The Applicant v. Aviva Insurance Canada, 2019 CanLII 101842

Citation: The Applicant vs. Aviva Insurance Canada, 2019 ONLAT 18-001329/AABS

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:

[The Applicant]

Appellant(s)

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

Appearances:

For the Appellant:

[The Applicant], Applicant

Josh Nisker, Counsel

For the Respondent:

Shannon Fajit, Adjuster

Thomas Hughes, Counsel

Court Reporter:

Rose Uriega

Heard: In-Person:Hearing:

December 3, 4 & 5, 2018

OVERVIEW

1The applicant was injured in an automobile accident on September 24, 2017, and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain costs of examinations. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The following issues are in dispute:

i. Is the applicant entitled to payment for the costs of examination in the amount of $2,200.00 for a physiatry assessment by Dr. Unarket, submitted on January 25, 2018, and denied on April 11, 2018?

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

iii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3I find the applicant is entitled to the costs of examination, interest and an award under Regulation 664.

BACKGROUND

4The applicant was involved in a car accident, where her vehicle was t-boned. She was diagnosed with a concussion several days after the accident and told to follow up with her General Practitioner.

5The applicant experienced significant cognitive issues as a result of the accident. She paid for optional benefits under her insurance policy. As a result, she was not subject to the financial restrictions of s. 18(3)(a) of the Schedule, which limits applicants to medical, rehabilitation and attendant care benefits to not exceed $65,000.00. Instead, she was subject to the limits of s. 28(1)4 of the Schedule, which limits applicants to medical, rehabilitation and attendance care benefits up to a maximum amount of $1,000,000.00.

6The main issue in dispute is whether the applicant’s physiatry assessment is reasonable and necessary. The other issues are that of interest and an award.

ANALYSIS

ISSUE 1: IS THE COST OF EXAMINATION REASONABLE AND NECESSARY?

7Entitlement to payment for the cost of examinations is governed by section 25(1)3 of the Schedule. This section establishes that an insurer shall pay for reasonable fees charged by a health care practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose.

Physiatry

8The applicant argues that she is entitled to the cost of examination for a physiatry assessment with Dr. Unarket. She argues that the treatment has been incurred and is reasonable and necessary.

9The respondent disputes this, stating that this treatment is not reasonable and necessary. It bases its position on a review of the applicant’s medical records and its own expert witness, Dr. Tepperman. It argues that the physiatry services and recommendations provided by Dr. Unarket are nearly identically to those provided by the applicant’s Case Manager, Rachel Greenwood.

10I find that the applicant has demonstrated that the cost of examination for a physiatry examination is reasonable and necessary for the following reasons:

i. During her testimony, the applicant herself was able to describe in depth the personal, subjective benefits she received from her examination and continued treatment with Dr. Unarket. I found her to be a very credible witness. Her testimony was corroborated by the remaining evidence presented by Dr. Unarket.

She told the Tribunal that Dr. Unarket was overseeing her medical treatment, making medical recommendations in terms of her treatment, performed medical examinations, and coordinated her medical services. One example of this was when she was experiencing a flair up of her cognitive issues, Dr. Unarket was able to coordinate with the ER in terms of the applicant’s treatment. In her own words, he “directs the ship”.

The applicant was able to differentiate this treatment from the evaluations and services she received from Rachel Greenwood, her Case Manager. The Case Manager assisted the applicant by actively participating in the applicant’s on-going recovery. She attends physician meetings and appointments with the applicant, helps coordinate her day-to-day medical and paramedical treatment and daily needs. The applicant stated that if Dr. Unarket “directs the ship”, Rachel Greenwood is “the hub” in terms of her on-going treatment.

ii. Dr. Unarquet himself was able to provide reasons why his assessment was reasonable and necessary in terms of the applicant’s injuries. He testified that that he felt a comprehensive of the applicant and her condition at the time would help not only with her further treatment but also assist in determining her long-term goals. This was compounded by her significant medical history, including a previous motor vehicle accident involving a concussion, osteoarthritic issues in her knee, and diabetes.

Dr. Unarquet was able to explain that his examination consisted of taking the applicant’s medical history, followed by a physical exam, file review and the writing of the report. He stated that writing the report was labour intensive but providing a quality written report would ensure that the applicant’s continued treatment and follow-up would also be of a high quality, ensuring she would have her diagnosis properly managed going forward.

Dr. Unarquet’s report detailed the many medical reports and clinical medical records he reviewed to prepare the applicant’s report. He also performed physical testing on the applicant, such as measuring her active range of motion via a Cervical Range of Motion (“CROM”) goniometer, bilateral shoulder depression tests and cervical spine distraction tests.

Dr. Unarquet wanted his report to focus on addressing the multitude of symptoms the applicant was living with and functional impairments she was suffering from. These included pain in her right arm and spine, reduced reflexes, balance issues, headaches, extension restrictions and a mild traumatic brain injury.

iii. Rachel Greenwood, the applicant’s Case Manager, was the professional who recommended the applicant visit Dr. Unarquet for an assessment. She stated that her role as a Case Manager was often assisting people who were suffering injuries from motor vehicle accidents. She facilitated rehabilitation via referrals, helped her clients understand the Schedule, and to communicate and coordinate with clients and their service providers to ensure goals are met.

As a Case Manager, she is not a doctor, and cannot make a medical diagnosis. However, she can make referrals to non-medical specialists and facilitate referrals to medical specialists. She also provides medical documents to medical and non-medical specialists treating her clients in order to facilitate communication and coordination.

Ms. Greenwood described the Case Management Assessment as a way to determine the current status of her client, the physical and emotional impact of the injuries, and ultimately a subjective assessment; in the report, the applicant described her car accident, her ER treatment, her follow-up medical treatment, her functional status in terms of emotions, cognition, sensory issues, sleep, speech, attendant care, activities of daily living and transportation. No medical tests were performed for her report.

Ms. Greenwood was specifically asked why she referred the applicant to Dr. Unarquet. Ms. Greenwood stated that the applicant was referred because of Dr. Unarquet’s specialization with brain injuries and concussions. Ms. Greenwood felt that the applicant required medical supervision and management.

A large part of Ms. Greenwood’s work was following-up with the applicant, who had on-going memory and comprehension issues. The applicant required reminders and accompaniment to her referral and rehabilitation appointments.

11The respondent took issue with Dr. Unarquet’s recommendations being similar in nature to those of Ms. Greenwood. It also brought the Tribunal’s attention to the fact that the applicant had not followed-up on all of Dr. Unarquet’s recommendations in his report.

12I find that based on the evidence mentioned above, there are significant differences between the Dr. Unarquet’s Physiatry Assessment and Ms. Greenwood’s Case Management Initial Assessment Report. While there may be some overlap in terms of recommendations, the basis of said evaluations are based on different factors, and both bring unique considerations and insight in terms of the applicant’s on-going treatment.

13As far as the applicant’s inability to follow up on all of Dr. Unarquet’s recommendations, I find that after suffering a traumatic brain injury, this does not speak to the reasonableness or necessity of a treatment plan.

14Finally, the respondent argued that typically physiatry services are provided through the Ontario Health Insurance Plan (OHIP). However, Dr. Unarquet was able to describe some of the issues he faced by the time and cost restrictions placed on OHIP funded physiatry reports. Ms. Greenwood also added in her testimony and via an email she provided that the applicant had been waiting for treatment for her brain injury at the Complex Injury Outpatient Rehab. She had been put on the waitlist in January of 2018 and had not been seen at the time of this hearing in December of 2018. Both Dr. Unarquet and Ms. Greenwood stressed the importance of addressing traumatic brain injuries as early as possible to ensure a full recovery.

15For the reasons explained above, I find that the applicant’s cost of examination for a physiatry assessment with Dr. Unarket are reasonable and necessary.

ISSUE 2: Is the applicant entitled to interest on any overdue payment of benefits?

16The applicant is entitled to interest on any overdue payment of benefits for the physiatry assessment in accordance with the Schedule.

ISSUE 3: Did the respondent unreasonably withhold or delay payment?

17The applicant claims entitlement to an award pursuant to s. 10 of Regulation 664. The applicant submits the respondent arbitrarily denied the disputed cost of examination and withheld payment as a result.

18Pursuant to s. 10 of Regulation 664, an award may be granted when the Tribunal finds that the respondent has unreasonably withheld or delayed payment of a benefit.

19I find the respondent unreasonably withheld paying the benefits for the physiatry assessment. The insurance adjuster on the applicant’s file, Shannon Fajit, testified in-person during the hearing. She admitted there were mistakes made in the adjustment of the applicant’s file, specifically related to her request for Case Management Services. This was rectified after the applicant’s application to the Tribunal.

20Ms. Fajit’s colleague, Fahd Satar, had requested the applicant attend an Insurance Examination (“IE”). However, all log notes related to this are redacted. Ms. Fajit was unable to explain the redaction but stated normally the log note would state where and why the IE was set up.

21Ms. Fajit was also questioned as to why she chose to send the applicant to an IE with Dr. Tepperman, a General Practitioner, and not someone who specialized in brain injuries or rehabilitation. Though Dr. Tepperman’s background was in occupational health, I do not find that area of expertise to be related to the treatment at hand.

22Ms. Fajit stated that Altum Health general picks the specialist who evaluates clients. Dr. Tepperman’s IE found that the cost of examination with Dr. Unarquet was not reasonable and necessary.

23In terms of the applicant’s cost of examination, Ms. Fajit stated she did not remember reading Dr. Unarquet’s report, know anything about the speciality of physiatry, or why it was recommended.

24Though it appears Ms. Fajit was acting in good faith, I find that there were several errors and issues with the respondent’s handling of the applicant’s file. These errors led to payment of her benefit being unreasonably withheld and delayed.

25A special award claim should be awarded in accordance with the principles set out in Persofsky v. Liberty Mutual Insurance¹ and then adopted in 17-006757 v Aviva Insurance Canada.² This case outlines several criteria when considering the quantum of an award:

i. the blameworthiness of the insurer's conduct;

ii. the vulnerability of the insured person;

iii. the harm or potential harm directed at the insured person;

iv. the need for deterrence;

v. the advantage wrongfully gained by the insurer from the misconduct;

vi. any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and

vii. the overall length of the delay.

26In this case, the applicant did not deal with a delay per say, but rather, the respondent unreasonably withholding her benefits. With respect to this, the application for accident benefits was provided to the respondent on February 15, 2018, with the cost of examination submitted on January 25, 2018. The payment for the examination has not been made.

27I have considered:

i. The blameworthiness of the insurer’s conduct. As mentioned above, the evidence suggests that there was no bad faith on the part of the respondent, but rather, many mistakes.

Notwithstanding that there was no direct evidence of a conscious decision for the respondent to act in bad faith by withholding or delaying benefits, there was evidence that the respondent did not respond with reasonable reasons as to its decisions.

Examples of this would be the decision for the respondent to deny the Case Management Services, to request an IE with a General Practitioner which could not be explained in the log notes and the adjuster not making herself aware of Dr. Unarquet’s background.

ii. The vulnerability of the applicant, a woman who, despite having optional benefits, was denied treatment for her brain injury. Given the applicant’s age and injuries sustained, she is a very vulnerable applicant.

iii. The harm or potential harm directed at the applicant, a woman who, subject to the respondent’s denial, would not receive the treatment she required in a timely manner.

iv. The advantage wrongfully gained by the insurer for the misconduct. In this matter, the only advantage that could be found would be the withholding of money. The amount of the benefits that the respondent unreasonably withheld from the applicant; In this case, the amount withheld was $2,200.00.

v. The length of time that payment of those benefits had been withheld; The applicant. The applicant’s benefits were denied on April 11, 2018. The hearing was held on December 3, 5 and 5, 2018.

28After considering these factors, and the applicant’s request for a 50% quantum, while the respondent requested a quantum of 0%, I find that the appropriate quantum of the award is 25% of the amount to which the applicant is entitled, namely $550.00 (being 25% of $2,200.00, which is the amount of the cost of examination), in accordance with Regulation 664.

29I would have allowed the maximum amount of 50% except that the respondent did settle nearly all of the substantive issues in dispute at or prior to the case conference, ensuring that the applicant had access to most of the treatment requested prior to her application to the Tribunal. Thus, I have considered this as a mitigating factor in this case.

CONCLUSION

30The applicant is entitled to the costs of the physiatry assessment in the amount of $2,220.00 because they are reasonable and necessary.

31The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

32The applicant is entitled to an award in the amount of $550.00 because her payment was unreasonably withheld or delayed.

Footnotes

1. 1FSCO P00-0041, January 31, 2003.
2. 22018 CanLII 81949 (ON LAT)