of the time and his pain extremely interfered with his normal work and housework. In my view, the fact that the applicant reported little limitations with two activities does not detract from the fact that he reported limitations most of the time or extremely with his regular daily activities, work, and housework, because those activities encompass a vast majority of his activities of daily living.
57Likewise, Dr. Habteselassie conducted a Pain Disability Index Score which revealed a score of 40 which meant that the applicant has a moderate disability from pain. As such, I disagree with the respondent's position that the applicant has already returned to his activities of daily living and therefore the treatment is not reasonable and necessary. This is because the applicant continues to report restrictions with the vast majority of his other activities of daily living, and the Pain Disability Index Score revealed that he has a moderate disability from pain.
58Second, I place more weight on the opinion of the applicant's family physician, Dr. Dhaliwal who has more intimate knowledge of the applicant's treatment needs over Dr. Bansal. I also place significant weight on the fact that Dr. Habteselassie, an OHIP-funded chronic pain specialist, recommended physiotherapy on April 30, 2022, which is relatively contemporaneous to the submission of these OCF-18s.
59In his CNRs, Dr. Dhaliwal has consistently recommended physiotherapy, massage, and chiropractic treatment from April 8, 2021, to November 1, 2022.
60Finally, I place little weight on the s. 44 report of Dr. Bansal, physician, dated March 29, 2023, for the following three reasons.
61First, Dr. Bansal reviewed the CNR or Dr. Habteselassie, dated April 30, 2022, where he diagnosed the applicant with chronic pain and recommended physiotherapy and nerve block injections, and summarized this CNR in his report. Significantly, Dr. Bansal did not address why he disagreed with these diagnoses or recommendations.
62Second, Dr. Bansal diagnosed the applicant with uncomplicated, self-resolving soft tissue injuries, but provided no explanation on how these injuries were uncomplicated and self-resolving, when the applicant has consistently reported pain for a period of six years, has been diagnosed with chronic pain and chronic pain syndrome by two pain specialists, and has been attending for ongoing treatment since 2018.
63Third, Dr. Bansal's conclusion that the applicant has reached maximum medical improvement is not supported by the bulk of the medical evidence before me. As noted above, Drs. Dhaliwal and Habteselassie have recommended the proposed services, and Dr. Habteselassie noted that the range of the motion in the applicant's back is reduced by 50%.
64For all these reasons, the applicant has established on a balance of probabilities that he is entitled to the proposed OCF-18s for chiropractic, massage, physical therapy, and physiotherapy services.
The applicant is entitled to interest
65Pursuant to section 51 of the Schedule, the applicant is entitled to interest for the OCF-18s for physiotherapy, massage, physical therapy and chiropractic services.
The respondent is not liable to pay an award
66The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable and interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
67The applicant argues that the respondent relied on the inconsistent medical opinion of Dr. Bansal and it failed to consider the other pertinent medical information that was blatantly in front of it.
68The respondent argues that it acted in good faith and adjudicated the applicant's claim appropriately considering the entirely of the medical evidence available to it.
69Although I have found that the applicant is entitled to the OCF-18s for physiotherapy, massage, physical therapy, and chiropractic services, it does not automatically entitle the applicant to an award. To attract an award, the insurer's conduct must be excessive, imprudent, inflexible, unyielding, or immoderate. I am not persuaded that the threshold was met in this case because I find that the respondent reviewed and considered the information as it became available and retained appropriate medical professionals to provide opinions on the reasonableness and necessity of the OCF-18s.
Neither party is entitled to costs
70I find that the applicant and respondent have not established costs are warranted.
71According 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.
72Both parties are seeking costs due to the motion that was brought by the respondent. The applicant argues that he should be entitled to $1,000.00 in costs because the respondent noted in its Notice of Motion that it would seek costs if the applicant opposed the motion. He argues that this results in procedural fairness concerns because the respondent is utilizing a financial disadvantage over him by requesting costs if he opposes the motion. He further argues that the respondent waited 15 calendar days after the written hearing to bring this motion. The respondent argues that it should be entitled to costs because it has incurred significant costs.
73Neither party has established that the high threshold for costs has been met. The applicant has not established that the respondent's behavior was unreasonable, vexatious, frivolous, or bad faith conduct because of the motion. Likewise, the purpose of Rule 19 is to award costs when it has been established that the party has behaved unreasonably, frivolously, vexatiously, or in bad faith, not to award parties their costs for the proceedings. To sum up, I decline to award costs to either party.
ORDER
74For the reasons outlined above, I find that:
i. The applicant is entitled to the following OCF-18s, plus interest in accordance with s. 51 of the Schedule:
a) The November 10, 2022, OCF-18 for chiropractic and massage treatment in the amount of $2,152.08;
b) The February 2, 2023, OCF-18 for physiotherapy in the amount $1,310.00;
c) The March 18, 2023, OCF-18 for physical therapy in the amount of $1,200.00; and
d) The May 2, 2023, OCF-18 for chiropractic treatment in the amount of $1,200.00.
ii. The applicant is not entitled to the remaining OCF-18s or interest.
iii. The respondent is not liable to pay an award.
iv. Neither party is entitled to costs.
Released: January 13, 2025
__________________________
Tanjoyt Deol
Adjudicator