Joyce Chua-Sparrow v. Aviva Canada Inc., 2006 ONFSCDRS 94

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 94

Appeal P05-00035

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JOYCE CHUA-SPARROW Appellant

and

AVIVA CANADA INC. Respondent

Before: David Evans

Representatives: David Derfel for Ms. Chua-Sparrow Joseph Griffiths for Aviva

Hearing Date: March 23, 2006

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Chua-Sparrow's appeal is dismissed, and the arbitrator's order dated November 18, 2005, is confirmed.

2. If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 8, 2006

David Evans Director’s Delegate Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Chua-Sparrow appeals the arbitrator's decision of November 18, 2005, dismissing her claim for payment of a treatment plan. She contends that the arbitrator should have given no weight to a Designated Assessment Centre ("DAC") report because the assessors were not qualified at the hearing as experts. In her submission, the arbitrator inappropriately placed the onus on her to show that the assessors were not qualified.

II. BACKGROUND

Ms. Chua-Sparrow was injured in a motor vehicle accident on June 16, 2002. She was reimbursed for several treatment plans at the ACT Health Group clinic involving active and passive therapy, claimed as a medical benefit pursuant to s. 14 of the SABS-1996.¹ However, Aviva determined that the proposed expenses in ACT's April 10, 2003 treatment plan did not meet the "reasonable and necessary" test of s. 14(2)² and denied the plan. The issue was referred to the York Active Rehab Centre DAC. Its report of September 16, 2003 indicates that it was conducted by a physiotherapist, massage therapist and orthopaedic surgeon. These assessors concluded that the planned treatment was not reasonable and necessary.

It should be noted that the active component in ACT's treatment plans included not only guided exercise at the clinic but also self-directed exercise by Ms. Chua-Sparrow at home. The latter issue played a considerable role at the hearing and in the decision. In that regard, Aviva called no witnesses, but relied on the DAC assessors' conclusions that Ms. Chua-Sparrow had received sufficient passive and supervised active treatment and should perform home exercises at least four times weekly, walk more, and consider taking up yoga or a similar activity.

As to the Applicant's evidence, the arbitrator heard from Ms. Chua-Sparrow and from Sonia Rosatelli, the physiotherapist who prepared the disputed treatment plan, and Dr. Stephen Gallay, the orthopaedic surgeon who assessed Ms. Chua-Sparrow in February 2004 at her counsel's request. Ms. Chua-Sparrow testified that she had been told about the importance of performing home exercises, but was not doing them for lack of time. Ms. Rosatelli testified at the arbitration hearing that her decision to propose the treatment plan possibly could have been affected had she known Ms. Chua-Sparrow was not exercising at home, and the arbitrator noted: "In fact, Ms. Rosatelli said this was a key component of the treatment." Ms. Rosatelli also thought it was possible that Ms. Chua-Sparrow's need for further physiotherapy was at least partially caused by that failure. As for the evidence of Dr. Gallay, the arbitrator discounted it in part because "he appeared to assume in his evidence that Ms. Chua-Sparrow had been performing her home exercise programme faithfully, which was not the case. . . ."

Ultimately, the arbitrator preferred the opinions of the DAC assessors because their report contained no "serious flaws" and, in recognizing Ms. Chua-Sparrow's failure to exercise at home, they "had a more accurate grasp of the relevant facts than Ms. Rosatelli or Dr. Gallay." While the arbitrator found the ACT treatment plan to be reasonable, he did not find it necessary because " the same results most likely could have been achieved had the Applicant followed the instructions of her physiotherapist (and the recommendations of the DAC assessors) and performed her home exercise programme." He found that Ms. Chua-Sparrow was using the clinic facility more as a time management tool, and noted that "[a]s pressed for time as she was, she still could have made some effort to follow her physiotherapist's instructions and perform exercises at home."

III. ANALYSIS

The issue of the assessors' qualifications arose in one paragraph at the end of the arbitrator's decision:

Ms. Chua-Sparrow's counsel argued in his written submissions that I should give no weight to the DAC report because Aviva provided no proof that the three DAC assessors were appropriately qualified. I do not agree. I have no reason to question that the assessors were indeed a physiotherapist, a massage therapist and an orthopaedic surgeon and therefore qualified to reach the conclusions they did. None of the three made any statements outside his or her own field of practice. Counsel did not raise any questions about their qualifications during the hearing, and cannot suddenly do so in written submissions without providing some evidence that the assessors are not qualified. On review of the DAC report, I find that the assessors performed a proper assessment, considered all the facts, and came to reasonable and defensible recommendations, including that the treatment plan in dispute was not reasonable and necessary.

Ms. Chua-Sparrow referred me to this passage from Luo and Guardian Insurance Company of Canada, (OIC A96-000588, June 9, 1997) as the basis for giving no weight to the DAC report:

No separate statement of qualifications or curriculum vitae for any of the health practitioners was filed, as required by section 38 of the Dispute Resolution Practice Code—Third Edition.³ Some of the health practitioners made brief statements about their qualifications in their reports. Without a statement of qualifications, the evidence I have of the expertise of these practitioners is very restricted. None of the experts testified at the hearing. Only their reports were filed.

However, the arbitrator in Luo was still prepared to weigh the DAC report against the other reports. She discounted the DAC assessor's report not for lack of a statement of qualifications but because the report did not display enough consideration about Mr. Luo's essential job tasks to be a valuable opinion. The arbitrator in this case did the same type of comparison: however, he simply preferred the DAC assessors' report for the reasons he gave. I find Luo does not assist Ms. Chua-Sparrow.

As noted above, the assessors' names and their specialties were listed in the DAC report. Although Rule 42.1 may have required a separate statement of the assessors' qualifications,⁴ Rule 42.3 provides that where "a party does not comply with the requirements of this Rule, an arbitrator may exclude a witness from the hearing or make such other order as the arbitrator considers just." [Emphasis added.] The arbitrator thus had the discretion to reject or accept the report. If Ms. Chua-Sparrow wished the arbitrator to exercise the discretion in her favour, she should have raised the Rule's breach at the time the report was filed, or at least during the course of the hearing.

Thus, I agree with the arbitrator that it was too late to raise the breach in final written submissions. A useful comparison is provided by the appeal decision in Villers and Pilot Insurance Company, (FSCO P05-00010, January 30, 2006). In that case, the Director's Delegate discussed three serious flaws in the DAC. However, she noted that the insured did not ask to have the DAC report excluded from the evidence but instead, while challenging the integrity of the DAC process, the insured presented evidence to support his claim, which the arbitrator considered and rejected. Not only did Ms. Chua-Sparrow fail to challenge the introduction of the DAC report, she did not then challenge it beyond raising an unsupported allegation. Furthermore, Ms. Chua-Sparrow had the same opportunity as the applicant in Villers to present evidence to support her claim, which the arbitrator considered and rejected. Accordingly, I am not persuaded that the arbitrator erred in finding that it was too late to raise the qualification issue.

The appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 8, 2006

David Evans Director’s Delegate Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The medical benefit is payable for "all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident" for a variety of goods and services of a medical nature.
3. 3Now Rule 42.1 of the Dispute Resolution Practice Code, Fourth Edition, which states: "If a party intends to introduce a report by an expert, the full name and qualifications of the expert who prepared the report must accompany the report."
4. 4Since the issue was raised so late in the arbitration, the insurer had no opportunity to call evidence on whether the DAC had provided notice of the qualifications of the proposed assessors before the assessment.