Date: 2017-02-27
Tribunal File Number: 16-000946/AABS
Case Name: 16-000946 v Aviva Insurance Company of Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits
Between:
O. O.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
Adjudicator: Anna Truong
Appearances: Pavlos Achlioptas, Counsel for the Applicant Danielle Wilkinson, Counsel for the Respondent
Heard by teleconference
and in writing on: October 27, 2016
OVERVIEW
1The applicant was involved in an automobile accident on November 24, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant applied for an income replacement benefit and a psychological assessment, but was denied by the respondent. The applicant disagreed with this decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.
PRELIMINARY ISSUE
3A hybrid hearing consisting of oral testimony by teleconference and written submissions was conducted. At the commencement of the teleconference portion of the hearing, the applicant raised an objection to Dr. Christopher Hope, clinical psychologist and neuropsychologist, being qualified as an expert, because in the completion of his report, Dr. Hope did not have the clinical notes and records of Dr. Ajisafe, the applicant’s family doctor.
4After hearing the submissions of the parties, I ordered that Dr. Hope be qualified as an expert, but the respondent could not lead evidence with respect to Dr. Ajisafe’s clinical notes and records. However, if the applicant opened up Dr. Ajisafe’s records on cross-examination, the respondent would then be able to address the records on reply.
5The respondent did not lead evidence about Dr. Ajisafe’s records and the applicant did not cross-examine Dr. Hope with respect to those records. Therefore, Dr. Hope did not testify about Dr. Ajisafe’s records.
ISSUES TO BE DECIDED
6The following are the issues to be decided:
Is the applicant entitled to an income replacement benefit in the amount of $175 per week from February 1, 2015 to March 23, 2015?
Is the applicant entitled to the cost of a psychological assessment by Dr. Min Che Yeh of Perfect Choice Psychological Services Inc., as outlined in the Treatment and Assessment Plan (OCF-18) dated January 13, 2015 in the amount of $2,000?
Is the applicant entitled to interest for any overdue payment of benefits?
Is either party entitled to costs of the proceeding?
RESULT
7Based on the totality of the evidence before me, I find that:
The applicant is not entitled to an income replacement benefit in the amount of $175 per week from February 1, 2015 to March 23, 2015.
The applicant is not entitled to the cost of a psychological assessment by Dr. Min Che Yeh of Perfect Choice Psychological Services Inc., as outlined in the Treatment and Assessment Plan (OCF-18) dated January 13, 2015 in the amount of $2,000.
The applicant is not entitled to any interest.
Neither party is entitled to costs of the proceeding.
ANALYSIS
8A hybrid hearing was conducted. The parties submitted documentary evidence and provided oral evidence and submissions via teleconference. Dr. Hope gave oral testimony and was cross-examined over the telephone. I have considered all of the evidence before me.
9In the case conference adjudicator’s Order, the applicant had the option to submit a reply to the respondent’s submissions, but chose not to do so. The applicant also had the option to provide affidavits from Dr. Ajisafe, Dr. Min Che Yeh, psychologist, and Dr. Georgia Palantaz, chiropractor, but also chose not do so.
10In the case conference adjudicator’s Order, the respondent had the option to call the applicant’s previous employer, but chose not to do so.
11The applicant is being treated under the Minor Injury Guideline (“MIG”), which establishes a framework for the treatment of minor injuries. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.
12The MIG determination was not added as an issue for this hearing. The MIG determination would only have to be decided, if I found the OCF-18 to be reasonable and necessary. Since I did not find the OCF-18 reasonable and necessary, the MIG determination does not need to be decided.
1. Income Replacement Benefit
13The applicant bears the burden of proving on a balance of probabilities that he is entitled to an income replacement benefit in the amount of $175 per week from February 1, 2015 to March 23, 2015.
14The test for entitlement for an income replacement benefit is set out in section 5(1) of the Schedule. In the applicant’s case, section 5(1) provides that he is entitled to an income replacement benefit if, as a result of the accident he suffers a substantial inability to perform the essential tasks of his pre-accident employment as an articling student.
15In his Application for Accident Benefits Form (OCF-1), the applicant indicated that he was employed and working at the time of the accident. Under the “Income Replacement Determination”, the applicant indicated “N/A”.
16Dr. Palantzas completed two Disability Certificates (OCF-3) both dated December 6, 2014. On one, under Part 6 Disability Tests and Information she marked “N/A” under the Income Replacement disability test, while on the other, she marked “No” indicating that the applicant was not substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident.
17Dr. Palantazas also completed a Treatment Confirmation Form (OCF-23) dated December 6, 2014. This form is used initially for injuries that fall within the MIG and provides quick access to the $3,500 in funds without the need for prior approval from the insurer. In the OCF-23, Dr. Palantazas confirms that the applicant’s injuries fall within the MIG and he did not have any disease, condition or injury that could affect his treatment for the injuries identified.
18Dr. Palantzas also completed a Minor Injury Treatment Discharge Report (OCF-24) dated March 13, 2015, which indicated that the applicant did not miss time from work and he was being discharged, because he is non-compliant, was not attending sessions, or voluntarily withdrew from treatment.
19On March 6, 2015, the applicant gave a statement to Cathy Buck of Aviva Canada (the “statement”). The portions of his statement that I find relevant are as follows:
At the time of the accident, the applicant was working as an articling student.
He started work there on November 4, 2014.
He spent 70% of his time at work sitting at a desk.
The rest of his time was spent driving, seeing clients, attending court and lifting documents and books.
These documents and books could weigh “anywhere up to 10-15 pounds”.
He was terminated from his job for his refusal to lift an appeal book and compendium and drive it down to the Court of Appeal.
He was terminated on February 6, 2015.
He only missed one day of work after the indexed accident.
He was actively seeking employment “in his line of work” at the time the statement was given.
He was still driving at the time the statement was given.
20Dr. Ajisafe’s note of December 9, 2014 is the only one that indicates accident related complaints of neck and shoulder pain from the applicant. There is one other note dated January 30, 2015 in Dr. Ajisafe’s records that states the applicant experiences lower back problems when doing household chores, but it does not specify the cause, or what those lower back problems are. This note also states that the applicant had “normal strength” on January 30, 2015, which is a few days before the applicant alleges he was terminated for his inability to lift at work.
21The applicant submitted a letter dated February 6, 2015 which expressed appreciation for the applicant’s time at the firm and wished him success in his future endeavours. The letter did not indicate that the applicant was terminated.
22Dr. Yeh completed a Treatment and Assessment Plan (OCF-18) dated January 13, 2015 for a psychological assessment. In this OCF-18, Dr. Yeh states in Part 8 Activity Limitations that the applicant’s impairments affect his ability to carry out his tasks of employment and his activities of normal life.
23The applicant argues that based on Dr. Yeh’s OCF-18, which indicates limitations with tasks of employment that the respondent should have sent the applicant for an insurer’s examination. The respondent argues that there is no requirement for an insurer to conduct an insurer’s examination for a Specified Benefit on the basis of an OCF-18. I agree. Under the Schedule, in order to apply for a specified benefit, a Disability Certificate (OCF-3) must be submitted, not an OCF-18. Furthermore, the section that Dr. Yeh ticked off on the OCF-18 is not the test for entitlement for an income replacement benefit.
24In his submissions and his closing arguments, the applicant argues that the respondent did not send the applicant for an examination with respect to his entitlement for an income replacement benefit. Under the Schedule, there is no obligation on the insurer to send an insured to an examination. The respondent is not required to disprove entitlement. The burden rests with the applicant to prove entitlement. In this case, the applicant has not met the burden of proving on a balance of probabilities that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment as an articling student.
25In his submissions, the applicant includes many arguments about what the respondent has allegedly done wrong with respect to the adjustment of his file. He also includes a chronology of the progression of his file. However, the applicant does not provide any arguments as to why he is entitled to an income replacement benefit. The applicant did not provide any evidence to substantiate what the essential tasks of his employment are. The applicant did not point to any evidence that supports his entitlement to an income replacement benefit. The applicant provided no explanation why he met the test beginning on February 1, 2015, but no longer met the test on March 23, 2015. The applicant did not lead evidence to support the termination of his employment. In fact, the applicant did not even submit his statement in his submissions. It was introduced into evidence by the respondent in its submissions. The applicant has provided no evidence as to when and why the applicant is entitled to an income replacement benefit.
26In his statement, the applicant states that 70% of his employment involves sitting at a desk. He also indicated that he was terminated from his articling position, because he refused to pick up a book and compendium and drive it down to the Court of Appeal. I do not accept the applicant was terminated as there is no evidence of this before me. However, even if I did accept his termination, lifting books and driving only make up 30% of the tasks of his employment according to his own statement. This is not a substantial inability to perform the essential tasks of his employment.
27The applicant continues to drive after the accident and there is nothing in the applicant’s medical records that demonstrate he has an inability to lift 10-15 pounds, or sit at a desk. Dr. Ajisafe’s note of January 30, 2015, a few days before the alleged termination, also indicates that the applicant had “normal strength”. Furthermore, the applicant’s statement is dated March 3, 2015, which is in the middle of the timeframe that he submits he is unable to work, yet in his statement, the applicant states that he is actively seeking employment in his line of work. This is a contradiction. Additionally, Dr. Palantzas’ OCF-24 dated March 13, 2015, indicated that the applicant did not miss time from work and this document was also completed in the middle of the timeframe that the applicant submits he is unable to work.
28The applicant has not adduced any evidence that proves he suffers from a substantial inability to perform the essential tasks of his pre-accident employment as an articling student. The applicant has not met the burden of proving his entitlement. Accordingly, I find that the applicant is not entitled to an income replacement benefit.
2. Cost of the Psychological Assessment
29The applicant claims entitlement to the cost of a psychological assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated January 13, 2015 completed by Dr. Yeh. In order for an assessment to be payable by the insurer, it must be reasonable and necessary. The applicant bears the burden of proof that the assessment is reasonable and necessary.
30In Dr. Yeh’s OCF-18, he states that the applicant suffers from mixed anxiety, depressive disorder and specific (isolated) phobias. He states that prior to the accident, the applicant did not have any disease, condition or injury that could affect his response to treatment for the injuries identified.
31Pre-accident, the applicant was diagnosed with panic attacks and anxiety in 2011 from University related difficulties. The last record from Dr. Cooper was dated December 12, 2011. There are no further letters or records from Dr. Cooper pre-accident. There are also no other pre-accident psychological records submitted by the applicant.
32A review of Dr. Ajisafe’s clinical notes and records do not reveal any psychological complaints or symptoms reported as a result of the accident. In Dr. Ajisafe’s note dated April 7, 2015, he states that the applicant is “ok” and has applied to the Alberta Law Society for licensing and he wants a clearance letter as requested by the Alberta College.
33The applicant saw Dr. Cooper post-accident on April 15, 2015. Dr. Cooper’s letter indicates that applicant was there to see him “because he needs to prove to the Law Society of Alberta that he can be a lawyer”. Dr. Cooper noted that the applicant, at most, “may experience periods of mild anxiety”. Dr. Cooper noted that the applicant had no cognitive issues and Dr. Cooper felt the applicant did not need to see a psychiatrist. Dr. Cooper left it up to the applicant whether or not he wanted to continue to see him. There is no mention of any accident related complaints in Dr. Cooper’s records post-accident. It logically follows that had the applicant suffered from any accident-related psychological symptoms or complaints, he would have reported them to his psychiatrist and continued to see him. There are no further records from Dr. Cooper.
34In Dr. Hope’s report dated March 25, 2015, he notes that the applicant suffers from mild in-vehicular anxiety, but he opines that the applicant does not suffer from a clinically significant, accident-related psychological impairment that would fall outside the MIG. The contents of Dr. Hope’s report were tested during cross-examination and his testimony remained unchanged from his report. His testimony held up to cross-examination and I find his testimony to be credible.
35The applicant raised the fact that Dr. Hope did not have the clinical notes and records of Dr. Ajisafe when he completed his assessment and report. Therefore, the applicant argues that Dr. Hope’s report should be given little or no weight. Given that my review of Dr. Ajisafe’s clinical notes and records did not indicate any accident related psychological complaints or symptoms, I do not find Dr. Hope’s report less persuasive because of this.
36The applicant also raised the fact that Dr. Hope did not have any records of the applicant’s pre-existing psychological conditions, which could have changed Dr. Hope’s opinion. Upon cross-examination, Dr. Hope stated that he asked the applicant to provide any information about his medical history that he should know about. Dr. Hope also stated he asked specific questions about the applicant’s medical history, in addition to providing an opportunity for the applicant to speak freely. Dr. Hope explicitly states on page 5 of his report that the applicant admits he had problems with anxiety, because he was “defrauded”, but the applicant “denies ever having any problems with depression or anxiety otherwise”. It logically follows that had the applicant been suffering from any other significant psychological symptoms prior to the accident, he would have advised Dr. Hope of it. He did not.
37Furthermore, in the OCF-18 of Dr. Yeh, which was available to Dr. Hope, Dr. Yeh indicated that the applicant did not have a pre-existing condition that would affect his treatment. Dr. Hope had no reason to believe that he did not have all the necessary information to write his report and I find that Dr. Hope had all the information necessary for him to complete his report.
38The applicant did not make any arguments as to why the psychological assessment is reasonable and necessary. Again, the applicant only argues about what the respondent allegedly did wrong with respect to the adjustment of the file. Other than Dr. Yeh’s OCF-18, the applicant did not adduce any additional psychological records that support the psychological assessment as being reasonable and necessary. I find that the applicant has not proven on a balance of probabilities that the psychological assessment is reasonable and necessary. Therefore, I find that the psychological assessment is not payable.
3. Interest
39Since I found nothing payable, I find that the applicant is not entitled to any interest.
4. Costs
40The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs of the proceeding, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
41The applicant alleges that the respondent has acted unreasonably, which has led him to pursue this claim in order to receive the benefit. The applicant submits that the respondent informed him that he still had funds available under the MIG limit, but it did not even agree to fund the assessment up to that limit and it did not pay for the cost of the OCF-18, or pre-screening report. The applicant submits that the respondent failed to inform him of why he was not entitled and the respondent failed to send him to an insurer’s examination to assess his entitlement to benefits. The applicant submits that the respondent did not act in good faith, because it did not provide a reason for the denial of the assessment and went ahead to do its own assessment.
42The respondent requests costs, because it alleges the applicant’s actions have been unreasonable and frivolous. The respondent submits that the applicant has taken this matter from denial to adjudication, but has failed to produce a single piece of evidence that supports his claim. There is no affidavit from the applicant, no affidavit from his family doctor and nothing from Dr. Yeh. The applicant also did not take the opportunity to reply to the respondent’s submissions. The respondent submits that pursuing a claim with a complete lack of evidence is unquestionably unreasonable and undoubtedly frivolous. The respondent further submits that not awarding costs in this case would render Rule 19 meaningless.
43With respect to the applicant’s request for costs, the applicant has alleged the respondent’s conduct to be unreasonable and in bad faith. However, all of the alleged conduct is conduct that predated the Application to the Tribunal. Rule 19.1 is clear that it is the party’s conduct within a proceeding which attracts cost consequences. Rule 2.17 defines “proceeding” as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.” None of the conduct that the applicant has alleged to be unreasonable and in bad faith occurred during the proceeding, so I cannot order any costs. Therefore, no costs are payable to the applicant.
44With respect to the respondent’s request for costs, the respondent has alleged the applicant’s conduct to be unreasonable and frivolous. The purpose of Rule 19.1 is clear: to compensate for and deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award, and an exceptional remedy. “Unreasonableness” and “frivolous” must be read in context with the rest of the rule, and in this case, the applicant’s behaviour does not meet this bar. Pursuing a claim for a benefit should not attract cost consequences. There is no evidence before me that the applicant pursued the claim for a reason other than to receive the benefit. Therefore, no costs will be awarded to the respondent.
45At the hearing, I granted both parties the opportunity to provide cost outlines and submissions on the quantum of costs by November 3, 2016. Since I have found no costs payable, I will not comment on the quantum of costs.
CONCLUSION
46For the reasons outlined above, I find that:
The applicant is not entitled to an income replacement benefit in the amount of $175 per week from February 1, 2015 to March 23, 2015.
The applicant is not entitled to the cost of a psychological assessment by Dr. Min Che Yeh of Perfect Choice Psychological Services Inc., as outlined in the Treatment and Assessment Plan (OCF-18) dated January 13, 2015 in the amount of $2,000.
The applicant is not entitled to any interest.
Neither party is entitled to costs of the proceeding.
Released: February 27, 2017
Anna Truong,
Adjudicator