Tribunal File Number: 18-003409/AABS
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:
S.C.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
MOTION DECISION AND ORDER
Order made by: Maureen Helt, Vice Chair
OVERVIEW
1The applicant was injured in an automobile accident on Wednesday, April 9, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference took place on Tuesday, July 24, 2018, and an order was issued dated August 24, 2018.
4The issues in dispute in this proceeding relate to ongoing entitlement to income replacement benefits and medical benefits.
5A three day in person hearing is scheduled for January, 2019.
MOTION
6On November 13, 2018, the applicant filed a Notice of Motion requesting that the Tribunal make;
(1) An Order that the insurer cannot use any surveillance of the applicant, as it does not accurately depict the applicant’s medical condition.
(2) In the alternative, an Order that if the insurer intends to rely upon surveillance at the upcoming LAT Hearing, the investigator that conducted the surveillance must attend the Hearing for cross-examination.
(3) An Order that the applicant may submit a section 25 report for the present dispute, and that the respondent insurer shall pay for this section 25 report.
(4) In the alternative, an Order that payment for the section 25 report be added as an issue to the present LAT dispute.
(5) An Order that the applicant may rely upon the written reports of their expert witnesses, and need not produce the applicant’s experts for direct examination.
7The respondent did not consent to any of the relief requested in the motion.
ANALYSIS
(i) Surveillance Reports
8In its motion the applicant states that she only recently discovered that she may be under surveillance and is concerned that the surveillance evidence doesn't accurately depict her medical conditions. The applicant submits that the prejudice of the surveillance evidence outweighs any potential probative value and as such it should not be permitted as evidence at the present LAT Hearing.
9Alternatively, the applicant requests that the investigator who conducted the alleged surveillance attend the hearing, so that he or she may be questioned regarding the surveillance activities.
10In its responding motion materials, the respondent confirms that it has not conducted surveillance of the applicant, nor is it currently conducting surveillance of the applicant. Counsel for the applicant was advised of this fact on November 20, 2018. As a result, the respondent submits that the relief sought by the applicant is unnecessary.
11During the motion hearing the applicant was questioned as to why, if there was surveillance evidence, it would be prejudicial. The applicant explained that as the majority of the applicant’s impairments are cognitive the surveillance evidence, if it exists, will not accurately capture the extent of her impairment. The applicant was unable to explain why he could not argue this in his submissions. The respondent clarified that not all injuries are cognitive as there is a question about the foot fracture suffered by the applicant.
12Regardless of the type of injury/impairment suffered by the applicant, it appears the request is either moot as the respondent has confirmed there is no surveillance evidence, or at a minimum premature. Rule 9.2 of the Tribunal Rules requires parties to disclose the existence of every document at least 10 days before the hearing. If the respondent intends to file surveillance evidence they will have to advise the applicant at that time and establish its relevance. For this reason I deny the applicants request to exclude.
13With respect to the alternative request of the applicant that that the investigator that conducts any surveillance evidence attend for cross examination, as with the request for any surveillance evidence to be excluded, the request is denied at this time as the respondent has stated there is no surveillance evidence.
(ii) Section 25 Report
14The respondent obtained a section 44 vocational report in April 2016 as part of its section 44 assessments to determine the applicant’s ongoing entitlement to income replacement benefits. In this report the assessor concluded that there were suitable employment options for the applicant and as such the applicant did not meet the complete inability test.
15In May 2018 the applicant submitted a report completed by a vocational specialist that concluded the findings in the respondent’s report about possible employment options were not viable.
16The applicant submitted a treatment and assessment plan dated May 2, 2018 recommending retraining for the applicant. This treatment plan specifically noted that the recommendation was based on the conclusions reached in the applicants May 2018 vocational specialist report.
17The respondent then advised it required the applicant to attend for a section 44 assessment to determine the reasonableness and necessity of the May 2, 2018 treatment plan. The respondent produced what it calls a further “rebuttal report” dated July 4, 2018 concluding the treatment plan is not reasonable and necessary.
18The applicant submits that it is entitled to a further section 25 report as section 25 is designed to permit the applicant to obtain a qualified opinion of the treatment plan, in the event that the insurer acquires such an opinion.
19The applicant has sought an opinion from Allan Mills, Vocational therapist. The applicant relies on the following two cases in support of its argument that an applicant is entitled to obtain their own assessment in response to an insurer’s expert report.
20The applicant submits that based on the decision in 16-1627 v Aviva, an applicant is entitled to obtain their own assessment to respond to an insurer's expert report. (16-001627 v Aviva Insurance, 2017 Canll 56668 (ON LAT) and (17-001040 v Aviva Insurance Canada, 2018 Canll 13149 (ON LAT). It is to be noted that both of these decisions are distinguishable on the basis that in both there was a treatment plan submitted that was in dispute. That is not the factual situation in this case. There is no additional treatment plan submitted to warrant a section 25 report.
21The respondent objects to the applicant’s request for funding of a section 25 report. As noted above, the respondent submits that the section 44 report prepared by the respondent’s assessor was a rebuttal report.
22The respondent states that the applicant already has expert evidence from a Vocational expert dated May 1, 2018, for use at the upcoming hearing.
23Section 25(1)3 of the Schedule provides that an insurer shall pay reasonable fees for an examination or assessment. The applicant submitted at the motion hearing that circumstances have changed since the initial assessment and a section 25 report is necessary to address the changed circumstances. I find that the applicant has not established that a further report from a vocational expert is necessary. The applicant has failed to provide any evidence that her condition has changed since the assessment dated May 1, 2018.
24Based on the above I find that the applicant has failed to establish the necessity for a section 25 report.
(iii) Attendance of Experts for Cross Examination
25The applicant requests that the Tribunal make an order that the Applicant may rely upon the written reports of their expert witnesses, and need not produce the Applicant’s experts for direct examination. The applicant submits that the cost of producing her experts for cross examination is prohibitive.
26It is certainly the right of the applicant not conduct direct examination of her experts however, it is also the right of the respondent to be able to cross-examine the applicant’s experts as she intends to rely on the expert reports.
27As the applicant has indicated that she intends to rely on the expert reports, it is the applicant’s responsibility to make her expert witnesses available for the purposes of cross-examination by the respondent. The Tribunal does not have the authority to order that the respondent make arrangements and pay for the applicant’s expert witness fees.
ORDER
28The applicant's motion is denied.
Date of Issue: December 6, 2018
___________________________
Maureen Helt
Vice Chair