Costs claimed for assessment were for reasonable and necessary treatment and were within permitted monetary amounts - Insurer errs - DP v Aviva LAT 000636

January 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

DP v Aviva LAT 17-000636

Decision Date: December 18, 2017
Heard Before: Adjudicator Blaine Baker

PAYMENT FOR ASSESSMENT: treatment is reasonable and necessary; insurer fails to show it is not; applicant's fractures fall outside MIG; amount claimed falls within permitted guidelines

D.P. suffered a double fracture of her left elbow in an CAR accident while bicycling on October 15, 2015, and sought benefits under the SABs.  Aviva denied a treatment and assessment plan in the amount of $2,912.00 for an orthopaedic assessment. The Adjudicator was left to decide whether that treatment plan is reasonable and necessary.

Aviva submitted that the maximum allowable amount for a treatment and assessment plan under the Schedule is $2,000.00. The Arbitrator noted that the balance of $912.00 relates to a $200.00 fee for preparation of the treatment and assessment plan, $400.00 for DP’s travel to the assessment, and $312.00 for HST. Each of those three expenses is recoverable in its own right under financial guidelines published by the Superintendent of Insurance, and will be payable if the Adjudicator that the treatment and assessment plan is reasonable and necessary.

While Aviva submitted that DP’s injuries are predominantly minor injuries (as that term is defined in section 40 of the Schedule), the Adjudicator noted that DP broke her arm in the accident. The definition of a minor injury does not include broken bones, so this ground of denial must fail. The Adjudicator did not deal with it in any further detail.

Issues:

1. Is DP entitled to $2,912.00 for the cost of an orthopaedic assessment submitted to Aviva on October 17, 2016?
2. Is DP entitled to interest on the overdue payment of benefits?
3. Is either party entitled to its costs of this application?
4. Is DP entitled to an award under section 10 of Ontario Regulation 664, Automobile Insurance (“Regulation 664”) on the basis that Aviva unreasonably withheld or delayed payment of benefits?

Result:

1. DP is entitled to the cost of an orthopedic assessment;
2. DP is entitled to interest on the overdue payment of benefits;
3. Neither DP nor Aviva is entitled to costs incurred in this application; and,
4. DP is not entitled to an award under Regulation 664.

ANALYSIS

The Schedule specifies that an insurer is responsible for all reasonable and necessary treatment. While the schedule caps recovery at $2,000.00, other guidelines published by the Superintendent of Insurance allow for the additional recovery of travel expenses, preparation of treatment and assessment plans, and HST. The allocation of $2,000.00 of DP’s benefits to $2,912.00 worth of assessment fees will not exceed the Schedule’s cap. The other $912.00 of fees were comprised of transportation costs, completion of an OCF 18 form and taxes, expenses that have not been challenged directly by Aviva and are recoverable independently of the cap under sections 25(1), 25(4), and 15(1)(g) of the Schedule.

Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. Those provisions have been interpreted to require an applicant to prove, on a balance of probabilities, that any claimed medical expenses are reasonable and necessary.

DP’s is seeking payment of the cost of an assessment of that injury by an orthopaedic surgeon, Aviva submitted that the assessment is not reasonable and necessary in light of companion diagnoses and treatment that DP received from OHIP and through Manulife. Its opinion is based on IE assessments conducted on its behalf by an orthopaedic surgeon, on October 4, 2016 and December 16, 2016. The Adjudicator did not agree with that submission.

The evidence presented in the IE by Aviva does not describe what treatments and assessments were provided by OHIP and Manulife, and therefore does not support Aviva’s position. Only passing reference is made to treatment plans of October 29, 2015 and January 25, 2016. DP’s own orthopaedic assessment is the only comprehensive assessment DP has had since her accident that has been put in evidence before me.

Aviva did not elaborate in its submissions on how or why the assessment was unreasonable and unnecessary.

The thrust of the denied assessment is the existence of doubt about DP’s ability to resume her pre-accident vocation as a YMCA personal trainer and fitness instructor, and her need for further treatment. The Adjudicator found this assessment to be reasonable and necessary. DP has been limited by her accident, perhaps permanently, from engaging in a variety of sports and in fitness-related employment.

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