minicounsel

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
Exhibit 13
Exhibit 12
Exhibit 11, Applicant’s Document Brief, Volume 4, Tab 1
Exhibit 11, Applicant’s Medical Brief, Tab 2
Exhibit 11, Applicant’s Medical Brief, Tab 3, page 2
Exhibit 11, Applicant’s Medical Brief, Tab 13, page 4
Exhibit 5, Arbitration Brief, Volume 1, Tab 1, page 2
Exhibit 11, Applicant’s Document Brief, Volume 2, Tab 4
Exhibit 11, Applicant’s Document Brief for Additional Issues Added, Volume 3, Tab 4
Exhibit 11, Applicant’s Document Brief for Additional Issues Added, Volume 3, Tab 5
Exhibit 11, Applicant’s Document Brief, Volume 4, Tab 6
Exhibit 11, Applicant’s Document Brief, Volume 4, Tab 6
Exhibit 11, Applicant’s Document Brief, Volume 2, Tab 14, page 7 (pages are not numbered in the report)
Exhibit 11, Applicant’s Document Brief, Volume 2, Tab 15
Exhibit 11, Applicant’s Document Brief, Volume 2, Tab 9
Exhibit 11, Applicant’s Document Brief, Volume 3, Tab 4
(FSCO P07-00035, August 8, 2008), Appeal
(FSCO P07-00035, August 8, 2008) page 6, Appeal
Ibid, page 7
Ibid, page 4
(FSCO P97-00069, October 28, 1998), Appeal, Page 3

Neutral Citation: 2011 ONFSCDRS 110 FSCO A08-001537

BETWEEN:

MICHAEL VIEIRA Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby Heard: July 18, 19, 20 and 21, 2011 at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Yoram (Jay) Gold for Mr. Vieira James M. Brown and Ashley Deathe for Aviva Canada Inc.

Issues:

The Applicant, Michael Vieira, was injured in a motor vehicle accident on October 14, 2006. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Aviva terminated certain benefits and denied others. The parties were unable to resolve their disputes through mediation, and Mr. Vieira applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Vieira entitled to receive a weekly child care benefit at the rate of $300.00 less amounts paid by Aviva from October 14, 2006 to October 14, 2008 pursuant to section 13 of the Schedule?
Is Mr. Vieira entitled to receive an attendant care benefit at the monthly rate of $678.71 less amounts paid by Aviva from October 14, 2006 to October 14, 2008, pursuant to section 14 of the Schedule?
Is Mr. Vieira entitled to receive a housekeeping and home maintenance benefit at the weekly rate of $100.00 less amounts paid by Aviva from October 14, 2006 to October 14, 2008 pursuant to section 22 of the Schedule?
Is Mr. Vieira entitled to payment of an examination expense in respect of a psychological assessment conducted by Provincial Medical Services report dated October 30, 2008, the sum of $2,133.12?
Is Aviva liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act, because it unreasonably withheld or delayed payments to Mr. Vieira?
Is Aviva liable to pay Mr. Vieira’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Vieira liable to pay Aviva’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Vieira entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Vieira is not entitled to receive a weekly child care benefit.
Mr. Vieira is not entitled to receive an attendant care benefit.
Mr. Vieira is not entitled to receive a housekeeping and home maintenance benefit.
Mr. Vieira is not entitled to payment of an examination expense in respect of a psychological assessment conducted by Provincial Medical Services.
Aviva is not liable to pay a special award.
Mr. Vieira is not entitled to interest for the overdue payment of benefits.
The parties made no submissions with respect to expenses. They are encouraged to resolve the issue, failing which they may request an expense hearing before me within 30 days of this decision pursuant to Rule 79 of the Dispute Resolution Practice Code.

PROCEDURAL RULING:

Mr. Vieira sought to be present during the examination of his former wife, Michelle Baker, in order to instruct his representative in preparation for her cross-examination.

On Friday July 15, 2011, Mr. Vieira advised Aviva by e-mail that he was withdrawing his consent to be absent during Ms. Baker’s testimony. He had previously confirmed his consent in a letter dated July 11, 2011.²

Mr. Vieira was charged with uttering death threats against Ms. Baker and assaulting her. Mr. Vieira was convicted. Prior to the trial Mr. Vieira was convicted for breaching the provisions of his bail by associating with Ms. Baker or by having either direct or indirect communications with her. Mr. Vieira testified that he was not guilty, notwithstanding he pleaded guilty, but was trying to avoid additional jail time while he awaited his trial.

On July 19, 2011, Mr. Vieira produced a copy of his Probation Order dated May 28, 2010. It continued to be in effect. The Probation Order was issued as a consequence of Mr. Vieira’s conviction for failing to comply with his probation pursuant to subsection 733.1(1) of the Criminal Code. Paragraphs “e”and “f” of the Order provide:

(e) NOT ASSOCIATE OR COMMUNICATE, directly or indirectly, with Michelle Vieira (also known as Michelle Baker) except through legal counsel or at family court proceedings.

(f) NOT ATTEND WITHIN 500 metres of the known place of residence, employment or education of Michelle Vieira (a.k.a. Michelle Baker) and Louisa Abramov.³

Mr. Vieira submits that excluding him from the hearing during Ms. Baker’s testimony would be a breach of the duty of fairness and natural justice which the Commission owes to parties who appear before it. Further, the exceptions contained in the Order should be interpreted broadly. As a consequence, an appearance at the Commission would fall within the permitted exceptions. Further he submits that as I have observed his demeanour during this hearing I should have no concern about his ability to act appropriately during Ms. Baker’s testimony. Further having security available would allay any concerns regarding Ms. Baker’s safety.

Aviva submits that absent a variation of the Probation Order, Mr. Vieira should be excluded on the basis that he has been convicted of uttering death threats and breaching orders of the court. The exclusions contained in the Probation Order are not sufficiently broad to cover an appearance at the Commission. Therefore, it suggests that an adjournment be given to permit Mr. Vieira time to seek an amendment to the Probation Order specifically permitting Mr. Vieira to be present during Ms. Baker’s evidence.

I was provided with various cases which dealt with labour disputes. They do not deal with convictions for uttering death threats and assault. As well, Mr. Vieira has convictions for breach of bail and probation orders. Notwithstanding Mr. Vieira’s explanation for his pleas in these matters there is a prima facie basis upon which it can be reasonably expected that his presence in the room would be intimidating to Ms. Baker. Further, the Adjournment Officer had previously ordered this hearing be peremptory to Mr. Vieira. As the Probation Order was issued in May 2010, Mr. Vieira has had over a year to have this hearing added as an exception. Therefore, I will not adjourn the hearing.

The order permits Mr. Vieira to have contact with Ms. Baker through legal counsel or at Family Court proceedings. I am not persuaded that the wording of the exclusions is sufficiently broad to permit Mr. Vieira to be in Ms. Baker’s presence at this hearing. Mr. Brown is counsel for Aviva on whose behalf Ms. Baker has been called to testify. He does not represent Ms. Baker. As well, the Order specifies proceedings of the Family Court. Hearings at the Commission cannot reasonably be construed as Family Court proceedings. Therefore, Mr. Vieira will not be permitted to be in the hearing room during Ms. Baker’s testimony.

However, I am satisfied that Mr. Vieira has the right to hear Ms. Baker’s testimony in order to instruct and advise Mr. Gold with respect to his cross-examination of Ms. Baker.

Therefore, Ms. Baker shall testify in my presence and Mr. Vieira may participate by teleconference. I will recess the hearing following Ms. Baker’s Examination in Chief for sufficient time to permit Mr. Vieira to consult and instruct his representative prior to Ms. Baker’s cross-examination. As well, security will be present outside the hearing room during Ms. Baker’s testimony. Following her evidence the hearing will adjourn for the day.

EVIDENCE AND ANALYSIS:

On October 14, 2006, the car which Mr. Vieira was driving was hit by a car making a left turn. A second impact occurred when his vehicle was hit by another vehicle head on. Mr. Vieira was taken to hospital by ambulance. However, he left the hospital against medical advice.

Mr. Vieira claims caregiving, attendant care, housekeeping and home maintenance benefits. He submits that Aviva failed to pay him the amounts and for the duration to which he was entitled. Mr. Vieira also claims an examination expense for a psychological assessment conducted by Dr. Kelly A. McCutcheon a psychologist retained by Provincial Medical Services (“PMS”). Dr. McCutcheon’s report is dated October 30, 2008.

Mr. Vieira’s claims for caregiving, attendant care benefits and housekeeping and home maintenance benefits require that he know what, where and by whom those services were provided. Mr. Vieira’s testimony describing his pre-accident and post-accident child care and housekeeping and home maintenance duties was very limited. He was particularly vague in respect of pre and post-accident care of his stepson. Mr. Vieira had difficulty providing particulars of his living arrangements post-accident in respect of dates he was living in the family home, attending residential treatment, was incarcerated or living with friends in Innisfil. As well, his evidence was often contradictory. Consequently, I found Mr. Vieira’s testimony unreliable unless supported by independent documentary evidence.

Mr. Vieira’s neighbours Keith Morris and Rachel Hodgson, who were also the service providers, were unable to describe in any detail where Mr. Vieira resided and when. As well, they were only able to describe the services they provided in the most general way. They both testified that they visited Mr. Vieira in Innisfil where he relocated after the accident. Ms. Hodgson testified that she did not care for the children or take Mr. Vieira’s daughter with her when she visited Mr. Vieira there.

Neither Mr. Morris’ nor Ms. Hodgson’s testimony gave me confidence that they had a relationship with Ms. Baker that would have resulted in their entering her home to care for her children, provide housekeeping and home maintenance services or attendant care. This would have been necessary for the couple to provide those services during periods when Mr. Vieira was not resident in the family home and did not have custody of the children. On the basis of the foregoing, I find the testimony of Mr. Morris and Ms. Hodgson unreliable.

Aviva submitted that Mr. Vieira was neither the primary caregiver of either his daughter or stepson at the time of the accident and therefore not entitled to those benefits. As well, Mr. Vieira did not maintain the couple’s home or engage in housekeeping prior to the accident. As a consequence he was not entitled to those benefits. In the alternative, Aviva submits that it has paid Mr. Vieira all of the benefits to which he was entitled. Aviva called Michelle Baker, Mr. Vieira’s former wife, in support of its defence.

Ms. Baker testified that she gave contradictory and inaccurate statements to Aviva because she was attempting to protect Mr. Vieira from accusations of insurance fraud which might compromise her insurance coverage. She owned the car that Mr. Vieira was driving at the time of the accident. Ms. Baker also testified that some of her inconsistent statements were made out of fear of being physically abused by Mr. Vieira.

Although Ms. Baker acknowledged the discrepancies in her various statements I am not confident that her testimony is reliable unless supported by independent documentary evidence.

Medical Evidence:

Family Physician’s Notes:

Mr. Vieira has a significant pre-accident history of kidney stones which required regular narcotic pain relief. Mr. Vieira visited his family physician, Dr. Brian Sheffield, approximately 25 times from November 23, 2005 to October 6, 2006, the last visit prior to the accident. Dr. Sheffield’s handwritten notes indicate that he renewed Mr. Vieira’s prescription for Percocet for either 50 or 80 tablets on each occasion.

On October 16, 2006, Mr. Vieira consulted Dr. Sheffield regarding the motor vehicle accident on October 14. Dr. Sheffield’s notes indicate that Mr. Vieira was taken to hospital by ambulance but left “AMA” or against medical advice. Since the accident, Mr. Vieira rested at home. He complained of pain in his chest and face which was attributed to the airbag deploying. As well, he had neck and back pain. Dr. Sheffield noted a decreased range of motion. There is also a note that Mr. Vieira “lost meds in accident.” Dr. Sheffield recommended x-rays and suggested ice and rest. He also renewed the prescription for 80 tablets of Percocet.

On October 23, 2006, Mr. Vieira returned to Dr. Sheffield complaining of headache, pain on the left side of his neck, right shoulder, forearm, left knee and low back. Dr. Sheffield diagnosed myofascial strain. He prescribed physiotherapy, 30 tablets of Mobicox 15 and 80 tablets of Percocet. Dr. Sheffield declined to complete the Disability Certificate requested by Mr. Vieira’s then legal representative until he received payment of $26.00.

On October 30, 2006, Mr. Vieira returned to Dr. Sheffield. The notes indicate that Mr. Vieira was being treated by a physiotherapist recommended by his lawyer and to whom the therapist would report. Mr. Vieira complains of the same pains noted on October 23 and a sore throat. Dr. Sheffield renewed a prescription for antibiotics and Percocet.

On November 9, 2006, Mr. Vieira was again seen by Dr. Sheffield. He noted that Mr. Vieira reported his knee and back were improving with physiotherapy but his neck was still sore.

On November 16, 2006, Mr. Vieira returned to Dr. Sheffield for a renewal of his Percocet prescription. He claimed to have lost his remaining medication. He was also seen on November 30 and December 12, 2006 for this purpose and follow-up relating to his sore throat.

On December 22, 2006, January 2, January 12, January 26 and January 30, February 5 and February 16, 2007, Mr. Vieira consulted Dr. Sheffield complaining of back pain and seeking renewal of his Percocet prescription. The January 2, 2007 note indicates that Mr. Vieira’s complaint of back pain resulted in a referral to another doctor for assessment respecting kidney stones.

Mr. Vieira next saw Dr. Sheffield on July 5, 2007. He had been in hospital as a result of a recurrence of kidney stones. Dr. Sheffield provided a prescription for Naprosyn.

On July 12, 2007, Dr. Sheffield noted that Mr. Vieira requested a renewal of his Percocet prescription. However, Dr. Sheffield declined as Mr. Vieira had been in rehabilitation for drug dependency.

On July 22, 2007, Dr. Sheffield saw Mr. Vieira and noted that he was now living in Innisfil and had been seen at the Royal Victoria Hospital in Barrie. Dr. Sheffield prescribed Celebrex 200 mg for pain.

Following Mr. Vieira’s visit on July 22, 2007 he saw Dr. Sheffield 36 times including October 3, 2008. On July 11, 2008, Mr. Vieira complained that his left upper back was strained when he bent to pick up a tool box. On September 9, 2008, Dr. Sheffield notes that Mr. Vieira’s left humerus was hit by a car mirror. The area was tender and an abrasion was noted. With those exceptions the remaining visits were for renewals of Mr. Vieira’s Percocet prescription or other illness unrelated to muscle strain.⁴

Ontario Health Insurance Plan Disclosure:

Mr. Vieira’s Ontario Health Insurance Plan (OHIP) disclosure commences on January 21, 2004 and concludes on April 2, 2009.

There are notations that he was treated on 12 occasions for various musculoskeletal complaints ranging from leg cramps, strains and sprains, to fractures between January 21 and October 6, 2004.

From October 6, 2004 to January 25, 2006, he had numerous laboratory investigations and treatment for kidney stones and annual check-ups. Commencing February 14, 2006 to March 6, 2006, there are 32 laboratory blood tests noted in respect of “Drug Dependence, Drug Addiction.” Between March 6, 2006 and October 6, 2006, there were assessments for inter alia kidney stones, Dupuytren’s Contracture and bursitis. The Drug Dependence diagnosis reappears between April 16 and June 1, 2007.

On October 16, 2006, the records indicate that Dr. Sheffield noted Dupuytren’s Contracture as the diagnosis and referred Mr. Vieira for x-rays of the thoracic spine, lumbar/lumbosacral spine and cervical spine. The records indicate that Dr. Sheffield diagnosed lumbar spine and sciatica on 11 visits between October 30, 2006 and February 16, 2007.

Post-Accident Treatment Clinics:

On October 31, 2006, Mr. Vieira was assessed by Dr. Levitan and Dr. Shane of Integrated Health Recovery. They diagnosed dislocation, sprain and strain of joints and ligaments of the head, injury to the muscle and tendon of the hip and thigh, dislocation, sprain and strain of joints and ligaments of the thorax, dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, intra-articular injury of the left knee and left elbow sprain. Pre-accident injuries or disease was confined to a previous injury of the right elbow which was asymptomatic. The assessors concluded that Mr. Vieira was unable to engage in his housekeeping and caregiving activities.⁵

On January 7, 2007, Dr. Levitin authored a report in which he discussed the foregoing impairments and indicated that save for a left arm fracture Mr. Vieira had an “unremarkable” medical history prior to the accident.⁶

On October 13, 2008, an In-home Assessment was conducted by Dr. S.C. Simone of PMS. He notes Mr. Vieira’s history of kidney stones and states that otherwise Mr. Vieira was in “good health prior to the accident with no serious medical problems or previous complaints.”⁷

Conclusion:

The post-accident treatment clinic and PMS’ assessors minimize Mr. Vieira’s pre-accident medical history. In reality, Mr. Vieira has a very remarkable pre-accident history replete with regular prescriptions for opiates to ameliorate pain caused by recurring kidney stones and treatment for drug dependence resulting from this treatment. I find that they relied on grossly inaccurate information relating to Mr. Vieira’s pre-accident health.

Dr. Sheffield was Mr. Vieira’s treating physician for a substantial period prior to the accident and saw him regularly following the accident. Therefore, I prefer Dr. Sheffield’s clinical notes and records to the other medical reports issued in support of Mr. Vieira’s claims for benefits.

Dr. Sheffield’s records provide little support for Mr. Vieira’s claims that he was substantially disabled from engaging in his pre-accident caregiving or housekeeping and home maintenance duties or that he required attendant care immediately after the accident. Although brief, Dr. Sheffield’s notes, generated at each appointment, described Mr. Vieira’s physical complaints. I find that had Mr. Vieira experienced substantial impairments which limited him from engaging in those activities Dr. Sheffield would have referred to them in his notes. Further had Mr. Vieira had significant accident related pain he would have used those complaints as a basis for obtaining stronger prescriptions for Percocet.

To the extent that Dr. Sheffield noted the injuries impacted on Mr. Vieira’s activities of daily living they were described as a decrease in range of motion due to myofascial strain requiring icing, rest and physiotherapy. These complaints had improved by November 9, 2006 when Mr. Vieira reported to Dr. Sheffield that he continued to have a sore neck as a result of the accident but his knee and back had improved as a consequence of the physiotherapy.

On the basis of my review of Dr. Sheffield’s Clinical Notes and Records, I find that there was no substantial change in the frequency or amount of narcotic pain relief prescribed for Mr. Vieira post-accident. To the extent that there were additional prescriptions post-accident it was due to Mr. Vieira losing his medication.

The January 2, 2007 note indicates that Mr. Vieira’s complaint of back pain resulted in a referral to another doctor for assessment respecting kidney stones. I find that Dr. Sheffield attributed the back pain reported by Mr. Vieira from December 22, 2006 to February 16, 2007 to kidney stones.

On the basis of the foregoing, I find that Mr. Vieira was not substantially disabled from engaging in his pre-accident caregiving, personal care and housekeeping and home maintenance activities on November 9, 2006.

Caregiver and Housekeeping and Home Maintenance Benefits:

The Schedule sets the same threshold for payment of caregiving and housekeeping and home maintenance benefits. To qualify for those benefits, Mr. Vieira must establish on a balance of probabilities that as a result of the accident, he suffered an impairment which rendered him substantially unable to engage in his pre-accident caregiving and housekeeping and home maintenance activities.

Mr. Vieira and Aviva agree that Aviva paid the following amounts in respect of caregiving and housekeeping and home maintenance benefits:

Caregiver $5,600.00

Housekeeping and Home Maintenance: $ 610.00

Caregiver Benefits:

Mr. Vieira claims a caregiver benefit, at the weekly rate of $300.00 less amounts paid by Aviva from October 14, 2006 to October 14, 2008, for care provided by Ms. Hodgson to his stepson and daughter.

Mr. Vieira’s stepson attended school full time and his daughter was of pre-school age.

Mr. Vieira testified that prior to the accident he was unemployed or marginally employed and therefore he acted as the primary caregiver as the children’s mother, Ms. Baker, was supporting the family.

Aviva submits that Mr. Vieira was not the primary caregiver at the time of the accident and therefore is not entitled to a caregiver benefit. Ms. Baker testified that due to Mr. Vieira’s addiction he could not be trusted to care for the children and he ceased being their primary caregiver in February 2006. Ms. Baker also testified that because she could no longer take her daughter with her to clean homes she and Mr. Vieira enrolled their daughter in day care. This action was taken in September 2006 about one month prior to the accident.

Subsection 13(1) of the Schedule, provides for a caregiver benefit to be paid in circumstances where at the time of the accident the insured person was residing with the person in need of care, was the primary caregiver and did not receive payment for the pre-accident caregiving activities.

Subsection 13(2) provides that the benefit pay for reasonable and necessary caregiving expenses incurred as a result of the accident. Subsection 13(3) provides that the weekly benefit shall not exceed $250.00 for the first person in need of care and $50.00 per week for each additional person.

I have found that Mr. Vieira was not substantially disabled from carrying out his pre-accident caregiving duties by November 9, 2006. This equals 27 days or 3.85 weeks following the accident. Aviva has paid $5,600.00 in caregiving benefits. This equates to 18.66 weeks of benefits at the weekly rate of $300.00. Therefore, Mr. Vieira has no further entitlement to caregiver benefits.

Further, I find that Mr. Vieira was not the primary caregiver of his children at the time of the accident. On September 7, 2006, Ms. Baker and Mr. Vieira signed an agreement enrolling their daughter in day care. The contract is incomplete. However, I rely on the signature page which Mr. Vieira testified he signed.⁸ This and the decoded O.H.I.P. summary entries between February 14, 2006 and March 6, 2006 of 32 laboratory blood tests noted in respect of “Drug Dependence, Drug Addiction” support Ms. Baker’s testimony that Mr. Vieira’s addiction had made him incapable of responsibly caring for their children and she assumed their primary care in February 2006.

For the foregoing reasons, I find that Mr. Vieira is not entitled to further weekly caregiver benefits.

Housekeeping and Home Maintenance Benefits:

Mr. Vieira claims a housekeeping and home maintenance benefit of $100.00 per week, less amounts paid by Aviva from October 14, 2006 to October 14, 2008.

I have found that Mr. Vieira was not substantially disabled from carrying out his pre-accident housekeeping and home maintenance duties by November 9, 2006. Aviva has paid $610.00 in respect of this benefit which is approximately 6 weeks of benefits. Therefore, I find that Mr. Vieira has no further entitlement to this benefit.

Attendant Care Benefits:

Mr. Vieira claims attendant care benefits at the monthly rate of $678.71, less amounts paid by Aviva, from October 14, 2006 to October 14, 2008.

Subsection 16(2)(a) of the Schedule provides for an attendant care benefit to be paid for all reasonable and necessary expenses incurred on behalf of an insured person as a result of the accident for services of an aide or attendant. The monthly amount to be paid is determined by a Form 1.⁹

Based on Dr. Sheffield’s clinical notes and records, I found that Mr. Vieira was able to perform his pre-accident self-care by November 9, 2006. The assessor who completed the Form 1 relied on Mr. Vieira’s self-reporting of his pain and limitations. I do not find Mr. Vieira’s descriptions credible. He consistently failed to provide relevant information regarding his drug dependency and significant kidney problems. As a consequence, I have relied on the records of Dr. Sheffield. Therefore, the services of an aide or attendant were neither reasonable nor necessary after November 9, 2006.

Aviva has paid at least $5,136.06 in attendant care benefits. This equates to 7.57 months of attendant care benefits. Therefore, Mr. Vieira has no further entitlement to this benefit.

Examination Expense:

Mr. Vieira claimed $2,133.12 in respect of a psychological assessment and the related report dated October 30, 2008. Ms. Krys O’Dell, who at the time was a candidate for a Masters Degree, conducted the psychometric testing. She was supervised by Dr. Kelly A. McCutcheon. Both testified at the hearing.

Mr. Vieira submits that because Aviva failed to give him notice that it would not pay for the assessment within 5 business days Aviva is deemed to have agreed to pay and therefore he is entitled to payment of the account.

On July 31, 2008, PMS wrote to Aviva advising that an OCF-22, Application for Approval of an Assessment or Examination, dated July 16, 2008,¹⁰ seeking authorization for a psychological assessment was faxed to the adjuster on that date. As Aviva did not respond by July 22, 2008 PMS would proceed with the assessment on the basis that it was deemed approved.¹¹ PMS submitted an OCF 21, dated November 3, 2008 in the amount of $2,196.84.¹²

Dr. McCutcheon testified that she was retained by PMS as a consultant. PMS issued an OCF 21 on November 3, 2008.¹³

Aviva submits that the examination expense is neither reasonable nor necessary to determining entitlement to benefits as the report was issued after Mr. Vieira’s claims had ended or related to psychological problems unrelated to the accident.

Subsection 24(1)3 requires an insurer to pay reasonable fees charged by a member of a health profession for conducting an assessment if the assessment and the report are reasonably required in connection with a benefit claimed or the preparation of a treatment plan.

Dr. McCutcheon’s report sets out a recommendation for a series of treatment sessions.¹⁴ As well, she prepared an OCF 18 dated October 30, 2008.¹⁵

On July 19, 2007, Dr. Sheffield referred Mr. Vieira to a psychologist or psychiatrist. The referral note is not directed to a specific person and contains the comment “if you can arrange quickly please go ahead.”¹⁶

In July 2007, Dr. Sheffield’s notes refer to Mr. Vieira’s drug dependence but make no reference to accident related psychological symptoms. Therefore, I find that this referral related to Mr. Vieira’s drug dependence, not the accident. Further, Dr. Sheffield’s referral is dated July 19, 2007 but he was not seen by Ms. O’Dell until October 23, 2008.

Ms. O’Dell and Dr. McCutcheon relied on Mr. Vieira’s self-reporting of driver anxiety, accident related sleep disorder and other accident related stressors. Dr. McCutcheon refers to Mr. Vieira’s report of kidney problems when he was 17. There is no mention of the pre-accident history of narcotic pain management for recurring kidney stones. As well, Mr. Vieira withheld information about his pre-existing narcotic drug dependence and pre-accident arrest for uttering death threats against his spouse. I find that this pre-accident history was relevant to the psychological assessment and its omission undermined the reliability of the conclusions reached by Dr. McCutcheon. I find that any psychological problems experienced by Mr. Vieira were unrelated to the accident. Therefore, the assessment cannot be reasonably connected to benefits pursuant to the Schedule.

Subsection 24(1.3)(b) requires the insurer to give the insured notice as to whether it will pay for the assessment within 5 business days. Subsection 24(1.5) provides that the insurer shall be deemed to have agreed to pay if the Notice is not provided within the 5 day period.

Subsection 38.2(c) requires that the member of a health profession or social worker who prepares the application for an assessment state that “the assessment or examination is reasonably required in relation to a benefit.”

Subsection 38.2(6) provides that if the insurer has not refused the application under subsection (4) (conflict provisions) then it shall, within the time period set out in subsection 24(1.3) provide notice which assessments or examinations it will or will not pay for.

Aviva does not dispute the Notice was not given within the five day period. It submits that an Application for Approval of an Assessment or Examination (OCF-22), must first meet the minimum standards of subsection 38.2(c) before subsection 24(1.3)(b) is applicable. As it was not signed by the health professional recommending the psychological assessment it did not meet this minimum standard.¹⁷ Prior to the hearing, Aviva gave notice that it wished to cross-examine Dr. Simone but he was not made available at the hearing therefore an adverse inference should be drawn that his testimony would not have assisted Mr. Vieira’s claim.

Aviva relies on the appeal in Halim and Security National Insurance Co./Monnex Insurance Mgmt. Inc.¹⁸

Ms. Halim appealed the Arbitrator’s order that she was not entitled to payments for a psychological assessment, an in-home assessment and a functional capacities assessment (FCA). As well, the Arbitrator’s order that Ms. Halim pay Security a non-attendance fee. Ms. Halim did not appeal the Arbitrator’s finding that the assessments were not reasonably required in connection with a benefit as required by subsection 24(1)3.

The Director’s Delegate upheld the Arbitrator’s finding that the accounts for the psychological and functional capacity assessments were not payable and Ms. Halim was liable to pay a non-attendance fee. However, he found that Security was required to pay Ms. Halim for an in-home assessment.

The Director’s Delegate found that with respect to the FCA the OCF-22 “does not meet even the bare minimum screening requirements of clause 38(2)(c)” because it failed to specify a benefit under the Schedule for which the assessment might reasonably be required.¹⁹ He found the statement on the form that: “results of the assessment can be used by the claimant’s insurer and treating health care facility to modify the claimant’s treatment regime to facilitate recovery and to determine eligibility for benefits” was too broad. As a consequence he confirmed the Arbitrator’s decision with respect to the FCA.

However, as the application for the in-home assessment specifically addressed housekeeping and caregiving benefits the Director’s Delegate rescinded the Arbitrator’s order with respect to the In-home assessment and ordered Security to pay it together with pre-judgment interest. The Director’s Delegate found that Security provided “no basis to ignore the mandatory provisions of subsection 38.2(6).”²⁰

In Halim the psychological report was prepared by an assessor who held a master’s in counselling psychology who was supervised by a registered psychologist. The assessor and not the registered psychologist rendered the account for the assessment. The Director’s Delegate held that as the assessor was not a health professional as defined in subsection 2(1) of the Schedule, she was not entitled to render an account pursuant to subsection 24(1)3. Therefore, it was not payable by the insurer.²¹

In this matter, the OCF-22 contains the following statement: “I confirm that, to the best of my knowledge, the information in this form is accurate, and the services contemplated are reasonable for the assessment or examination of the applicant.” However, it is not signed by Dr. Simone.

There is a form appended to the OCF-22 which identifies Mr. Vieira as the “client” and gives the date of the accident. The form has a generic statement in bold that:

“Based on the patient’s current complaints and review of medical documents on file, psychological evaluation is required for the purpose of:”

Then goes on to list 4 bullet points as follows:

Uncovering any potential psychological consequences resulting from the motor vehicle accident.
Explicating the effects of any consequences on physical pains and limitations
Collection of clinical information necessary to provide treatment recommendations with the purpose of advancing return to pre-morbid functioning
Presenting the client with feedback regarding his/her emotional status, as well as treatment recommendations.

This sheet does not have a signature line.

I agree with the Director’s Delegate that subsection 38.2(c) is a screening provision. It sets out a basic requirement that the health professional or social worker, who prepares the application, must personally state that “the assessment or examination is reasonably required in relation to a benefit.” As well, the health professional or social worker must also relate the assessment or examination to a specific benefit.

Dr. Simone’s failure to sign the statement and the generic form of the appendix leads me to doubt that the OCF-22 was prepared by him or her. Regrettably, Dr. Simone was not called as a witness to clarify the circumstances of the completion of the form.

Further, the bullet points do not refer to a specific benefit. As in Halim, the language of the appendix is drafted in the broadest possible terms. Save for Mr. Vieira’s name and the date of loss it could relate to anyone.

Therefore I find that the OCF-22, Application for Approval of an Assessment or Examination, does not meet the standard required by 38.2(c) and the timelines set out in subsections 38.2(6), subsection 24(1.3)(b) and subsection 24(1.5) do not apply. As a consequence, Aviva is not required to pay for the assessment.

SPECIAL AWARD:

Having found that Mr. Vieira is not entitled to the benefits he has claimed, I find that he is not entitled to a special award pursuant to subsection 282(10). However, if I have erred in finding that he was not entitled to any of the benefits he claimed I will provide my reasoning for denying his claim for a special award.

Subsection 282(10) of the Insurance Act gives an adjudicator discretion to make an order for a special award if he or she finds that the “insurer has unreasonably withheld or delayed payments.” In GAN Canada and McConachie, the Director’s Delegate applied Erickson and The Guarantee Company of North America in holding that an insurer’s conduct need not be egregious to be unreasonable and cited the caution in Cripps and AXA Insurance Canada, that arbitrators should not judge an insurer’s actions on the basis of hindsight or hold an insurer to a standard of perfection having scrutinized its conduct as if under a microscope.²² I find that the evidence before me indicates that Aviva had reasons for its denial and termination of the benefits claimed by Mr. Vieira. Had I found him entitled to further payment of any of the benefits he claimed or that Aviva erred in denying him there is no evidence that Aviva’s adjusting of the file resulted in an unreasonable withholding or delay in those payments. To make a special award in the circumstances of Mr. Vieira’s claim would require holding Aviva to a standard of perfection.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me within 30 days of this decision pursuant to Rule 79 of the Dispute Resolution Practice Code.

December 2, 2011

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario