Zachary Stead v. Aviva Canada Inc., 2017 ONFSCDRS 51

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 51

FSCO A15-004128

BETWEEN:

ZACHARY STEAD

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Kenneth Conroy

Heard: In person at Kingston, Ontario on December 19, 2016

Appearances: Mr. Zachary Stead participated accompanied by his Power of Attorney, Ms. Sandi Stead Mr. Ahmad Khan participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Zachary Stead, was involved in a motor vehicle accident on August 21, 2012 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 the Applicant, 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. Stead entitled to receive the cost of examinations for a mental health assessment in the amount of $5,060.00, less amounts paid by the Insurer?

2. Is Mr. Stead entitled to receive a medical benefit as claimed for dental work, beyond the amount approved by the Insurer?

3. Is Mr. Stead entitled to interest on amounts found to be owing?

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

Result:

1. Mr. Stead is not entitled to receive the cost of examinations for a mental health assessment in the amount of $5,060.00, less amounts paid by the Insurer.

2. Mr. Stead is not entitled to receive a medical benefit as claimed for dental work, beyond the amount approved by the Insurer.

3. Given that no benefits are payable, Mr. Stead is not entitled to interest.

4. The Insurer is entitled to its expenses of the Hearing in the amount of $1,500.00, payable by the Applicant.

EVIDENCE AND ANALYSIS:

The Applicant sought to have approved an OCF-18 from Dr. Salmon for a mental health assessment. The cost of the OCF-18 submitted for payment to the Insurer was $5,060.00. The Insurer approved payment in the amount of $2,000.00 (plus a $200.00 document preparation fee), in accordance with s. 25 of the Schedule. As such, no further benefit is payable to the Applicant.

The Applicant sought to have additional dental expenses approved beyond what has been approved by the Insurer. The Applicant led no evidence (other than three undocumented x-ray photos of his teeth which showed fractures) to demonstrate that the fractures were the direct result of the accident, and that he should be entitled to the additional treatment expenses beyond what was approved by the Insurer in the amount of $1,654.25. The Applicant gave evidence of earlier problems with his teeth and injury to same. The Applicant’s treating dental surgeon was not called to give evidence or to counter the opinions given by the Insurer’s dental expert, Dr. Poorsina. The treatment plan submitted by Dr. Howarth for dental work in the amount of $3,335.25 was partially approved by the Insurer in the amount of $1,654.25, based on the report provided to Aviva by Dr. Poorsina, dated May 6, 2015. Dr. Poorsina did not consider the balance of the treatment plan reasonable and necessary as it dealt with items that were not as a result of the accident.

I am satisfied that the report in evidence of Dr. Poorsina is satisfactory and that the treatment provided was fairly assessed. The onus is on the Applicant to prove otherwise, which he failed to do. As such, no further benefit is payable to the Applicant.

THE LAW

Section 25(5) of the Schedule provides as follows:

25 (5) Despite any other provision of this Regulation, an insurer shall not pay,

(a) more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer;

Section 15(2)(b) of the Schedule provides as follows:

15 (2) Despite subsection (1), the insurer is not liable to pay medical benefits,

(b) for expenses related to professional services described in clause (1) (a), (b) or (h) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines.

As per the Schedule, section 15(1), and subject to section 18, the Insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the Insured, as a result of the accident.

The Applicant bears the onus to prove that claimed medical benefits are reasonable and necessary.² In the present case