T.T v. Aviva Insurance Canada
Tribunal File Number: 17-002535/AABS
Case Name: 17-002535/AABS v Aviva Insurance 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:
T.T
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for the Applicant: Jessie V. Tran
Counsel for the Respondent: Shivani Mehta
HEARD: Written Hearing: October 16, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, T.T, was injured in a motor vehicle accident on February 17, 2015.
2The applicant applied to the respondent, Aviva Insurance Company of Canada, for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”). The respondent paid for some of the benefits sought. The respondent also arranged for the applicant to be assessed by several medical health professionals and in the end determined that the applicant is not entitled to a number of benefits claimed, as his injuries fall under the Minor Injury Guidelines (MIG).
3Several case conference hearings were held to determine the issues in dispute and to address the disclosure of documents and records by the parties. The respondent submitted a surveillance CD along with its written submissions. The applicant then brought a motion to exclude the surveillance CD submitted by the respondent, with costs, on the basis that the respondent has acted in bad faith.
ISSUES
4The procedural issue in this case is whether the surveillance CD submitted by the respondent should be excluded.
5The substantive issues in dispute are:
a) Is the applicant entitled to receive a medical benefit of $1,320.00 for physical rehabilitation services recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on May 13, 2015?
b) Is the applicant entitled to receive a medical benefit of $2,600.00 for physical rehabilitation services recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on July 14, 2015?
c) Is the applicant entitled to receive a medical benefit of $2,600.00 for physical rehabilitation services recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on December 2, 2015?
d) Is the applicant entitled to receive a medical benefit of $2,000.00 for physical rehabilitation services recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on October 20, 2016?
e) Is the applicant entitled to receive a medical benefit of $70.00 for completion of a Disability Certificate assessment by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on February 26, 2015?
f) Is the applicant entitled to receive payment of $2000.00 for a social work assessment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on June 3, 2015?
g) Is the applicant entitled to receive payment of $2000.00 for an orthopaedic assessment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on December 2, 2015?
h) Is the applicant entitled to receive a medical benefit of $200.00 for completion of a Disability Certificate assessment by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on June 3, 2016?
i) Is the applicant entitled to receive travel expenses of $1,400.00 submitted on July 15, 2015?
j) Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
6For reasons set out below, I grant the motion by the applicant to exclude the surveillance CD. I order the respondent to pay costs of $300.00. I further find that the applicant is not entitled to the benefits claimed in items a – j, above, and that no interest is payable.
ANALYSIS
Procedural Issue: The surveillance CD submitted by the respondent should be excluded
7For reasons below, I find the surveillance CD submitted by the respondent should be excluded.
8As noted, a number of case conference hearings have been held by the Tribunal prior to this written hearing. At the July 11, 2017 case conference, the parties advised the Tribunal of the evidence that they would be relying on at the hearing. For the respondent, the following evidence was noted:
Reports of Dr. Behzad Taromi, orthopaedic surgeon;
Report of Dr. Rakesh Ratti, psychologist; and
Report of Jim Gestsos, Chiropractor
9A further case conference was held on July 31, 2017 to resolve additional disagreements about disclosure. The respondent, once again, confirmed that the evidence it would be rely on were the reports from the three assessors as noted above.
10The case conference Adjudicator issued a second order dated July 31, 2017 confirming the parties’ agreement with respect to the evidence. In that order, Adjudicator Bass specifically ordered as follows:
11No additional documents or records may be filed in the appeal without the permission of the Tribunal.
12Finally, an order dated September 18, 2017 was issued by Adjudicator Johal, ordering the respondent to produce the adjustor’s log notes and serve them on the applicant by September 18, 2017. This order was made because the respondent had not submitted the adjustor’s log notes as previously ordered by Adjudicator Bass. As Adjudicator Johal explained, the order for the respondent to produce log notes was made “in the interest of fairness, efficiency and to ensure a just and timely resolution of the matters in dispute.” Adjudicator Johal also ordered the applicant to file his submissions by September 22, 2017 and the respondent to file its written response by October 6, 2017. Adjudicator Johal’s order also made clear that “all remaining terms of the order issued on July 31, 2017 remain in full force and effect”.
13On October 6, 2017, the respondent served its responding submissions, in the form of two CDs, on applicant’s counsel. However, in direct contravention of the orders of Adjudicators Bass and Johal, one of the CD’s contained surveillance footage of the applicant conducted by the respondent. Due to scheduling issues and the fact that October 9, 2017 was a statutory holiday, the applicant’s counsel was unable to review the CDs until October 10, 2017. Upon review of the CDs, counsel for the applicant realized that surveillance was conducted of her client on September 22, 23, and 24, 2017 by the respondent, and one of the CDs was the recording of the surveillance.
14The applicant then brought a motion to “strike the surveillance material from the respondent’s submission with costs.” In the alternative, should the Tribunal admit the surveillance production, the applicant asked for “sufficient time to review the surveillance material with counsel and challenge the surveillance should it seem fit and appropriate.”
15The applicant opposed the admission of the surveillance CD on several grounds, including the fact that it was provided less than 10 days prior to the hearing, contrary to Rule 9.2 of the Tribunal Rules which requires parties to disclose the existence of every document at least 10 days before the hearing. The applicant also submitted that he was not given sufficient time to review the surveillance CD since it was submitted just prior to the Thanksgiving weekend and the fact that the applicant and his counsel work and live in different cities. As a result, the applicant did not actually get to view the CD until he could arrange to meet with counsel on the following week. More fundamentally, the applicant submitted that he has been prejudiced and denied procedural fairness and that the respondent was acting in bad faith by serving the applicant with the surveillance production after the case conference and after the applicant has filed his submission with the Tribunal.
16The respondent did not address all of the issues raised by the applicant, nor did it provide any explanation why it had conducted this surveillance after the case conference. Most importantly, the respondent has not explained how the evidence is relevant to the issues in dispute.
17For the reasons set out below, I order the surveillance CD to be excluded.
18While generally speaking, evidence that is relevant should not be excluded, and any prejudice or disadvantage to the other party for including the evidence is remedied by allowing time to review and respond and, if appropriate, with costs. I find there is a broader policy consideration as to why the surveillance evidence should be excluded in this particular case.
19The respondent submits that what they did was in compliance with the Common Rules of Practice and Procedures (the Rules) of the Tribunal despite acting contrary to the order made by Adjudicator Bass. In my view, the Rules of the Tribunal are designed to ensure fairness to the parties in the process. They set the minimum standard by which the parties should conduct themselves. The Rules must be read, not in isolation, but in conjunction with any specific order made by the Tribunal on a case by case basis. In this case, there was a specific order made by Adjudicator Bass requiring the parties to seek permission before filing any additional documents and records, an order that the respondent had clearly failed to comply with. It is therefore not sufficient for the respondent to simply state they have complied with Rule 9.2 of the Tribunal without providing an explanation for its failure to comply with the Tribunal order. To allow the surveillance CD to be admitted under these circumstances is to condone the respondent’s disregard for the order issued by the Tribunal.
20The applicant submitted that the respondent has acted in bad faith and asked for costs. Rule 19.5 of the Rules of the Tribunal gives the Tribunal broad power to decide whether to order costs and the amount of costs to be ordered. The Tribunal shall exercise this power taking into account all relevant factors including, among other things, whether the conduct was in breach of a direction or order issued by the Tribunal, and whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process. Rule 19.6 further states that the amount of cost ordered shall not exceed $1,000.00 for each full day of motion, case conference or hearing.
21Applying the Rule to this case, because the respondent has disobeyed the order of this Tribunal without offering any explanation for doing so, the respondent should not be allowed to benefit from the fruits of its behaviour. I find that the respondent’s behaviour undermine the ability of the Tribunal to conduct its proceedings I therefore exclude the surveillance CD, with costs.
22I set the cost at $300 in view of the limit set out in the Rules, and the gravity of the matter. On the one hand, the respondent has directly disobeyed a direct order of the tribunal and as such the cost award should be at the higher end. On the other, the breach has been addressed in part by the exclusion of the evidence the respondent has sought to introduce. I therefore decide a cost of $300, which is at the lower end of the limit allowed by the Rules, is appropriate.
Substantive Issues: Is the applicant entitled to the medical benefits and payments sought?
23In assessing the applicant’s entitlement to the medical benefits sought, I am guided by several provisions of the Schedule. These include section 14, which makes an insurer liable to pay medical and rehabilitation benefits for an insured person who sustains an impairment as a result of an accident; section 15, which states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident; and section 16 which provides for coverage for other rehabilitation benefits.
24The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.
25Before I examine the specific benefits claimed by the applicant, I must first address several arguments raised by the applicant that have an overarching impact on my determination that he is not entitled to the benefits claimed, the first being the issue of interpretation at the IE and the other related to the Statement of Benefits.
Interpretation Issue: did the applicant’s limited ability to speak English prevent him from participating effectively in medical assessments without the aid of an interpreter?
26The applicant submitted that, despite his requests, he was not provided with an interpreter for any of the three assessments conducted by the medical assessors retained by the insurer. During his assessment with Dr. Taromi, the interpreter showed up after the applicant had already left. The applicant submitted that the assessor should have notified the insurer that its report may be prejudiced and the insurer should have rescheduled the assessment.
27The respondent, on the other hand, submitted that the applicant did not ask for an interpreter before meeting with Dr. Gestsos. The respondent also pointed out that at no time upon receipt of the assessment reports did either the applicant or his counsel objected to any of the reports on the ground of the lack of an interpreter. The applicant also never stopped any of the assessments on account of a language issue.
28While there is nothing in the Schedule that requires an insurer to provide interpretation services to claimants who do not speak English or French as their first language, the issue of access to interpretation is an important one, particularly in the context of assessments, as they form the basis for an insurer to determine the benefit entitlement of an insured person. If an insured person cannot effectively communicate with the assessor, it will affect the quality and reliability of the assessment, which will in turn call into question the legitimacy of the opinion of the assessor.
29I find there is conflicting evidence before me as to whether the applicant was unable to participate effectively in the assessment due to the lack of interpretation services. As the respondent has pointed out, in his Application for Accident Benefits dated February 24, 2015, the applicant chose “English” as the language spoken. On the other hand, I note that in his application to the Tribunal, he marked down “yes” to the question of whether he or any witnesses require language interpretation services. However, the applicant did not specify the language required.
30I also note Dr. Ratti observed the following about the applicant’s English speaking capacity on the first page of his report:
The claimant’s command of English was limited; it was adequate for the clinic interview (with frequent rephrasing) and simpler testing measures but not for the more complex testing.
31I find from his passage that the applicant’s English was limited. In fact, it was so limited that Dr. Ratti was unable to complete some of his test for the applicant. Yet Dr. Tamori (the one who examined the applicant before the interpreter arrived) noted in his report that “the claimant was able to communicate in English during his interview and during examination and there was no language barrier during the entire process.”
32I appreciate that it may be difficult for people who do not speak English as their first language to convey their lack of understanding of the language. As such, I do not fault the applicant for not raising the issue during these assessments. And by the same token, his failure to raise the issue may have led the other party to believe that the applicant has understood everything said during the examination.
33I conclude, based on the evidence before me, that the applicant does have limited English capacity. That said, he did participate in the assessments arranged by the insurer without any aid from an interpreter. I will therefore take into account all three assessment reports in my evaluation of the applicant’s claims.
Statement of Benefits Issue: Was the Statement of Benefits provided by the insurer to the applicant misleading, and, if so, what, if any, are the consequences?
34Another preliminary issue raised by the applicant is with respect to the Statement of Benefits. The applicant noted that in the Statement of Benefits, the respondent notified him that he would be eligible up to the policy limit of $50,000.00, without ever mentioning that his claim was considered to fall within the Minor Injury Guidelines (MIG). The applicant complained that the respondent failed to use the standard statements that all insurers rely on to advise the insured about their benefits entitlement. In reply, the respondent submitted that the contents of the letter must be read together with the Explanation of Benefits that were sent to the applicant and his counsel each time a Treatment and Assessment Plan was addressed. In each instance, the respondent specified that the MIG applied and that no expenses incurred on behalf of the said treatment plans would be paid.
35I have reviewed all the correspondence from the respondent to the applicant relating to the benefits claimed. As a starting point, I do note that the respondent’s Statement of Benefits dated March 17, 2015 would appear to suggest that the respondent was applying the $50,000 policy limit to the applicant’s claim. The Statement listed the total amount paid since the accident and since the last statement and the amount remaining in the policy, based on the $50,000 limit.
36However, as the respondent has also pointed out, in each of the letters denying the applicant’s benefits, the respondent did provide a list of explanations, including that the applicant has not provided compelling evidence to show that his injuries do not fall within the MIG. I also agree with the respondent that even if the applicant were to have understood that he was entitled to up to $50,000.00 in medical benefits, such an entitlement is not automatic. Each of the treatment plans must be proven to be reasonable and necessary.
37My review of the Explanation of Benefits letters confirms that these letters have provided the reasons for the denial of the benefits, including the issue of MIG. Even if the applicant were to believe in March 2015 that he was entitled to up to $50,000.00 in benefits, that belief should have been reasonably dispelled by the time he received the first Explanation of benefits dated May 26, 2015.
Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
38As noted above, the respondent’s main reason for denying the benefits claimed by the applicant is based on its assessment that the applicant’s injuries fall within the MIG. I will therefore begin my analysis of the applicant’s injuries and whether they fall under the MIG.
39The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3, collectively referred as “soft tissue injuries” in this decision. S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
40S. 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, there needs to be compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
41In Scarlett v Belair Insurance, 2015 ONSC 3635, the Court held that the applicant has the burden of showing that the injuries are not minor injuries as defined by the Schedule, commonly known as “soft tissue injuries”.
42In this case, the applicant did not argue that he has injuries that are not “soft tissue” in nature. Rather, the applicant submitted that his injuries do not fall under MIG because of his pre-existing injuries.
43Specifically the applicant submitted that he is outside of the MIG because of pre-existing back pain which predates the accident and has been aggravated by the accident. The applicant also submitted that he has moderate degenerative disc changes and lumbar scoliosis to the left, as indicated by an x-ray result of May 2010. The applicant submitted that he continues to have residual impairments and restricted range of motion as a result of the accident.
44I find the applicant has failed, on a balance of probabilities, to provide compelling evidence that he suffers from a pre-existing condition which would prevent him from achieving maximal recovery if benefits are limited to the MIG cap.
45The applicant was involved in another motor vehicle accident back in 2003, about 12 years before the accident in question. But other than an x-ray report of May 19, 2010, there is no evidence before me that confirms the applicant has a pre-existing condition. On the contrary, there is evidence before me, including some of the reports that pre-dated the accident which suggest the applicant was generally in good health.
46Does the May 19, 2010 report qualify as compelling evidence to prove that the applicant has pre-existing condition that would take his injuries out of MIG? I do not find so. First of all, the x-report dated May 19, 2010 suggested the applicant only has mild degenerative issue with his lumbar spine.
47Further, as noted in Dr. Taromi’s report, the applicant “received therapy for back and neck pain and the pain resolved with no residual symptoms.” Similar comment was also noted in Dr. Ratti’s report as well as that of Dr. Gestsos.
48The applicant was also seen by Dr. Luke Bui, an orthopaedic surgeon with Mackenzie Richmond Hill Hospital, who assessed him on January 23, 2017. Dr. Bui found the applicant to have residual impairments from the accident at issue. However, he did not opine as to the applicant’s pre-existing condition or how it may have impacted the applicant’s recovery.
49I also reviewed the clinical notes and records provided by Dr. Nguyen2, the applicant’s family physician. The only relevant medical document regarding pre-existing condition was the May 19, 2010 x-ray report as referred above, showing “moderate chronic degenerative disc change at the L4-5 level with disc space narrowing and marginal lipping”.
50As the applicant has not provided compelling evidence regarding any pre-existing condition that would impact on his recovery, I find that the applicant’s injuries fall within MIG and he is therefore subject to the $3,500.00 limit.
51As such, the applicant is not entitled to receive the various medical and other rehabilitative benefits claimed in this application, all of which had been denied because the applicant’s injuries fall within the MIG.
Is the applicant entitled to interest on the overdue payment of benefits?
52As I find that the applicant is not entitled to the benefits claimed, no interest is payable.
ORDER
53The respondent shall pay costs to the applicant of $300.
54The applicant’s claims are dismissed.
Released: January 26, 2018
___________________________
Avvy Go, Adjudicator
Footnotes
- O. Reg. 34/10.
- The clinical notes and record contain references to different names of the physician including Dr. Van Hanh Nguyen, a Dr. V. Nguyen and a Dr. T. Nguyen. The applicant did not refer to his family physician by his full name in his submissions, and the respondent referred to the physician only as Dr. Nguyen. For the purpose of the decision, I will refer to the applicant’s family physician as Dr. Nguyen.