Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 163 FSCO A05-002898
BETWEEN:
Andrew Kovach Applicant
and
Aviva Canada Inc. Insurer
PRE-HEARING DECISION
Before: David Muir
Heard: By written submissions received on July 28, August 21 and 25, 2006.
Appearances: Charlia D. von Buchwald for Mr. Kovach Robert H. Rogers for Aviva Canada Inc.
Issues:
The Applicant, Andrew Kovach, was injured in a motor vehicle accident on October 31, 1999. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule1
Aviva has paid an attendant care benefit in varying amounts since the accident. A dispute has arisen regarding the quantum of attendant care that Mr. Kovach requires which the parties have been unable to resolve and Mr. Kovach applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
At the pre-hearing discussion of this case Aviva indicated that it was seeking to have Mr. Kovach assessed pursuant to section 42. The proposed assessments include an in-home assessment conducted by an occupational therapist ("O.T.") and a neuropsychological assessment by Dr. Gayle Kumchy in her Toronto office. Mr. Kovach indicated that he was not prepared to submit to these assessments.
The parties agreed to deal with this interim procedural dispute by way of written submissions. They further agreed that their dispute was largely whether or not the assessment(s) as proposed was authorized by section 42 of the Schedule, that is, assuming the technical requirements of section 42 had been met. In addition, Mr. Kovach objected to the assessment by Dr. Kumchy over two days in Toronto.
The issues are:
Is the in-home attendant care assessment sought by Aviva authorized by section 42 of the Schedule?
Is Aviva's requested neuropsychological assessment by Dr. Kumchy in Toronto authorized by section 42 of the Schedule?
Is the location of this assessment appropriate in the circumstances?
Result:
The in-home attendant care assessment sought by Aviva is authorized by section 42 of the Schedule.
The assessment by Dr. Kumchy is not unreasonable.
The location of this assessment is not unreasonable.
By letter dated September 19, 2006 I communicated to the parties my conclusion that the assessments as proposed were authorized by section 42 of the Schedule. Below are my reasons for that determination.
EVIDENCE AND ANALYSIS:
Mr. Kovach suffered serious injuries in the accident including pelvic fractures and facial abrasion. Most significantly he has suffered an acquired brain injury. His need for attendant care flows largely from the consequences of his brain injury.
On March 9, 2005 Mr. Kovach filed a mediation respecting the attendant care dispute. Mediation failed on June 3, 2005. On December 8, 2005 Mr. Kovach referred the dispute to arbitration.
Mr. Kovach has been assessed in respect of his attendant care claims on several occasions. For the most part, the attendant care required is supervisory in nature. That is, Mr. Kovach is able to attend to his personal needs, with some occasional cueing. However, several assessors have concluded that he needs more supervision than a child, now adolescent, would require as a result of the brain injury sustained in the accident.
Once the apparent consequences of Mr. Kovach's brain injury were identified, most assessors involved in Mr. Kovach's case recommended a significant quantum of attendant care. In August 2000 Ron Wiltshire (O.T.) retained by Aviva, concluded that Mr. Kovach needed $2,949.80 of attendant care. In March 2001, Donna Barrett, retained by the case manager, recommended the reduced amount of $1,902.90 and later in July 2001, $2,297.57.
In response to this latter increase in the amount of recommended attendant care, Aviva required that Mr. Kovach be assessed by a Designated Assessment Centre ("DAC") which, on December 6, 2001, concluded that $1,078.72 was required. The DAC assessors here took the view that Mr. Kovach, as a 10 year old boy, would not have been left alone for any significant period of time irrespective of the accident. Aviva paid attendant care benefits in accordance with this first DAC assessment until late 2004, when Mr. Kovach was reassessed by Ms J. Landry (O.T.) who concluded that the appropriate amount of attendant care was $1053.50.
In response to the slight reduction in quantum of attendant care payment, Mr. Kovach requested a DAC which was conducted in December 2004. The DAC conducted by Lyn Cook and Charlene Phillips of North York Rehabilitation Centre Inc. ("North York DAC") recommended a further reduction in attendant care to $481.60.
In response Mr. Kovach referred the attendant care issue to mediation in March 2005. On or about October 5, 2005 Mr. Kovach submitted a new Form 1 prepared by Ms P. Briggs and Ms J. Salah of West Park Healthcare Centre ("West Park") in the amount of $3,815.21. Mr. Kovach requested that Aviva reconsider its reliance on the North York DAC. Aviva declined to do so, but offered a further assessment at an attendant care DAC. This proposal was not taken up by Mr. Kovach who as indicated earlier referred this dispute to arbitration in December 2005.
Ms Barrett submitted a further Form 1 on March 29, 2006 in the amount of $3,775.02 (while Mr. Kovach was in school) and $5,017.24 for the summer months. Aviva claims that in response to this further Form 1 it reasonably required an insurer's assessment and made a request of Mr. Kovach on June 7, 2006. After requesting further information respecting the need for this further assessment, Mr. Kovach declined to participate.
A pre-hearing was held in this case on June 29, 2006. The hearing is scheduled to proceed beginning on February 12, 2007.
Much of the parties' submissions focussed on an alleged contravention of the Schedule by Mr. Kovach in submitting a Form 1, less than one year after the North York DAC assessment. Aviva takes the position that it was not required to respond to that assessment, a position that is likely technically correct. It also submits that although it was not required to do so it did offer Mr. Kovach a new DAC assessment, that is, it did more than it was required to. As indicated earlier, Mr. Kovach did not take up the offer but pressed forward with an application for arbitration in December 2005. When presented with a further Form 1 in March 2006 Aviva submitted that it reasonably began to question whether the 2004 North York DAC was still valid. Accordingly, it was submitted that the Insurer is entitled to an examination not having had one since August 2004.
The Schedule provides that an insurer, for purposes of determining entitlement to benefits, may require an insured person to submit themselves to an assessment as often as is reasonably necessary. There are special rules in section 39 with respect to assessing attendant care claims which, generally speaking, place further limits on the frequency of assessments. As noted above Aviva complains that Mr. Kovach submitted a new Form 1 within 52 weeks of the North York DAC.
I find that Aviva is entitled to an assessment of Mr. Kovach's attendant care needs in these circumstances. There has been no DAC since December 2004. Aviva has not had an assessment by someone of its choosing since August 2004. It is recognised by most of those who have been involved in this matter that Mr. Kovach's need for attendant care will likely change over time. Many think his needs may increase as he moves through adolescence, some others anticipate the opposite. In any case it remains that as of the time of the request it had been almost two years since Aviva had its own assessment conducted.
Mr. Kovach submits that Aviva has waited too long and has failed to dispel the notion that it is seeking this assessment to buttress its position at the scheduled arbitration. The evidence in support of such a motivation is limited to the timing of the request in relation to the first time that it could have been asked for, and the dates set for the arbitration hearing.
It is beyond dispute that the first time that Aviva could have requested Mr. Kovach attend an insurer's assessment was after December 5, 2005, 52 weeks after the North York DAC. Nothing in the Schedule would necessarily require it to do so. Mr. Kovach submits that upon receipt of the West Park assessment it ought to have taken its opportunity to do so. However its failure to request an insurer's assessment at that time must be seen in light of its offer, on November 30, 2005, of a DAC. On the face of it, and without any analysis of the relative strengths of the DACs in question, I accept Aviva's submission that there is nothing in the Schedule that would have required it to respond to the October 5, 2005 Form 1 of Ms Briggs and Ms Salah.
I do accept Mr. Kovach's submission that because the report was commissioned and made before 52 weeks had elapsed since the North York DAC does not mean the assessment did not happen and can be entirely ignored. I also appreciate that there was other information made available to Aviva that might have persuaded it that there was something amiss with the conclusions of the North York DAC. However, the relative strength of these reports and the underlying suggestion that Aviva has acted unreasonably in its adjusting of Mr. Kovach's claims is for a hearing arbitrator to consider. The question for me is a different, and much narrower one - is Aviva entitled or not to an assessment pursuant to section 42?
Given Mr. Kovach's age, his injuries, the nature of the claim here as well as the passage of time since its last assessment, Aviva would normally be entitled to this assessment unless it can be seen as an attempt, primarily, to strengthen its case at arbitration.
Mr. Kovach relies upon the delay from December 2005, the first time it would have been entitled to seek an assessment, to June 2006 when it requested the assessments in question. Mr. Kovach submits that when Aviva received the West Park Assessment in mid-November2, the Insurer ought to have known that there was something wrong with the North York DAC and it should have sought its assessment then. Having failed to do so, it is now precluded from doing so because it is too close to the hearing.
Mr. Kovach also asks that I draw the inference from Aviva's claim that it was the March 2006 assessment of Ms Barrett that gave rise to the concern that the North York DAC might be in error or no longer determinative and that its real motive was to buttress a crumbling case just prior to the arbitration. To my mind although a plausible inference to draw, it is also possible that the final two reports together brought home to Aviva that it was time for it to enquire further and have its own assessment done. It is also true that Aviva might have acted earlier than it did however the delay is not so significant that it is clear that it was strategic.
In the circumstances, I am not prepared to draw the inference that this request is primarily an attempt to buttress Aviva's case at arbitration. As in virtually all of these situations Aviva's motives are undoubtedly mixed, in that it is hoped that the report will be available in time to be served in accordance with the Dispute Resolution Practice Code and admitted into evidence at the hearing should there be one. However it is also clear from the multitude of arbitration decisions on this point that the commencement of an arbitration proceeding does not end the insurer's right and obligation to continue to adjust the claim.
Is Aviva entitled to a neuropsychological assessment
Having determined that the assessment is generally authorized by section 42 it is necessary to determine whether or not the request for a neuropsychological assessment is appropriate.
I find that Aviva is entitled to a neuropsychological assessment.
Mr. Kovach submits that Aviva is not entitled to a neuropsychological assessment as part of an attendant care assessment. I do not understand this submission in light of the fact that much, if not all, of Mr. Kovach's need for attendant care flows from his brain injury and its consequences. Although this is not a DAC assessment, it is an expectation of such assessments that where there is "concern about a brain-injured claimant's ability to exercise appropriate judgement without supervision", the assessment team ought to include a psychologist, neurologist or psychiatrist.3 I fail to see how Aviva can be criticised for seeking such expertise in this case.
Mr. Kovach further objects to the selection of Dr. Kumchy and requests that the insurer be required to utilise a Dr. Finnegan who conducted an earlier insurer's examination in September 2000. Other than an allegation that Aviva is forum shopping there is no other basis offered for its objection. I am not persuaded that Aviva should not be entitled to use the services of Dr. Kumchy.
The real issue between the parties is the location of that assessment. It is conceded that the proposed location of the assessment is outside of the prescribed distances. Aviva submits that it would be most useful to have its assessment conducted by a neuropsychologist with experience in the treatment and assessment of adolescents. Dr. Kumchy is claimed to have such expertise. Mr. Kovach does not question that assertion. Aviva submits that it could not find an assessor closer to Mr. Kovach. This assertion is not disputed.
I see no basis on these grounds for denying Aviva its assessment.
Mr. Kovach also objects to the assessment being conducted over two days. Dr. Kumchy has indicated she would prefer to see Mr. Kovach on two occasions. In the absence of any contrary indication I see no basis for not deferring to that request.
Aviva has agreed to arrange and pay for transportation for Mr. Kovach to attend this assessment, as well as cover any related expenses. It should be held to that bargain.
October 23, 2006
David Muir Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 163 FSCO A05-002898
BETWEEN:
Andrew Kovach Applicant
and
Aviva Canada Inc. Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The in-home attendant care assessment sought by Aviva is authorized by section 42 of the Schedule.
The assessment by Dr. Kumchy is not unreasonable.
The location of this assessment is not unreasonable.
October 23, 2006
David Muir Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Together with other material provided to Aviva that directly or indirectly questioned the North York DAC's conclusions.
- See Keyes and Personal Insurance Company of Canada (FSCO A06-001156, July 21, 2006).