D. N. v. Aviva Insurance Company, 2018 CanLII 13166

Date: 2018-02-09

Tribunal File Number: 17-004104/AABS

Case Name: 17-004104 v Aviva Insurance Company

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

Between:

D. N.

Applicant

And

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Elvis Viskovic, Paralegal

For the Respondent: Michal Baura, Counsel

HEARD: In writing on November 20, 2017

OVERVIEW

1The applicant was injured in an automobile accident on July 2, 2014 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain costs of assessments and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES:

2The disputed claims in this hearing are:

1. Is the applicant entitled to payments for the cost of examinations recommended by Advanced Healthcare Management Inc. as follows;

i.$2,486.00 for an orthopaedic assessment submitted by way of a Treatment and Assessment Plan dated September 3, 2015; and

ii.$2,486.00 for a psychological assessment submitted by way of a treatment and assessment plan dated September 3, 2015?

2. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3. Is the applicant entitled to interest on any overdue payments?

RESULT

3The applicant is barred from adjudicating entitlement to the psychological assessment because the applicant did not attend a properly scheduled section 44 Insurer’s Examination.

4The applicant is not entitled to the orthopaedic assessment because it is not reasonable and necessary as a result of the accident.

5The applicant is not entitled to an award under Regulation 664 because the respondent did not unreasonably withhold or delay payments to the applicant.

6Neither party is entitled to costs as no party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.

BACKGROUND & MOTIONS PRIOR TO THE HEARING

7On July 2, 2014, the applicant was rear-ended while in stop-and-go traffic. No ambulance or police were called to the scene of the collision. The applicant reported back pain the day following the accident and sought and received treatment within the Minor Injury Guideline (MIG).

8About a year after the collision, the applicant sought approval for two assessments recommended by Advanced Healthcare Management Inc. Funding for the assessments would require payment beyond the $3,500.00 MIG limit. The respondent denied funding for the assessments, finding them not reasonable and necessary. The applicant disputed the validity of the denials, incurred the cost of an orthopaedic assessment and a psychological assessment (the disputed assessments) and now seeks payment for the two assessments.

9The parties participated in a case conference on August 30, 2017 where it was agreed that the parties would exchange documents by September 15, 2017 for a written hearing scheduled for October 30, 2017. An Order reflecting this agreement was made by the Tribunal (“the August Order”).

10The applicant did not comply with the August Order and the respondent successfully motioned to exclude documents which were not exchanged prior to the deadline for the production of evidence.

11By failing to produce the information as agreed, and as a result of the motion to exclude evidence, the applicant was left with little evidence to support entitlement to the disputed assessments. The applicant relies on a psychological assessment report, an orthopaedic assessment report, and a specific interpretation of section 38 of the Schedule to establish entitlement to the disputed assessments.

SECTION 38 AND THE DISPUTED COSTS OF ASSESSMENTS

12The applicant submits that the two disputed assessments were not responded to within 10 business days of receipt, as prescribed by section 38(8). Further, the applicant submits that the disputed assessments were incurred by the applicant and are payable by the respondent according to section 38(11).

13The respondent submits three points in response. First, the treatment and assessment plans were responded to in accordance with the Schedule. Second, regardless of the timeliness of the response, the applicant cannot rely on section 38(11) because the respondent did not rely on the MIG to deny the assessments. Last, in the event that they were not properly responded to in a timely manner, the respondent submits that the disputed assessments are not reasonable and necessary anyway.

14The respondent also raised a preliminary issue. The respondent submits that the applicant is precluded from adjudicating entitlement to the psychological assessment because the applicant has not complied with section 44.

THE UNTIMELY RESPONSE TO THE TREATMENT PLAN

15Section 38(8) provides that the respondent must reply to a treatment and assessment plan within 10 business days. If it does not respond in time, section 38(11)1 provides that the insurer cannot take the position that the MIG applies and section 38(11)2 provides that the respondent must pay for goods, services, assessments, and examinations described in the treatment and assessment plan incurred, starting on the 11th business day from the date of receipt.

16The applicant initially submitted that the disputed assessments, dated September 3, 2015, were submitted on or around September 3, 2015 and were never responded to. The applicant provided a copy of the treatment and assessment plan proposing the psychological assessment and a copy of the orthopaedic assessment report.

17The respondent submits that the disputed assessments were not submitted on or around September 3, 2015 but were submitted on October 21, 2015. The respondent submits that the disputed assessments were responded to on November 4, 2015—in accordance with the timelines prescribed by the Schedule. The respondent provided copies of the treatment and assessment plans generated by the HCAI system.

18Upon review of the respondent’s submissions and evidence, the applicant agreed that the disputed assessments were submitted on October 21, 2015. The applicant maintains that the respondent did not respond in accordance with section 38(8) because the respondent mailed the denial to the applicant on the 10th business day following receipt, contrary to section 64(5) of the Schedule.

19Having reviewed the submissions and evidence, I find that the disputed assessments were not responded to within 10 days as prescribed by the Schedule. The respondent replied to both treatment and assessment plans by regular mail on November 4, 2015. Section 64(5) of the Schedule says that delivery by mail is not acceptable if a response is required within 5 business days. The respondent sent the denial, by mail, on the 10th business day following receipt of the disputed assessments, rendering them deemed received on the 15th business day, pursuant to section 64(18). This is beyond the timeliness requirement in section 38(8).

20According to section 38(11)2, the respondent must pay for all goods and services incurred by the applicant until the respondent gives proper notice of the denial.

WHEN DID THE DENIAL OCCUR AND WHAT WAS INCURRED PRIOR TO IT?

21The applicant submits that no denial occurred. According to the applicant, the denial letters are not proper because they do not include the faxback forms noted as enclosures in the letters. The applicant did not provide any legislative or common law authority to support this position.

22The respondent submits that it properly notified the applicant of the denial of the benefits and that it is permitted by section 38(10) to request an Insurer’s Examination under section 44.

23Section 38(8) outlines the following requirements for a denial of medical and rehabilitation benefits:

1. The goods and services the insurer agrees to pay for;

2. The goods and services the insurer does not agree to pay for; and

3. The medical and other reasons causing the insurer to believe the goods and services are not reasonable and necessary.

24I have reviewed the denial notices provided by the respondent and find that the denials contain all the required information outlined in section 38(8). In both letters, the respondent advised that it does not agree to fund any of the goods and services, that it requires an independent comment on causation as well as reasonableness and necessity of the disputed assessments. The notices also advise that an Insurer’s examination is required and that a Notice of Examination will follow under a separate cover.

25The respondent initially denied the orthopaedic assessment by letter dated November 4, 2015. Following this, the respondent faxed a Notice of Insurer’s examination to the applicant’s representative on November 13, 2015, which included the same reasons for denial as the disputed orthopaedic assessment. The Insurer’s Examination was conducted on November 13, 2015. The Insurer’s Examination Report and a letter notifying that the respondent was maintaining the denial was relayed to the applicant by letter dated November 19, 2015. The applicant proceeded with the assessment on November 26, 2015. I find that the applicant and counsel for the applicant were aware of the denial by no later than November 13, 2015. Considering this, I find that the applicant did not incur any costs associated with the orthopaedic assessment prior to the denial.

26With respect to the psychological assessment, the respondent denied it by letter dated November 4, 2015. The respondent faxed a Notice of Insurer’s Examination to the applicant’s representative on November 13, 2015. Despite the notice, the applicant proceeded with the psychological assessment on November 19, 2015. Considering this timeline, I find that the applicant did not incur any costs associated with the psychological assessment prior to the denial.

27Pursuant to section 38(11)2, I find that there were no goods or services consumed by the applicant prior to the date of denial. The respondent is not required to pay to any goods or services under section 38(11)2.

SECTION 55 AND THE APPLICANT’S SECTION 44 OBLIGATIONS

28The respondent asserts that section 55 of the Schedule prevents the applicant from adjudicating entitlement to the disputed psychological assessment because the applicant did not attend a properly scheduled section 44 Insurer’s Examination. The respondent did not raise this issue with respect to the disputed orthopaedic assessment.

29The applicant submits that there can be no proper notice of a section 44 Insurer’s Examination absent a proper denial under section 38(8). The applicant admits to not attending the section 44 Insurer’s Examination.

30This issue was not listed as an issue in dispute for the hearing. I will address it because it is not a new issue. Compliance with section 44 was an issue at the case conference and both parties made submissions on the issue.

31Section 55(2) provides that an applicant may not commence an application for dispute resolution if the applicant has failed to attend a properly scheduled Insurer’s Examination.

32Section 44 provides that notice of an Insurer’s Examination must include;

1. The medical and other reasons for the examination;

2. Whether attendance is required or not;

3. The name of the person(s) conducting the examination, the examiner’s title, designation, and specialization, and the regulated health professions which the examiner belongs to; and

4. The day, time, and location of the examination (if attendance is required).

33I have reviewed the notice mailed to the applicant and faxed to counsel for the applicant and am satisfied that it meets the required criteria listed above. The Notice of Insurer’s Examination states that the respondent requires an examination to assist in the determination of entitlement to, amongst other things, the psychological assessment and ongoing income replacement benefits. The notice advised of the date and time of the assessment, the assessor’s name and professional designation, and that attendance was required in person.

34Having found that the denials were proper and upon review of the evidence and submissions, I find that the applicant failed to attend a properly scheduled section 44 Insurer’s Examination. The failure to attend means that the applicant is not compliant with section 44 and is barred from adjudicating the disputed psychological assessment.

IS THE ORTHOPAEDIC ASSESSMENT REASONABLE AND NECESSARY?

35I must now determine if the disputed orthopaedic assessment is reasonable and necessary pursuant to section 25(1)(3) of the Schedule.

36The applicant provided Dr. Nguyen’s Orthopaedic Assessment Report dated November 26, 2015 and Dr. Staroversky’s Psychological Assessment Report. The applicant did not make any submissions suggesting the disputed assessments are reasonable and necessary. Instead, the applicant relied on the position that the applicant is entitled to the disputed assessments because the respondent did not reply to the disputed assessments prior to the applicant incurring the assessments.

37Dr. Nguyen’s Orthopaedic Assessment Report lists low back pain with tingling and numbness to the left hip as the totality of the applicant’s present complaints. Dr. Nguyen diagnosed the applicant with lumbo-sacral spine myofascial injury and chronic pain. The report focuses on the applicant’s impairment after the accident and concludes that the applicant has a reduction in functionality as a result of the accident. The report recommends additional physiotherapy, anti-inflammatory medications, and a back support and lumbosacral corset. The report has recommendations for an MRI and nerve conduction study if there is no improvement of symptoms and it suggests a pain specialist or psychologist may help the applicant cope with ongoing pain complaints.

38The respondent submits that the disputed assessments are not reasonable and necessary and that the applicant has failed to meet the evidentiary burden required to establish that the assessments are reasonable and necessary. Additionally, the respondent submits that it is the opinion of Dr. C. Osinga, orthopaedic surgeon, that the disputed assessments are not reasonable and necessary. Dr. Osinga’s Insurer’s Examination report concludes that further orthopaedic assessments are not reasonable and necessary because the applicant no longer suffers a substantial musculoskeletal impairment.

39Upon review of the evidence and submissions, I find that the orthopaedic assessment is not reasonable and necessary because the medical record does not support the need for further orthopaedic investigation. This is evident in the findings of both the Insurer’s Examination Report and the applicant’s Orthopaedic Assessment Report as neither specialist identifies any new orthopaedic injury or recommends any new course of treatment. Dr. Nguyen’s suggestion that a pain specialist or psychologist may help, absent any other symptomology or diagnosis from another medical professional, does not make the orthopaedic assessment reasonable.

REGULATION 664 AND INTEREST

40The applicant submits that the respondent failed to reply to the disputed assessments and by this inaction, unreasonably withheld payment. The applicant seeks an award pursuant to section 10 of Regulation 664 of the Insurance Act. Additionally, the applicant seeks interest on overdue benefits, calculated in accordance with the Schedule.

41The respondent submits that there are no grounds for an award under Regulation 664. It did not provide any submissions regarding interest on overdue payments.

42The applicant’s position on entitlement to an award under Regulation 664 became moot once the parties agreed that the disputed assessments were responded to. Additionally, having found that there was no entitlement to the disputed assessments and nothing incurred prior to receiving notice of the denial, I find that there was no payment owed and therefore, the respondent did not unreasonably withhold payment. For these reasons, the applicant is not entitled to an award under Regulation 664. Similarly, interest is not owed as no payments were overdue.

COSTS

43The respondent seeks $750.00 in costs pursuant to rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (the Rules). The respondent submits that the applicant has failed to comply with two Tribunal deadlines and has failed to respond to correspondence from the respondent during the proceedings. The respondent submits that the failure to comply with the Orders and failing to reply to its correspondence constitutes unreasonable conduct under rule 19.1 of the Rules.

44The applicant seeks $500.00 in costs pursuant to rule 19. The applicant submitted that “the conduct of the (r)espondent throughout the claim, case conference and hearing has been high handed, unfair, deceptive and vexatious.”

45Costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. I address the respondent’s costs submission in two parts. First, with respect to the production of documents and second, with respect to the delayed written submission.

46The applicant has not provided any specific example or evidence that the respondent acted unreasonably, frivolously, vexatiously or in bad faith. The applicant has not given me any basis to make a finding that the respondent’s actions warranted a cost award in favour of the applicant.

47With respect to the respondent’s request, I find that the applicant did not rely on any evidence which was not disclosed. I see no reason to characterize this behaviour as unreasonable, frivolous, vexatious, or of bad faith. Rule 9.4 contemplates that a party may not produce evidence in accordance with Rule 9.2 and provides an appropriate remedy: the party may not rely on the document.

48Although the behaviour may be considered to be somewhat cavalier, for the following reasons I find that the applicant’s failure to file initial written submissions in accordance with the case conference adjudicator’s Order is not unreasonable, frivolous, vexatious, or made in bad faith. First, I recognise that mistakes happen and it is possible that parties may incorrectly diarize important dates of submission. Second and more importantly, the applicant’s delay had minimal impact on the respondent and the position of the respondent. The respondent’s motions were reasonably requested, but ultimately, unnecessary.

CONCLUSION

49The applicant is precluded from adjudicating entitlement to a psychological assessment because the applicant did not properly schedule a section 44 Insurer’s Examination.

50I find the respondent is not required to pay for either of the assessments in dispute as a result of section 38(11)2. The applicant did not provide evidence to establish that the orthopaedic assessment is reasonable and necessary as a result of the July 2, 2014 collision.

51The applicant is not entitled to an award under Regulation 664 as the respondent did not unnecessarily withhold any payments.

52No costs are awarded as neither party has established that the other party has acted unreasonably, frivolously, vexatiously or in bad faith.

53The application is dismissed.