Pereira v. Aviva General Insurance Company, 2020 CanLII 94782

Citation: Pereira vs. Aviva General Insurance Company 2020 ONLAT 19-010861/AABS

Released Date: 11/03/2020

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:

Silverio Pereira

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Self-Represented

For the Respondent: Kelvin W. Brown

HEARD: Via written submissions

OVERVIEW

1S.P. was injured in an accident on May 30, 2015 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Aviva denied the benefits and S.P. submitted an application to the Tribunal for resolution of the dispute.

2The parties participated in a case conference on February 27, 2020 where, notably, S.P. was represented by counsel. When the parties were unable to resolve their dispute, a written hearing was set down in order to determine S.P.’s entitlement to two separate claims for chiropractic treatment that he incurred. Deadlines for productions and written submissions were agreed to by the parties, with submissions closing on July 6, 2020.

3However, shortly after the case conference, the Tribunal received notice from S.P.’s counsel that they would no longer be representing S.P. in his dispute. Accordingly, S.P. proceeded as a self-represented applicant and filed his initial submissions with the Tribunal by the deadline of June 12, 2020.

4In addition to the two treatment plans that the parties agreed would be addressed in the written hearing, S.P.’s initial submissions addressed a number of new issues that were not contained in his application to the Tribunal, that were not raised or addressed at the case conference and were not confirmed in the Case Conference Order as being properly in dispute. Among the new issues raised and addressed by S.P. in his initial submissions were a substantive claim for entitlement to a non-earner benefit (“NEB”), several new allegations that Aviva had not properly adjusted his claim or provided improper notice to him, the inclusion of an award under s. 10 of O. Reg. 664 and a request for costs.

5In its responding submissions dated June 26, 2020, Aviva took the position that only the issues properly identified in the Case Conference Order would be addressed by it—as those were the issues that the parties agreed would proceed to the written hearing—and that it would be improper and procedurally unfair to respond to the new issues raised by S.P.

6On July 7, 2020, S.P. filed a reply to Aviva’s responding submissions. In addition, following his reply submissions, S.P. filed a Notice of Motion with the Tribunal seeking to add 15 additional issues or amendments to the written hearing, the bulk of which were those addressed in his initial submissions but were not captured by the Case Conference Order or addressed by Aviva in its response. In his motion, S.P. submitted that Aviva was not prejudiced by the inclusion of the new issues and, in the interest of efficiency and fairness to a self-represented applicant, the Tribunal should allow the written hearing to proceed on all of the issues he raised.

7In its motion response, Aviva objected to the inclusion of the new issues raised by S.P., arguing that it is improper to add issues to a dispute after the parties have filed their written submissions, that allowing the written hearing to proceed on issues that were not properly raised or agreed to would preclude it from mounting a proper defense and it would force the parties to proceed to a hearing without the benefit of a case conference to narrow or settle the issues, to establish production deadlines and afford Aviva the opportunity to respond.

8In a motion order dated July 13, 2020, the Tribunal determined that pursuant to Rule 15.2 of the Common Rules of Practice of Procedure, S.P.’s motion would be heard at the written hearing alongside the substantive issues identified in the Case Conference Order.

ISSUES IN DISPUTE

9According to the Case Conference Order dated February 27, 2020, the following issues are in dispute:

a) Is the applicant entitled to a medical benefit in the amount of $12,823.61 for chiropractic treatment recommended by Dr. Ron Nusbaum in a treatment plan submitted on August 28, 2017, and denied by the respondent (denial date in dispute)?

b) Is the applicant entitled to a medical benefit in the amount of $3,960.00 for chiropractic treatment recommended by Dr. Mark Jagger in a treatment plan submitted on March 12, 2018, and denied by the respondent (denial date in dispute)?

c) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10S.P.’s motion to include additional issues is denied without prejudice.

11S.P. is not entitled to payment for either of the treatment plans in dispute.

ANALYSIS

S.P.’s motion to include new issues in the dispute

12Rule 3.1 of the Common Rules provides for liberal interpretation of the rules in order to facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are represented by counsel or are self-represented, as S.P. is here. While the Tribunal endeavours to provide self-represented applicants with greater leeway on procedure, I find that this attention to procedural fairness and process cuts both ways. That is to say, despite Aviva being a sophisticated party, I find that granting S.P.’s request to add additional issues at this stage in the proceeding would be procedurally and substantively unfair to Aviva and would not result in a fair and open process.

13As noted, S.P.’s motion seeks to add over a dozen new issues (or perhaps better identified as many sub-issues to a fresh NEB claim, plus a s. 10 award and costs) to what was originally set down as a narrow dispute involving two treatment plans. While S.P.’s initial submissions addressed these new issues, his motion to the Tribunal was filed after the written submissions of both parties were filed and well after the Case Conference Order identifying the issues in dispute was released. While I am alive to the fact that S.P. became self-represented following the case conference, it is not lost on the Tribunal that he was represented by counsel at the case conference, when the issues in dispute were identified and agreed upon and the timeline for productions and submissions was determined. It is unclear how the new issues—specifically a claim for a weekly benefit like a NEB and the sub-issues associated with same—only “surfaced after the case conference,” as alleged by S.P. in his motion, without being listed initially in an application.

14In any case, just as an applicant like S.P. has the right to reasons for a denial of his benefit claim, Aviva, as the responding party to a dispute, has the right to know the case that will be made against it. I agree with Aviva that adding new issues after submissions have been completely filed on a narrow dispute would preclude it from preparing and mounting a proper defence. In addition, I agree that it would deprive the Tribunal of the opportunity to canvass all of the evidence, while also extending the dispute further into the future to accommodate the gathering of evidence and productions, the potential for updated assessments and for responding submissions. Further, S.P.’s motion focuses on why he is entitled to his substantive claims rather than on meeting his burden to prove on a balance of probabilities why his substantive claims should be added to the written hearing at this late stage. While I agree that Aviva is a sophisticated party with greater resources than S.P., it does not mean that it is not entitled to procedural fairness or that it is not prejudiced.

15More problematically, I find that adding new issues at this stage would effectively be circumventing the Tribunal’s dispute resolution processes. Any new issues added at this stage would result in a hearing on issues that did not first proceed through a case conference, therefore robbing the parties and the Tribunal of the opportunity to clarify the dispute, narrow the issues, discuss potential settlement and, failing that, determine a timeline for productions and submissions for the new issues raised. I agree with Aviva that truncating the dispute resolution process in this manner would be contrary to the Tribunal’s mandate of ensuring the fair and efficient resolution of disputes.

16Accordingly, S.P.’s motion to add to this written hearing the new issues listed as “1(a-i)” in his motion is dismissed without prejudice, as these issues and sub-issues will require a fresh application in order to proceed properly and fairly before the Tribunal and in order to afford Aviva the requisite amount of procedural fairness. S.P.’s motion to amend the total amount identified as issue b) in this written hearing from $3,960.00 to $4,025.00, identified as request “2” is addressed in greater detail below. Finally, his request to amend typographical errors in request “3” is granted on consent.

Are the treatment plans reasonable and necessary?

17As noted, S.P.’s application to the Tribunal that led to this written hearing consisted of two denied treatment plans for chiropractic services in the amounts of $12,823.61 and $3,960.00, respectively. Under s. 15 of the Schedule, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident. S.P. bears the burden of proving on a balance of probabilities that the treatment plans are reasonable and necessary for his accident-related impairments.

18S.P. submits that these incurred chiropractic expenses are reasonable and necessary under ss. 14, 15, and 39 of the Schedule based on his pre-existing condition of herniated discs, his diabetes, his accident-related impairments of frequent headaches, prolonged periods of chronic pain in his neck, back, ribs, arms, hips, legs and numbness. He directs the Tribunal to the assessments and recommendations of multiple health practitioners, including his family doctor, that he continues receiving rehabilitation. Further, S.P. asserts that Aviva did not provide him with proper denials.

19Also complicating this matter is S.P.’s insistence in submissions that he never received Aviva’s explanation of benefit letters approving initial treatment and removing him from the Minor Injury Guideline. He submits that because he was not aware of Aviva’s later denial of the treatments he incurred in this current dispute—denials which Aviva sent on September 8, 2017, September 14, 2017, November 3, 2017, March 22, 2018, March 26, 2018 and April 6, 2018—he continued to submit expenses via OCF-6 and not via the requested OCF-18 treatment plans. It is unclear how S.P. received some notices from Aviva but not others, but the issue of sufficiency of notice was not raised at the case conference.

20In any case, as Aviva submits, s. 38(2) of the Schedule provides that an insurer is not liable to pay for a medical benefit if it was incurred before the insured submitted a treatment plan unless one of the exceptions are met: (a) the insurer gives the insured a notice under s. 39(1) stating that the insurer will pay the expenses without a treatment plan; (b) the expense is for an ambulance or other services provided on an emergency basis within five days of the accident; or (c) the expense is reasonable and necessary as a result of the impairment for drugs prescribed by a regulated health practitioner or goods referred to in s. 15(1)(d) to (f) and s. 16(3)(h) to (j) of the Schedule that cost less than $250 per item.

21The Tribunal has consistently found that s. 38(2) is not subject to discretion and applies automatically once it is triggered by the failure of an insured to submit an OCF-18 prior to incurring an expense. On the evidence, this section is triggered because I find it clear that S.P. incurred all of the chiropractic treatment claimed prior to submitting the treatment plans in dispute.

22Indeed, there is no dispute that the treatment plan in issue i totalling $12,823.61 was submitted on August 28, 2017. A preliminary denial was issued by Aviva on September 8, 2017, an IE was conducted, a report by Dr. Kopyto dated October 25, 2017 followed and a final denial was issued on November 3, 2017. During the IE, S.P. self-reported that the services were received and paid for out-of-pocket. The statement of account from Back Clinics Canada where Dr. Nusbaum treated S.P. confirms this, as it indicates $12,823.61 in incurred treatment between May 12, 2017 and July 17, 2017, which is prior to the submission of the OCF-18 in evidence.

23Similarly, there is no dispute that the treatment plan in issue ii totalling $3,960.00 was submitted on March 12, 2018. Aviva denied this treatment plan on March 22, 2018 and again on April 16, 2018 following a paper review. The statement of account from Spine Advanced where Dr. Jagger treated S.P. indicates that S.P. incurred $4,720.00 in treatment by March 10, 2018, which is two days prior to the submission of the OCF-18, even though it is dated August 10, 2017. Aviva submits that this date is important because it coincides with the timeframe of treatment that S.P. self-reported to the IE assessor, Dr. Kopyto, where he indicated that he switched chiropractic treatment providers from Dr. Nusbaum to Dr. Jagger in August or September 2017, over six months prior to the submission of the OCF-18 in dispute. In any event, I agree with Aviva that on the statement of account in evidence, it appears that S.P. incurred the $3,960.00 in dispute by February 9, 2018 at the earliest, which is a full month prior to the submission of the OCF-18. With regards to S.P.’s motion request #2, I find that the inclusion of an additional $65.00 is irrelevant given my determination, because it was also incurred prior to the submission of the OCF-18.

24Even though this evidence is fatal to S.P.’s claim, for completion, I find no issues with any of Aviva’s denial notices, with its adjusting of S.P.’s claims or its reliance on s. 44 IEs. I also agree with Aviva that none of the s. 38(2) exceptions identified above apply to S.P.’s case. Where S.P. is seeking payment for chiropractic treatment, exceptions (b) and (d) do not apply, as there is no emergency basis to this treatment and chiropractic treatment is not listed under either of s. 15(1)(d) to (f) or s. 16(3)(h) to (j) of the Schedule and the service does not cost less than $250.

25Further, I do not find that s. 38(2)(a)—which provides for situations where the insurer notifies the insured under s. 39(1) that it will pay for an expense without a treatment plan—is applicable here. While I am alive to S.P.’s submissions that a letter from Aviva (then operating as RBC Insurance) dated August 2, 2015 is “interpretive of s. 39” because it indicates his file is open for medical and rehabilitative benefit claims, I do not find that this is the type of notice contemplated by either s. 38(2)(a) or s. 39 that would permit S.P. to submit expense claims for payment without first submitting a treatment plan, as alleged. Rather, as Aviva submits, it is a standard form letter sent by insurers. On review, the letter does not state that Aviva will pay for expenses without a treatment plan and the letter does not reference specific benefits. The letter does not reference s. 39 at all and does not provide any of the specific information required under s. 39(2)(a) in order to constitute proper notice under s. 39. On the evidence, I find no indication that Aviva agreed to fund S.P.’s treatment without an OCF-18.

26Accordingly, while the treatment may very well have been reasonable and necessary and I empathize with S.P. for incurring these treatment amounts out of his own pocket, on the evidence, I cannot find that Aviva is liable to pay for either of the treatment plans in dispute where S.P. incurred all of the chiropractic treatment prior to the submission of an OCF-18 and where he does not meet any of the exceptions to warrant payment under s. 38(2). As no benefits are overdue, it follows that no interest is payable under s. 51. Further, as S.P. is unsuccessful on all of his claims, I find an award under s. 10 of O. Reg. 664 and costs are not appropriate, as there is no evidence that Aviva unreasonably withheld or delayed the payment of benefits under s. 10 or acted in a frivolous, vexatious or bad faith manner to warrant costs under Rule 19.

CONCLUSION

27S.P. is not entitled to payment for either of the treatment plans in dispute as he incurred the services prior to the submission of an OCF-18. Under s. 38(2), Aviva is not required to pay for expenses incurred prior to the submission of a treatment plan. Interest, costs and a s. 10 award do not apply.

Released: November 3, 2020

__________________________

Jesse A. Boyce

Adjudicator