Tribunals Ontario

Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario

Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél.: 1-844-242-0608 Téléc.: 416-327-6379 Site Web: www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Susan Mather, Vice-Chair

Date: August 2, 2019

File: 17-006781/AABS

Case Name: D.M. v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Elvis Viskovic, Paralegal

For the Respondent: Thomas R. Hughes, Counsel

OVERVIEW

1The applicant was injured in an automobile accident on August 24, 2014 and sought benefits pursuant to the Statutory Accidents Benefits Schedule – Effective September 1, 2010 (the "Schedule").

2At a hearing held in writing on April 19, 2018, the Tribunal considered whether the applicant was entitled to the costs of two assessments proposed by Advance Health Care Management in treatment and assessment plans ("treatment plans") dated December 9, 2014.

3The Tribunal found that the applicant was not entitled to dispute the Activities of Daily Living ("ADL") assessment because the application was filed with the Tribunal more than two years after the day that the respondent ("Aviva") denied the benefit claim.¹

4The Tribunal found that the applicant was entitled to the cost of the orthopaedic assessment plus interest because Aviva did not provide a clear and unequivocal denial of the treatment plan.

5Aviva requests a reconsideration of the decision. Aviva argues that the Tribunal made significant errors of fact and law such that the Tribunal would likely have reached a different conclusion had the errors not been made.

6Aviva also argues that the Tribunal violated the rules of natural justice and procedural fairness because it did not give Aviva an opportunity to make submissions on the issue of whether the request for an orthopaedic insurer's examination ("IE") was made not more often than reasonably necessary.

7These grounds are criteria set out in Rules 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 2016) (the "LAT Rules") which are the Rules applicable to this reconsideration.

8Aviva asks me to vary the order and dismiss the application for the cost of the orthopaedic benefit.

9The applicant opposes this request for reconsideration and asks me to dismiss the request.

10Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009², I have been delegated responsibility to decide this matter in accordance with the applicable LAT Rules.

RESULT

11For the reasons provided below, I grant Aviva's request for reconsideration. The decision is varied to provide that the applicant is not entitled to the cost of the orthopaedic assessment proposed in the treatment plan dated December 9, 2014.

GROUNDS FOR REQUEST FOR RECONSIDERATION

12Aviva argues the Tribunal erred by making:

a. a significant error of law in finding s. 38(8) required a clear and unequivocal denial;

b. a significant error of fact that the Respondent's correspondence of December 17, 2014 did not meet the requirements of s. 38(8);

c. a significant error of fact in finding that the Respondent's request for an assessment on December 24, 2014 was after the applicant attended an assessment on December 21, 2015;

d. a significant error of law in finding that the request for an assessment dated December 24, 2014 was not in compliance with s. 44(1);

e. a decision on the issue of s. 44(1) without giving the Respondent an opportunity to address the issue, thereby violating the rules of natural justice or procedural fairness.

BACKGROUND

13The applicant applied for funding for several treatment and assessment plans in December 2014 including the two treatment plans in dispute. The respondent removed the applicant from the Minor Injury Guideline ("Guideline") around this time, approved some of the plans but denied those in dispute.³ The applicant filed an application with the Tribunal on October 10, 2018 to have the dispute over two treatment plans resolved.

14At the hearing, the applicant claimed to have never received denials for the disputed assessments and sought payment of both plans on the basis of Aviva failing to deny the plans.

15Aviva argued that the claims for both treatment plans were statute barred because the applicant did not commence his application with the Tribunal within two years after the insurer's refusal to pay the amount claimed.⁴

16Aviva also argued that the applicant was barred from bringing an application to the Tribunal with respect to the orthopaedic assessment plan because the applicant did not attend an orthopaedic IE with respect to the treatment plan.

17The Tribunal determined that Aviva had sent denial letters to the applicant for both treatment plans on December 17, 2014.⁵ The applicant disputes this finding in his reconsideration submissions. He has not requested a review of the Tribunal's decision.

18The December 17, 2014 denial letter stated that the benefits were denied "at this time" and required the applicant to attend an orthopaedic IE pursuant to s. 44(1) of the Schedule.

19The Tribunal found that the ADL assessment was clearly and unequivocally denied in a June 24, 2015 letter. It also found that the applicant was barred from proceeding with the hearing on the ADL treatment plan because his application to the Tribunal was filed more than two years after the day that Aviva denied the treatment plan.⁶

20The Tribunal found that the applicant was entitled to payment for the orthopaedic assessment proposed in the December 9, 2014 treatment plan because Aviva did not provide a clear and unequivocal denial of the orthopaedic assessment.

21The Tribunal rejected the December 17, 2014 denial letter finding that the statement that the respondent does not agree to fund the plan "at this time" was not a clear and unequivocal denial. It also rejected an April 10, 2015 denial because the treatment plans denied were referenced by Health Claims for Auto Insurance number only, making it too difficult for the applicant to determine what treatment plan(s) were in dispute.

22The Tribunal agreed with applicant that the treatment plan was never properly denied and found that the applicant was entitled to the costs of the orthopaedic assessment on the basis of s. 38(11)2 of the Schedule.

23Aviva disagrees with this finding, arguing that the Tribunal did not consider the fact that the applicant had received notice that he was required to attend at an IE for the treatment plan and had failed to attend at an IE.

24The Tribunal also considered the argument of Aviva that the applicant was barred from filing an application for dispute resolution for this benefit because the applicant did not comply with s. 44(1) of the Schedule by attending for an orthopaedic IE.⁷

25The Tribunal found that the applicant was compliant with s. 44(1) because he attended an orthopaedic IE on December 21, 2015. The Tribunal found that it was unreasonable to subject the applicant to another in-person assessment so soon after the first assessment simply because the respondent failed to address the treatment plan in dispute during the previous assessment.

ERRORS OF LAW AND FACT

26For the reasons provided below, I find that the Tribunal made the following significant errors of law and fact and such that the Tribunal would likely have reached a different decision had the errors not been made.

1. The Tribunal made a significant error of law in finding section 38(8) required a "clear and unequivocal" denial.

27The Tribunal found that the applicant was entitled to the costs of the orthopaedic assessment because Aviva did not provide a clear and unequivocal denial of the orthopaedic assessment.

28The Schedule sets out the requirements for a denial of a treatment plan in s. 38(8). The phrase "clear and unequivocal" is not found in the section.

29I agree with Aviva that the fact that the Schedule provides that the notice under section 38(8) may include a notice that the insured person is required to undergo an examination under section 44 confirms that notices under section 38(8) do not have to be clear and unequivocal.

30The applicant argues that the requirement for a clear and unequivocal denial has been established by case law. The case of 16-003510 v. Intact Insurance Company is relied on by the applicant to support its argument. This case does not find that a section 38(8) notice must include a clear and unequivocal denial.⁸

31The issue in this case was whether the applicant was barred from bringing an application to the Tribunal by s. 56 of the Schedule. The Tribunal found that before an insured may be barred from bringing an application to the Tribunal under s. 56, the insurer must provide a clear and unequivocal denial. The Tribunal did not find that if a notice under section 38(8) does not provide an unequivocal denial, the benefit becomes payable under s. 38(11)2.

32I find that the Tribunal made a significant error of law in concluding that s. 38(8) required a "clear and unequivocal" denial of the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer does not agree to pay for.

2. The Tribunal made a significant error of fact that the respondent's correspondence of December 17, 2014 did not meet the requirements of Section 38(8).

33The Schedule⁹ requires an insurer to pay for all goods and services, assessment and examinations described in a treatment 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 required by section 38(8) of the Schedule. The applicant relied on s. 38(11)2 of the Schedule as the basis for payment of both treatment plans. His argument however based upon his contention that he never received the December 17, 2014 letter from Aviva.

34The only reason provided by the Tribunal for finding the treatment plan was payable under s. 38(11)2 was that the applicant did not receive a clear and unequivocal denial of the treatment plan.

35While the Tribunal determined that the applicant received the December 17, 2014 letter from Aviva, it did not analyze the December 17, 2014 letter to determine if it met the requirements of section 38(8).

36I agree with Aviva that the December 17, 2014 letter was compliant with section 38(8) at the time it was issued and that section 38(11)2 was not triggered in December 2014.

37I am satisfied that the December 17, 2014 letter met the requirements of s. 38(8).¹⁰ The December 17, 2014 letter sets out the treatment plans Aviva was not prepared to pay for and provides the reasons for its refusal to pay. The letter lists the medical reasons as there was no compelling evidence to indicate that the assessments requested were reasonable. The letter also provided the reason that the applicant had returned to work since the accident. The letter notified the applicant that he was required to attend an IE to determine if the treatment plan was reasonable and necessary.

38The Tribunal failed to recognize that the December 17, 2014 notice required the applicant to attend at an IE pursuant to s. 44 of the Schedule.

39On reconsideration, the applicant argues that he never received a clear and unequivocal denial of the treatment plan. He does not address the issue of whether the December 17, 2014 letter complies with s. 38(8).

40I find that the Tribunal made a significant error of fact in finding that the respondent's correspondence of December 17, 2014 did not meet the requirements of Section 38(8).

41For the reasons provided above, I am not satisfied that the benefit became payable by virtue of s. 38(11)2.

3. The Tribunal made a significant error of fact in finding that Aviva's request for an assessment on December 24, 2014 was made after the applicant attended an assessment on December 21, 2015.

42Aviva asked the Tribunal to bar the applicant's application because the applicant failed to attend an orthopaedic assessment for the treatment plan.¹¹

43The applicant disagreed and submitted that he attended a s. 44 IE on December 21, 2015.

[43a] The applicant was found to be compliant with s. 44 because the respondent's request for an assessment was made more often than reasonably necessary.

44The Tribunal found that following the submission of the December 9, 2015¹² treatment plan, the respondent had the opportunity to assess the applicant from an orthopaedic perspective on December 21, 2015 and failed to have the assessor address entitlement to the disputed orthopaedic IE.

45In reaching its conclusion that the respondent's request for a s. 44 assessment was made more often than reasonably necessary, the Tribunal did not consider that the assessment the applicant attended was more than a year after the first request for an orthopaedic IE was made on December 24, 2014.

46It also did not consider that the applicant failed on three occasions to attend orthopaedic IEs arranged for the treatment plan prior to his attendance on December 21, 2015.

47While Aviva could have asked that the December 21, 2015 IE assessor address the December 9, 2014 treatment plan, I do not find Aviva was under any obligation to make a further request for an IE on the December 9, 2014 treatment plan.

48In his reply submissions, the applicant submits that he cannot be considered non-compliant because there was no proper notice of examination. The submissions, however, do indicate why the notices for an orthopaedic examination for an orthopaedic treatment plan were improper.

49I find that the Tribunal made a significant error of fact in finding that Aviva's request for an assessment on December 24, 2014 was made after the applicant attended an assessment on December 21, 2015.

Violations of the Rules of Natural Justice and Procedural Fairness

50Subsection 44(1) of the Schedule limits the number of IEs an insurer can request to "not more often than reasonably necessary". The Tribunal found that the applicant was not barred by s. 55(1)2 of the Schedule from bringing his application to the Tribunal because Aviva requested an orthopaedic IE more often than reasonably necessary.

51Aviva argues that the Tribunal based its decision on the limitation in s. 44(1) without giving it the opportunity to address the issue. Aviva points out that this issue was never raised by the applicant in his submissions for the hearing.

52I am satisfied the Tribunal violated the rules of natural justice and procedural fairness in making its decision as to whether s. 55(1)2 barred the application without providing Aviva the opportunity to address the application of s. 44(1).

53As Aviva points out in its submissions, if the Tribunal had asked for submissions on the applicability of the limitation imposed on the number of IEs that can be requested, the factual error made by the Tribunal with respect to the timing of the application and requests for the orthopaedic IEs would have been identified.

54Because of the denial of natural justice and procedural fairness, the decision must be reconsidered.

Outcome

55Being satisfied that the Tribunal made significant errors of law and fact and violated the rules of natural justice and procedural fairness, I grant Aviva's request for reconsideration. I see no merit in ordering a rehearing before a different adjudicator. The application was heard in writing and I have reviewed the evidence and written submissions of the parties made at the hearing.

56For the reasons provided below, I vary the decision issued October 10, 2018 and dismiss the application for the cost of the orthopaedic assessment dated December 9, 2014.

Is the applicant barred by s. 55(1)2. from bringing his application to the Tribunal?

57Aviva argues that because the applicant did not attend any of the IEs scheduled by Aviva to determine if the orthopaedic assessment was reasonable and necessary, the applicant is barred from bringing his application to the Tribunal to have his dispute over the cost of the orthopaedic assessment determined.

58For the reasons provided above, I am satisfied that the applicant did not comply with section 44 when he failed to attend the orthopaedic IEs arranged to determine if the orthopaedic assessment was reasonable and necessary.

59However, I am exercising my discretion and allowing the applicant's application to proceed.¹³ I do not see any prejudice to Aviva in allowing the application to be heard on the merits. The reason for this is because the applicant attended two orthopaedic IEs prior to the commencement of his application.¹⁴

Is the treatment plan for the orthopaedic assessment reasonable and necessary?

60Aviva argues that the application should be dismissed on that basis that the orthopaedic assessment is not reasonable and necessary.

61The Schedule requires an insurer to pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

62An expense is not incurred by an insured person unless the insured person has received the goods or services to which the expense relates; has paid the expense or promises to pay the expense; or is otherwise legally obligated to pay the expense.¹⁵

63The applicant must prove on the balance of probabilities that the expense for the orthopaedic assessment he seeks to recover was reasonable and necessary and incurred by him.

64The applicant did not address the issue of whether the treatment plan was reasonable and necessary in his submissions for the written hearing. He submitted a copy of the treatment plan, the assessment report of Dr. Efala, an orthopaedic and spinal surgery consultant, and the invoice for the report to support his claim that the cost of the assessment was incurred.¹⁶

65The "reasonable and necessary" issue was clearly raised by Aviva in its responding submissions for the written hearing and not addressed by the applicant in his reply submissions for the written hearing.

66Aviva raised the issue again in its reconsideration submissions. Aviva also argues that the applicant has not shown that he incurred the expense for the orthopaedic assessment of Dr. Efala¹⁷ or that the expense was properly invoiced.¹⁸

67In response to Aviva's reconsideration submissions, the applicant argues that because Aviva conducted its own orthopaedic IEs in January and November 2016 and an insured need only attend IEs that are reasonable and necessary, it follows that the orthopaedic examination was reasonable for this claim.¹⁹ The applicant did not address Aviva's argument with respect to the reasonableness of the invoice.

68I find no logic in the applicant's argument. The Schedule sets out a scheme to allow insureds injured in automobile accidents to access medical and rehabilitation benefits. Insurers have the right to request an IE for a proposed treatment plan to examine an insured to determine if the insured is entitled to a benefit. The Schedule allows an insured to require an insured person to be examined "not more often that is reasonably necessary". If the applicant's argument were accepted, all treatment plans for which an insurer requires an IE would be reasonable and necessary.

69For the reasons that follow, I find that the applicant has not proven on the balance of probabilities that the treatment plan for the orthopaedic assessment was reasonable and necessary.

70The applicant does not dispute Aviva's claim that he returned to work three days after the accident. He also does not dispute that he refused his family doctor's offer of a referral for an orthopaedic consult.

71The applicant argues that his refusal to accept an orthopaedic referral from his family doctor is irrelevant because the offer of the referral was made several months after the orthopaedic assessment was done. I do not agree. The Automobile Insurance Standard Invoice requires an insurer to identify if the services were available through the Ontario Health Insurance Plan (OHIP).²⁰ The invoice for the orthopaedic assessment submitted by the applicant indicates that an orthopaedic assessment was not available through OHIP. The fact that the family doctor offered a referral to an orthopaedic surgeon in May 2015 confirms that an assessment was available through OHIP.

72The x-rays of the applicant's lumbar spine and right wrist taken at the hospital following the accident did not show any abnormalities.

73I have reviewed the clinical notes and records of Dr. Franklin, the applicant's family physician.²¹ I find nothing in these records to support a finding on the balance of probabilities that an orthopaedic assessment for injuries arising from the accident was reasonable and necessary. The family doctor did not order any further x-rays or other investigations following the accident. His notation with respect to the referral to the orthopaedic surgeon appears to be with respect to osteoarthritis of the knee and not specifically related to the accident.

74I have reviewed the treatment plan in issue and it appears to be based solely on self-reports of the applicant.²²

75I have also reviewed the orthopaedic assessment of Dr. Efala.²³ Dr. Efala's physical examination revealed that the applicant appeared in no distress with no sign of pain. Dr. Efala made recommendations for x-rays, further assessments and pain control by the applicant's family doctor. There is no evidence that the family doctor received or acted upon Dr. Efala's recommendations.

76The orthopaedic IE assessments of Dr. Weisleder do not support a finding that an orthopaedic assessment was reasonable and necessary.²⁴ Dr. Weisleder found that the applicant had sustained cervical, thoracic, lumbar strain and knee strains in the accident and that he had received appropriate treatment for his injuries.

77Furthermore, I agree with Aviva that the applicant has not proven on the balance of probabilities that the expense claimed for Dr. Efala's orthopaedic assessment was reasonable. The applicant has provided a copy of the invoice for the report.²⁵ The invoice does not indicate the amount of time spent by each service provider and simply claims the maximum amount permitted by the Schedule.

78For the reasons provided above, I grant Aviva's request for reconsideration and Order that:

1. Paragraph 23 of the Tribunal's decision released on October 10, 2018 is varied to provide that the applicant is not entitled to costs of the orthopaedic assessment.

2. The application is dismissed.

Susan Mather Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1RBC was the insurer at the time the applicant applied to his insurer for benefits.
2. 2S.O. 2009, c. 33, Sched. 5.
3. 3D.M. v. Aviva, Tribunal File Number: 17-006781, paragraph 6
4. 4Section 56(1) O. Reg. 34/10
5. 5At the hearing, the applicant claim that he had never received the December 17, 2014 denial letter from Aviva. The Tribunal found that the letters were received on the fifth business day following the day they were mailed.
6. 6The Tribunal found that Aviva's letter to the applicant dated June 4, 2015 clearly and unequivocally denied the benefit for the ADL assessment.
7. 7S. 55. 2 , of the Schedule does not allow an insurer person to commence an application to the Tribunal if the insured person does not comply with a proper notice of an insurer's examination under s. 44
8. 816-003510 v. Intact Insurance Company, 2017 CanLII 76933 (ON LAT)
9. 9s. 38(11)2, O. Reg.34/10
10. 10S. 38(8) required Aviva to provide the medical reasons and all other reasons why Aviva considered the cost of the orthopaedic assessment not to be reasonable and necessary.
11. 11Subsection 55(1) of the Schedule bars an application to the Tribunal if an insurer has provided the person with notice in accordance with the Regulation that it requires an examination under s. 44 but the insured person has not complied with that section.
12. 12The date of the treatment plan was December 9, 2014. The applicant does not dispute the factual error in the decision.
13. 13S. 55(2), O. Reg. 34/10
14. 14Tab 22 and 33, Aviva's Hearing Brief
15. 15Section 3(7)(e), O. Reg. 34/10
16. 16Exhibit H, I, applicant's hearing submissions.
17. 17Exhibit I, applicant's hearing submissions
18. 18Exhibit F, applicant's hearing submissions
19. 19Paragraph N, applicant's reconsideration submissions
20. 20Page 3, Automobile Insurance Standard Invoice (OCF-21)
21. 21Tab 3, Aviva's Arbitration Brief
22. 22Exhibit H, applicant's hearing submissions
23. 23Exhibit I, applicant's hearing submissions
24. 24Tab 22 and Tab 33, Aviva's Arbitration Brief
25. 25Exhibit I, applicant's hearing submissions