Citation: Sandford v. Aviva Insurance Company of Canada, 2026 ONLAT 24-009554/AABS

Licence Appeal Tribunal File Number: 24-009554/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:

William Sandford

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Applicant:

David A Stein, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD: In Writing

OVERVIEW

1William Sanford, the applicant, was involved in an automobile accident on September 8, 2021, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

The length of the applicant’s written submissions

2The respondent submitted that the applicant’s written submissions did not comply with the Case Conference Report and Order in this matter, issued November 26, 2024 (“CCRO”), in that they were single-spaced. The CCRO required that written submissions be double-spaced with 12-point font. The respondent submitted that the additional content of the applicant’s written submissions is prejudicial to it, owing to the extra length of at least 7 pages, i.e., the equivalent of 17 pages (double-spaced), compared to the respondent being limited to 10 pages, double-spaced.

3The applicant submitted, in his sur-reply, that the use of single-spacing was inadvertent and he requests that the Tribunal allow the submissions on the basis of the principles set out in Rule 3.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”); to ensure a fair, proportionate and efficient determination of the issues. The applicant disagrees that the respondent suffered any prejudice as a result of his formatting or filing errors.

4Rule 9.3 stipulates that when a party fails to comply with an order with respect to the disclosure, exchange or production of documents or things, the party cannot rely on the document or thing as evidence without the permission of the Tribunal.

5In determining whether permission should be granted in these circumstances, Rule 9.3 sets out several factors to consider, including:

i. the reasons for non-compliance;

ii. whether a party is prejudiced by the admission or exclusion of the evidence and the extent to which the substance of the information or testimony lies within the knowledge of the other party;

iii. whether the other party opposes the admission of the evidence or testimony; and

iv. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

6I have reviewed the parties’ written submissions on this issue and considered the factors set out in Rule 9.3. I find that the applicant’s submissions will be reviewed in their entirety for the following reasons:

i. The error in formatting was inadvertent;

ii. There is little prejudice to the respondent. I recognize that the respondent was limited to 10 pages, vs. the applicant’s approximately 17 equivalent pages, however; the applicant’s submissions included significant sections merely restating the issues in dispute, legal principles and framework, and the history of the accident, which serve to reduce the total “submissions” content and mitigate prejudice to the respondent;

iii. The submissions are relevant to the issues in dispute and they represent the means, indeed the only means, by which the applicant directs me to the documentary evidence he believes supports his entitlement to the disputed treatments; and

iv. It is the applicant’s onus to prove, on a balance of probabilities, that he is entitled to the disputed benefits, therefore; accepting a modestly higher number of pages, under these circumstances, is in keeping with the Tribunal’s mandate to ensure the effective participation by all parties towards a timely resolution of the merits of the proceeding.

Dr. Bodenstein letter of June 10, 2025

7The respondent requests that a letter from Dr. Eyal Bodenstein, psychologist, dated June 10, 2025, that the applicant filed along with his hearing submissions and documents, be excluded from evidence on the basis that it was filed late. The respondent noted that the applicant was to exchange all documents he intended to rely on, no later than 90 calendar days after the case conference, effectively, February 19, 2025. The letter was filed on June 25, 2025, a little over four months after the deadline.

8The respondent submitted that the applicant provided no explanation for the delay. It submitted that, considering Dr. Bodenstein’s letter was in relation to the Explanation of Benefits (“EOB”) letter sent the applicant on August 14, 2024 in relation to the disputed portion of issue #3, the applicant has not explained why the letter could not have been provided sooner.

9The respondent submitted that, if the letter is permitted, it would be prejudicial to the respondent because it cannot obtain a rebuttal report on such short notice. It submitted that attempting to rely on the letter becomes hearing by ambush.

10The applicant submitted that failing to disclose the letter on time was inadvertent. The applicant submitted that the issues should be decided on the substance and merits of the parties’ respective arguments, not procedural irregularities.

11As noted above, Rule 9.3 sets out the factors to consider in granting a party, who has failed to follow disclosure orders, permission to rely on the subject document or thing in the hearing. I have considered the parties’ submissions on this issue and the factors in Rule 9.3 and grant permission for the applicant to rely on the letter for the following reasons:

i. The letter is relevant to issue #3 in dispute by providing further rationale for the re-assessment (observations and monitoring) undertaken by Dr. Bodenstein;

ii. The respondent had knowledge of the results of the re-assessments (Beck Depression Inventory-II, Beck Anxiety Inventory, Beck Hopelessness Scale, and Pain Patient Profile) from the Psychological Progress and Second Treatment Plan Preparation report, dated November 1, 2024, that appears to have been attached to the subject OCF-18 for $1,995,32 (and was included in the applicant’s documents for the hearing), and echoed in the Additional Comments section of the treatment plan. The respondent therefore had the ability to consider and assess the necessity of these activities as part of its consideration of the treatment plan and include its reasons for denying that portion of the treatment plan in its EOB.

iii. There is some prejudice to the respondent by permitting the applicant to rely on the letter, but the prejudice is mitigated by the respondent having knowledge of the details regarding the re-assessment and it had an ability to provide reasons for denying that portion of the treatment plan in the respective EOB.

iv. While I certainly agree with the applicant, that entitlement to disputed claims for benefits should be determined on the merits based on the parties’ evidence and submissions, the late submission of this letter constitutes more than an “irregularity”. I am permitting the applicant to rely on it because it is relevant to the issues and the respondent had knowledge of re-assessment results, but adherence to disclosure orders is necessary in upholding procedural fairness to all parties. That is why late disclosures such as this one, must satisfy several factors to be granted permission to be relied on.

ISSUES

12The issues in dispute are:

i. Is the applicant entitled to $1,995.28 for physiotherapy treatment, proposed by Dynamic Balance Physiotherapy and Sports Injury Centre in a treatment plan/OCF-18 (“plan”) dated March 3, 2023?

ii. Is the applicant entitled to $ 2,086.06 for physiotherapy treatment, proposed by Dynamic Balance Physiotherapy and Sports Injury Centre in a plan dated February 7, 2024?

iii. Is the applicant entitled to $598.44 ($1,995.32 less $1,396.88 approved) for psychological treatment, proposed by Dr. Eyal Bodenstein and Associates in a plan dated November 1, 2024?

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?

RESULT

13The applicant is not entitled to the two treatment plans for physiotherapy in the amount of $1,995.28 and $2,086.06. The applicant is entitled to $598.44 for psychological treatment. The respondent is not liable to pay an award. The applicant is entitled to interest on the denied portion of issue 3.

ANALYSIS

Issues 1 and 2; physiotherapy treatment for $1,995.28 and $2,086.06

14I find the applicant is not entitled to the two treatment plans for physiotherapy treatment. The applicant has not met his burden to demonstrate, on a balance of probabilities, that the two treatment plans are reasonable and necessary.

15To receive payment for a treatment and assessment plan under s. 15 and s. 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.

16I take notice that that each treatment plan is for the same services, but over different periods of time, for: 12 hours of physical treatment at $99.75 per hours, and 12 hours of therapy (multiple body sites, i.e., massage therapy) at $58.19 per hour, plus $100.00 for assessment (examination) for a total of $1,995.28, each. The total amount of the treatment plan in issue 2 is higher by $90.78 for “tax”, which brings it to $2,086.06. The plans were proposed in March 2023 and February 2024, respectively, 18 and 29 months post-accident.

17The appellant submits that the two denied treatment plans are reasonable and necessary and relies on letters, reports and records of his family physician, the physiotherapist who authored the OCF-18s, a chronic pain specialist, and an orthopaedic surgeon. He seeks approval of the treatment plans in the full amount.

18The respondent submits that the applicant has not demonstrated that the treatment plans are reasonable and necessary, noting that there are inconsistencies with the applicant’s evidence. It submits the applicant’s physician’s CNRs do not align with the letter she provided at the request of applicant’s counsel, the applicant’s application for a disability tax credit reveals that he suffered from a similar medical condition pre-accident as what he now claims is accident-related, and the applicant’s evidence of having sustained chronic pain syndrome in the accident is not reliable. The respondent seeks a dismissal of the applicant’s appeal.

19I find the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary, which is his burden in this matter. The medical documentation the applicant is relying on is, in some cases, unpersuasive, and in other instances, leaves doubt as to whether the applicant’s complaints are accident related. I discuss the applicant’s evidence below.

Dave Rambukkana, physiotherapist

20I give little weight to the OCF-18s in supporting the necessity of the treatment plans because their author is one of the two treatment providers named in the plans, the massage therapist being the other. Put another way, the OCF-18s do not provide independent medical evidence in support them being reasonable and necessary. In addition, their author, Dave Rambukkana, physiotherapist, does not have the credentials to conclude that the accident resulted in two of the listed injuries: “radiculopathy of the cervical region” and “other cervical disc degeneration”. Mr. Rambukkana’s assertion that these impairments were caused by the accident is contrasted by the assessment of Dr. Alborz Oshidari, a physiatrist, who found no evidence the accident caused any structural or physiological abnormality and he was unable to detect any sign to suggest spinal involvement such as radiculopathy, myelopathy, or plexopathy. He did not fine any sign to suggest cervical radiculopathy.

Dr. Helena Dukic, family physician

21I am not persuaded by Dr. Helena Dukic’s report of the applicant’s medical condition in her letter of February 21, 2023 because, as the respondent noted, her clinical notes and records (CNRs), which the respondent included in its documents for the hearing, do not align with the February 21, 2023 letter.

22In her letter, Dr. Dukic seems to attribute the applicant’s prevailing symptoms and complaints, and his lack of functionality, to the accident. At the very least, she opines that the accident exacerbated pre-existing ailments. For example, the letter notes that, since the accident, the applicant has been “experiencing increasing pain in his shoulder, neck and upper back, accompanied by frequent headaches”. She refers to him having a “new disability” which is causing him difficulty with housework and that his pre-existing neck and back degenerative changes have been significantly aggravated since the injury. She recommends that he continue physical therapy and exercise program indefinitely because it provides him temporary symptom relief.

23Turning to her clinical notes and records between August 16, 2021 (pre-accident) and November 24, 2022, across 12 visits, it is evident that the applicant suffered from osteoarthritis and gout from prior to the accident. The CNRs from the applicant’s first visit after the accident, September 29, 2021, capture these complaints and they do not appear to be accident related. Dr. Dukic noted, on that day, that a head and neck CT showed some osteoarthritis. Of the x-rays she ordered for the applicant’s feet and ankles, and lower back, it appears the latter was accident-related because on October 27, 2021, she recommended physiotherapy due to back pain/strain post-MVA. The applicant’s pain in his legs and ankles seems to be associated with the gout and osteoarthritis.

24During the same period, Dr. Dukic’s CNRs make no mention of the accident injuries exacerbating the applicant’s osteoarthritis or gout. There is no mention of worsening shoulder pain. Despite her letter suggesting the applicant is experiencing frequent headaches, on July 11, 2022, 10 months post-accident, Dr. Dukic’s CNRs reveal that, despite irritation/discomfort in his eyes and the wound from a skin biopsy on his scalp, he had no headache and no sinus pain. One month later, on August 8, 2022, the CNRs reveal that the applicant “looks well, is not distressed and has a normal gait”.

25I find that Dr. Dukic’s letter is inconsistent with her CNRs and therefore I give it little weight. Indeed, the only distinct recommendation of Dr. Dukic for physiotherapy for accident-related back strain was on October 27, 2021, which is not contemporaneous with the two disputed treatment plans 16 and 27 months later. The only other recommendation Dr. Dukic made for physiotherapy was on November 24, 2022, for neck pain. Her clinical notes from that day give no indication the neck pain was accident-related or related to his osteoarthritis.

26In a similar vein, I give little weight to the OCF-3 completed by Dr. Dukic because it reports that the applicant suffered a complete inability to carry on a normal life as a result of the accident. Dr. Dukic’s clinical records suggest no such thing. The applicant appears to have been coping with gout and osteoarthritis prior to the accident and continued to experience the effects of these ailments into the months after the accident but by July 2022, he was presenting with normal gait, looking well, and dealing with, at that time, only knee pain, as a result of an exercise (squats) injury. He reported no pain from other joints.

27If give little weight to Dr. Dukic’s OCF-3 and letter of February 21, 2023 in terms of supporting the reasonableness and necessity of the two treatment plans.

Dr. Igor Wilderman, chronic pain specialist

28I give the assessment report of Dr. Igor Wilderman, physician and chronic pain specialist, dated January 25, 2023, little weight because, among other things, his document review for the assessment appears to have not included the CNRs of the applicant’s family physician, Dr. Dukic.

29There are also inconsistencies between Dr. Wilderman’s assessment and other documentary evidence filed by the respondent. For one, Dr. Wilderman reports, that the applicant hit his head in the accident, a fact that is contradicted by the ambulance call report of September 8, 2021.

30Secondly, Dr. Wilderman concludes that the applicant developed a chronic pain disorder from the accident that prevents him from partaking in activities of daily living, as he did prior to the accident, but that version of the applicant’s medical condition pre-accident is at odds with his application for a disability tax credit.

31In Dr. Wilderman’s assessment, the applicant reported that he participated in numerous recreational activities, including running a few times per week and playing bass (guitar) almost daily. That description is inconsistent with the applicant’s application for a disability tax credit on July 27, 2021 (one and a half months before the accident), in which he reports being significantly restricted in walking, feeding, and dressing for the past 8+ years owing to the long-term effects of a previous MVA, gout, hammertoe and arthritis.

32To be clear, I have no reason to doubt the sincerity of Dr. Wilderman’s report, but its inconsistencies with Dr. Dukic’s CNRs (which cover the roughly 15 months prior to the assessment) and the applicant’s own application for a disability tax credit pre-accident, leave me unpersuaded that the applicant’s complaints to Dr. Wilderman, if true, were a result of the accident. For example, Dr. Dukic’s CNRs during the year prior to this assessment made no mention of the applicant’s dizziness or light-headedness. In fact, as noted above, in July 2022 the applicant was reporting no headaches. By contrast, Dr. Wilderman reports that the applicant was having daily headaches at 7/10 to 8/10 on the pain scale, lasting a few hours at a time and provoking nausea, dizziness, numbness, and loss of balance.

33If Dr. Wilderman’s assessment is to be believed, the applicant’s medical condition significantly deteriorated after November 2022, 15 months after the accident. For that reason, and the other inconsistencies between Dr. Wilderman’s assessment and other documentary evidence, I am unpersuaded that the medical condition Dr. Wilderman’s report describes, is accident-related, and therefore, I give it little weight in supporting the reasonableness and necessity of the two disputed treatment plans.

Dr. Pradeep Alexander, orthopaedic surgeon

34I am not persuaded that the orthopaedic assessment by Dr. Pradeep Alexander, orthopaedic surgeon, on August 15, 2024, demonstrates that the disputed treatment plans are reasonable and necessary because the assessment occurred three years post-accident, and it seems to conclude that the accident caused neck, lower back and bilateral shoulder impairment. Dr. Alexander reports that those impairments prevent the applicant from participating in activities of daily living to the point that the applicant’s sister must help him with those activities. Those findings are inconsistent with Dr. Dukic’s CNRs, which, in the first 15 months following the accident, reveal no such accident-related impairments. As noted above, the direct, accident-related injury identifiable in Dr. Dukic’s CNRs was the back injury, for which physiotherapy was recommended, and which, by July 2022, appears to have resolved.

35I agree with the respondent that it is not plausible that the applicant had such a severe level of accident-related pain that it interfered with his ability to complete housekeeping and activities of daily living in over 14 months post-MVA, without any mention of these issues to his treating physicians.

36In addition, Dr. Alexander’s assessment report did not recommend physiotherapy, making it less persuasive in supporting the reasonableness and necessity of the two disputed treatment plans.

Dr. Bodenstein and Dr. Lau, psychologists

37I give no weight to the observations of Dr. Eyal Bodenstein or Dr. Gordon Lau, psychologists, regarding the applicant’s accident-related physical impairments because they are accredited to opine on physical injuries.

Insurer Examinations, Dr. Paul J. Ranalli, neurologist and Dr. Alborz Oshidari, physiatrist

38I am persuaded by the insurer examinations (“IEs”) of Dr. Ranalli and Dr. Oshidari that the disputed treatment plans are not reasonable and necessary.

39Dr. Ranalli examined the applicant on May 24, 2023 in relation to his claim (OCF-18) for a chronic pain assessment, authored by Dr. Wilderman. That OCF-18 is not in dispute here, but I am persuaded by Dr. Ranalli’s conclusions that, having completed a comprehensive neurological evaluation, a review of a pre-accident CT scan of the brain and facial bones, the ambulance call report, and Dr. Oshidari’s insurer examination report of March 7, 2023, there is no evidence of acquired or significant neurological injury or impairment arising from the accident.

40Dr. Ranalli’s finding differs widely from Dr. Dukic’s comments, in the OCF-3 and in her letter of February 21, 2023, that the applicant’s afflictions; headaches, pain in shoulders, neck and upper back, arose as a result of the accident. Similarly inconsistent is that Dr. Dukic characterizes the applicant’s condition post-accident as a new disability, where Dr. Ranalli notes signs of the applicant’s longstanding chronic distal ulnar neuropathy in the right hand, and longstanding cervical degenerative disk disease.

41Dr. Oshidari, conducted several IEs in relation to the OCF-18 in issue 1 between June 7, 2023 and November 27, 2024, consisting of document reviews as new medical information was presented. His assessment built on previous independent medical examinations he conducted on the applicant in relation to other treatment claims. I am persuaded by Dr. Oshidari’s conclusion that, “although there is little doubt that the accident exacerbated degenerative changes, there is no study that shows further physical treatment can alter the progress of degenerative changes.” He goes on to state that, “unfortunately, with passing time, the degenerative changes continue to progress and symptoms continue to increase and there is no study that shows physical intervention can alter the progress of this condition.”

42I give weight to Dr. Oshidari’s conclusions because he is a physiatrist and his assessment included document reviews of Dr. Dukic’s CNRs, OCF-3 and letter of February 21, 2023, and Dr. Ranalli’s, Dr. Alexander’s, and Dr. Wilderman’s assessments. His report provides, in my opinion, insight into why the applicant’s condition appears to have worsened since November 2022, and that the progression of these symptoms is unrelated to the accident.

43Taking both IE assessments into consideration, I find they do not support entitlement to the disputed treatment plans for physiotherapy.

44Taken as a whole, the medical evidence does not persuade me that the disputed treatment plans are reasonable and necessary. In addition, the applicant’s submissions did not explain the goals of the treatment plans or engage the questions of how the goals would be met to a reasonable degree, and that the cost of achieving them is reasonable.

45Accordingly, I find on a balance of probabilities that the disputed treatment plans for physiotherapy are not reasonable and necessary.

Psychological treatment plan, $598.44

46I find the disputed amount remaining in this treatment plan for psychological is reasonable and necessary.

47The applicant submits that the portion of this treatment plan that was denied, was for “observation and monitoring”. He submits that the respondent approved observation and monitoring as part of previous claims for psychological services and contends these activities are a clinically necessary part of his ongoing psychological care. He seeks payment of the disputed amount.

48The respondent submits that the applicant has not met his burden to demonstrate the disputed amount is reasonable and necessary and that observation and monitoring is not related to the approved psychotherapy sessions. It seeks the dismissal of this claim.

49I find that the disputed amount is reasonable and necessary. The applicant described the goals of that portion of the treatment as being necessary to assess and evaluate his psychological functioning in real time, to guide the therapeutic course, and to determine when treatment may be safely tapered or concluded. Dr. Bodenstein’s Psychological Progress and Second Treatment Plan Preparation report of November 1, 2024 reinforces the goals of this treatment plan (3^rd round) broadly; including helping the applicant to engage in more productive activity like going on with this physical routines, connecting with other people, and re-engaging his music teaching activities. The report speaks of administering the Beck Depression Inventory-II, Beck Anxiety Inventory, Beck Hopelessness Scale and the Pain Patient Profile as part of this treatment plan, and it also notes the setback the applicant faced toward the end of his third round of treatment.

50I am persuaded by Dr. Bodenstein’s comments in his follow-up letter of June 10, 2025, which put the psychometric re-evaluation (referred to in the November 1, 2024 report) into the context of understanding the setback he encountered at the end of the third round of treatment. He notes that the testing is integral to the treatment protocol and, given the applicant’s vulnerability to symptom relapse, the monitoring ensures that treatment remains adaptive and responsive.

51I am persuaded by Dr. Bodenstein’s reliance and reference to the Ontario Psychological Association’s phased model of psychological intervention in which progress evaluations and report preparation is a standard, evidence-based practice.

52I am not persuaded by the respondent’s submission that assessing and evaluating psychological functioning is limited to $200.00 based the Professional Services Guideline, because s. 25(1)(3)(i) of the Schedule requires an insurer pay the reasonable fees charged by a health practitioner for approving a treatment and assessment plan, including any assessment or examination necessary for that purpose, if any one or more of the goods, services assessments or examinations described in the treatment plan have been approved by the insurer (emphasis, my own). I am persuaded that the observation and monitoring identified in the treatment plan is integral to the treatments already approved by the insurer in this case.

53I recognize that the applicant has not provided submissions on how the cost of achieving the goals of the disputed portion of the treatment plan is reasonable, however; I take notice that the rate for observation and monitoring listed in the OCF-18 is $149.61 per hour which is the rate designated in the Professional Services Guideline for psychologists and psychological associates. Accordingly, I find the overall cost of this portion of the treatment plan to be reasonable.

54I find, on a balance of probabilities, that the disputed portion of the treatment plan for $598.44 for psychological services is reasonable and necessary.

Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the disputed portion of the treatment plan in issue 3 is reasonable and necessary, $598.44 is payable. Therefore, the applicant is entitled to interest on the overdue payment of this benefit pursuant to s. 51.

Award

56The 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.

57The applicant submits that by denying his claims for accident benefits, the respondent has failed in its commitment to good faith adjusting. The applicant does not provide any detail or reasons for his belief that the insurer unreasonably withheld payment, beyond his assertion that the plans are reasonable and necessary and therefore should have been approved.

58I find that the payment of benefits is owing only on the disputed portion of the treatment plan for psychological treatment (issue 3), however; I find there is no evidence before me to suggest that the respondent unreasonably withheld or delayed the payment of those benefits. It’s denial of the portion of the treatment plan for “observation and monitoring” was not unreasonable because it had previously approved 36 sessions of psychotherapy, and it stated in its denial, that the line item appeared to be for professional services that are not payable under the Schedule.

59The respondent’s denials of the two treatment plans for physiotherapy were reasonably informed by the IE reports of Dr. Ranalli and Dr. Oshidari and there is no evidence before me that the respondent unreasonably withheld or delayed the payment of benefits.

60I find that applicant has not demonstrated that the respondent unreasonably withheld or delayed the payment of benefits, therefore the respondent is not liable to pay an award under s. 10 of Reg. 664.

Out-of-pocket Expenses

61In his submissions, the applicant seeks an order from the Tribunal that the respondent reimburse him $1,281.49 for out-of-pocket expenses for massage therapy ($840.00), prescriptions ($41.49) and transportation expenses ($400.00). His submission does not include any documentation or the period in which the expenses were incurred.

62The respondent submits that the request for out-of-pocket expenses is not properly before the Tribunal as it was not raised as an issue in the LAT application, nor was it added at the case conference.

63I find these claims are not included as issues in dispute in the CCRO, which constitutes the order for this written hearing, and they cannot be added at this stage of the proceeding. Accordingly, as these disputed expenses are not properly before me, I dismiss the applicant’s request for an order that they be reimbursed.

Costs

64The applicant seeks an order for costs on “a substantial indemnity scale” for having to bring this matter before the Tribunal.

65Rule 19.1 stipulates that, where a party believes 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. Rule 19.2 establishes that the request can be made in writing or orally at a case conference, at any time before the decision is released. Rule 19.4 requires that submissions on costs shall include the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.

66The applicant’s submissions suggest his reasons for requesting costs relate to “having to bring this matter before the Tribunal”.

67The respondent submits the applicant has not presented any evidence to support an order for costs. It submits that more than $26,000.00 has been paid to the applicant in medical and rehabilitation benefits, including after the application was filed with the Tribunal, and it sought and paid for addendum reports as the applicant provided updated medical documentation. It submits, the mere filing of an application cannot solely justify an order for costs.

68Rule 19.5 sets out the powers of the Tribunal in considering requests for costs, establishing that it shall consider all relevant factors including: 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 the parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

69I have considered the parties’ submissions in respect of the request for costs and I deny the request because the applicant has not provided any information relating to how or why he considers the respondent’s conduct to have been unreasonable, frivolous, vexatious or in bad faith.

ORDER

70I order the following:

i. The applicant is not entitled to the two treatment plans for physiotherapy in the amounts of $1,995.28 and $2,086.06 (issues 1 and 2 in dispute);

ii. The applicant is entitled to the disputed portion of the treatment plan for psychological treatment in the amount of $598.44;

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664;

iv. The applicant is entitled to interest on the overdue payment of benefits in respect of issue 3;

v. The request for out-of-pocket expenses relating to massage therapy, prescriptions, and transportation is dismissed; and

vi. The request for costs is denied.