Tribunal File Number: 18-001128/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:
M.K. Applicant
and
Aviva Insurance Canada Respondent
DECISION
PANEL: Nidhi Punyarthi, Adjudicator
APPEARANCES:
For the Applicant: Ivy So, Paralegal for the Applicant For the Respondent: Kathleen Mertes, Counsel for the Respondent
HEARD In Writing on: November 19, 2018
OVERVIEW
1The applicant was injured in an automobile accident on August 2, 2015. The applicant sought benefits under the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”) from the respondent. The respondent denied the applicant’s claim for benefits, and the applicant filed an application for dispute resolution with the Licence Appeal Tribunal (“Tribunal”).
2The application ultimately proceeded to a hearing in writing before me.
ISSUES IN DISPUTE
3I have been asked to determine the following issues at this hearing:
a. Is the applicant entitled to the balance of a cost of examination, in the amount of $877.93 (representing the remainder after the respondent paid $1,322.07 out of a claimed amount of $2,200), for a psychological assessment recommended by Dr. Madhu Bhardwaj in a treatment plan (OCF-18) that was dated June 22, 2016 and denied on September 19, 2016?
b. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to the remaining amounts claimed for Dr. Bhardwaj’s psychological assessment or to any interest claimed on those amounts.
5The reason for this finding is that there is no evidence before me to substantiate the applicant’s entitlement to the remaining amounts claimed for Dr. Bhardwaj’s assessment.
ANALYSIS
6For a cost of examination to be payable under the Schedule, it must be agreed or determined that the cost of the examination is reasonable and necessary.1 The applicant has the burden of proving on a balance of probabilities that the cost as claimed is reasonable and necessary.
7In this case, the respondent agreed that the psychological assessment in question was reasonable and necessary, as it agreed to pay for same. However, the respondent disagreed with the amount that should be paid. In paying the partial amount for the cost of examination, the respondent relied on the opinion of its psychological assessor, Dr. Moshiri, as to the number of hours that should be spent on the tasks of the assessment. The respondent also applied the hourly rate for a psychologist that was provided in the Professional Services Guideline.2
8I find that there are two reasons why the applicant did not satisfy me that he was entitled to the remaining amounts:
a. The treatment plan (OCF-18) at issue is vague and unparticularized.
b. There is no justification as to why the time as claimed was necessary.
9I also note that the applicant attempted to rely on evidence that was not properly served on the respondent for this hearing. I have not given weight to this evidence and have explained this matter in further detail below.
Problems with the Treatment Plan (OCF-18) at issue
10In the OCF-18 at issue, the amount of $2,000 is claimed for the assessment and the amount of $200 is claimed for the preparation of the form. No additional breakdown or detail is provided for these claimed amounts. For example, there is no itemization of the particular services that form part of the assessment, the number of hours for each service, or the hourly rate.
11Adjudicator Neilson was presented with a similar situation in 16-004031/AABS v. State Farm Insurance Company, 2018 CanLII 2312 (ON LAT). Without the hourly rate and fee breakdown, she was unable to conclude that the proposed fees were reasonable and necessary. I adopted this reasoning when I decided 17-007475 v. Aviva General Insurance Company, 2018 CanLII 112117 (ON LAT), and agreed that it is not sufficient to simply claim the allowable amounts for a cost of examination under the Schedule without additional detail or a breakdown.
12Accordingly, for the purposes of determining whether a fee claimed is reasonable and necessary, I should have been presented with persuasive evidence of how the time is being spent, for which task, and at what rate. There was no such evidence properly before me in the record.
No justification for the amount of time claimed
13The respondent’s psychological assessor, Dr. Moshiri, opined that Dr. Bhardwaj should claim a smaller amount for the assessment. He opined that the assessment could be reasonably performed and reported on in a total of 7.5 hours.
14The applicant’s representative submitted that it is unreasonable to impose Dr. Moshiri’s standards for the length of an assessment on the time spent by Dr. Bhardwaj for his assessment.
15However, without properly filed evidence to support the full number of hours claimed for Dr. Bhardwaj, I am unable to evaluate the applicant’s claim that it was reasonable for Dr. Bhardwaj to spend this amount of time on the psychological assessment.
Improperly filed evidence
16The applicant referred to, for the first time in submissions, an e-mail from Dr. Bhardwaj containing an estimated breakdown of the time spent on the psychological assessment. This e-mail was not disclosed to the respondent prior to the submissions.
17It was improper for the applicant to rely on evidence in this manner. The Order scheduling this hearing required all documents for the hearing to be exchanged by September 20, 2018. The applicant submitted this document for the first time in submissions for the written hearing, and the respondent was surprised by this.
18The respondent did not ask for Dr. Bhardwaj’s e-mail to be struck from the evidentiary record. Had that request been made, I would have allowed it. A hearing “by ambush” is not consistent with the objectives of the Tribunal to ensure a fair and efficient process. Parties have a right to adequate notice and to the opportunity to fully and fairly respond to the case against them.
19For these reasons, I do not give weight to the e-mail from Dr. Bhardwaj. Even if I were to consider this document, it states that Dr. Bhardwaj is only able to provide a “guess” as to what the number of hours would be spent on. I do not find this persuasive in comparison to Dr. Moshiri’s explanation of how the assessment and reporting could have been completed in 7.5 hours.
CONCLUSION
20For the above-noted reasons, the applicant is not entitled to the unpaid balance of the cost of examination. As no benefits are overdue, the applicant is also not entitled to interest.
Released: May 14, 2019
Nidhi Punyarthi
Adjudicator