Licence Appeal Tribunal File Number: 23-015245/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:
Ilir Loka
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Nathan Tischler, Counsel
Eduarda Gouveia, Counsel
Court Reporter:
Elio Legault
HEARD: by Videoconference
November 12-14 2024
OVERVIEW
1Ilir Loka, the applicant, was involved in an automobile accident on September 22, 2020, 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, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Section 33 non-compliance not added as an issue in dispute
2At the beginning of the hearing the respondent submitted that the applicant should be statute barred from proceeding with the application for income replacement benefits due to non-compliance with s.33 of the Schedule. The respondent submitted that the applicant did not provide an updated OCF-3 which it requested on May 31, 2021, contrary to s.33.
3The applicant submitted that raising the issue at this time is an ambush, that the Schedule is consumer protection legislation. The applicant opposed the addition of this dispute to the issues in dispute and enquired as to why such a longstanding issue had not been raised at the case conference of May 10, 2024.
4This issue was not identified in the Case Conference Report and Order (“CCRO”) dated, May 10, 2024, as an issue in dispute. The respondent submitted that they were unsure as to why it had not been entered as a dispute at the case conference.
5The correspondence from the respondent to the applicant on March 31, 2021, June 21, 2021, and on April 21, 2022, demonstrates that this issue was raised in writing with the applicant. Section 33 is not a preliminary issue that would statute bar an applicant from applying to the LAT for resolution of an entitlement dispute. Section 33 non-compliance is a valid defence against the liability of the respondent to fund a benefit. I did not allow the addition of this s.33 dispute as a preliminary issue and it was not added to the issues in dispute; however, I advised both parties that the evidence demonstrates that this is an issue between the parties that has bearing on and is relevant to the issues in dispute. s.33 non-compliance may still be raised as a defence at this hearing. As this is the beginning of the hearing the applicant has the benefit of the two days at hearing to remedy any prejudice of being reminded of this line of defense at the beginning of the hearing.
Costs added as an issue in dispute
6At the beginning of the hearing the respondent sought to add costs to the issues in dispute. The respondent submits that the applicant has proceeded with this matter unreasonably and in bad faith. The applicant objected to the addition of costs submitting that the addition at this point is an ambush. Rule 19.2 of the Licence Appeal Tribunal Rules (“Rules”) allows a party to make a request for costs at any time prior to an order being issued. The request for costs was added to the issues in dispute.
Witness Summary is sufficient
8The respondent opposed the addition of Catherine Huang, the applicant’s spouse, to the applicant’s witness list.
9Twenty-one days prior to the hearing the applicant submitted their final witness list which included the applicant’s spouse, however, the applicant’s spouse was not listed as a witness to be called in the CCRO of May 10, 2024.
10The respondent submitted that Rule 9.4.3b requires the submission of witness lists and their associated summary of the evidence statements. The respondent submitted that the summary of evidence statement related to Catherine Huang was so vague and open ended that it was in fact not a summary of evidence.
11The applicant submitted that the word “summary” from Rule 9.4.3b is not specific, that the standard required had been met, that the respondent just doesn’t like the statement, that the respondent has had ample warning of the witness, and no prejudice is created by allowing the witness.
12Although not included in the CCRO, I find that the witness has been properly identified and a summary of her evidence statement has been filed and served 21 days before the hearing as required by the Rules. I allowed Catherine Huang to be a witness and the respondent was afforded the right of additional time to prepare for cross-examination following the in-chief portion of the examination of Ms. Huang to assuage any potential minimal prejudice to the respondent; the respondent did not avail themselves of this opportunity and was comfortable to proceed without additional preparation time.
ISSUES
13The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree there is $54.75 remaining for treatment within the MIG limit.
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 29, 2020, to date and ongoing?
iii. Is the applicant entitled to assessments proposed by Meditecs Independent Medical Examinations, as follows:
a) $20,088.00 for catastrophic impairment assessments, proposed in a treatment plan/OCF-18 (“plan”) submitted November 28, 2023, and denied December 11, 2023?
b) $4,011.50 for a chronic pain assessment, proposed in a plan submitted November 28, 2023, and denied December 11, 2023?
c) $4,011.50 for a psychological assessment, proposed in a plan submitted November 28, 2023, and denied December 11, 2023?
d) $4,011.50 for a neurological assessment, proposed in a plan submitted November 28, 2023, and denied December 11, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent entitled to costs?
Result
14The applicant has not met his onus and remains within the MIG. As the applicant remains within the MIG he is entitled to treatment up to the MIG limits.
15As the applicant remains within the MIG, the applicant is not entitled to the 4 assessment plans.
16The applicant is not eligible for IRB due to non-compliance with s. 33 of the Schedule.
17No award is due.
18As there are no late or delayed payments, no interest is due.
19The applicant does not owe costs.
ANALYSIS
The applicant remains within the MIG.
20I find that the applicant has not met their onus and remains within the MIG.
21Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury.
22An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
23The applicant submits that psychological, neurological, and chronic pain symptoms arising from the accident should remove the applicant from the MIG. The applicant relies on his testimony, the testimony of his spouse, an OCF-18 and hospital record in support of his position.
24The respondent submits that the applicant was involved in a very minor collision, for which no emergency services were called. The respondent points to a complete dearth of medical evidence or qualified witnesses to support psychological, neurological, or chronic pain treatment; as well as a second motor vehicle collision four months later as the potential cause of any symptoms the applicant is reporting. The respondent relies on the expert reports of Dr. Riaz Moola, general physician and Dr. David Direnfield, psychologist.
The applicant has not established he suffers from chronic pain
25I find that the applicant has not met their onus to establish that they have chronic pain with a functional impairment that warrants removal from the MIG.
26The hospital record is not related to the subject accident. The Mississauga Hospital record of April 14, 2021, references a motor vehicle accident which occurred on February 14, 2021, which is not the subject accident.
27A proposal for assessment is not a diagnosis. The applicant points to the OCF-18 submitted by Tobias Chung, Chiropractor with Meditecs submitted November 28, 2023. The OCF-18 states that the applicant required a chronic pain assessment. Assessments, by their very nature are speculative, suggesting that symptoms be explored to ascertain whether a particular diagnosis is appropriate. In this situation, the OCF-18 assessment proposes exploring whether the applicant might have chronic pain syndrome, the suggestion for exploration is not a finding that the applicant has chronic pain syndrome.
28The applicant has not met his onus to demonstrate functionally disabling pain. At the hearing, the applicant testified that his knees, joints, fingers, and nerves hurt and that 70% of his problem is nerve issues and that he takes 6-8 extra strength Tylenol daily. I am not persuaded by the testimony of the applicant that he suffers from chronic pain. The applicant has provided insight to his lived experience, however, his self-reports are not supported by the experience of a medical degree or additional medical opinions or evidence that support his opinion. Therefore, I afford the applicant’s testimony regarding chronic pain a diminished weight. In addition, without objective medical opinions and evidence, related to the subject accident, the applicant’s opinion that these self-reports are related to the subject accident does not carry any weight. The Tribunal has consistently held that ongoing pain is not in and of itself sufficient to remove an applicant from the MIG. The applicant has testified regarding his pain, however he has not shown objective evidence of a functional limitation due to pain that resulted from the subject accident.
The applicant has not established that he suffers from a psychological or neurological injury
31I find that the applicant has not met his onus to establish that he has a psychological impairment or neurological condition that warrants removal from the MIG.
32The applicant points to the OCF-18, dated November 28, 2023, in which Tobias Chung indicates that since the accident the applicant has experienced feeling tense, worried, nervous, stressed, anxious, irritable, and frustrated, has low energy and is less interested in activities previously enjoyed and that based on these complaints, recommends psychological testing. A recommendation to test is not evidence that a psychological injury exists; in addition, Tobias Chung recommends psychological testing while his area of expertise is chiropractic, and I am not aware of any qualifications that would provide Tobias Chung with the education or experience to opine on psychological matters.
33I am not persuaded that the applicant has a psychological injury based on the OCF-18 completed by Tobias Chung. I afford no weight to Tobias Chung’s opinion regarding the need for a neurological assessment. Tobias Chung is a chiropractor, and I am not aware of any qualifications that would provide Tobias Chung with the education or experience to opine on neurology. Assessments, by their very nature are speculative, suggesting that symptoms be explored to ascertain whether a particular diagnosis is appropriate. In this situation the OCF-18 assessment proposes exploring whether the applicant might have neurological condition, the suggestion for exploration is not a finding that the applicant has a neurological condition.
34The applicant’s spouse’s testimony is not consistent with the timeline, and I do not give it weight. The applicant’s spouse testified that the applicant has changed since the accident, that he calls her names and blames her for everything. However, during cross examination, the applicant’s spouse agreed that she would not have married the applicant had he been treating her the way he treats her now. The applicant’s spouse also agreed that their marriage occurred following the subject accident. Therefore, since the marriage post-dated the accident the applicant and spouse were married after he was, according to the applicant’s spouse, changed by the accident, which demonstrates that the testimony and timeline are not consistent.
35I am not persuaded by the testimony of the applicant that he suffers from a mental health issue. At the hearing, the applicant testified that he has general anxiety, avoids crowds and socializing, has driving anxiety is feeling down and turns to anger often and easily. The applicant has provided a clear outline of his lived experience. However, the applicant’s opinion is not supported by objective medical evidence. The applicant does not have a medical or psychological degree and does not have experience in mental health diagnosis that would provide confidence in his opinion regarding mental health conditions. Even if taking the applicant’s testimony and opinion at face value I am not persuaded that the applicant has the qualification to distinguish between psychological symptoms that are stand-alone psychological impairments or are sequalae to other impairments. I afford the applicant’s testimony regarding psychological conditions a diminished weight.
36I am not persuaded by the testimony of the applicant that he suffers from a neurological condition. At the hearing, the applicant testified that a tremor of his head appeared following the accident. The applicant does not have a medical degree and does not have experience in neurological diagnosis that would provide confidence in his opinion regarding neurological conditions. Even if taking the applicant’s testimony and opinion at face value I am not persuaded that the applicant has the qualification to distinguish the cause of any neurological symptoms he may be experiencing.
THE RESPONDENT IS NOT LIABLE TO PAY INCOME REPLACEMENT BENEFITS
44The applicant is non-compliant with s. 33(1) and therefore, in accordance with s. 33(6) the respondent is not liable to pay any benefit for the period of non-compliance.
45Section 33(6) of the Schedule states that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s. 33(1) or s. 33(2).
46The respondent sent a notice on March 31, 2021, to the applicant stating that they required a properly completed OCF-3 to be submitted and that no benefit will be payable until the updated OCF-3 is submitted. On June 21, 2021, the respondent wrote to the applicant outlining that the requested OCF-3 had not been submitted and therefore the applicant is in non-compliance with s.33(1) of the Schedule. On April 21, 2022, the respondent once again wrote the applicant regarding the requested OCF-3 and reminded them that the IRB had been suspended as of June 21, 2021, based on the s.33(1) non-compliance.
47There is no evidence before me that the applicant has complied with the s.33(1) request. A s. 33 defence was raised by the respondent prior to opening statements. Although there was ample time during the hearing the applicant did not address this non-compliance in submissions or testimony.
48I find that the applicant is non-compliant with s. 33(1) and therefore the respondent, in accordance with s.33(6), is not liable to pay any benefit for the period of non-compliance.
THE APPLICANT REMAINS WITHIN THE MIG
49As the applicant remains within the MIG, he is entitled to treatment up to the MIG limits and there is no need to explore whether the plans are reasonable and necessary.
INTEREST
50As no benefits are owing, interest does not apply.
AWARD
51I find that no award is due.
52The 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.
53The applicant has not outlined particulars, errors, omissions, or substantive reasoning to justify an award. I have seen no evidence that the respondent acted in a way that was unreasonable, imprudent, inflexible, or immoderate.
Costs
54Rule 19.1 states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs.
55Section 19.5 outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded, which include the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system. Section 19.6 allows for a maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.
56The respondent submitted that the applicant is completely strained for credibility and that a sanction is required to suspend wasteful appeals. The respondent pointed to the fact that no medical evidence has been submitted, no qualified witnesses were called, and that the applicant ignored the Tribunal orders for production of documents. The respondent submitted that the maximum daily costs award allowed is $1000.00 per day and that this would be an appropriate sanction in this situation.
57The applicant submitted that these matters are an imbalanced fight, the applicant should be entitled to obtain reports to counter the deep pocketed insurance company and submitted that medical witnesses are too expensive for an applicant to call.
58The applicant did disregard the orders from the CCRO of May 10, 2024; none of the agreed items for exchange were honoured. The respondent raised this fact regularly throughout the hearing and it went unaddressed by the applicant. This is a material breach of a direction. This is not conduct that is expected in the Tribunal’s process and may be viewed as unreasonable.
59It is an applicant’s right to dispute the decisions of the respondent. I am not persuaded that the applicant proceeded in a frivolous, vexatious, or bad faith manner; the applicant submitted evidence in support of their position and engaged throughout the process.
60I believe an order for costs may have a chilling impact on applicants, costs should be reserved for serious misconduct.
61I find that the applicant has not acted frivolously, vexatiously or in bad faith and that any unreasonableness does not reach the standard of serious misconduct.
62No costs are ordered.
ORDER
63For the reasons above, I find:
i. The applicant has not met his onus and remains within the MIG. The applicant is entitled to treatment up to the MIG limit.
ii. As the applicant remains within the MIG, the applicant is not entitled to the 4 assessment plans.
iii. The applicant is not eligible for IRB due to non-compliance with s. 33 of the Schedule.
iv. No award is due.
v. As there are no late or delayed payments, no interest is due.
vi. The applicant does not owe costs.
Released: April 4, 2025
__________________________
Timothy Porter
Adjudicator