Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 26

Appeal P17-00084

OFFICE OF THE DIRECTOR OF ARBITRATIONS

KARINE PARADIS-BLAIS Appellant

and

AVIVA CANADA INC. Respondent

BEFORE: Maggy Murray

REPRESENTATIVES: Derek G. Nicholson for Mrs. Paradis-Blais James Brown and Alex Robineau for Aviva

HEARING DATE: March 21, 2019 by telephone conference

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

The appeal of the Arbitrator's Order of November 9, 2017 is partially allowed. Bullet points five, six and seven of Paragraph 2 of the Arbitrator's order are revoked, and the following substituted:

a) Ms. Paradis-Blais is not entitled to the cost of a Treatment Plan dated July 15, 2014 in the amount of $10,152.24;

b) The Arbitrator's decision regarding the aqua-therapy portion of the Treatment Plan dated February 21, 2014 is rescinded and replaced with the following: Ms. Paradis-Blais is entitled to $5,801.28 for physiotherapy, mileage and travel time for the Treatment Plan dated February 21, 2014;

c) The Arbitrator's decision regarding the hydro-therapy portion of the Treatment Plan dated October 17, 2014 is rescinded and replaced with the following: Ms. Paradis-Blais is entitled to $9,229.92 for physiotherapy, mileage and travel time for the Treatment Plan dated October 17, 2014.

The Order of November 9, 2017 is otherwise affirmed.
Ms. Paradis-Blais’s cross-appeal is dismissed.
The parties agreed that the successful party to the appeal would be entitled to $3,500.00 inclusive of disbursements and HST. The parties also agreed that if there was mixed success, I could determine the issue of costs without further submissions. In light of the mixed success of the appeal, Aviva shall pay Ms. Paradis-Blais her legal expenses of the appeal proceedings herein, in the amount of $2,500.00, inclusive of disbursements and HST.
The parties agreed that the successful party to the cross-appeal would be entitled to $1,000.00 inclusive of disbursements and HST. Therefore, Mrs. Paradis-Blais shall pay Aviva its legal expenses of the cross-appeal proceedings herein, in the amount of $1,000.00, inclusive of disbursements and HST.

Maggy Murray

May 30, 2019

Maggy Murray Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves both the Old Schedule¹ and the New Schedule.²

Aviva appeals the order of Arbitrator Schnapp (“the Arbitrator”) dated November 9, 2017 (“the order”),³ in which he awarded Ms. Paradis-Blais income replacement benefits (IRB’s) from March 2, 2014 and ongoing and medical benefits for the following:

Treatment Plan dated March 26, 2013 in the amount of $1,330.64;
Treatment Plan dated October 17, 2013 in the amount of $2,467.24;
Treatment Plan dated November 6, 2013 in the amount of $2,798.54;
Treatment Plan dated November 11, 2013 in the amount of $950.30;
Treatment Plan dated July 15, 2014 in the amount of $10,152.24;
Treatment Plan dated February 21, 2014 in the amount of $8,173.92;
Treatment Plan dated October 17, 2014 in the amount of $11,602.56;
Treatment Plan dated February 26, 2015 in the amount of $7,251.60;
Treatment Plan dated June 16, 2015 in the amount of $13,690.56;
Treatment Plan dated September 21, 2015 in the amount of $568.98; and
Treatment Plan dated November 13, 2015 in the amount of $11,468.80.

Aviva indicated in its both its Notice of Appeal and “Overview” portion of its written submissions that it was appealing all 11 Treatment Plans above. However, both its Notice of Appeal and written submissions focused on the Treatment Plans numbered 5, 6 and 7 above. Consequently, I have only addressed Treatment Plans numbered 5, 6 and 7 above.

Ms. Paradis-Blais cross-appeals the Arbitrator’s order wherein he found that she is not entitled to the following medical benefits:

Treatment Plan dated April 9, 2015 in the amount of $30,000.00 (USD); and
Treatment Plan dated April 9, 2015 in the amount of $22,000.00 (USD).

According to Aviva, Arbitrator Schnapp erred in law because he:

i. Failed to apply the “but for” test for causation;

ii. Improperly rejected Aviva’s theory based on a misapprehension of the evidence and a finding made in the complete absence of supporting evidence;

iii. Failed to address key inconsistencies in Ms. Paradis-Blais’s evidence;

iv. Awarded the cost of treatment plans that he found was not reasonable or necessary.

Aviva’s submissions essentially ask me to re-weigh the evidence and to disagree with inferences drawn by the Arbitrator, which is not my role. For the reasons set out below, part of the appeal is dismissed and part of the appeal is allowed.

II. BACKGROUND

Ms. Paradis-Blais, was injured in a motor vehicle accident on August 19, 2009 when her car was stopped waiting to make a right-hand turn. Her car was repaired for $763.02.

Ms. Paradis-Blais did not attend a hospital or seek medical attention immediately after the accident because she was on her way to write an exam required for her job and did not want to miss it. She went to an Urgent Care facility after her exam and was told she sustained soft tissue injuries and was prescribed anti-inflammatories. After the accident her condition deteriorated to the point where she had two surgeries: a coccygectomy and a sacroiliac joint fusion which were performed by Dr. Katzman, an Orthopaedic Surgeon, who practices in Florida. The first surgery was in 2014 and the second in 2015.⁴

Ms. Paradis-Blais slipped on ice in 2013 and was unable to work for a week. Eventually she stopped working because her back condition had deteriorated after she was no longer able to take medication.

III. ANALYSIS

Appeals from an Arbitrator’s order are restricted to questions of law.⁵ An appellate body, whose jurisdiction is limited to reviewing errors of law:

i. Cannot review errors of fact;

ii. Is not entitled to review findings of fact just because it believes the findings to be wrong unless the tribunal committed an identified error of law.⁶

This was a fact-based decision. In that regard, the Divisional Court stated in Kanareitsev v. TTC Insurance Co. "when results involve a fact-driven analysis, appellate review must take 'proper account of the distinct advantage' of the first-instance decision maker's assessments. The appeal judge must not try the case de novo or simply substitute his or her views for those of the trial judge."⁷ Moreover, the Arbitrator's reasons simply need refer to the principal evidence relied upon by the Arbitrator and provide a justification for the conclusions.⁸

i. Whether The Arbitrator Failed To Apply The “But For” Test For Causation[^9]

In Clements v. Clements,¹⁰ the Supreme Court of Canada explained that the correct test for causation is “but for,” and that the onus is on a plaintiff to prove that their injury would not have occurred without the negligence of the defendant:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

According to Aviva, Ms. Paradis-Blais “failed to prove that the accident caused her disability because of her high level of function prior to January 27, 2013.”¹¹ The Arbitrator stated:

The dispute between the Applicant and the Insurer in this matter boils down to whether or not the MVA on August 19, 2009 is responsible for the Applicant’s impairments and disabilities.¹²

According to the Arbitrator:

… there is not sufficient evidence to find that the January 2013 fall is responsible for her impairments and condition and not the MVA. I come to this conclusion keeping in mind that she had not fully recovered from the 2009 MVA, and had a significant history of incidents and flare-ups after the 2009 MVA, and though while her condition had improved to a significant degree due to her treatment and use of medications, she had not fully recovered. Due to the MVA, her condition was such that she was vulnerable to subsequent incidents which caused aggravation to her prior injuries and contributed to the flare-ups. I note that as the last treatment plan approved by the Insurer was in February 2013 and I also note that due to other medical conditions, unrelated to the MVA, the Applicant was no longer supposed to take pain medication. The evidence given by the Applicant, her husband and her Physiotherapist, Mr. Maxwell, was all consistent that her condition deteriorated significantly after she stopped receiving treatment. I find there is insufficient evidence that the incident in January of 2013 led to any significant new injuries but rather further aggravated the injuries which had not resolved and were sustained by the Applicant in the MVA.¹³

Aviva submitted at the Arbitration hearing that Ms. Paradis-Blais “only became disabled after January 27, 2013, and this was caused by an unrelated fall, and the Applicant cannot recover any IRBs.”¹⁴

Although the Arbitrator did not refer to the “but for” test, it is clear from reading the decision that he applied it. Specifically, the Arbitrator found that Ms. Paradis-Blais’s car accident “further aggravated the injuries which had not resolved and were sustained by her (car accident).”

ii. Whether The Arbitrator Improperly Rejected Aviva’s Theory Based On A Misapprehension Of The Evidence And Made A Finding In The Complete Absence Of Supporting Evidence[^15]

According to Aviva:

The Arbitrator gave no weight to the expert engineering evidence or even considered whether it was even possible for the coccyx to have been injured in the accident.¹⁶

The Arbitrator found that:

(the engineering evidence) was not helpful in deciding the issues before me. It appears the Insurer was attempting to have its experts show that the Applicant could not have sustained an injury to her coccyx in the MVA. While I note the evidence was not conclusive on that point, it is not the Applicant’s position that the MVA did cause a direct injury to her coccyx bur (sic) rather the Applicant sustained an impact in the MVA that rendered an asymptomatic condition which later became symptomatic. No evidence was provided by the engineers to dispute that fact.¹⁷

The Arbitrator’s conclusion that the engineering evidence was not helpful in deciding the issues before him is a finding of fact that is entitled to deference, and I find no error in his conclusion on this point. It is open to an adjudicator to accept all, some or none of a witness's evidence.¹⁸

Regarding Ms. Paradis-Blais’s coccyx, the Arbitrator stated: “Dr. Katzman believed the 2009 MVA either caused the problem or aggravated her coccyx as per the history provided by the Applicant.”¹⁹ Furthermore, as outlined above, it was Ms. Paradis-Blais’s position that the accident “rendered an asymptomatic condition (of her coccyx) which later became symptomatic.”²⁰

The Arbitrator did not misapprehend facts and did not make a finding of fact in the absence of evidence. The Arbitrator wrote a decision and supported it by reasons and his conclusions were unassailable.

iii. Whether The Arbitrator Failed To Address Key Inconsistencies In Ms. Paradis-Blais’s Evidence

According to Aviva:

In order to assess the credibility of (Ms. Paradis-Blais) and her evidence, the Arbitrator was required to assess (her): demeanour; ability and opportunity to observe; power of recollection; interest; bias; prejudice; sincerity; inconsistency; and the reasonableness of her testimony when considered in light of all of the evidence – and then provide an explanation for his decision.²¹

I disagree. An adjudicator is not required to complete a checklist and itemize in their analysis all of the above factors when assessing credibility.

According to Aviva, the Arbitrator erred in law when he assessed the credibility of Ms. Paradis-Blais and her testimony.

By focusing on her presentation, the Arbitrator misconstrued his function as the trier of fact. It was an error in law for the Arbitrator to start from a presumption that (Ms. Paradis-Blais’s) evidence was credible, and then accept that evidence because he found “no persuasive evidence of an intention to deceive”. Rather, the Arbitrator was required, and failed, to consider other key criteria, most notably the reasonableness and consistency of the Respondent’s evidence when compared to the other evidence. ²²

The Arbitrator did not focus on Ms. Paradis-Blais’s presentation. The Arbitrator stated:

Overall I found the Applicant to be a credible witness. She appeared to answer questions to the best of her ability and had a good recall of the events. I also believe she explained things as best she could and when inconsistencies were brought up between some of the documentation, both non-medical and medical, her evidence provided at the EUO, and the Hearing, she was able to explain it. It may be at certain times she told different things to different individuals but in my view, there was no persuasive evidence of an intention to deceive.²³

Aviva submitted that the Arbitrator did not consider certain evidence, such as the damage to Ms. Paradis-Blais’s vehicle. The Arbitrator’s decision is 24.5 pages and he was not required to mention every piece of evidence. While the Arbitrator may not have engaged in a detailed analysis of each and every aspect of the major points in issue, his reasons refer to the principal evidence he relied upon and provide a justification for her conclusions, as required by Kanareitsev.²⁴

iv. Whether The Arbitrator Awarded The Cost Of Treatment Plans That He Found Were Not Reasonable Or Necessary

Treatment Plan dated July 15, 2014 in the amount of $10,152.24²⁵ and

According to the Arbitrator, the Treatment Plan dated July 15, 2014 in the amount of $10,152.24 was for “additional physiotherapy treatments by Mr. Maxwell.”²⁶ The Arbitrator found that this treatment plan was reasonable and necessary.²⁷ At the beginning of the Arbitrator’s decision in the “Results” portion of the Arbitrator’s order, this Treatment Plan was bullet point five.²⁸ The Arbitrator reproduced this list at the end of his decision and this Treatment Plan was again listed as bullet point five.²⁹

However, the Treatment Plan dated July 15, 2014 was for 42 sessions of hydro-therapy, not “additional physiotherapy treatments” as the Arbitrator stated. That finding was made in the complete absence of supporting evidence.³⁰

The Arbitrator found that neither Ms. Paradis-Blais nor Mr. Maxwell provided him with oral evidence regarding why hydro-therapy sessions were required and found that hydrotherapy was not reasonable and necessary.³¹

Rule 65.5 of the Dispute Resolution Practice Code (the Code) allows an arbitrator at any time to correct a typographical error. But, neither party asked the Arbitrator to correct what appears to be a typographical error.³² It is an error of law to make finding of fact for which there is not supporting evidence. The Arbitrator’s conclusion regarding the Treatment Plan dated July 15, 2014 in the amount of $10,152.24 was not supported by his reasons and that is an error of law.

Accordingly, the appeal of the Treatment Plan dated July 15, 2014 is allowed.

Treatment Plan dated February 21, 2014 in the amount of $8,173.92³³

The Treatment Plan dated February 21, 2014 in the amount of $8,173.92 included 24 sessions of “Physical Rehabilitation,” 24 sessions of “Therapy, multiple regions,” mileage and travel time.

The Treatment Plan includes the following description: “Physiotherapy (45 min) … and aqua-therapy (45 min) 3x per week at home.” Dr. Oshidari’s evidence at the Arbitration hearing was that aqua-therapy and hydro-therapy were synonymous for exercises performed in the water.³⁴ The Arbitrator did not reject this evidence. As set out above, the Arbitrator found that neither Ms. Paradis-Blais nor Mr. Maxwell provided him with oral evidence regarding why hydro-therapy sessions were required and found that hydrotherapy was not reasonable and necessary.³⁵

According to this Treatment Plan, the cost of the physiotherapy and aqua-therapy was the same, being $2,372.64 for each and they were each to be provided for 45 minutes, three times per week for a total of 24 sessions each. The total count for the travel time is 24, so, based on the information in the Treatment Plan, the therapist would conduct both therapies on the same day. Subtracting $2,372.64 from $8,173.92 leaves a balance of $5,801.28 for physiotherapy, mileage and travel time.

Accordingly, the appeal is partially allowed regarding the Treatment Plan dated February 21, 2014. The Arbitrator's decision regarding the aqua-therapy portion of the Treatment Plan dated February 21, 2014 is rescinded and replaced with the following: Ms. Paradis-Blais is entitled to $5,801.28 for physiotherapy, mileage and travel time for the Treatment Plan dated February 21, 2014.

Treatment Plan dated October 17, 2014 in the amount of $11,602.56

The Treatment Plan dated October 17, 2014 was a treatment plan for a total of 48 sessions of hydro-therapy and physiotherapy at a total cost of $4,745.28 three times per week for 1.5 hours per visit by Mr. Maxwell (physiotherapist), plus mileage and travel time.

However, the Arbitrator found that neither Ms. Paradis-Blais nor Mr. Maxwell provided him with oral evidence regarding why hydro-therapy sessions were required. ³⁶

The Arbitrator’s conclusion regarding the Treatment Plan dated October 17, 2014 in the amount of $11,602.56 regarding hydro-therapy was not supported by his reasons and that is an error of law.

According to this Treatment Plan, the total cost of both the physiotherapy and hydro-therapy was $4,745.28 for 48 sessions. The total count for the travel time is 48, so, based on the information in the Treatment Plan, the therapist would conduct both therapies on the same day. Dividing $4,745.28 by two is $2,372.64. Subtracting $2,372.64 from the total cost of $11,602.56 leaves a balance of $9,229.92 for physiotherapy, mileage and travel time.

Accordingly, the appeal is partially allowed regarding the Treatment Plan dated October 17, 2014. The Arbitrator's decision regarding the hydro-therapy portion of the Treatment Plan dated October 17, 2014 is rescinded and replaced with the following: Ms. Paradis-Blais is entitled to $9,229.92 for physiotherapy, mileage and travel time for the Treatment Plan dated October 17, 2014.

Cross-Appeal

According to Ms. Paradis-Blais, the Arbitrator erred in law by not awarding her the cost of the two Treatment Plans of Dr. Scott Katzman, an orthopaedic surgeon in Florida, dated April 9, 2015 in the amount of:

i. $30,000.00 US; and

ii. $22,000.00 US. ³⁷

Ms. Paradis-Blais signed both of the above Treatment Plans on May 8, 2015, after the surgeries were completed.

For the reasons set out below, Ms. Paradis-Blais’s cross-appeal is dismissed for three different reasons, any one of which is sufficient for her cross-appeal to fail.

1. Regulated Health Professional

The two treatment plans were for two surgeries performed on Ms. Paradis-Blais by Dr. Katzman in Florida.

Because the Treatment Plans were submitted after September 1, 2010, they are subject to s.38 of the New Schedule which states, in part:

(3) A treatment and assessment plan must,

(b) be completed and signed by a regulated health professional (emphasis added); …

The following are defined in s. 3(1) of the New Schedule:

“physician” means a person authorized by law to practice medicine;

“regulated health professional” means a member of a regulated health profession;”

and

“regulated health profession” means a profession governed by a College as defined in the Regulated Health Professions Act, 1991 …;

Although Dr. Katzman is a licensed orthopaedic surgeon in Florida, he is not a member of the College of Physicians and Surgeons of Ontario.³⁸ Therefore, he is not a “regulated health professional” as defined in s.3(1) of the New Schedule.

Ms. Paradis-Blais did not comply with s.38(3)(b) of the New Schedule which required the Treatment Plans to be completed and signed by a regulated health professional.

2. Section 38(2) of the New Schedule:

Section 38(2) of the New Schedule states:

(2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit … that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates;

(i) drugs prescribed by a regulated health professional, or

(ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost

of $250 or less per item (emphasis added); …

Ms. Paradis-Blais’s two surgeries in Florida do not fall under any of the three exceptions contained in s.38(2) of the New Schedule. Specifically, Ms. Paradis-Blais’s surgeries were performed before she gave Aviva the two Treatment Plans by Dr. Katzman, contrary to s. 38(2) of the New Schedule.

3. No Reasonable Explanation

Ms. Paradis-Blais submitted on appeal that the Arbitrator failed to consider whether she had a reasonable explanation for the delay in submitting the Treatment Plans by Dr. Katzman.

Section 34 of the New Schedule states:

A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation (emphasis added).

There are references throughout the New Schedule to things being done within a certain number of “days.”³⁹ There is no reference to “days” in s.38(2) of the New Schedule, so, it is not applicable in this case. But, even if s.34 did apply to this case, the Arbitrator made a finding of fact that “there has been no reasonable explanation provided during the Hearing as to why the Applicant did not attempt to have the treatment plans for the two surgeries considered by the Insurer prior to her undergoing the surgeries.”⁴⁰ This was a finding of fact and is not subject to appeal.

The Arbitrator did not make an error of law when he refused to grant Ms. Paradis-Blais the cost of the two surgeries performed by Dr. Katzman in Florida.

IV. EXPENSES

The parties agreed that the successful party to the appeal would be entitled to $3,500.00 inclusive of disbursements and HST. The parties also agreed that if there was mixed success, I could determine the issue of costs without further submissions. In light of the mixed success of the appeal, Aviva shall pay Mrs. Paradis-Blais her legal expenses of the appeal proceedings herein, in the amount of $2,500.00, inclusive of disbursements and HST.

The parties also agreed that the successful party to the cross-appeal would be entitled to $1,000.00 inclusive of disbursements and HST. Therefore, Mrs. Paradis-Blais shall pay Aviva its legal expenses of the cross-appeal proceedings herein, in the amount of $1,000.00, inclusive of disbursements and HST.