M.G. v. Aviva Insurance Canada, 2020 CanLII 34429

RECONSIDERATION DECISION

Citation: M.G. vs. Aviva Insurance Canada, 2020 ONLAT 18-002508/AABS

Before: Sandeep Johal, Adjudicator

Date: April 17, 2020

File: 18-002508/AABS

Case Name: M.G. vs. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Arthur Robert Camporese, Counsel

For the Respondent: Cara Boddy, Counsel

OVERVIEW

1The request for reconsideration was filed by the respondent, Aviva Insurance. It arises out of a decision in which I found the applicant was entitled to certain costs of examination for a catastrophic impairment application.

2Aviva submits that, in making my decision, I committed several errors of law. The main thrust of Aviva’s argument is that the treatment plan at issue, which requests funding for a multi-disciplinary assessment, is not recoverable because it was requested for a purpose other than preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment. For that reason, Aviva asks that my decision be varied to provide that the treatment plan is not payable.

RESULT

3The respondent’s request for reconsideration is denied.

ANALYSIS

4The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. In this case, Aviva relies on Rule 18.2(b), which allows a reconsideration in the following circumstances:

The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

Did the Tribunal make a significant error in law by stating in the decision that the test to determine whether the requested assessments or examinations are required is under section 15 of the Schedule?¹

Reasonable and Necessary Test

5In order to change my original decision under, I must not only have made an error of law or fact, but that error must be significant enough that I likely would have come to a different conclusion had the error not been made. On the evidence, I am not convinced that the respondent has met the criteria under Rule 18.2(b).

6In paragraph 8 of the decision, I stated as follows:

The cost of examinations to determine whether the applicant has a catastrophic impairment is under section 25 and the process to apply for a catastrophic designation is under section 45 of the Schedule. The test to determine whether the examinations are required is under section 15 and the test is whether each examination is reasonable and necessary. Once the examinations have been determined to be reasonable and necessary, then it can be determined whether the cost of the examination is reasonable in accordance with section 25.

7The respondent submits that a catastrophic assessment is not a medical and rehabilitation benefit as set out in s. 15 and, instead, that the funding for a catastrophic assessment is explicitly provided for in s. 25.

8The applicant submits that the Tribunal routinely applies the “reasonable and necessary” test to determine whether catastrophic impairment assessments are payable under s. 25.² Thus, the applicant submits that I was correct in applying the “reasonable and necessary” test, and that my use of the term “medical benefits” from s. 15 of the Schedule does not affect the outcome of the decision.

9I agree with the applicant. The reference to s. 15 of the Schedule was an error. However, it does not amount to an error that, if not made, would have changed the outcome of my decision. The reason: s. 25 requires each assessment to be “necessary”³ for the purpose of determining whether the applicant has sustained a catastrophic impairment, and the fees associated with the assessments be “reasonable.” Put another way, each proposed assessment or examination proposed still needs to be determined individually as being necessary and its cost reasonable or fair in accordance with s. 25. The concepts of “reasonable” and “necessary” are still contained within the language of s. 25. As a result, I do not find my reference to s. 15 to be a significant error of law that would have changed the outcome of my original decision.

10After reading the reconsideration submissions of Aviva, its argument is essentially one of whether or not the assessments were for the purpose of a catastrophic impairment application. I will address that below.

What was the purpose of the applicant’s OCF-18?

11Upon review of the OCF-18 and the proposed assessments requested, it is clear to me that the assessments were requested for the first time and are for the purpose of making an application for a catastrophic determination. The requested assessments are from various regulated health professionals which is in accordance with s. 45(2)1.

12Aviva’s submission is that the applicant’s OCF-18 was submitted seven months after it received the applicant’s application for a catastrophic determination (OCF-19) and therefore, the OCF-18 was not for the purpose of “preparing an application” for a catastrophic impairment, as that phrase is used in s. 25(1)5. The implied suggestion is that the applicant’s OCF-19 was already complete.

13I disagree with Aviva. That application was signed by the applicant’s family doctor, Dr. Arora, who, under Part 4, indicated with a check-mark that he believed that the applicant suffered from a catastrophic impairment under criteria 7 and 8. That is to say, those check-marks signified Dr. Arora’s belief that the applicant has an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the “AMA Guides”) results in 55 per cent or more impairment of the whole person (WPI), or an impairment that, in accordance with the AMA Guides results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behaviour disorder.

14Dr. Arora attached two reports to the OCF-19. One of those was authored by Dr. Khumbhare, a physical medicine and rehabilitation specialist, who provided a 17-page report dated June 29, 2015. The other was authored by Dr. Sharma, a psychologist dated October 18, 2016 who wrote a 32-page report. As a matter of comparison, the respondent’s catastrophic insurer examination (“IE”) report was 87 pages in length which specifically discussed the catastrophic impairment formulation under the Schedule.

15Critically, the two reports attached to the applicant’s OCF-19 are not catastrophic reports. They do not address whether the applicant has sustained a catastrophic impairment under criteria 7 and or 8.

16Dr. Khumbhare’s report addresses whether the applicant has reached maximal medical improvement, whether the applicant’s injuries have impaired her ability to work and maintain full-time employment in the future, and whether the applicant is substantially disabled from performing any occupation or employment for which she is reasonably suited by education, training or experience.

17Dr. Sharma’s report also addresses the same issues as Dr. Khumbhare’s report, namely whether the applicant’s injuries impaired her ability to maintain full-time employment and whether she suffered a complete inability to engage in any occupation or employment. It is essentially the income replacement benefit test under the Schedule. Neither report discussed whether the applicant has a catastrophic impairment or whether the impairments may be considered catastrophic in accordance with the definition under the Schedule.

18Not surprisingly, once Aviva received the OCF-19 application, it sent a letter denying the applicant’s request because “The information that we have on file is insufficient to support that you would meet the definition of having sustained a catastrophic impairment as defined by the [Schedule].”⁴ Aviva then stated its intention that it requires the applicant to attend an IE.

19In accordance with the Schedule the respondent’s options were to accept the OCF-19 or deny it and have the applicant attend the IE’s. Once the IE’s were conducted the respondent confirmed its denial of the OCF-19. It was at this point when the respondent received the OCF-18 seeking catastrophic assessments for the applicant.

20Aviva submits that the assessments proposed in the OCF-18 are not for the purpose of a catastrophic application since the OCF-18 assessments were submitted considerably after it received the OCF-19.

21Aviva further submits that timing of the request for catastrophic assessments is crucial and the request for the assessments must be at the same an OCF-19 is submitted and not at other points in time. Aviva’s position is that the words “assessment or examinations” under s. 45(2) must be for assessments that are necessary for the purpose of preparing the OCF-19 as stated in s. 25(1) 5.

22I do not agree with the respondent. Section 25 falls under Part IV of the Schedule, entitled “Payment of Other Expenses.” Therefore, any interpretation of s. 25 must also consider the Part under which it falls, and any interpretation must be read as a whole and not with certain words in isolation. In my opinion, the words “necessary for that purpose” in s. 25(1)5 refers to assessments that are necessary to determine whether the applicant has a catastrophic determination. In order to make that determination there must be assessments on the applicant’s impairments and whether those impairments qualify as catastrophic. That has not been done in this case.

23The applicant’s request is certainly unorthodox since she submitted an OCF-19 with reports in support of the application but did not submit any reports that actually speak to whether she has suffered a catastrophic impairment in the manner that Dr. Arora suggests. Aviva responded understandably, by stating that the information it had was insufficient to support that the applicant meets the definition of a catastrophic impairment, and by requesting IE’s.

24Section 45 falls under Part VIII of the Schedule, entitled “Procedures for Claiming Benefits.” All that is required under the wording of s. 45 is that the applicant may apply to the insurer for a determination of whether the impairment is a catastrophic impairment. The assessment or examination shall be conducted only by a physician, but the physician may be assisted by such other regulated health professionals as he or she may reasonably require. In my opinion, the doctor who signed the OCF-19 is able to seek the assistance of other health professionals as listed in the OCF-18 and that is what happened in this case. The OCF-18 was the recommendation of other health professionals for assessments to determine whether the applicant has sustained a catastrophic impairment – to support the application. Again, the OCF-19 as submitted did not include any catastrophic assessments.

25In my opinion, read as a whole and keeping in mind the remedial nature of the Schedule, I find that s. 25, which is under the “Payment of Expenses” part of the Schedule, is referring to reasonable fees being charged for any assessment that is necessary to determine whether the applicant has a catastrophic impairment.

26Section 45 outlines the process to make a catastrophic determination which is that the assessment or examination must be conducted by a physician and the physician may be assisted by any other regulated health professional.

27The applicant’s OCF-18 under the Additional Comments section on page 7 specifically states the rationales for proposing the assessments are to determine if the insured person has a catastrophic impairment.

28Aviva submits that the timing of the request for funding is a primary consideration under s. 25. However, there is no language in the Schedule to such effect. There is no language in s. 45 as to timing or, likewise, suggesting that the assessment or examination must be submitted at the same time or prior to the OCF-19. Likewise, there is no language in s. 25 requiring the assessment or examination to be submitted prior to or at the same time as the s. 45 OCF-19 application.

29To accept the respondent’s position would mean that the applicant would be precluded from presenting any evidence with respect to her claim for the most serious injury under the Schedule. Especially since the OCF-19 application did not contain any catastrophic reports on the applicant. Also, the insurer would be relieved of its mandatory funding obligation under s. 25 to pay for reasonable fees when some of these assessments are necessary to determine whether the applicant has a catastrophic impairment.

30If the fee is determined to be reasonable, then each assessment must be determined to be necessary. Without specific language in the Schedule relieving Aviva of its mandatory obligation to fund the cost of assessments under s. 25 one cannot read into the Schedule the option to deny funding when none presently exists for s. 25.

31As a result, I do not find that there was a significant error of law or fact such that I would likely have reached a different decision had the error not been made.

32I will not turn to discuss the procedural fairness aspects of the decision.

Did the Tribunal erred in law by stating in the decision that procedural fairness was a justification for ordering payment of the assessments?

33The respondent submits that, throughout my decision and in particular paragraphs 14 and 15, I used the concept of procedural fairness to justify ordering payment when procedural fairness is not contemplated in the Schedule.

34The respondent further submits that my decision has read back into the Schedule the applicant’s right to rebuttal examinations which was specifically removed under a previous amendment to the Schedule. The respondent further relies upon FSCO case law that rebuttal examinations are not permissible.⁵

35The applicant submits that I did not decide one way or another whether the applicant was entitled to rebuttal reports and that I found that procedural fairness suggests the applicant be given an opportunity to provide evidence from her own assessors and adopted the position taken by the Tribunal in 17-003496 v. TD Insurance.⁶

36What is required here is some context in terms of “rebuttal” reports. This was the applicant’s first request for catastrophic assessments, without which she would have no evidence in support of her position that she has suffered a catastrophic impairment.

37In the now outdated course of these issues, the applicant would generate her own set of catastrophic reports, after which the respondent would generate its own through IE’s, followed by the applicant’s request for a second set of reports to “rebut” the respondent’s IE assessors’ opinions. The amendment to the Schedule which removed the applicant’s right to “rebuttal” reports was to eliminate this type of scenario.

38The amendment in the Schedule removing an applicant’s right to a “rebuttal” report was not intended to deprive applicants of their ability to obtain their first set of assessments, which is what the applicant requests here. To do so, would deprive the applicant of any evidence to challenge the insurer’s denial and, in my opinion, would be procedurally unfair. That was my point. Considering that the Schedule is remedial in nature, an interpretation that denies the applicant her first set of catastrophic reports cannot have been what was intended as part of the amendment to eliminate the applicant’s right to “rebuttal” reports.

39Paragraphs 12-16 of my decision provide an analysis and reasons for finding that the catastrophic assessments should be funded, which is based on Tribunal and FSCO case law.⁷ An applicant should be entitled to reasonable fees for conducting her own assessments for the first time in accordance with section 25 which sets out mandatory language that the insurer “shall” pay reasonable fees. To deny the applicant her own first set of catastrophic assessments despite the mandatory language of section 25 would be unfair. In this respect, I find the following persuasive:

I find that fairness must operate as a guiding principle and that, to deny [the applicant] reasonable fees to conduct her own assessments, when, at least chronologically, they will be required to respond to the [insurer examinations] and when the constituent reports of her proposed multidisciplinary assessment do not exceed the amounts prescribed in the Schedule ($2,000.00 per report) would be unfair.⁸

40For these reasons, I find that I did not commit a significant error of law or fact under Rule 18.2(b) such that I would likely have reached a different conclusion had the error not been made.

CONCLUSION

41For the reasons noted above, I dismiss the respondent’s request for reconsideration.

Sandeep Johal Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Statutory Accident Benefits Schedule (“the Schedule”), O. Reg. 34/10
2. 2See. e.g., 17-007500 v Unica Insurance Inc. 2018 CanLII 132569 (ON LAT); 17-003290 v. State Farm Insurance, 2017 CanLII 87153 (ON LAT) and 18-001406 v Certas Home and Auto Insurance Company, 2018 CanLII 132564 (ON LAT).
3. 3Section 25 (1) 5. of the Schedule
4. 4Respondent letter dated January 18, 2017.
5. 5R.J. v. Dominion of Canada General Insurance Co., [2013], O.F.S.C.D. No. 191 (“R.J”) and Almousawi v. TD General Insurance Co., (FSCO, A12-000481) (“Almousawi”)
6. 62018 CanLII 13167 (ON LAT) at paragraphs 33-35.
7. 7R.J. v Dominion of Canada General Insurance Co., [2013] O.F.S.C.D No. 125, para 62; Fernandes v Wester Assurance Co., [2015] O.F.S.C.D. No. 110 at para 15; Hassani v Guarantee Co. of North America [2018] O.F.S.C.D. No. 2 at paras 61-62 and 17-003496 v TD Insurance 2018 CanLII 13167 (ONLAT) at paras 33-35.
8. 8Hassani v Guarantee Co. of North America [2018] O.F.S.C.D. No. 2 at page 16,