(Ryan) Michael Digby v. Aviva Canada Inc., 2017 ONFSCDRS 219

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 219

FSCO A16-001425

BETWEEN:

(RYAN) MICHAEL DIGBY Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Marshall Schnapp

Heard: In person at ADR Chambers on May 25 and 26, 2017

Appearances: Mr. David Shellnutt and Mr. James Kwan participated for Mr. (Ryan) Michael Digby Mr. Geoffrey Keating participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. (Ryan) Michael Digby, was injured in a motor vehicle accident on December 14, 2011 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Digby, through his representative, 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:

1. Is Mr. Digby entitled to a payment of $2,362.00 for a treatment plan for physical therapy, dated August 20, 2014?

2. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Digby?

3. Is Mr. Digby entitled to interest for the overdue payment of benefits?

4. Is either party entitled to its expenses of the Hearing?

Result:

1. Mr. Digby is entitled to a payment of $2,362.00 for a treatment plan for physical therapy, dated August 20, 2014.

2. Aviva is not liable to pay a special award because it unreasonably delayed payments to Mr. Digby.

3. Mr. Digby is entitled to interest for the overdue payment of benefits.

4. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The Accident

The Applicant, Mr. (Ryan) Michael Digby, was involved in a motor vehicle accident on December 14, 2011. At the time of the accident, the Applicant was driving behind a vehicle, and when he changed lanes his vehicle ended up driving underneath a parked truck, which resulted in significant damage to his car.

Witnesses

Mr. (Ryan) Michael Digby

The Applicant provided his evidence in a candid, straightforward and sincere manner. I found him to be a very credible witness. He was first questioned about his pre-accident medical history, which is very noteworthy and involves a significant number of issues. He was born in 1978, completed grade 12, and has not been employed. In his youth, he played high level hockey and had foot surgery on both feet in 1998 or 1999. The surgeries did not go well and resulted in infections. The Applicant was not able to wear shoes for two years. At present, he has only been wearing shoes for a few years. Due to the complications arising from the foot surgeries, the Applicant went on disability benefits, which he is still receiving. He has weight issues; at one time he weighed 370 pounds, and at present with dieting and exercises he weighs 270 pounds. Other pre-existing medical conditions include diabetes and depression.

The Applicant testified that after the surgeries, his pain was concentrated on his feet, but moved up to his knees and hips. He sees a pain specialist who prescribes medication. The Applicant also said his depression resulted from his medical condition due to the surgeries on both of his feet. He went from being strong and physically active to someone able to do little physically. He also had a drug addiction prior to the accident and is enrolled in a drug program. The Applicant also testified that he was in a previous motor vehicle accident in the year 2000 but cannot recall the exact date. His neck and left shoulder were treated after that accident and he stopped treatment prior to the 2011 accident.

The Applicant recalls that prior to the 2011 accident, he “was functioning for me”, getting to the gym a few times per week and helping his mother. He testified that his functioning level was not the same as a “normal person”. The Applicant testified that his pain and injuries lasted for years and at times things would die down but he still had injuries.

He testified after the impact from the accident on December 14, 2011, he knew he had been hurt but did not know the extent of his injuries. He stated that his neck hurt most following the accident. He