J.A. v. Aviva Insurance Canada, 2020 CanLII 12736

Citation: J.A. vs. Aviva Insurance Canada, 2020 ONLAT 18-002124/AABS

Tribunal File Number: 18-002124/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:

J.A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Jesse A. Boyce, Adjudicator

APPEARANCES:

For the Applicant:

Samia M. Alam, Counsel

For the Respondent:

Jessica L. J. Rogers, Counsel

HEARD:

In Writing on: February 4, 2020

OVERVIEW

1J.A. was injured in an automobile accident on February 18, 2005, sustaining physical injuries to his neck, back and legs, as well as chronic pain and psychological impairments. He sought benefits from the respondent, Aviva, pursuant to O. Reg. 403/96, the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “Schedule”).

2Over time, J.A.’s condition purportedly deteriorated. Eventually, his family physician completed an Application for Catastrophic Determination (“OCF-19”), dated May 6, 2015, stating that J.A. has a GAF score of 54-56 post-accident and thus meets the threshold for a catastrophic impairment (“CAT”).¹ Critically, the OCF-19 was not based on or accompanied by any catastrophic assessments or related reports, but rather was based on the undocumented assertion that he was CAT. Not surprisingly, then, Aviva denied the OCF-19 on June 23, 2015, stating that it required s. 44 Insurer’s Examinations (“IEs”) to further investigate J.A.’s claim, as there was “insufficient medical documentation to make a catastrophic claim.”

3Accordingly, J.A. underwent a series of s. 44 IEs with Aviva’s assessors between June and September 2015. Ultimately, a CAT Report dated March 7, 2016 determined that J.A. was not CAT, finding that his whole person impairment was 25-28% with no assigned Class 4 ratings. Based on that report, Aviva denied J.A.’s CAT impairment on March 11, 2016.

4This brings us to the parties’ current dispute. On September 14, 2016, J.A. submitted several OCF-18s to Aviva, requesting funding for CAT rebuttal assessments. Aviva denied the request on September 19, 2016, stating that “there is no coverage for this type of assessment,” presumably due to the 2010 amendments to the Schedule that removed funding for CAT rebuttal reports. J.A. disagreed and applied to the Tribunal for dispute resolution.

5To date, J.A. alleges that he has been unable to secure any CAT reports due to the lack of funding and, without any reports of his own, has been unable to dispute Aviva’s denial of his CAT designation.

ISSUE IN DISPUTE

6The sole issue before the Tribunal is as follows:

i. Is the applicant entitled to the cost of examination for rebuttal catastrophic assessments in the amount of $16,320.00 recommended by Koch & Associates Spine Centre submitted on September 14, 2016 and denied on September 19, 2016?

RESULT

7J.A. is entitled to the partial cost of examination for CAT assessments in the amount of $10,500.00, plus HST, as it is reasonable and necessary.

ANALYSIS

The positions of the parties

8J.A. submits that Aviva’s denial is untenable for three reasons. First, he argues that Aviva is well-aware of the jurisprudence mandating funding as a substantive right. He argues that the accident falls under the pre-2010 version of the Schedule, when CAT assessments were fully paid by the insurer and not capped. Second, J.A. states that the proposed CAT reports are reasonable and necessary given that the CAT IE team found long-standing impairments needing to be properly addressed, and given that funding is no longer available unless he is deemed CAT. Third, he submits that procedural fairness and access to justice mandate funding of the CAT reports so that he can be on equal footing.

9In response, Aviva offers two technical defences. First, it contends that J.A is seeking CAT rebuttal reports, something that the 2010 amendments to the Schedule, which apply to J.A., expressly eliminated. Second, Aviva submits that, even if the 2010 amendments are not applicable, then CAT rebuttal funding is governed by the now-expired deadline in s. 42.1(3)3 of the Schedule and, given J.A.’s non-compliance, that funding is unavailable.

The 2010 amendments

10The threshold dispute between the parties concerns whether the 2010 amendments to the Schedule apply to J.A. and his request for funding or, as J.A. alleges, his right to funding “vested” under the older version of that regulation. This dispute turns on a finding of whether the 2010 amendments are considered retroactive, retrospective or prospective because such a finding will ultimately inform which version of the Schedule applies. The Federal Court in Van Buskirk v. Canada (Attorney General), 2012 FC 1463 provides an oft-cited but informative primer at paragraph 59:

Before proceeding, it is helpful to consider the distinction that Professor Ruth Sullivan draws between legislation of retroactive, retrospective and immediate application. While legislation of retroactive application operates to “change the past legal effect of a past situation” and legislation of retrospective application operates to “change the future legal effect of a past situation”, legislation of immediate application operates to “change the future legal effect of an on-going situation” [Emphasis added] (Professor Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis, 2008) at 669).

11Here, J.A. argues that his right to funding for CAT rebuttal reports “vested” when his accident occurred – that is, that at the time of the accident the Schedule made rebuttal reports available and, therefore, the 2010 amendments do not affect that right. In response, Aviva agrees that the 2010 amendments did not alter J.A.’s right to a rebuttal report prior to September 1, 2010, but maintains that J.A. had no right to a rebuttal report after September 1, 2010, when the amendments took effect. In this sense, Aviva submits that the right to a rebuttal report was always contingent upon one’s need and meeting the criteria outlined in the Schedule at the time of applying, making the 2010 amendments prospective or “immediate,” not retrospective. Likewise, Aviva argues that the application of the 2010 amendments would only change the “future legal effect of an on-going situation.”

12I find the case law on this issue to be somewhat murky but agree that s. 268(1) of the Insurance Act provides that, unless expressly stated otherwise, amendments to the Schedule apply immediately to all existing policies and claims:²

Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. [emphasis mine]

Put another way, the 2010 amendments were prospective and changed the future legal effect of J.A.’s ongoing situation. The Insurance Act clearly contemplates amendments to the Schedule, which, in my view, demonstrates that policies are not fixed but, rather, fluid. While J.A. certainly had a right to statutory accident benefits when he was injured in the accident, the scope of that right, which can be amended by legislation, is tailored by the regulation in effect at the time the claim is made. As a result, I find that J.A. had no “vested” right to a CAT rebuttal report after the September 1, 2010 amendments took effect just because he was injured in an accident before.

Rebuttal reports following the 2010 amendments

13J.A. argues that, despite the 2010 amendments to the Schedule, the right to be assessed for CAT has not been taken away. Here, I agree. J.A. relies on the Court of Appeal decision in McLinden (Litigation guardian of) v. Payne³ for the proposition that an insured can apply for a CAT determination based on a material change “because there is no real finality unless there is a settlement,” and that to disallow a CAT claim without allowing the insured to obtain assessments would deny J.A. the opportunity to fully engage in the dispute resolution process and, potentially worse, access to enhanced benefits that he may very well need. J.A. submits that there is no wording in the current version of the Schedule that states rebuttal reports are no longer payable or that the substantive right to a rebuttal report was removed. Rather, J.A. argues that the legislature’s intent was not to eliminate funding altogether but to change the procedure by which it is sought.

14In response, Aviva directs the Tribunal to s. 3(1.2) of the Schedule, which states that s. 24 and Part X, which are the section and Part of the Schedule that provide the right to funding of CAT rebuttal reports, clearly state that they do not apply after August 31, 2010. Further, Aviva submits that, while s. 3(1.4) means that entitlement to benefits is now, generally speaking, governed by the Statutory Accident Benefits – Effective September 1, 2010, O. Reg. 34/10 (the “2010 Schedule”), the only wording in the 2010 Schedule that speaks to or permits funding for CAT assessments is found in s. 25(1)5, which states that an insurer shall pay for expenses incurred by an insured person for reasonable fees charged in preparing an application under s. 45 for a CAT determination. On this basis, Aviva argues that, while there is funding available for CAT assessments under s. 25 of the 2010 Schedule, there is no compensation for the preparation of CAT rebuttal reports in the 2010 Schedule that are not incurred, even though the use of CAT rebuttal reports is not strictly precluded by s. 25(1)5 of the 2010 Schedule or otherwise. Finally, Aviva submits that this Tribunal does not have the authority, as did FSCO, to make “interim expense” orders for disbursements to pay for CAT rebuttal reports.⁴

15Here, however, I agree with Aviva. I find the 2010 amendments to the Schedule closed off every available avenue for funding CAT rebuttal reports. First, there is no language speaking to CAT rebuttal reports in the 2010 Schedule and same cannot be read in. Second, the direction provided in s. 3(1.2) that s. 24 and Part X of the Schedule do not apply following the 2010 amendments is very clear, which undermines J.A.’s argument that he had a vested right to funding for CAT rebuttal reports. Third, s. 3(1.3) also states that “no amount referred to in this Regulation shall be paid after August 31, 2010,” which also precludes J.A.’s claim for funding because his CAT application was submitted after this date.

16Section 3(1.4) of the Schedule provides that an amount that would, but for subsection (1.3), be paid under the Schedule after August 31, 2010 shall be paid under the 2010 Schedule, but in the amount determined “(a) under [the Schedule], other than section 24; or (b) under subsections 25(1)5 of [the 2010 Schedule].” [emphasis mine]. This language clearly eliminates payment under the old s. 24. Meanwhile, ss. 25(1)5 of the 2010 Schedule, addressed in greater detail below, is silent on funding for CAT rebuttal reports.

17I find the logical way to interpret these provisions is that they indicate a clear intention from the legislature that funding for CAT rebuttal reports, at least as that term was once used and understood in the Schedule, is no longer a substantive right after the 2010 amendments. This is not to say that funding for CAT rebuttal reports after the 2010 amendments is strictly precluded, as both parties cite cases where rebuttal funding has been ordered to be payable, as both a benefit at this Tribunal and as an “interim expense” at FSCO. So, how to reconcile an applicant’s right to be assessed for CAT with the 2010 amendments and the lack of CAT rebuttal report funding available?

The right to be assessed

18In their submissions, the parties agree that every insured person has the substantive right to be assessed. This is well-settled and an important facet of CAT cases. In a similar vein, it is well-settled that there is no limitation period on a CAT determination, as it can accrue over time or be “discovered” months, years, or, in this specific case, a decade following an accident. To its credit, Aviva is not stating that J.A. is not entitled to funding for a CAT assessment or report, but rather that he is not entitled to funding for a CAT rebuttal report because a rebuttal report is no longer a substantive, fundable right because of the 2010 amendments. In submissions, Aviva makes clear that this is a very important distinction. Procedurally, given the reasons identified above, I agree, but only to a point.

19In the previous incarnation of the Schedule, it is uncontroverted that a CAT rebuttal report constituted a third report in the proceedings. That is to say: funding for a CAT rebuttal report was available to an applicant under s. 42.1(3)3 after it had secured an initial CAT report (being report #1) and after the insurer had secured its responding CAT report (being report #2), so long as the applicant sought CAT rebuttal funding for the report and incurred same within 80 days of receiving the insurer’s report (being report #3). We know that the avenues for the 80-day rule and the availability of funding for the third report were closed off following the 2010 amendments.

20However, what the 2010 amendments do not account for, in my view, is the possible altered timeline, evident here, where an applicant seeks funding for initial CAT reports (previously report #1 but actually report #2 in this scenario) after the insurer has secured its CAT reports (previously report #2 but actually report #1 in this scenario). In this scenario, the applicant’s CAT reports do not constitute a third set of reports, or a “rebuttal” in the sense contemplated by the pre-2010 Schedule, but rather represent the second set of reports and, more importantly, the applicant’s first. Such reports would be unfairly classified as “rebuttals” merely because they were generated after the insurer’s reports were completed. In this scenario, I struggle to understand how the end of an insured’s right to true “rebuttal” reports also meant the end of funding to obtain any CAT report of his or her own simply because the insurer obtained its own reports first. In situations where the applicant’s initial CAT reports happen to occur after the insurer’s, the 2010 amendments would, on Aviva’s view, completely freeze an applicant out of his substantive right to be assessed. That, obviously, would be unfair.

The “rebuttal reports” are really J.A.’s first CAT assessments

21To apply this scenario to the facts here, I find J.A. is not really seeking a true CAT rebuttal report: after all, he never conducted an initial CAT assessment of his own. There is no initial CAT report in evidence. Instead, this dispute arises given the somewhat irregular procedural step that J.A. took in submitting his claim, where he submitted an OCF-19 following notice from Aviva that the 10-year mark for his claim was set to expire and that benefits would no longer be payable under s. 18(1)(a) of the current 2010 Schedule. The OCF-19 J.A. submitted to Aviva for a CAT determination was atypical, as it was not based on a slate of assessments, nor was it accompanied by a report detailing the CAT findings by a team of assessors. Instead, the OCF-19 was completed by his family physician, who seemingly just checked the box under Part 4, indicating that J.A. meets the criteria for CAT. In the absence of a report or even medical documentation to support the CAT finding alleged in the OCF-19, Aviva took the obvious step: it denied CAT and scheduled s. 44 IEs in order to investigate J.A.’s claim.

22I find this important because the first CAT report in this matter did not come from J.A. as it does in typical CAT cases before the Tribunal. Rather, the first CAT report was secured by Aviva in response to nothing other than an OCF-19 unsupported by anything other than an examination and mere assertion of qualification for CAT by J.A.’s family physician. Indeed, not only was Aviva’s CAT report the first assessment and report to be completed, it remains the only CAT report in existence due to Aviva’s objection to the fact that the submission of J.A.’s OCF-18s requesting CAT assessment funding technically constitute a request for a “rebuttal report” simply because it follows Aviva’s report, even though it would be J.A.’s first.

23Again, for a CAT matter, the result is procedurally flawed, but I find the arithmetic is not particularly complex. Aviva conducted CAT assessments and furnished one CAT report; J.A. has conducted zero CAT assessments and has furnished zero CAT reports. For those keeping score, as I am, CAT reports are 1-0 in favour of Aviva. This results in an obvious imbalance in the evidence and, consequently, J.A.’s ability to fund assessments of his own and prove his case on the merits. Further, and perhaps most importantly, it robs J.A. of his right to be assessed. I do not accept that the 2010 amendments were designed to lead to this result.

Section 25(1)5 and 45

24While Aviva demonstrates great concern over J.A.’s request for a “rebuttal” report that it argues is not strictly provided for in the Schedule, I am less concerned with the “rebuttal” modifier on the facts before me. This is especially so considering the language—or, as Aviva itself points out, lack thereof—concerning rebuttals in s. 25(1)5 and s. 45. Indeed, if this were a situation where J.A. was the first party to conduct assessments and furnish a CAT report and then, following a responding CAT report from Aviva, attempted to secure funding for a rebuttal report, I would share Aviva’s concerns.

25But that is not the case here. The right to be assessed for CAT is a substantive one that is entrenched in the current 2010 Schedule under ss. 3, 45(1) and 25(1)5 and in every iteration before it. There is no ambiguity. It is a right that J.A. has not yet exhausted even though his OCF-18s were classified collectively, and in my opinion, mistakenly, as “CAT Rebuttal Reports” by the medical professional who completed them. In practice, these OCF-18s only constitute “rebuttals” because of Aviva’s insistence that the request be labelled as same. Contrary to Aviva’s contention otherwise, I find procedural fairness is highly relevant here, as it dictates that the concern should be on availability of funding for CAT assessments and reports, whether they are reasonable and necessary and not what those reports are called or the order in which they are requested.

26Section 25(1)5, which is contained within Part IV of the 2010 Schedule titled “Payment of Other Expenses”, indicates that an insurer shall pay reasonable fees for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. Here, I interpret the phrase “for that purpose” to mean an application for CAT impairment under s.45. To reiterate my earlier finding, there has yet to be an assessment or examination conducted on behalf of J.A. “for the purpose” of applying for a CAT determination under s. 45. There is only an OCF-19, which Aviva itself determined was “insufficient medical documentation” to determine CAT.

27I also considered whether the timing of a CAT application was key to the process. However, on review of s. 45, there is no language that speaks to the order in which documentation must arrive in order to be compliant with a CAT determination request or even that J.A. must furnish his reports before Aviva. For example, there is no language stating that an OCF-18 must be submitted prior to, or in conjunction with, an OCF-19, as Aviva alleges. In a similar vein, there is no language detailing the process that an applicant must undertake in order to be compliant. There is no language barring an applicant from submitting OCF-18s for CAT assessments following s. 44 IEs or identifying those OCF-18s as “rebuttals”. There is no mention of rebuttal reports. Indeed, there is only language speaking to the insurer’s timing obligations: first, to respond to a CAT application within 10 days under s. 45(3), and, second, under s. 45(5), to provide copies of all s. 44 reports along with its CAT determination within 10 days of receipt. That is all. I find it difficult to reconcile Aviva’s position on timing where the only timelines prescribed apply to the insurer and not the insured.

28To read Aviva’s proposed procedural obligation to submit OCF-18s in advance of an OCF-19 into the Schedule, would, in my view, allow the insurer to circumvent its mandatory funding obligations under s. 25(1)5 and lead to an absurd result where the insurer is forced to pay for two sets of assessments and reports before two are even required. There is a practical component to not attaching a timeline to an insured’s CAT application beyond the obvious power imbalances and discoverability concerns inherent in CAT matters. For instance, an insurer is invariably going to conduct s. 44 IEs to assess every CAT claim, even if the insured’s medical records and medical practitioners suggest CAT is a foregone conclusion. In practice, if the s. 44 IEs concur, then the insurer is only on the hook for the cost of one set of assessments and reports (being its own) and the insured is deemed CAT. In arguing that the timing of the OCF-18 under these sections is somehow critical and must come first, Aviva is effectively obligating insurers to de facto fund two sets of CAT assessments and reports where it may only be required to fund one. This also results in the insured having to endure two invasive and intrusive sets of CAT assessments where only one may be required. I struggle to understand why the legislature would seek these outcomes.

29All of this is to say that I find that s. 25 cannot be interpreted in a manner that dictates how a benefit should be applied for because it is only contained in a “Payment of Expenses” section dealing with reasonable fees for assessments and not, as Aviva suggests, direction on how an applicant must apply for CAT. Similarly, I find no indication in either section confirming that the submission of an OCF-18 for CAT assessments following s. 44 IEs denying CAT automatically makes it a rebuttal and therefore not a payable expense, so long as it is reasonable and necessary. I find this is especially so where the applicant has not been provided with funding of any kind to secure his own CAT reports.

Reasonable and Necessary

30Accordingly, to deny J.A. the ability to secure his own CAT reports would rob J.A. of his right to be assessed and, in my view, would be contrary to the consumer protection nature of the Schedule, in all its incarnations, and the direction (or lack of direction) provided by s. 25(1)5 and s. 45 concerning the order in which an applicant may seek CAT report funding.

31I turn to whether the cost of the CAT assessment in the amount of $16,320.00 is reasonable and necessary. Reasonableness in the context of a CAT assessment and report concerns the goals outlined in the OCF-18, the ability to achieve those goals and the overall costs associated with those goals. For the reasons that follow, I find that J.A. is entitled to partial payment for the cost of the CAT assessments as they are partially reasonable and necessary.

32As noted above, J.A. no longer has access to medical and rehabilitation benefits as the 10-year limitation period on his claim has elapsed. Without delving into the substantive aspects of his CAT claim, he argues that his ongoing impairments and deteriorating condition necessitate a CAT designation and access to enhanced benefits to return him to his pre-accident condition or, at minimum, address his alleged functional impairments. Although the OCF-19 is silent on how it was determined, J.A.’s family physician determined that he meets the criteria for CAT. J.A. has no possible way of accessing any more funding for his CAT assessments and reports to combat Aviva’s CAT Report unless the OCF-18s are approved.

33Aviva argues that the portion of the OCF-18 identifying the need for a neurology assessment is not reasonable and necessary because it did not conduct a neurological assessment or report. Further, Aviva argues that the three assessments claimed for the chiropractor “seem excessive” and not reasonable and necessary without further details as to their purpose and need. Aviva also submits that the costs are not recoverable because the cost of the assessments are not broken down, there is no indication in the OCF-18 what periods of time the assessors are proposing to spend, or what the hourly rate they seek is. Finally, Aviva submits that the amounts have not been incurred and therefore they are not payable.

34I disagree. I find each individual cost of the proposed CAT assessments and accompanying report to be reasonable given the complex nature of the process and the multi-disciplinary makeup of a CAT assessment team. I find the $2,000 cost per assessment outlined in the OCF-18 to be consistent with the amount of time and effort that can be expected to complete each respective report by each professional assessor and the cost is consistent with s. 25(5). In addition, the assessments proposed are not out of line with the normal battery of assessments conducted in CAT matters, despite Aviva’s submission that a neurological assessment is not reasonable and necessary because it did not conduct one. I find it reasonable and necessary to conduct the physiatry, psychological, neurological and OT In-Home assessments in order to achieve the stated goal of arriving at a CAT determination.

35Further, in order to assess the complete CAT picture, I find it reasonable and necessary that the compilation of all of the medical information and findings into a Whole Person Impairment Report be conducted. I find the cost of this exercise in the amount of $2,000 and the completion of various OCF-18s in the amount of $500 to accompany the report, are reasonable and necessary expenses. HST is included.

36Where I agree with Aviva is on the line items identified as “Essential Clinical Tasks” and “Medical File Review” in the amount of $2,000 each. First, the “Essential Clinical Tasks” item is an item I have never come across, it is not accompanied by a description or breakdown, and J.A. did not provide submissions on why it is considered as valuable as, for example, the CAT assessments themselves or the actual compilation of the report. Based on experience, I can glean what the other items in the OCF-18 entail, but without further explanation as to what “Essential Clinical Tasks” are or why they are reasonable and necessary, I cannot find that they are. Accordingly, I find this item is not reasonable and necessary.

37Second, I find the additional item identified as “Medical File Review” in the amount of $2,000 is unnecessarily duplicative. In my view, a medical file review is included in any one assessment, and certainly informs part of every individual component of a CAT assessment or should. I find that this item should not be considered a separate task from the Whole Person Impairment Report as, in my view, it is necessarily part of the assessor completing the CAT report’s job to conduct a detailed file review, including a review of the assessors reports who also conducted a medical file review. Accordingly, I find this item is not reasonable and necessary.

38To conclude, pursuant to s. 25(1)5, I find that J.A. is entitled to partial funding for CAT assessments identified in the OCF-18. I find the items listed are reasonable and necessary and payable once incurred, except for the “Essential Clinical Tasks” and “Medical File Review” items in the amount of $2,000 each, which are not reasonable and necessary. This totals $10,500.00, plus HST.

Costs

39In submissions, J.A. sought costs in this matter. The Tribunal may award costs where one party has acted unreasonably, vexatiously, frivolously or in bad faith during the proceedings. J.A. did not provide particulars in submissions. On the evidence, I find no basis to support the contention that Aviva acted unreasonably, vexatiously, frivolously or in bad faith during the proceedings. Accordingly, I find costs are not appropriate.

ORDER

40J.A. is entitled to the partial cost of examinations for catastrophic assessments in the amount of $10,500.00, plus HST, as it is reasonable and necessary.

Footnotes

1. 1While J.A.’s catastrophic impairment is not in dispute between the parties, “GAF” stands for “Global Assessment of Function” and is based on a conversion table found on page 322 of the American Medical Association’s Guides to Permanent Impairment, 4th Ed.
2. 2See, generally: Lehman v. Gan Canada Insurance Company [2000] O.J. No. 4902 (Div. Ct.); MVACF v. Barnes (FSCO Appeal P16-00087, April 6, 2017); B.D. v. Wawanesa, (LAT File 17-005604/AABS).
3. 32011 ONCA 439, [2011] O.J. No. 2636 (C.A.).
4. 4See, for e.g., Cook and RBC General Insurance Co. (FSCO Appeal P14-00038, May 4, 2015); and Deveau and Belair Insurance Company Inc. (FSCO A13-00459 & A14-009724, July 12, 2017).