D. P. v. Aviva General Insurance, 2017 CanLII 87551

Date: 2017-12-18

Tribunal File Number: 17-000636/AABS

Case Name: 17-000636 v Aviva General Insurance

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., (the “Act”) in relation to statutory accident benefits

Between:

D. P.

Applicant

and

Aviva General Insurance

Respondent

DECISION

Adjudicator: Blaine Baker

Appearances:

For the Applicant: Michael Wolfe, counsel

For the Respondent: Monica Pathak, counsel

Heard in Writing: June 29, 2017

OVERVIEW

1This is an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) in respect of an insured person’s entitlement to receive statutory accident benefits.

2D.P. (the “applicant”) suffered a double fracture of her left elbow in an automobile accident while bicycling on October 15, 2015, and sought benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

3At issue is a denied treatment and assessment plan in the amount of $2,912.00 for an orthopaedic assessment. I must decide whether that treatment plan is reasonable and necessary.

4The respondent submitted that the maximum allowable amount for a treatment and assessment plan under the Schedule is $2,000.00. I note that the balance of $912.00 relates to a $200.00 fee for preparation of the treatment and assessment plan, $400.00 for the applicant’s travel to the assessment, and $312.00 for HST. Each of those three expenses is recoverable in its own right under financial guidelines published by the Superintendent of Insurance, and will be payable if I find that the treatment and assessment plan is reasonable and necessary. I will, therefore, focus on the reasonability and necessity of the plan.

5While the respondent submitted that the applicant’s injuries are predominantly minor injuries (as that term is defined in section 40 of the Schedule), I note that the applicant broke her arm in the accident. The definition of a minor injury does not include broken bones, so this ground of denial must fail. I therefore need not deal with it in any further detail.

6The parties participated in a case conference, but they were unable to resolve the issues in dispute between them.

ISSUES IN DISPUTE

7The issues in dispute identified by the parties in their submissions that remain to be decided are:

(i) Is the applicant entitled to $2,912.00 for the cost of an orthopaedic assessment done by Dr. David Wasserstein of Excel Medical Diagnostics that was submitted to the respondent on October 17, 2016 and denied on October 31, 2016?

(ii) Is the applicant entitled to interest on the overdue payment of benefits?

(iii) Is either party entitled to its costs of this application?

(iv) Is the applicant entitled to an award under section 10 of Ontario Regulation 664, Automobile Insurance¹ (“Regulation 664”) on the basis that the respondent unreasonably withheld or delayed payment of benefits?

RESULT

8Based on the totality of the evidence before me, I find that:

(i) the applicant is entitled to the cost of an orthopedic assessment by Excel Medical Diagnostics;

(ii) the applicant is entitled to interest on the overdue payment of benefits;

(iii) neither the applicant nor the respondent is entitled to costs incurred in this application; and,

(iv) the applicant is not entitled to an award under Regulation 664.

ANALYSIS

9As this was a written hearing, the only evidence before me was in the form of documentary material. I have considered all of the documents that were submitted by the parties, especially their written submissions for this hearing.

10The Schedule specifies that an insurer is responsible for all reasonable and necessary treatment. While the schedule caps recovery at $2,000.00, other guidelines published by the Superintendent of Insurance allow for the additional recovery of travel expenses, preparation of treatment and assessment plans, and HST.

11The allocation of $2,000.00 of the applicant’s benefits to Dr. Wasserstein’s $2,912.00 worth of assessment fees will not exceed the Schedule’s cap. The other $912.00 of Dr. Wasserstein’s fees were comprised of transportation costs, completion of an OCF 18 form and taxes, expenses that have not been challenged directly by the respondent and are recoverable independently of the cap under sections 25(1), 25(4), and 15(1)(g) of the Schedule.

12Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. Those provisions have been interpreted to require an applicant to prove, on a balance of probabilities, that any claimed medical expenses are reasonable and necessary.²

13The applicant’s injury was a double fracture of her elbow. She is seeking payment of the cost of an assessment of that injury by an orthopaedic surgeon, Dr. Wasserstein. The respondent submitted that Dr. Wasserstein’s assessment is not reasonable and necessary in light of companion diagnoses and treatment that the applicant received from OHIP and through Manulife. Its opinion is based on assessments conducted on its behalf by Dr. Basil Johnston, an orthopaedic surgeon, on October 4, 2016 and December 16, 2016. I do not agree with that submission.

14Dr. Johnston failed to describe in detail examinations and treatments received by the applicant under OHIP or through Manulife. Nor were they described elsewhere in the available documentary record. The evidence presented therefore does not support the respondent’s position. Only passing reference is made to treatment plans of October 29, 2015 and January 25, 2016. Dr. Wasserstein’s assessment is the only comprehensive assessment the applicant has had since her accident that has been put in evidence before me.

15The respondent did not elaborate in its submissions on how or why the assessment was unreasonable and unnecessary. Instead, it placed reliance on two conclusory sentences from Dr. Johnston’s reports in which he said that a very competent orthopaedic surgeon (Dr. King Wong) had set the applicant’s fractured elbow and later removed hardware from it, and said that the incompleteness of her recovery was within normal, expected perimeters.

16The respondent submitted that Dr. Wasserstein’s assessment was not reasonable or necessary because it was prepared for a purpose other than the applicant’s diagnosis and treatment (such as a companion tort suit). Little was said by the parties about potential unrelated purposes, beyond brief references to such litigation in paragraph 31 of the respondent’s hearing submissions and in paragraph 17 of the applicant’s reply to those submissions. The bulk of Dr. Wasserstein’s assessment is not directly related to a personal injury claim in tort, and the applicant expressly denied in paragraph 21 of her reply that Dr. Wasserstein’s fees have been or will become disbursements in a tort action. The assessment therefore appears to be related to this application, rather than part of a remotely-related, private law suit.

17The thrust of Dr. Wasserstein’s assessment is his doubt about the applicant’s ability to resume her pre-accident vocation as a YMCA personal trainer and fitness instructor (in place of her post-accident vocation as a wealth management office administrator), and his belief in her need for further treatment. I find Dr. Wasserstein’s assessment to be reasonable and necessary. The applicant has been limited by her accident, perhaps permanently, from engaging in a variety of sports and in fitness-related employment.

18The respondent further submitted that Dr. Wasserstein’s assessment was unreasonable and unnecessary because it duplicates or overlaps with others in the applicant’s file. I disagree with that submission. The only other assessment related to this application (besides the clinical notes and records of Dr. Wong) was apparently an in-home visit to the applicant on November 21, 2015 by occupational therapist S. Chawla. A single non-orthopaedic assessment does not make Dr. Wasserstein’s assessment an excessive or redundant use of post-automobile accident medical assessors.

19The respondent also submitted that Dr. Wasserstein’s assessment was unreasonable and unnecessary because it merely repeated Dr. Wong’s clinical notes and records of October 8, 2015 and April 16, 2016 about the two operations he performed on the applicant’s fractured elbow. Again, I disagree with that submission. Those brief and intervention-specific notes form part of this application, but Dr. Wasserstein indicated in his assessment that they were not available to him. I also note that Dr. Wasserstein’s assessment is much longer, more comprehensive, and more complex than Dr. Wong’s clinical notes and records.

COSTS

20In its case conference summary, the respondent requested its costs of this application. It did not, however, provide detailed grounds for that request. The provision of that kind of justification is necessary under Rule 19.1 of the Tribunal’s Rules of Practice and Procedure (the “Rules”), since costs do not necessarily or automatically follow a result in respect of applications to the Tribunal. The Rule provides that “where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the tribunal for costs.”

21In the absence of detailed grounds, no costs will be awarded against the applicant. The applicant did not show that the respondent acted frivolously, vexatiously, or in bad faith.

AN AWARD UNDER ONTARIO REGULATION 664

22In its hearing submissions, the applicant requested its costs of this application, together with an award under Regulation 664, on the basis that the respondent unreasonably withheld or delayed payment. Adding those claims now does not pose a great challenge since, as the applicant said in her hearing submissions, they are aspects of the claims that have structured this application from its outset.

23The applicant has not provided details with respect to its argument that the respondent unreasonably withheld or delayed payment. As such, I do not find that the respondent unreasonably withheld or delayed payment to the applicant.

24Hence, neither costs nor an award will be awarded against the respondent.

CONCLUSION

25The applicant is entitled to $2,912.00 for an orthopedic assessment by Dr. David Wasserstein that was done on July 7, 2016. The applicant is also entitled to interest on the overdue payment of that benefit from the invoice date of October 17, 2016.

ORDER

26I order that the respondent pay $2,912.00 for the cost of Dr. Wasserstein’s assessment, together with interest on that amount since October 31, 2016.

Footnotes

1. 1R.R.O. 1990, Reg. 664.
2. 2See, eg., Scarlett v. Belair, 2015 ONSC 3635.