J.D. v. Aviva General Insurance, 2018 CanLII 83508

Licence Appeal Tribunal

Date: 2018-02-06 Tribunal File Number: 17-002713/AABS Case Name: 17-002713 v Aviva General Insurance

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:

J.D. Applicant

and

Aviva General Insurance Respondent

DECISION

Adjudicator: Anita Goela

APPEARANCES: Paralegal for the Applicant: Michael Wentzel Counsel for the Respondent: Monica Pathak

Heard in Writing: October 23, 2017

OVERVIEW

1The applicant was injured in a motor vehicle accident on July 20, 2015. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule"). The respondent denied the applicant's claim for various benefits on the basis that the benefits were not reasonable and necessary.

2The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the "Tribunal") for resolution. A case conference was held on July 13, 2017 but the parties were unable to resolve the issues in dispute.

ISSUES

3The Case Conference Order dated July 24, 2017 listed eight issues in dispute. The Tribunal received correspondence from the parties that only two issues remain to be determined, as follows:

a. Is the applicant entitled to receive the cost of examination for an orthopedic assessment recommended by All Health Medical Centre, completed by Dr. Ogilvie-Harris in a treatment plan in the amount of $2,460.00, submitted March 24, 2016 and denied by the respondent on April 7, 2016?

b. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to the cost of examination in the amount of $2,000.00, exclusive of HST, and the cost of the preparation of the treatment plan in the amount of $200.00. Because I find that the benefits are payable, interest is also owing.

ANALYSIS

Proper denial pursuant to s. 38

5Section 38(8) of the Schedule provides that "the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary". Section 38(11) provides that "if the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, […] the insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)."

6The applicant submits that the respondent did not provide a proper denial as required in section 38 of the Schedule and therefore, the assessment should be funded pursuant to s. 38(11).

7The denial letter states "As per our physiatrist report, on behalf of Dr. Aborz Oshidari, after completion of first treatment plan previously approved, and if the pain persists further physical intervention cannot affect the recovery of the shoulder, he may find cortisone injections to be more beneficial.²"

8I agree with the applicant that a medical reason is absent why an orthopedic examination is not reasonable or necessary. The respondent indicates that Dr. Oshidari recommends cortisone injections, which is essentially a suggestion for alternative treatment. The reason provided in the letter does not address the reasonableness or necessity of the proposed orthopedic assessment.

9The respondent did not provide any submissions with respect to compliance with section 38 of the Schedule.

10I find that the respondent did not properly deny the orthopedic assessment. In accordance with s. 38(11), the respondent must pay for the cost of examination.

Orthopedic assessment is reasonable and necessary

11Even if I did not find that the respondent failed to provide a medical reason for denying the benefit, I find that the orthopedic assessment is reasonable and necessary. The applicant was a helmeted cyclist travelling through an intersection when a vehicle struck him thrusting him onto the windshield. The applicant was transported to [the hospital] on a spinal board wearing a cervical collar. He was kept in hospital overnight for observation and discharged home the following day with significant injury to his right ankle.

12The applicant submits that given the serious nature of the collision, it is more likely than not that he sustained orthopedic injuries following the collision. He further submits that he demonstrated evidence of an orthopedic impairment based on the ultrasound report of his right shoulder and the discharge summary from [the hospital] that indicates significant injury to his right ankle. The applicant relies on the decision of A.T. and Aviva.³ In that case, the adjudicator determined that a chronic pain assessment was payable because the applicant demonstrated that there was a reasonable possibility that the applicant suffered from chronic pain and that the specific chronic pain assessment was reasonable and necessary.

13On balance, I find that the applicant has demonstrated it is possible that he had an orthopedic impairment following the collision and that it was reasonable and necessary for him to seek out the assistance of an orthopedic specialist to assess his level of injuries and impairments.

14The respondent submits that the assessment "did not add to the body of evidence in this matter or support in any material way", "is vague" and "fails to provide any treatment recommendations whatsoever". I disagree with the respondent's assessment of Dr. Ogilvie-Harris's report. I find that the report provided several clear treatment recommendations at pages 9 and 10 of the report.

Ability to recover more than $2,000 for cost of examination

15The respondent further submits that an applicant is only able to recover a maximum of $2,000.00 for the cost of an examination pursuant to section 25(5) of the Schedule.

16Pages 3 and 4 of the Financial Services Commission of Ontario Superintendent's Guideline No. 03/14⁴ provides that "[…] the $200 maximum fee does not apply to assessments or examinations that are proposed in an OCF-18" and "[…] if the HST is considered by the CRA to be applicable to any of the services or fees listed in this Guideline, then the HST is payable by an insurer in addition to the fees as set out in this Guideline."

17I find that the cost of completing the OCF-18 in the amount of $200.00 and H.S.T. are not subject to the $2,000.00 limit and are owing.

ORDER

18For the reasons above, the applicant is entitled to the cost of examination in the amount of $2,000.00 exclusive of HST and the preparation of the treatment plan in the amount of $200.00. Having found that a benefit is payable, I also find that the applicant is entitled to interest pursuant to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Respondent's Denial Letter of April 7, 2016, at Tab 3, page 36 of Applicant's initial submissions
3. 316-001934 v Aviva Insurance Company of Canada, 2017 CanLII 69464 (ON LAT), http://canlii.ca/t/h8rwh
4. 4Financial Services Commission of Ontario, Superintendent's Guideline No. 03/14 https://www.fsco.gov.on.ca/en/auto/autobulletins/2014/Documents/a-08-14-1.pdf